Hakim and Anor-Assignment

HAKIM &
ASSOCIATES
(ADVOCATES & SOLICITORS)
MOHD FAREEZ BIN ISMAIL

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
NURUL SYUHADA BT AMER AFIQAH BT MOHAMMAD
LLB (HONS) USIM LLB (HONS) USIM
NUR SHUHADA BT KADIR MA KALTHUM BT ISHAK
Our Ref :
Date:
Your Ref :
TUTORIAL QUESTION 1
I HAD BEEN ASKED BY MR CECIRO TO DEFINE AND ILLUSTRATE THESE TERMINOLOGIES
FOR HIM.
1) Power:
The term judicial power can be broadly defined as “the power which every sovereign authority must
of necessity have to decide controversies between its subject, whether the rights relate to life, liberty or
property. The exercise of this power does not begin until some tribunal which has power to give a binding
and authorities decision (whether subject to appeal or not) is called upon to take action.
In other word, it’s the power of the court to ask the party to do or not to do something. Normally
power can be used after the trial where the court wants to sentence the accused. That statement of the
Australian Chief Justice was cited with approval by Justice Zakaria Yatim in Public Prosecutor v. Dato’
Yap Peng (1987) 2 MLJ 311 when the corresponding term in the Federal Constitution was the subject of
judicial interpretation.
2) Jurisdiction:
The term jurisdiction means “jurisdiction” and when it’s used with reference to courts. It refers to
the type of cases that may be tried. Thus a court may be described as exercising Civil or Criminal or
general jurisdiction. In other words, it’s mean that the right of the court to decide and grant remedies. It
refers to the case that may be tried.
No. 17, 1st. Floor, Diamond Square Building, Sri Hartamas, 68210 Damansara,
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
1
Email: zabihainie_herihogwarts@yahoo.com.my
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
3) Original Jurisdiction:
When it is said that a court is exercising ‘original jurisdiction’. It means that the court has the right
to try cases at first instance that is the power to hear the case for the first time, after the lower court had
made the decision.
For example, only the High Court can exercise original jurisdiction in respect of the offence of
murder. In general, a court’s original jurisdiction is governed by monetary limits in civil matters and the
power to inflict punishment in criminal matters.
4) Appellate Jurisdiction:
On the other hand, if a court is said to possess “appellate jurisdiction”, it means the court considers
the case at second or more instance and only after another lower court has made a decision which is the
subject of an appeal. Thus, the High Court is said to be exercising appellate jurisdiction if it hears an
appeal from a decision of a Magistrate’s Court.
5) Referral Jurisdiction:
The referral jurisdiction is its authority to determine constitutional questions which have arisen in
the proceedings of another court but referred to it for a decision by way of a special case stated. When it
has decided, it remits the case to the original court to be disposed of in accordance with that
determination. Pending determination of the case by Federal Court, the court before which the question
has arisen may stay proceedings.
In other words, it is when the Federal Court or High Court been referred for constitutional matters
which had arisen in the lower court. Whereas, we know that the lower court can’t made any decision when
it is involving the constitutional matters
2
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
6) Supervisory and Revisionary Jurisdiction:

The term “supervisory jurisdiction” refers to the power of High Court to control the activities of
the subordinate court of tribunals. In respect of the Subordinate Courts, the supervisory and revisionary
jurisdiction is provided in section 35 of the Court Of Judicature Act 1964 (Act 91).
The supervision power is different from the review power. Where the High Court calls for any
record, all proceedings in the subordinate Court in the matter in question must be stayed pending further
order from the High Court.
In general, as a superior court, the High Court has the power to supervise the conduct of and
review the decisions of subordinate court. It is a body exercising quasi-judicial bodies’ functions and
general tribunals.
One of the methods of supervision is through the issue of the prerogative writs from the
prerogative jurisdiction inherited from the United Kingdom’s Court. Section 25(2) of the Courts Of
Judicature Act road with section I of the schedule to the Act confers power on the court to issue directions,
orders or writs including the writs of the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, or any others for the enforcement of the rights conferred by part II of the constitution or
any of them or for any purpose.
As a conclusion, it is the power of the High Court to control the activities of the subordinate court.
Then, the High Court will check the legality of proceeding and decision (procedural law)
3
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
7) Judicial Review Jurisdiction:

The term “judicial review jurisdiction” refers to the power of the court to pronounce on the legality
or otherwise of a statute or an act. The authority to exercise it’s review jurisdiction is to be found in the
inherent power of the court. It stems from the notion that is the rule of law. Given that the powers of
public authorities have expanded in modern government, the court asserts the right to ensure that acts are
done within their statutory limits. The courts invoke the doctrine of ultra vires to strike down
administrative acts or decisions which are illegal or in excess of jurisdiction
4
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
TUTORIAL QUESTION 1(2)
I was asked to advise Mr. Kumaran whether
Subordinate Court i.e.: Magistrate Court has the jurisdiction to award punishment beyond the limit under
Subordinate Court Act. Whereas Mr. Kumaran is charged under the Dangerous Drug Act 1952. But, he is
confused whether the Magistrate Court has the jurisdiction or not.
As we know, Magistrate’s Court is divided into First
Class Magistrate and Second Class Magistrate. Section 85, the general rule of jurisdiction to try by the First Class
Magistrate stated that First Class Magistrate shall have jurisdiction to try:
I. Offences punishable up to ten years imprisonment @ fine, and.
II. Section 392 and section 457 of the Penal Code.
Section 392 is about robbery and section 457 is about lurking house / trespass in order to commit an
offence.
5
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
While the general rule for First Class Magistrate to impose sentence is Section 87 which states that a First
Class Magistrate may impose sentence allowed by law not exceeding:
I. Five years imprisonment
II. A fine of ten thousand ringgit
III. Whipping up to 12 strokes
IV. Any sentence combining any of the aforesaid:
Provided that where, by any law for the time being in force, jurisdiction is given to the court of any
Magistrate to award punishment for any offence in excess of the power prescribed by this section, a First Class
Magistrate may, notwithstanding anything herein contained, award the full punishment authorized by that law.
Mr.Kumaran had been charged under Section 12(2) of the Dangerous Drug Act 1952 (Revised 1980)
already stated that:
“No person shall have in his possession, custody or control any dangerous drug to which this Part
applies unless he is authorized to be in possession, custody or control of such drugs or is deemed
to be so authorized under this Act or the regulations made thereunder”
6
And he will be sentenced under Section 12(3) which
states that:
“any persons who contravenes the provisions of subsection (2) of this section shall be guilty of an
offence against this act and shall be liable on conviction to be fine not exceeding one hundred
thousand ringgit or imprisonment for a term not exceeding five years or both.”
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
In this case, Magistrate Court has the jurisdiction to award full punishment because it is authorized under
Section 41 (1) which states that:
“a Session Court or a Magistrate’s Court presided over by a Magistrate of the First Class shall
have jurisdiction to try any offence under this act except in offence under s39B and power to
impose any offence so tried the full punishment or penalty provided for that offence by this act or
by any regulations made thereunder, other than, in the case of Magistrate Court, imprisonment not
exceeding 5 years.”
In this section, it’s clearly stated that First Class
Magistrate ha the jurisdiction to try this case. The sentence for imprisonment is five years and in the Section 87
(1) of the Magistrate’s Court jurisdiction in order to pass sentence is also five year imprisonment. The exception
under this section also gives the First Class Magistrate the power to award full punishment.
7
Section 41 (2) states that:
“Notwithstanding the provisions of subsection (1), the High Court shall have jurisdiction to try
any case in respect of any offence under this act if the public prosecutor requires any such case to
be tried by the High Court.”
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
But, in this case the public prosecutor wants to bring the case to the Magistrate Court.
We can refer to the case of Lee Heng Kooi v. PP
(1993) 1 MLJ 69 whereas in this case, the issue is whether Section 85 is valid or not because in Section 85, there
is no sentence for whipping but Section 87(1) state that the First Class Magistrate has the jurisdiction to impose
whipping. It is a conflict between Section 85 and Section 87. So, Magistrate Court shall not have the jurisdiction.
But, to judge this case we should read Section 85 + Section 87+ Section 40 (1) all together. Then, we would
know why Magistrate’s Court has the jurisdiction to impose sentence in this case.
For the conclusion, Magistrate’s Court shall have the
jurisdiction to award punishment beyond it’s limit.
8
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
LBA 1043 MALAYSIAN LEGAL SYSTEM 11

CASE NOTE.
1) Citation of the Case: (1998) 2 MLJ 268
2) Name of the Case: SOVA SDN. BHD. v. KASIH SAYANG REALTY SDN. BHD
3) Name of the Court: High Court of Alor Setar
4) Catchwords: Civil Procedure - Jurisdiction - Whether court has jurisdiction to determine dispute -
"Local jurisdiction" - Meaning of - Place of business and place where cause of action arose different from
9
place where proceedings instituted - Whether court is the proper forum - Whether application irregular -
RHC 1980, O 81 - Courts of Judicature Act, 1964, s 23
5) Judgement (Facts): On December 10, 1986, Sova Sdn. Bhd., the plaintiffs, instituted the present civil suit
against Kasih Sayang Realty Sdn. Bhd., the defendants, whereby they alleged that the
defendants have committed a breach of a sale and purchase agreement entered into by the
two parties on March 13, 1984. By their writ of summons with the accompanying
statement of claim filed in this court on the same date, the plaintiff request for an order for
specific performance of the said agreement and alternatively a rescission of the said
agreement and they also claim damages and costs.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
6) Legal Issue: Whether court has local jurisdiction to determine dispute between the parties.
7) Defendant Argument:
1) That this court has no jurisdiction to determine the dispute between the parties. According to section 23(1),
the plaintiffs not even fulfil this section whereas in this section none of the criteria fulfilled.
In his submission on the jurisdiction issue the learned before counsel contends that as the cause of action arose in
Penang and places of business of both the plaintiff company and the defendant company are located in Kuala
10
Lumpur, it must follow that this court has no jurisdiction to determine the dispute between the two parties
pursuant to section 23(1) of the Courts of Judicature Act 1964.
“23. (1) Subject to the limitations contained in Article 128 of the Constitution of the High Court shall
have jurisdiction to try all civil proceeding s where -
a) the cause of action arose, or
b) the defendant or one of several defendants resides or has his place of business, or
c) the facts on which the proceedings are based exist or are alleged to have occurred , or
d) any land the ownership of which is disputed is situated within the local jurisdiction of the
court and notwithstanding anything contained in this section in any case where all parties
consent in writing within the local jurisdiction of any other High Court.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
2) That the application for necessary judgment pursuant to Order 81 of the Rules of the High Court 1980
should be dismissed with costs for non-compliance with Order 81 rule 2(2) of the said Rules.
8) Plaintiff Argument:
11
1) According to section 121(1), any branches of High Court in Malaya shall have jurisdiction - and - exercised the
concurrent jurisdiction even though regardless of where the cause of action arose (section 23)
2) The case shall be brought at any High Court because there did not have agreement in writing which court shall
try the case.
9) Ratio Decidendi:
High Court of Alor Setar sees that the purpose of having the branches is to enable the party to have easy excess
and to facilitate the disposal of cases in Malaya. (to settle the case faster)
10) Held
The court held that this case shall be brought to the High Court of Penang and High Court of Kuala Lumpur
because this court is not the proper and convenience forum to determine the dispute between two parties.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
CASE NOTE
12
1. Citation of the case: (1981) 1 MLJ 165.
2. Name of the case : HARI RAM SEGHAL v. PUBLIC PROSECUTER.
3. Name of the Court: High Court (Malacca).
4. Catch Note : Criminal Law and Procedure – Revision – Disposal of
outstanding appeals when records had become unobtainable – Revisionary powers of High Court –
Application of English Procedure Criminal Procedure Code (F.M.S. Cap. 6), ss. 5 & 323
– Courts of Judicature Act ( 91), s. 31.
5. (Judgment): Facts: The applicant, who was a Chief Inspector Royal Malaysian Police, had been charged
under s.352 and s.323 of the Penal Code. When the case tried in the Magistrate Court, Judge decides
that the offences against him proved. In respect of the first one, he bound over the applicant under
s.173A(ii)(b) of the Criminal Procedure Code without recording a conviction in the sum of $200.00 with
one surety to be a good behaviour for 6 months; and, in respect of the second one, he convicted and fined
the applicant $500, in default 3 months imprisonment.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
13
The appeal had been filed for both accusation and the applicant wait for the record sent to him. Unfortunately,
the Magistrate left Malacca to pursue his degree course at University Malaya and he took the record with
him, and he ignored or neglected to write the records of proceeding. High Court decides to revise the case.
6. Legal Issue: Whether the revisionary jurisdiction of the High Court can be exercised in this case.
7. Appellant’s argument:
 The power or revisionary jurisdiction of High Court must be given wider interpretation.
 S.5 of the Criminal Procedure Code, a law relating to criminal procedure may be exercised
in this case because the powers of revision also contain in this Criminal Procedure Code.
 Order a retrial will take time. The applicant had been denied justice for almost 3 years.
Unfair for the applicant.
 The applicant also suffered interdiction and half salary for 1 ½ years and a further 2 ½ years
without any pay at all.
8. Respondent’s argument:
 Should order a retrial because we owed a duty to the complainants.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
14
Our Ref :
Date:
Your Ref :
9. Ratio decidendi:
High Court of Malacca sees that the power of revision by the High Court must be given a wider
interpretation. Besides that the judges of Magistrate Court also neglect and indolence to submit the record.
10. Held: The accused acquitted and discharged on both charges.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
15
Our Ref :
Date:
Your Ref :
CASE NOTE
1. Citation of the case : (1973) 2 MLJ 85
2. Name of the case : HASHIM BIN SAUD v. YAHAYA BIN HASHIM &
ANOR
3. Name of the Court : High Court (Alor Star)
4. Catch Note : Constitutional Law-Constitutional question raised-claim for
Damages for wrongful arrest against government-Whether
High Court has jurisdiction to hear the case-Courts
of Judicature Act 1964 ss 25(1) and 48(1)-Federal
Constitution Art 5(1) and 128(2)
Practice and Procedure-High Court-Jurisdiction
5. Name of presiding judge : Sharma J.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
16
Our Ref :
Date:
Your Ref :
6. Facts of the case : The plaintiff claimed damages for wrongful arrest against and Inspector of
Police and the Government. It was contended by the Senior Federal Counsel for the defendant that the
High Court had no jurisdiction to go into the merits of the case as the pleadings disclosed that an issue
under Article 5(1) of the Federal Constitution would arise in the suit.
7. Legal issue: Whether High Court determine the case by itself or not?
8. Plaintiff argument :
1. 23(1) of the Courts of Judicature Act 1964 explained that High Court have jurisdiction to try the
case
2. Section 48(1) of Court of Judicature Act 1964 stated that High Court have to wait the decision by
Federal Court
9. Defendant argument :
1. Section 128(2) qualify the jurisdiction of the Federal Court
2. Art 5(1) and Art 5(3) under Federal Constitution about right to life and personal liberty
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES
17
NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
10. Held : The combined effect of Article 128(2) of the Federal Constitution and
Section 48(1) of the Courts of Judicature Act, is that if any proceedings in the
High Court any constitutional question arises the judge of the High Court trying
the case, may either try it himself and determine that question or without
deciding and determining the question stay the proceedings and refer the question
for the decision of the Federal Court.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES
18

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
TUTORIAL QUESTION 4(A)
DISTINGUISH THESE TWO TERMINOLOGIES:
APELLATE JURISDICTION SUPERVISORY AND REVISIONARY JU
1) When the aggrieved party fail in the trial court, he will 1) Determine higher court’s jurisdiction to ch
appeal to the appellate court. legality/propriety of the lower court proce
2) To considers the case at second or more time. 2) The party want the court to check the lega
3) After the lower court has made a decision which is the 3) S.31 of the CJA 1964 empowers the High
subject to an appeal. decisions made in Session Court relating t
4) Before proceeding to the appeal provisions one points need 4) S.32, the judge may call for the record of a
to be clarified and that is that appeals are creatures of any lower court for the purpose of satisfyi
statutes. This point was highlighted in the case of Dato’ correctness, legality or propriety of any fin
Seri Anuar Ibrahim, N.H.Chan JCA said, order recorded or passed and as for the reg
proceeding by any lower court.
“There is no right of appeal at law from a decision of a
court to any other court unless there is a statutory 5) The judges would call for the records shou
provision which gives a right of appeal. The creation of a drawn to a case through:
right of appeal is an act which requires a legislative
authority. The right to appeal from one court to another • Newspapers
must be conferred by some statute; otherwise the • Relatives
decision of every court is final.” • Convicted offenders ask him to do
• Session Court’s judge own motion
6) Can be done voluntarily
7) To prevent a miscarriage of justice.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES
19
NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
TUTORIAL QUESTION: 4 (B)
A group of aggrieved aborigines (the appellants) request the court to consider the possibility of bringing an
appeal against the Nice Nature Sdn. Bhd., developer of a dam in their motherland. After losing in the first attempt
in the Magistrate’s Court, they proceeded to appeal at the High Court. However, the High Court did not entertain
the claim. Now they are pursuing the case to the Court of Appeal.
As the lawyer representing the aborigines, I need to
write my written submission to the Court Of Appeal in order to explain why the aborigines should have the right
and ground to make the appeal and whether the aborigines should have the rights and ground to make an appeal
Firstly, we need to know whether civil appeal from the subordinate court can be brought to the High Court.
According to the section 28 (1) of the Courts of Judicature Act 1964 (Act 91):
Subject to any other written law, no appeal shall lie to the High Court from a decision of a subordinate
court in any civil cause or matter where the amount in dispute or the value of the subject matter is ten
thousand ringgit or less except on a question of law.
Meaning that , if the amount of appeal did not exceed RM 10,000 the appeal cannot be brought to the
High Court. In this case the amount of claim is RM 249,999.99. So, it is obvious for us that the aborigines has the
right to appeal to the High Court and High Court should hear the case but High Court had done a miscarriage of
justice when he refuse to entertain this case.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
20
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
The Court of Appeal has jurisdiction to hear and determine civil appeals from the High Court’s original
jurisdiction or it’s appellate jurisdiction. This already stated in the S.67 of the CJA 1964 where:
(1) The Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order
of any High Court in any civil cause or matter, whether made in the exercise of its original or of its
appellate jurisdiction, subject nevertheless to this or any other written law regulating the terms and
conditions upon which such appeals shall be brought.
(2) The Court of Appeal shall have all the powers conferred by s.24A on the High Court under the
provisions relating to references under order of the High Court.
In this case, the Court of Appeal shall have jurisdiction to hear this case because it come from the High
Court’s appellate jurisdiction. Although High Court did not entertain the claim by the aborigines but, the
aborigines already brought the case to the High Court. They have the right to appeal to the Court of Appeal and
they did not contravene any law regulating this act.
As we know, in the Court of Appeal, there are conditions to make the appeal as already stated in the s.68
of the CJA 1964:
(1) No appeal shall be brought to the Court of Appeal in any of the following cases:
(a) When the amount or value of the subject-matter of the claim (exclusive of interest) is less
than two hundred and fifty thousand ringgit, except with the leave of Court of Appeal;
Kuala Lumpur.
21
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
Meaning that, if the amount or value of the subject matter did not exceed RM 250,000 the
appeal cannot be brought to the Court of Appeal unless they got the permission from the
Court of Appeal
(b) where the judgment or order is made by consent of parties;
This paragraph told us that the parties agreed to settle the case at the High Court. They
cannot bring any claim because High Court has mutual consent judgment so; there will be no
appeal to the Court of Appeal.
(c) where the judgment or order relates to cost only, which by law are left to the discretion of the
Court, except with the leave of the Court of Appeal; and
Generally, the parties cannot appeal on the cost of proceeding except with the leave of the
Court of Appeal. For example, at the High Court, the defendant lost and need to pay all the
cost of proceeding. He cannot appeal on the cost, but if he insists he shall get the permission
from the Court of Appeal.
(d) where, by any written la for the time being in force, the judgment or order of the High Court is
expressly declared to be final.
Meaning that, if there is any written law saying that the High Court’s decision is declared to
be final and conclusive.
22
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
In this case, the amount of appeal that had been made
by the aborigines is less than RM 250,000 that is RM249, 999.99. According to the section 68 (1) (a) stated that
the parties can appeal although the amount of appeal is less than RM 250,000 with the leave from the Court of
Appeal. This statement can be prove by the case of Pentadbir Tanah Daerah Melaka Tengah v. Mat Nayan bin
Tak [1996] 2 MLJ whereas in this case the amount in dispute is less than RM 250,000 but they can appeal.
The respondent in this case was a landowner whose land had been acquired under the Land Acquisition
Act 1960 (‘the LAA’). Dissatisfied with the compensation awarded by the collector, he referred him claim for
compensation to the High Court. The High Court judge increased the collector’s award to RM 44,964.71. The
district land administrator sought leave to appeal against this increase.
However, the respondent contended that although the amount of the High Court award was below RM
250,000 no leave to appeal was required as s 68(1) of the Court of Judicature Act 1964 (the CJA) did not apply
in this case. It was argued that the LAA was a self-contained piece of legislation which conferred the applicant an
independent right of appeal, as long as the collector’s award was above RM 5,000. The question before the court
was whether leave from the Court of Appeal was required to appeal in a land acquisition matter.
23
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
According to the s.71 of the CJA 1964:
(2) A new trial shall not be granted on the ground of improper admission or rejection of evidence unless
in the opinion of the Court of Appeal some substantial wrong and miscarriage of justice has been thereby
occasioned; and if it appears to the Court of Appeal that the wrong or miscarriage affects part only of the
matters in controversy, or some or one only of the parties, the Court of Appeal may give final judgment as
to part thereof, or as to some or one only of the parties, and direct a new trial as to the other part only, or
as to the other party or parties.
In this case the High Court has conducted a miscarriage of justice that is a miscarriage of its
administration of the High Court for not to entertain this case. Therefore, the aborigine has the right
and ground to make the appeal to the Court of Appeal as the miscarriage of administration conducted
by the High Court.
The conclusion is the aborigine has the right to appeal to the Court of Appeal based on s.28, s.67, and
s.68. It also has the right for a new trial based on s.71 of the CJA 1964.
24
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
Tutorial Question 3(1)
Firm A.
As the lawyer for Kelly, I had been asked to consider her locus standi to bring her case to the court in Malaysia.
We need to know what the meaning of ruler and their sovereignty is.
Issue: a) whether Iskandar is a ruler
b) Whether Kelly has the right to bring the case to
the Court for Ruler
c) Whether this case is under Iskandar’s personal capacity.
1. Intrepretation of “Ruler”
a) Article 160 of the Federal Constitution :
• In relation to Negeri Sembilan, means Yang di-
Pertuan Besar acting on behalf of himself and the Ruling Chiefs in accordance with
the Constitution of that State; and

25
• In the case of any State, includes, except in Clause (2)
of Article 181 and the Third and Fifth Schedules, any person who in
accordance with the Constitution of that State exercises the functions of the Ruler.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
Normally the definition of ruler depends on the state constitutions. The term rulings chief in
Negeri Sembilan consists of:
i) Undang Yang Empat
ii) Undang Luak Sungai Ujong
iii) Undang Luak Jelebu
iv) Undang Luak Johol
v) Undang Luak Rembau
vi) Undang Tunku Besar Tampin
26
In the case of DYTM Tengku Idris Shah Ibni Sultan
Salahuddin Abdul Aziz Shah v. Dikim Holdings Sdn Bhd & Anor the interpretation of ‘ruler’ cannot be
interpret to his successor. Tengku Idris Shah can be sued because he is only the successor for his
father. But in the case of Kelly v. Sltan Iskandar, Sultan Iskandar is a ruler indeed. What made him
can be sued in this case is it is about his personal capacity when he cancel their marriage. Kelly has her
right to claim for the monetary and exemplary damages suffered in the course of preparation of the
marriage and the wide publicity made in Vietnam since she was a model and well-known.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
2. We need to know what ruler’s sovereignty/power/authority is. We can refer to the:
a) Article 181
• Subject to the provisions of this Constitution, the sovereignty, prerogatives, powers and jurisdiction
of the Rulers and the prerogatives, powers and jurisdiction of the Ruling Chiefs of Negeri Sembilan
within their respective territories as hitherto had and enjoyed shall remain unaffected.
The sovereignty of a ruler did not limit on
their own territories. Their sovereignty also cannot be challenged. Before 1993, ruler cannot be
sued in any manner or any law because they got the absolute immunity such as in the case of
27
Mighell v. Sultan Of Johore [1894] QB 147 where the Sultan Of Johore had breach the promise
to marry Mighell but he cannot be sued because he enjoyed the absolute immunity.
There is exception in S.181 (2) where it had
stated that, after 1993 the ruler can be sued if the matter in dispute is in his personal capacity.
But if the ruler were act in the position of hid official capacity he still cannot be sued. For
example, he represents the state to sign a contract with a company and at that time the ruler did
something wrong, he cannot be sued.
This can be seen in the case of Faridah Begum v.Sultan Haji Ahmad Shah whereas in this case,
Faridah had sued Sultan Haji Ajmad Shah in his personal capacity. So, in the case of Kelly, she
can sue Sultan Iskandar in his personal capacity.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
Article 182:
1. Any proceedings by or against the Yang di-Pertuan Agong or the Ruler of the State in his personal
capacity shall be brought in a Special Court established under Clause (1).
28
2. The Special Court shall have exclusive jurisdiction to try all offences committed in the Federation
by the Yang di-Pertuan Agong or the Ruler of a State and all civil cases by or against the Yang di-
Pertuan Agong or the Ruler of a State notwithstanding where the cause of action arose.
This Article already mentions that action can be
sought against a ruler in his personal capacity in Court of Rulers. In this case Iskandar has canceled
all the previous arrangements about their marriage and it was actually under his personal capacity or
his own personal profit, therefore the breach of promise to marry by Iskandar was under his own
personal capacity, so that Kelly has the right to bring the case to the Court of Rulers.
This article does not state specifically who can sue a
Ruler. The provisions of the Article 182 emphasize on the fact that the Special Court has exclusive
jurisdiction to try cases by or against the Yang di-Pertuan Agong or the Ruler of a State. It is
significant to note that Article 182 does not mention the word “citizen”, “non-citizen”, or “person”.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
29
In the case of Faridah Begum, Judge Anuar Zainal Abidin had stated that she can sue although she is
not a citizen of Malaysia because this section did not clearly mention that only a citizen can sue a ruler.
So as in the case of Kelly, although she was born in Vietnam and not a citizen of Malaysia, she can sue
Sultan Iskandar in his personal capacity in the Court for Ruler in Malaysia.
(c) Article 183:
(1) No action to be instituted against the Yang di-
Pertuan Agong or a Ruler except with the consent of the Attorney General
personally.
(2) No action, civil or criminal, shall be instituted
against the Yang di-Pertuan Agong or the Ruler of a State in respect of anything done
or omitted to be done by him in his personal capacity except with the consent of
the Attorney General personally.
Meaning that, if someone got the consent
from the Attorney General, they have the right to sue the ruler. In the case of Faridah Begum she got
the consent from the AG although she is not a citizen of Malaysia. So, if Kelly got the personal consent
from the AG she may sue Sultan Iskandar although she is not a citizen
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
30
Our Ref :
Date:
Your Ref :
As a conclusion, Kelly shall have her right to sue
Sultan Iskandar to claim for the monetary and exemplary damages suffered in the course of preparation of
the marriage and the wide publicity made in Vietnam since she was a model and well-known. Besides that,
she sued Sultan Iskandar in his personal capacity not his official capacity and as I mention before, art 181
(2) stated that we can sue ruler in their personal capacity. In addition, although she is not a citizen she still
can proceed with her summons because art 182 don’t even state that a non citizen cannot sue a ruler.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
31
Our Ref :
Date:
Your Ref :
Tutorial question 4
The Court Martial and Court for Rulers are the only courts empowered to impose sentence of death. Explain
about the special features of the Court Martial.
1) Definitions of the terms that is use in Court Martial.
a) S.2
• Armed forces: includes regular forces and volunteer forces of Malaysia and any other forces
which may be declared by the YDPA from time to time to be armed forces.
Meaning that, all the regular force and voluntary are armed forces. If you want to know,
regular force consist of army, navy and air force while the example of voluntary force is ‘askar
wataniah’
• Officer: any person of or above the rank of midshipman or officer cadet who has been appointed
to or commissioned in the armed forces and (subject to such adaptation and modifications as may
be prescribed by any written law or the conditions of service relating to such appointment,
secondment, attachment or loan) any officer of naval, military or air forces of a foreign country
duly appointed, seconded, attached or on loan to the armed forces.
Midshipman means any naval that their rank

is lower than lieutenant .Officer also had given meaning that any armed forces that had been appointed,
promoted, attached to a department or on temporary period to the armed forces.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
32
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
• Servicemen: any person other than officer who is enlisted in the regular forces and (subject to
such adaptation and modifications as may be prescribed by any written law or the conditions of
service relating to such appointment, secondment, attachment or loan) any servicemen of any
naval, military or air forces of a foreign country duly appointed, seconded, attached or on loan to
the regular forces.
Their rank in each type of army is differing.

For example:
i) In the army: below sergeant
ii) In the air force: below general officer
iii) In the navy: below captain
b) S.3.
• Active service: it means that it is engaged in operations against an enemy, or in a country or

territory outside the federation for the preservation of life or property or is on military
occupation of a foreign country and in relation to a person means that he is serving in or with
such a force which is on active service.
Meaning that operations against an enemy in our country or abroad for rehabilitation of
life or property or sending for mission such as mission to give aid in the war on military
occupation of a foreign country.
Read with sec.88 (4)

33
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
2) Jurisdiction of the court to try:
• S.103 (1) – to try any person subject to service law for any offence which is triable by court-
martial.
Meaning that, as long as the army is in service, he is under court martial.
• S.103 (4) – a court martial shall not, unless it consists of at least 5 officers, try any offence for
which the maximum or only punishment with death.
If the punishment involving death sentence, the bench sitting for court-martial shall consists
at least 5 officers if not, sentence for death cannot be granted.
3) Decision of the court martial:
• S.112 (3) – a finding of guilty where the only punishment which the court can award is death
shall not have effect unless it is reached with the concurrence of all members of the court; and
34
where, on such a finding being come to by majority of the members, there is no such
concurrence, the court shall be dissolved and the accused may be tried by another court martial.
If the sentence involving of death but not everyone in the court agreeing that the person
should be imposed death sentence, the court shall be dissolved and the accused need to be
tried by a new court martial.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
• S. 112 (4) – where the accused is found guilty and the court has the power to sentence him
either to death or to some less punishment, sentence of death shall not be passed without the
concurrence of all members of the court.
Meaning that, if the courts want to impose death sentence, all the courts members should
agree with the decision. It needs to be a unanimous decision.
4) Confirmation of death sentence:
• S.127 (1) – a sentence of death which has been confirmed shall not be carried into effect unless
approved by the YDPA.
35
The general rule is the death sentence only shall be approved by the YDPA.
But there is exception where we can withdraw or

waive this general rule whereas if it in the interest of discipline and security, the conforming
officer may imposed the sentence at that time.
For example, if it involved emergency cases such as

betrayed to the country. The accused had conspiracy with the communist and he had found
guilty. He also had killed many people. The court martial shall imposed him to the death and
don’t have to wait for the approval from the YDPA.
• S.127 (2) – s 127 (1) shall be waive if is in the interest of discipline and for the purpose of securing
the safety of the force which the person sentenced in present, that the sentence should be carried
out forthwith and the confirming officer states that opinion in the minute confirming the sentence.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
5) Punishment
The exclusively punishment provided for the armed
forces is stated under
Section 89 (2) (a) and Section 90 (2) (a).
36
Section 89 (2)(a) provided punishment of officer in
the following scale, those are death, imprisonment less than 14 years, dismissal with disgrace, dismissal,
forfeiture or reduction to the rank, dismissal from the ship which he belongs, fine, serious reprimand, offence
involves expenses or loss or damages or stop pages.
While Section 90 (2) (a), provided punishment of
servicemen according the scales listed such as death, imprisonment less than 14 years, work dismissal, on
probation not exceeding 2 years (observation), punished if active servicemen, reduction to the rank, warrant
officer or non-commissioned officer forfeiture of seniority of rank, fine, reprimand, forfeiture of good conduct
badges, offence has occasioned any expense, loss or damages, stoppages
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
TUTORIAL QUESTION 5
37
IN THE NATIVES COURT OF SARAWAK, ONCE A DECISION HAS BEEN MADE, CAN THE UNSATISFIED
PART APPEAL? IF YES HOW, IF NO, WHY?
Court’s hierarchal
Native Court of Appeal
Residents Native Courts
District Native Courts
Chief’s Superior Court
Chief’s Court
Headman’s Court
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
38
• s.13 (1) stated that appeal shall be brought in the Native Court of Sarawak from the:
a) Headmen’s Court to the Chief’s Court
b) Chief’s Court to the Chief’s Superior Court
c) Chief’s Superior Court to the District Native Court
d) District Native Court to the Resident’s Native
Court
e) Resident’s Native Court to the Native Court of
Appeal.
All the matters in the s.5 (1) and s.5 (2) only shall be appeal from the Headmen’s Court until Chief’s
Superior Court whereas the decision of the Chief’s Superior Court will be final and conclusive except the case
involving land disputes. This type of case shall be brought to Native Court of Appeal.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
39
Our Ref :
Date:
Your Ref :
1) Definitions of native.
a) Art 161A(6)(a) FC:
 First and foremost, according to Art 161A (6) (a) of the Federal Constitution native can be
defined as a citizen, either belong to one of the indigenous (originating in and characterizing a
particular region or country) races to the state or mixed blood deriving exclusively from those
races which is it may come from father or mother.
Meaning that a native must be:
• A citizen
• Either belongs to one of the indigenous races to the state or
• Mixed blood delivering exclusively from those races.
b) Art 161A(7) FC:
 The word ‘races’ in that Art is specified by Art 161A (7) where the races are Bukitans,
Bisayahs, Dusuns, Sea Dayaks, Land Dayaks, Kadayan, Kalabits, Kayans, Kenyahs (including
Sabups and Sipengs), Kajangs (including Sekapans, Kejamans, Lahanans, Punans, Tanjongs
and Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians, Tagals, Tabuns and
Ukits.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES
40
NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
2) Matters that cannot be appeal to DNC.
• S.5 (1): A Native Court shall, subject to sec.28, have jurisdiction over-
(a) case arising from the breach of a native law or custom (other than the Ordinan Undang- Undang
Keluarga Islam, 1991, or the Malay Custom of Sarawak) in which all the parties are subject to the same
native system of personal law:
Meaning that breach of native law or custom- all parties are same native. Case involving native law or
custom other than Muslim and Malay (All parties are native)- involve belong same ethic group and
race.
(b) Cases arising from breach of native law or custom (other than Ordinan Undang- Undang
Keluarga Islam, 1991, or the Malay Custom of Sarawak) relating to any religious, matrimonial or sexual
matter where one party is a native.
Meaning that cases breach of native law or custom which relating to religious, matrimonial, or sexual
matter but with different native such as one party native and one non-native and mixed married.
(c) Any civil case, not being case under the jurisdiction of any of the Syariah Courts constituted under
the Ordinan Mahkamah Syariah, 1991, in which the value of the subject matter does not exceed two
thousand ringgit and all parties are subject to the same native system of personal law.
Any civil case out of Syariah Court jurisdiction value subject matter not exceed 2000 ringgit and all
parties with same native.
41
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
d) any criminal case of a minor nature which are specifically enumerated in the Adat Iban or any other
customary law by whose custom the court is bound and which can be adequately punished by a fine not
exceeding that which, under section 11, a Native court may award, and
Any criminal case of minor native specifically in the Adat Iban or any other customary law where
the power to punish to fine not exceeding under sec.11.
(e) any matter in respect of which it may be empowered by any other written law to exercise jurisdiction.
Any other matter empowered by written law.
Proviso
Any proceeding is about paragraph (b) or (e) or under subsection (2) are to have good relation between
different communities or to have security and safety to stay the proceeding, application of more than
one native system of personal law, or for the other reason the parties should have the remedies as they
may have in the other courts, to order that the proceeding shall be stay or not. In certain case, the
Resident shall make a report to the State Attorney –General, who may confirm or not (set aside) any
such order .
42
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
• (b) Sec.5 (2)
In cases relating to any matrimonial or sexual
matter in which a Native Court has jurisdiction where the parties are of different sexes and are not of the
same community, or are by virtue of any written law deemed to belong to or be identified with different
communities, the Native Court shall, unless the contrary is expressly provided in any written law, be
bound by the law or custom of the community of which the woman is or is deemed to be a member.
Cases relating to any case about matrimonial or sexual matter with the one parties are different not
with same community. This party will be bound by the law or custom of the community follow
which what the party for woman.
Proviso
Woman embraced in Islam will be bound by Islamic Family Law Ordinance, 1991.
43
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
3) Matters that shall be appeal.
a) S.12(1) Native Courts Ordinance (Sarawak):
 Can appeal in any ground if it involves question of native law/ custom alone.
 Also if it involves question of fact @ fact+ law @ against a sentence of imprisonment.
Meaning that, a native may appeal on any ground of appeal if it involves question of native
law or custom alone but if it involves question of fact or question of fact + law or against a
sentence of imprisonment, the appeal need to get permission or leave from the Resident.
b) S.12(2):
 If appeal is made from RNC, appeal lodged with the resident and in other every case, appeal
lodged with DO (within the district)
 S.12(2)(a) - If there is no ground stated in Native Courts Ordinance (Sarawak) 1992, the Resident,
District Officer, or anybody shall ascertain (make sure) and record the grounds of appeal.
44
For example the parties did not mention the time the appeal had been made. So, the District
Officer shall ask the parties involved and records the grounds of appeal.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
 S.12 (2) (b) - If the DO is not around, he may authorized any other person to act like him, as the
appeal from himself.
If the District Officer (DO) is not around, he may ask other person to act like him as the appeal
from himself. In other word the DO may delegate his power to other person and then the other
should take the record and give it back to the DO.
c) S.12 (3):
 An appeal shall be made in writing within 30 days from the date of the decision.
45
If the parties want to make an appeal, they shall make the appeal within 30 days after the
decision had been made and the appeal should be in writing
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
4) Power of the appellate court.
a) S.14(1):
 Dismiss the appeal
 Rehear the case itself or order the case to be heard by the lower court.
 Hear further evidence or order the lower court to do so.
46
 Order a retrial
 Set aside, reverse, amend or vary the decision
 Make an order that the court think that it is just.
5) Further investigations and appeal.
a) S.15-An appellate court other than Native Court of Appeal may, upon application or of its on motion,
investigate any case heard by an inferior court and may upon such investigation exercise any of the
powers which it might have exercised had there been an appeal:
Provided that there shall be an appeal from any exercise of the powers hereby conferred in a like
manner and subject to the like conditions as if such powers had been exercised on appeal.
Meaning that, any appellate court may investigate any case decided by the lower court except
Native Court of Appeal by it’s own motion.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
TUTORIAL QUESTION 6(3)

47
Suparjo studied his law degree in Islamic Science University of Malaysia. When he was in third year, he was
caught against the prohibition of smoking in the hostel and stealing money. The Disciplinary Board found him
guilty and he was fined suspended for one semester and completed his degree later. He then read in chambers for
nine months in Kuala Terengganu. During his call to the Bar, the State Bar Committee objected his petition due to
his previous criminal record.
In advising Suparjo, consider the following issues:
• Examine the status of decision issued by the Disciplinary Board.
• Justify the legitimacy of the State Bar Council’s objection. Would the answer be different if Suparjo was
found bankrupt due to his excessive debt of credit card?
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
48
Your Ref :
ANSWER
I was asked to advise Suparjo whether the State Bar
Committee has the right to object his petition due to his previous criminal record.
First, we need to know whether Suparjo is under
qualified person or not. According to s.3 of the Courts of Judicature Act 1964, ‘qualified person’ means any
person who:
a) Has passed the final examination leading to the degree of Bachelor of Laws of the University Malaya, the
University of Malaya in Singapore, the University of Singapore or the National University of Singapore.
b) Is a barrister-at-law of England; or
c) Is in possession of such other qualification as may be notification in the Gazzette be declared by the
Board to be sufficient to make a person a qualified person for the purposes of this act;
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES

NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
49
Our Ref :
Date:
Your Ref :
According to this section, Suparjo is a qualified person and he deserved to be an advocates and solicitor
because he had completed his degree and he also had read in chambers for nine months in Kuala Terengganu. He
had satisfied the conditions and the State Committee Bar should not object his petition.
Although s.16 (2) had stated that:
If the Attorney General, the Bar Council or any state Bar Committee intends to object to any petition,
there shall be served on the petitioner and filed in the Registrar’s Office, not less than three clear days or
any shorter period as the court may allow before the date fixed for hearing the petition, a notice of
objection which shall set out in brief terms the grounds of objection.
Meaning that, the State Bar Committee has the right to file petition but they need to state the reason
why they want to file the petition. In this case, the State Bar Committee had objected Suparjo’s petition
because they said that after they investigate on Suparjo, they found that Suparjo had caught smoking and
stealing the money and because of that reason, he had been fined suspended for one semester.
The State Bar Committee think that Suparjo do not have the right to file the petition. To be qualified for
admission of advocates and solicitor he also is needed to have a good character where in s.11 (1):
(b) Is of good character
But, even though Suparjo had been caught and suspended, it’s just a disciplinary action not criminal
conviction. The High Court may in its discretion admit these people to be an advocates and solicitor,
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
HAKIM &
ASSOCIATES
50
NUR SYUHADA MATWI
LLB (HONS) USIM
LLB (HONS) USIM
Our Ref :
Date:
Your Ref :
s.10:
(a) Any qualified person; and
(b) Any articled clerk who has complied with section 25:
As I said before, Suparjo is a qualified person and he deserved to apply as an advocates and solicitor.
For the conclusion, the objection by the State Bar Committee shall not be sustainable because Suparjo did
not do anything that contravene to the act to be an advocates and solicitor because although he was caught, it’s
just disciplinary action not criminal conviction.
2) If Suparjo was found bankrupt due to his excessive debt of credit card, the objection is legitimate
because s.11 (1) (b):
(ii) Has not been adjudicate bankrupt and has not been found guilty of any of the acts or omissions
mentioned in paragraph (a), (c), (d), (e), (h), (k) or (l) of subsection (6) of section 33 of the Bankruptcy
Act 1967
This act clearly mentions that if someone in bankruptcy, he cannot be admitted as an advocates and
solicitor. In this case, Suparjo was found bankrupt, so, if the State Bar Committee objected his petition due to this
reason, the objection can be sustained.
Kuala Lumpur.
Tel: 03-2147 5692 / Fax: 03-2147 5690
51

Hakim and Anor-Assignment

Încărcat de

Informații document

Descriere originală:

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Hakim and Anor-Assignment

Încărcat de

Drepturi de autor:

Formate disponibile

HAKIM &

MOHD FAREEZ BIN ISMAIL

MOHD FAREEZ BIN ISMAIL

MOHD FAREEZ BIN ISMAIL

6) Supervisory and Revisionary Jurisdiction:

MOHD FAREEZ BIN ISMAIL

7) Judicial Review Jurisdiction:

MOHD FAREEZ BIN ISMAIL

TUTORIAL QUESTION 1(2)

I was asked to advise Mr. Kumaran whether

confused whether the Magistrate Court has the jurisdiction or not.

As we know, Magistrate’s Court is divided into First

I. Offences punishable up to ten years imprisonment @ fine, and.

II. Section 392 and section 457 of the Penal Code.

MOHD FAREEZ BIN ISMAIL

Class Magistrate may impose sentence allowed by law not exceeding:

I. Five years imprisonment

II. A fine of ten thousand ringgit

III. Whipping up to 12 strokes

IV. Any sentence combining any of the aforesaid:

already stated that:

applies unless he is authorized to be in possession, custody or control of such drugs or is deemed

to be so authorized under this Act or the regulations made thereunder”

MOHD FAREEZ BIN ISMAIL

Section 41 (1) which states that:

In this section, it’s clearly stated that First Class

be tried by the High Court.”

MOHD FAREEZ BIN ISMAIL

We can refer to the case of Lee Heng Kooi v. PP

For the conclusion, Magistrate’s Court shall have the

jurisdiction to award punishment beyond it’s limit.

MOHD FAREEZ BIN ISMAIL

LBA 1043 MALAYSIAN LEGAL SYSTEM 11

1) Citation of the Case: (1998) 2 MLJ 268

3) Name of the Court: High Court of Alor Setar

RHC 1980, O 81 - Courts of Judicature Act, 1964, s 23

agreement and they also claim damages and costs.

MOHD FAREEZ BIN ISMAIL

pursuant to section 23(1) of the Courts of Judicature Act 1964.

have jurisdiction to try all civil proceeding s where -

a) the cause of action arose, or

MOHD FAREEZ BIN ISMAIL

try the case.

MOHD FAREEZ BIN ISMAIL

LBA 1043 MALAYSIAN LEGAL SYSTEM 11

2. Name of the case : HARI RAM SEGHAL v. PUBLIC PROSECUTER.

3. Name of the Court: High Court (Malacca).

4. Catch Note : Criminal Law and Procedure – Revision – Disposal of

– Courts of Judicature Act ( 91), s. 31.

the applicant $500, in default 3 months imprisonment.

MOHD FAREEZ BIN ISMAIL

Unfair for the applicant.

without any pay at all.

 Should order a retrial because we owed a duty to the complainants.

MOHD FAREEZ BIN ISMAIL

10. Held: The accused acquitted and discharged on both charges.

MOHD FAREEZ BIN ISMAIL

LBA 1043 MALAYSIAN LEGAL SYSTEM 11

1. Citation of the case : (1973) 2 MLJ 85

3. Name of the Court : High Court (Alor Star)

4. Catch Note : Constitutional Law-Constitutional question raised-claim for

Damages for wrongful arrest against government-Whether

High Court has jurisdiction to hear the case-Courts