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(WEEK 7): INTRODUCTION

 There are two types of trial. Summary trials (normally done in Subordinate Courts which
covers Magistrate & Sessions Courts) & High Court trials
 The reason it is called Summary Trials because traditionally, High Court Trials is
conducted by way of jury trial. But now, since jury system is abolished.
 For Summary Trials, no jury trial back then. Traditionally if the offense carries a death
penalty, there will be inquiry. But now, inquiry is abolished.
 Summary trial commences when the charge is first read and explained to the accused
person
 Savirimuthu v PP (Supreme Court) & Goh Tong v PP [1953] MLJ 251
 When charge read and explained to accused (Accused brought to Court by way of
warrant or summons [Section 136]). The moment the accused is brought to Court, he
will be asked whether he is guilty of the offence (Plead Guilty) charged or he wishes to
be tried on the offence (Claim Trial).
 The trial will always be held in open court and sometimes, the trial take place in camera
(involves child, public security (rape case))
 Even if the judge carries out certain proceeding in chambers, the normal practice is for
the judge to declare it in an open court (Public has got access to the court). Not done by
way of ambush.
 When the accused person is present in court (the most important person in a criminal
trial), the court must ensure that he understands the proceedings which takes place. So,
if he is a person who is not conversant with the national language or the English
language, the proceeding ought to be interpreted to him in the language he is
conversant with. The accused has a freedom to choose in what language he wishes the
proceeding to be interpret to him. It is the duty of the court to obtain a qualified
Interpreter in the language the accused chooses so that the proceeding will be
interpreted to him. Fong Hong Siew v PP [1950] MLJ 293 + Huang Chin Siew [1952] 1
MLJ 7
 The Court is suppose to ensure that the accused understands the proceedings and this
fact has to be reflected in the court’s record (What language the accused intended to
speak and whether interpreter present or not). Effect: if the case goes on without the
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accused understanding the proceeding and ultimately if the accused is convicted of the
charge on appeal, the conviction will be set aside because the proceedings were not
understood by the accused. The effect is fatal. Even if prosecution argues use Section
422, accused prejudiced and Court will order retrial of whole case

 The accused shall be allowed to have legal representation (right to counsel), protected
by way of Article 5 of Federal Court. If the accused is unrepresented, the Court must
explain to the accused as to the accused right to be defended and if possible, the Court
can play its role to obtain/refer a counsel for him. If it is a death penalty case, the Court
may assign a counsel. Guaranteed by Article 5 of Federal Constitution and Section 255
(Right of the accused to be defended).
 At High Court, accused will be represented. In lower court, accused may not always be
represented. In such a situation, the Court must play a more responsible role to ensure
the undefended accused understands the proceedings. Whatever evidence which is lead
against the accused has to be explained to him in simple terms as well as in the language
where the accused understands.  Section 257
 Similarly, when the charge is read to the accused person, it must be read in language
which the accused understand. If the accused requires an interpreter, the court ought to
supply a qualified
 If the accused is facing for more than one charge, each of the charges has to be read and
explained to the accused. On an assumption if the charge is not properly read to the
accused in the language which he understands, and subsequently the court convicts the
accused, on appeal, the conviction can be set aside.
 The principles that follow from this is that it is fatal if the charge is not read and
explained to the accused
 Subramaniam & Anor v PP [1976] 1 MLJ 76

 If more than one accused in a trial (Section 170, jointly tried), the plea by each accused
should be taken separately. The principles that follows from this is failure of the court to
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do this would also be fatal and if there is a conviction, the conviction would be set aside.
Refer to Subramaniam + Fong Siew Poh & Ors v PP [1933] 1 MC 155

CHARGE READ EXPLAINED AND UNDERSTOOD BY THE ACCUSED (CREU) & UNDERSTAND
NATURE OF THE CHARGE AND PLEA (UNCP)

 Summary trial is governed by Section 173 and Section 174

 Section 173(a): Accused appears in court either by way of summons or warrant, the
charge will be read to the accused. Not only read, it must be explained and the accused
must understand it. CREU (Charge Read Explained and Understood by the accused) /
Pertuduhan dibaca, diterang dan difahami oleh tertuduh (PBTF)
 Prosecution framed the charge. Interpreter read the charge.
 The moment the charge is read, the accused has got two choices. PG or CT.
 If the accused PG, the Court will first ensure that the accused understands the nature
and consequences of his plea of guilty. This is covered by Section 173(b)
 The proviso to Section 173(b) specifies that the Court must ensure that the accused
understands the nature and consequences of his plea. This in short is refer to UNCP
(Understand Nature of the charge and plea) / Faham sifat dan akibat pengakuan (FSAP)
 In the course of the Court ensuring UNCP, the Court will ask a few questions to the
accused. The questions would be the following:
o If the accused would to PG, there would be no trial of the charge. No witnesses
will be called to prove the case
o The accused would be convicted of the charge, and if the law allows, he may
suffer a sentence of imprisonment
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 After explanation, if the accused still maintains that he wishes to PG, then the court will
carry on with the prosecution tendering the facts of the case.
 Function of facts of the case: Since the accused has pleaded guilty, there would be no
witnesses called to prove the case against the accused. What the prosecution will do is
to incorporate the commission of the crime by the accused in the facts. This means the
facts of the case would disclose or shall disclose the offence committed by the accused
person. This again demonstrates that the prosecution must testify that each and every
element/ingredient of the offence has been fulfilled.
 For example, a simple case of theft. In the facts of the case, the prosecution must show
the existence of:
o A stolen property
o That the property was in fact stolen by the accused from the complainant
o The property was taken away from the complainant without the complainant’s
consent
 If one of these ingredients is not reflected in the facts, the court may either order the
prosecution to redo /amend the facts or the court may take a drastic position by
deciding that since the facts does not disclosed the offence, the court is left with no
alternative but to fix the case for trial

 What can the accused do if he is not agreeable to the facts of the case?
 The moment the facts of the case are read to the accused person, the accused must
under the law admit to the facts. This admission by the accused has to be without any
qualification. The moment there is a qualification, the court would either seek
clarification from the prosecution or immediately fix the case for trial. The facts must
disclosed the offence and has to be admitted to by the accused
 On a similar footing, is also the premise upon which the accused PG to the charge. In a
situation where an accused person PG to the charge with a qualification, the Court
would reject the plea of guilt and set the case for trial
 Example: Charge of theft. Accused PG and he tells the court “I stole the motorcycle but I
thought the complainant allowed me to use the motorcycle”. So, although it is a plea of
guilty, it would be a qualified plea because the accused person is informing the court
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that the complainant in fact consented to the taking of the motorcycle. In such the
circumstances, the court will reject the plea of guilt because the plea of guilt is not
unqualified. The principle is the plea of guilt has to be unqualified, unreserved, and
unequivocal. It simply means when the accused PG, he has to be without: a qualification,
a reservation, and he cannot be a mistaken believe
 Example of qualified plea of guilty: The accused PG with the hope he would be excused
by the court (That’s the reservation). It is for the Court to ascertain that

QUICK RECAP

 Accused produced in court  CREU  Accused PG without qualification, without

reservation  Court UNCP  Prosecution tenders facts of case  Court convicts the
accused  Accused raises plea in mitigation  Prosecution submits on aggravating
factors  Court sentences the accused according to the law

CONTINUATION ON FACTS OF THE CASE

 Still at facts of the case. Facts must disclose the offence.

 Case of facts of the case: Abdul Kadir bin Abdul Rahman v PP [1984] 1 MLJ 80
 On PG, landmark case which all must read: Lee Weng Tuck & Anor v PP [1989] 2 MLJ
143
 When the prosecution tenders facts of case, it will also tender exhibits.
 For example: Rape charge, if the accused PG, the prosecution will tender the facts of the
case plus the exhibits. Exhibits:
o P1: Identification Card of the victim to show she is not below 16,
o P2: police report lodge by the complainant to say that she has been raped
o P3: Medical report revealing the medical examination of the complainant
o P4A,B and so on: Together with P3, there will be her personal exhibits tendered
(Her garments, etc)
o P5: DNA analysis
 Facts + exhibits: The accused has to admit to both facts of the case as well as the
exhibits. If the accused does not admit to either one or any part of it, the Court has got
no choice but to fix the case for trial.
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ACCEPTANCE OF THE PLEA OF GUILTY BY THE COURT

 Although a plea of guilty amounts to a confession of guilt, but it does not by itself
amount to a conviction
 Principles: A conviction of the accused would not take place until the court accepts the
plea of guilty
 Prerequisites before Court admits/accepts the plea of guilt by the accused
o CREU
o PG without qualification
o UNCP
o Facts of case tendered by prosecution admitted to by the accused without
qualification
o Exhibits to the case tendered by the prosecution to, admitted to by the accused
without qualification
o When all this takes place, the court will be in a better position to accept the plea
of guilt by the accused
o Only when the court accepts plea of guilt by the accused, only then the court will
convict the accused
 Question – Qualification: When the accused PG, he PG but he qualifies his plea of guilty.
Eg: “I stole the motorcycle but I thought the owner allowed me to use the motorcycle” =
Qualified plea
 Rape charge: Accused pleads guilty to the charge. When he PG, he said “Saya mengaku
salah TETAPI saya sangka perempuan itu telah membenarkan saya membuat demikian”.
The prosecution tenders the facts of case and one of item produced might be the
undergarment of the victim and accused said it is not the same colour = considers as
qualification also
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CATEGORIES OF CASES

 3 categories of cases that is common in a criminal court

 Cases for mention
o 1st: Cases fixed for mention. Under this category of cases, usually, fresh cases
would be fixed for mention. Fresh cases means the accused is produced for the
first time in Court.
o 2nd: He has been produced in Court, the charge has been read and explained to
the accused (CREU has taken place), but accused wishes to be represented by a
counsel therefore he asked for a postponement. What the court will do is fix the
case for mention so the accused will obtain a counsel
o 3rd: After CREU, after PG without qualification, the prosecution applies for time
to produce the facts of case. Then, the court will postpone the case to another
date. This one sometimes is referred to as the court fixes the case for facts and
sentence (PG done but prosecution not ready with the facts, Court adjourned the
case)
o 4th: CREU has taken place, accused PG without qualification, Court UNCP,
Prosecution tenders facts of case and exhibits, accused admits to facts of case
and exhibits, court convicts the accused, after conviction, prosecution informs
the court that the accused may have a criminal record and they need time to
obtain the previous convictions record from the Registrar of Criminals (Pendaftar
Criminal). So here, the Court will fix a new mention date
 Cases for sentence:
o PG situation: CREU has taken place  PG  UNCP  Prosecution tenders facts
of case and exhibits  Court convicts the accused  Accused raises his plea in
mitigation  Prosecution submits on aggravating factors  Court postpone
sentences to another day before prosecution is not ready with the previous
conviction record
 Cases for hearing:
o CREU  Accused CT  Prosecution request for hearing date  Court fixes the
case for hearing
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CASES WHICH DOESN’T EVEN A PG / ACCUSED CT (MINTA BICARA)

 The accused pleads not guilty

 CREU  accused CT
 Where the accused does not plead guilty but claims trial, the court will fix the case for a
hearing
 This is governed by Section 173(c)
 It will be duty of the prosecution to present the Court the case for the prosecution / the
prosecution’s case commences / kes pendakwaan
 During the case for the prosecution, the prosecution is required under Section 173(c) to
produce all evidence in support of the prosecution
 What amounts to evidence in support of the prosecution? It can come in three forms:
o Oral evidence by witnesses (Statement by witnesses by Oath)
o Documentary evidence produced by witnesses (Etc)
o Real evidence produced by witnesses (Weapon)
 In order to tender this evidences, the prosecution has to call witnesses in the form of
PW1, PW2, PW3, and so on
 The guiding factor is not the quantity of evidence but quality of evidence. This is
governed by Section 134 of the Evidence Act
 From this, the principle that flows is the evidence adduced by witnesses for the
prosecution must be from witnesses who are:
o Credible (Credit worthiness is not in issue)
o Reliable (Their evidence can be relied upon by the Court without any doubt. The
witnesses must be the witnesses of truth)
o The evidence adduced by the prosecution must be free from reasonable doubt
(This hinges on the principle that the prosecution has the burden to adduced
evidence beyond reasonable doubt from the start of the prosecution case until
the end of the prosecution case. DPP v Woolmington)
 In line with this, prosecution in the course of the prosecution’s case, has to establish a
prima facie case which comprise of credible, free from doubt, reliable.
 In this regard, Section 173(h)(iii) has to be adhered to. It says a prima facie case is made
out against the accused where the prosecution has adduced credible evidence proving
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each ingredient of the offence which if unrebutted or unexplained by the accused, it

would warrant a conviction of the accused person

SECTION 173(d)

 Section 173(d) specifies that witnesses who give evidence in court for the prosecution
are witnesses who are acquainted with the facts and circumstances of the case
 Section 173(d) also specifies that the court would start with the complainant’s evidence
but it has to be remembered that it may be so in all cases. For example: Murder. The
complainant for all intends and purposes could be a person who in fact found the dead
body. So, what good does it make for that person to be called as the first witness? So,
call the next possible witness
 The prosecution enjoys the discretion to call witnesses whom they think would be able
to testify in order to establish a prima facie case
 In this regard, the prosecution will call witnesses who are only relevant to the charge
 If there any many witnesses to a particular transaction, the prosecution can pick and
choose which witnesses they want to call
 Example: Drugs trafficking. Raiding party enters the house to raid the premise. Raiding
party may consist of 10 people. It is not necessary to call the 10 people as prosecution
witnesses for the simple reason too many cooks will spoil the broth and there will be too
many contradictions and inconsistent. The prosecution can pick and choose which
witnesses they want to call and the remaining witnesses whom they did not call would
be offered to the defence and if the defence chooses to call them, it will call during the
defence case and not the prosecution case
 The rule is the prosecution when exercising its discretion to call its prosecution
witnesses, would be guided by:
o The charge
o The elements of the offence
o The quality of evidence the witnesses would be able to testify
o To unfold the narrative of the prosecution’s case
 The prosecution at the same time cannot choose not to call a witness because of an
oblique motive. Oblique here means the prosecution is intending to
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hide/conceal/withhold evidence. If the prosecution does that, it may run the risk of
attracting an adverse inference Section 114(g) of the Evidence Act
 Khoon Chye Hin v PP
 Privy Council: Adel Muhammad El Dabbah v AG for Palestine

(WEEK 8): PG PROCEEDING

 Accused appears or brought before the Court – Section 173(a). Appears either by way of
summons or brought to Court (After remand has expired or arrested and brought to
Court
 The charge preferred by the PP that will be pursuant to Article 145(3) read together with
Section 152, Section 153, Section 154 and Section 155 of the CPC, is read and explained
to the accused person (CREU)
 The whole purpose of this is to ensure that the accused understands the charge against
him. So, his understanding has to be in accordance with the language he prefers. In this
regard, take note, as to the role of the interpreter. Fong Hong Siew v PP [1950] MLJ 293
+ Huang Chin Siew [1952] 1 MLJ 7. This is under Section 173(a)
 Accused either to PG or CT. This is also under Section 173(a). The accused cannot be
forced to PG. He has got a freedom of choice
 If the accused PG to the charge, it has to be without qualification and without any form
of reservation. So, basically it means the plea of guilt has to be unqualified, unreserved
and unequivocal: Munandu v PP + Cheah Chooi Chuan (explains what is a qualified
plea). This is covered by Section 173(b)
 The Court’s role to ensure the accused understands the nature and consequences of his
plea of guilt. This is covered by the proviso to Section 173(b). The Court will ensure this
by explaining to the accused through the interpreter that is the accused pleads guilty:
o There will be no trial
o No witnesses will be called
o The accused will be convicted and sentenced according to law
o If the accused is sentenced to imprisonment, he will be taken to the prison
immediately.
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 Once the Court has explained this to the accused, the accused can still change his mind
from PG to CT.
 The plea of guilt then will be recorded by the Court under Section 173(b)
 Once a PG has already been recorded (no trial), the prosecution will tender the facts of
case as well as exhibits
 In relation to facts of case, the leading case is Abdul Kadir bin Abdul Rahman v PP
 In relation to this, the facts of case:
o It must support the charge
o It must support the elements of the offence
o The facts of case produced by the prosecution shall disclosed a criminal offence
 The exhibits tendered by the prosecution must have a connection with the charge as
well as the facts. Cannot hand in unconnected exhibits.
 With regard of facts of case and exhibits, there is no provisions in the CPC
 Accused now has to admit to the facts as well as to the exhibits without qualification.
This means if there is a qualification, the plea of guilt by the accused would be rejected
 Court will now convict the accused. This is also under Section 173(b).
 Before the Court sentences the accused under Section 173(b), the Court shall consider
the following matters:
o Plea in mitigation raised by the accused
o Submission on the aggravating factors raised by the prosecution (Aggravating
factors would include previous convictions of the accused)
 Finally, the Court will sentence the accused person according to law.

ISSUES IN PG PROCEEDING

 With regard to PG, there are some issues that may be raised. One of it may be if the
accused is unrepresented by counsel and he PG to the charge. How would the Court
examine the plea?
 In this regard, case of Trans Huu Tho v PP and also Section 255 of the CPC as well as
Article 5(3) of the FC which states that an accused person has the constitutional right to
be defended by a counsel, can be referred too.
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 If the facts show the accused is asking for an adjournment for a counsel, the court must
grant the adjournment
 The next issue is the accused may be represented and the question that may arise is can
his counsel PG on the accused’s behalf. The provision that governs this is Section 173(b)
which clearly says that it is the accused person who has to PG. PP v Leng Chow Teng
[1985] 1 MLJ 229 + Lee Weng Tuck v PP [1989] 2 MLJ
 In the case of Lee Weng Tuck v PP [1989] 2 MLJ 143, it was stated by the Judge that a
plea of guilty must be valid, and unequivocal. In order to determine the validity of a plea
of guilty, the Court must comply with certain safeguards:
o The Court must ensure that it is the accused himself who wishes to PG. This is
necessary as the Court must be satisfied that the accused is not pleading guilty
by force or under pressure. In the case or R v Tan Thian Chai & Anor [1932] MLJ
74, the Court held that an accused person should PG or CT by his own mouth and
not through his counsel. What if the counsel says that the accused allows him to
do so? In that case, the Court should enquire and find out from the accused
whether that is true
o The Court must ascertain the accused UNCP
o The Court must also ascertain the accused admits to the charge without any
qualification
 Another issue that can arise is after the charge has been read and explained (CREU) to
the accused in a language with which the accused is conversant, the accused person
refuses to plea, and just stands there. This is under Section 173(c) which says if the
accused refuses to plea, or does not plea, or claims to be tried. It means that if the
accused refuses to plea, it means the Court should take the position that the accused is
claiming trial.
 Just because the accused refuses the plea, The Court may sometime discharge the
accused amounting to an acquittal (DAA). This is wrong because:
o Section 173(c): Must proceed with a trial
o PP v Soon Tiew Choon [1976] 1 MLJ 189: It is not opened to the Magistrate to
acquit the accused without hearing the evidence
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o PP v Zainuddin & Anor [1986] 2 MLJ 100: This case illustrates that in a summary
trial, paragraphs (c) and (f) of Section 173 do not empower/allow the Court to
order a DAA of an accused person without hearing evidence of the prosecution in
support of its case
o Kuppusamy v PP [1948] MLJ 25: This case held that the earlier stage at which a
Magistrate can acquit an accused person is after hearing all the evidence for the
prosecution. This decision was accepted by the Federal Court in the case of Chu
Chee Peng v PP [1973] 2 MLJ 35. In this case, the Court was on the view that a
Magistrate could not order an acquittal of the accused without hearing all the
evidence which could be material to the prosecution’s case and any discharge
(DNAA) ordered by the Magistrate without hearing such evidence could not
amount to an acquittal. This means if the Court discharges the accused not
amounting to an acquittal, the accused can be recharged for the same offence
and he cannot raise in his defence the defence of autrefois acquit
 In conclusion, there can be two circumstances where a Magistrate could order an
acquittal:
o When after all the evidence has been heard from the prosecution and there is no
case made out to support the charge against the accused, then the acquittal is
mandatory at the end of the prosecution’s case. This is provided under Section
173(f)
o When the main part of the prosecution’s case has prematurely collapsed and
because of the collapse, the prosecution may decide not to proceed with the
charge. If they decide not to proceed with the charge, the prosecution will
withdraw the charge under Section 254. In this case, the Court may acquit the
accused
 The Court can discharge an accused person not amounting to an acquittal is when the
charge against the accused is groundless. Groundless means the charge lacks foundation
or basis. Example:
o The charge does not disclose an offence.
o The charge is made for an offence which is not known under the law
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o The charge is made under a particular law which has been repealed. Example: If
there is a charge under the ISA, it would be groundless as ISA has already been
repealed.
 Under these circumstances, the Court may discharge the accused person. The law is
found in Section 173(g) + PP v Mohamed Said [1984] 1 MLJ 50
 Following from this, if during the course of the prosecution’s case, the DPP applies for
postponement on the ground an important witness cannot be traced. The application
for postponement is made under Section 259. The Court cannot discharge the accused
person because the charge is not groundless and Section 173(g) doesn’t apply.
Therefore, the most appropriate order the Court should make is to adjourn the trial
under Section 259;

TRIAL PROCESS

 Accused appears or brought before the Court [Section 173(a)]  CREU [Section 173(a)]
 Accused CT [Section 173(c)] [CT includes when accused refuses to plea or does not
wants to plea]  When the accused CT, there can be an opening statement by the
prosecution pursuant to Section 174(a) of the CPC. For summary trials in subordinate
Courts, an opening statement is optionally, meaning it is not mandatory. Whereas for
High Court trial, that would be governed by Section 179. Section 174(a) is optional and
Section 179 is mandatory. The prosecution will introduce the case to the court. The
prosecution in doing so will inform the Court on:
o On the charge
o The number of witnesses they are going to call
o The type of evidence the witnesses are going to adduce
o Any other matters that the Court ought to know about the case
  Prosecution then commences the case of the prosecution. How?  Section 173(c)
uses the phrase that the Court shall proceed to take all such evidence as will be?
produced in support of the prosecution. This would encompass:
o All evidence by witnesses
o Documentary proved by witnesses
o Real evidence by witnesses
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 The provision of the law which governs witnesses will be Section 173(d) + the provisions
of the Evidence Act on witnesses. Together with that, both the prosecution and the
Court are governed by Section 173(h)(iii).
 Section 173(h)(iii) describes a prima facie case. If says it is the duty of the prosecution
during the prosecution case is duty bound to make out or establish a prima facie case
against the accused. When doing so, the prosecution has to adduce credible evidence
proving each ingredient of the offence. If that evidence/evidences is unrebutted or
unexplained by the accused, then, the Court may convict the accused not at the end of
the prosecution case but at the end of the defence’s case.
 PP v Chin Yoke [1940] 9 MLJ 47, relevant paragraph at page 48: During the prosecution
case, the Magistrate or Judge must necessarily accept the whole of the evidence for the
prosecution at its each face (prima facie). There may be grounds for rejecting some part
of the evidence or all of the evidence. When doing so, the Court would weigh the
evidence to see whether it is rebutted or unrebutted by the accused. During the
prosecution case, the accused doesn’t play any role, and will be just sitting in the dock.
So, when the law says it should be rebutted by the accused, it means the defence
counsel when cross-examining the prosecution witnesses would be able to raise a
reasonable doubt on the prosecution’s case as well as on the charge. So, it is the effect
of the cross-examination which shows whether the case made out by the prosecution
would be explained or rebutted by the accused. After weighing those evidences by the
prosecution and cross-examination by the defence, if the Court makes/comes to a
finding it would be wholly unsafe to convict the accused if defence is called, then the
Court will decide that there is no prima facie case which has been made out and the
Court would acquit the accused without calling for defence.
 An acquittal at the end of the prosecution case is possible because the prosecution has
failed to establish a prima facie case against the accused.
 Looi Kow Chai v PP [2003] 2 MLJ 65: COA decision. In this decision, reference is made to
Section 180 which applies to High Court trials but Section 180 as well as Section 173(f)
and Section 173(h) which applies to summary trials are similarly worded. This case
illustrates what the Court should do in the close of the prosecution case. Held: The trial
Judge must subject the prosecution’s evidence to maximum evaluation, and after that,
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he must ask himself the question: “If I decide to call upon the accused to enter his
defence and the accused elects to remain silent, am I prepared to convict the accused on
the totality of the evidence contained in the prosecution’s case?”. If the answer is in the
negative (no), then, no prima facie case has been made out and the accused will be
acquitted. If the answer is in the positive (yes), then the Court will order for the defence
to be called.
 Balachandaran v PP [2005] 2 MLJ 301: This case illustrates that a prima facie case is one
that is sufficient for the accused to be called upon to answer (for defence). This means
that the evidence adduced by the prosecution must be such that it can be overthrown
only by evidence in rebuttal. It simply means following the formula in Looi Kow Chai, at
the end of the prosecution’s case, if the Court finds that a prima facie case has been
made out, it means the accused has got a case to be answered, or in other words, it
means the prosecution’s case is watertight and now, it is the turn of the Court to hear
the accused’s defence or his version
 Finally, as a Judge, what will be his finding at the end of the prosecution’s case? This
would be finding of the Judge: “Based on all of the above reasons, I find the prosecution,
through the evidence of PW... which had been corroborated in material particulars had
proved all defects required to establish all the ingredients of the charge, I find a prima
facie case as defined under Section 173(h)(iii) had been made out against the accused.
Therefore, the accused is called to enter his defence”.

 All prosecution witnesses shall be allowed to be cross-examined by the defence. This is

provided for under Section 173(e). The purpose of cross-examination is basically to test
the accuracy, veracity, and credibility of the prosecution’s witnesses. An important
principle as far as cross-examination is concerned with is if the defence chooses not to
cross-examine a witness of the prosecution in a material piece of evidence, it will go to
show that the piece of evidence is admitted and this may work against the accused.
 Chua Beow Huat v PP [1970] 2 MLJ 29
 Wong Swee Chin v PP (Botak Chin case) [1977] 2 MLJ 194 / [1979] 2 MLJ 207 / [1981] 1
MLJ 212
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PROSECUTION’S CASE CONCLUDED / CALLING OF THE DEFENCE

 Relevant section: Section 173(f)(i)

 Section 173(f)(i) says when the case for the prosecution is concluded, the duty of the
Court is to consider whether the prosecution has made out a prima facie case against
the accused. In order to do this, the Court shall refer to Section 173(h)(iii), the case of
Chin Yoke, the case of Looi Kow Chai, and the case of Balachandaran
 Before the Court makes a finding, the Court would enjoy the benefit of submission by
both defence counsel and the DPP. Formally, the state of the law has been that
sometimes, the Court at the end of the prosecution’s case, would not request for
submission as it takes the position that the prima facie case established by the
prosecution is so strong enough for defence to be called for the accused to answer. And
the relevant law is under Section 174(b). But now, we have the Federal Court decision of
the case of Lee Kwan Woh v PP [2009] 5 CLJ 631 where it was held by the Federal Court
that to deprive an accused from making submissions at the end of the prosecution’s case
resulted in the accused not having a fair trial. If submissions are not heard, it will infringe
the accused’s right to a fair trial.
 Sometimes, the defence would just make a submission of no case to answer not because
they are lazy but because they are of the view that the prima facie case made out by the
prosecution is so strong enough and the accused is ready to answer.
 Question: What amounts to a submission of no case to answer? Answer: End of
prosecution case.
 If defence is called, the ruling is actually made under Section 173(h)(i): If the Court finds
that a prima facie case has been made out against the accused on the original charge,
then, the Court shall call upon the accused to enter his defence to the original charge.
 Under Section 173(f)(ii), if the Court finds that the prosecution has not made out a prima
facie case against the accused, the Court shall record a record of acquittal.
 Section 173(h)(ii): If the Court finds that a prima facie case has been made out against
the accused on an offence other than the offence charged but it is still within the
jurisdiction of the Court to try the offence, then, the Court will amend the charge
through Section 158
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 Example of such situation: Original charge is rape (Section 376 of Penal Code). At the
end of the prosecution case, prosecution is only successful in establishing a charge of
outrage of modesty (Section 354 of Penal Code). If that happens, the Court will amend
the charge from Section 376 of Penal Code to Section 354 of Penal Code.
 The moment the Court amends the charge under Section 173(h)(ii), the next step is
Section 173(i) which reads as the charge if amended shall be read to the accused person
(CREU) and the accused shall be asked again whether he wants to PG or continue with
the trial. In this regard, see the case of PP v Heng You Nang [1949] 1 MLJ 285 + PP v
Parnady [1953] MLJ 163 + R v Cheah Teow Peng [1952] MLJ 216.
 After Section 173(i), the next step is Section 173(j)(i) which says if the accused PG to the
amended charge, the plea shall be recorded and before the plea is recorded, the Court
will carry out the UNCP exercise, and upon satisfaction, the plea of guilty will be
recorded, the Court will convict the accused on the amended charge and subsequent,
the Court will pass sentence according to the law. Before the Court sentences the
accused according to the law, the Court shall clear the plea of mitigation of the accused
and submission of aggravating factors by the accused. This is quite similar to Section
173(b).
 If the accused CT in the amended charge, then, under Section 173(j)(ii), the accused shall
be called upon to enter his defence.
 Two situations where the accused shall be called upon to enter his defence. Under
173(h)(i) on the original charge or under Section 173(j)(ii) on the amended charge.
 Either way, the next provision that would be applicable would be Section 173(ha) which
specifies that when the Court calls upon the accused to enter his defence, the Court is
duty bound to read and explain to the accused, the three options which are available to
him which are:
o To give sworn evidence in the witness box
o To give unsworn statement (not under oath) from the dock
o Remain silent
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(WEEK 9): CONTINUATION ON PROSECUTION’S CASE CONCLUDED / CALLING OF THE

DEFENCE

 Before defence is called by the Court after completion of the prosecution case (Prima
Facie case has been established), the Court is duty bound under the law to read and
explain to the accused the three alternatives or rights as provided for in Section 173(ha)
 The rights are:
o Section 173(ha)(iii): The accused may elect to remain silent
o Section 173(ha)(ii): The accused may elect to make an unsworn statement from
the dock. He will continue to remain in the dock and he cannot be cross-
examined: Section
o Section 173(ha)(i): The accused to give sworn evidence from the witness box. He
moves from the dock to witness box. If he decides to give sworn evidence under
oath, he is equally entitled to be cross-examined by the prosecution or the Court
is also in the position to question him under Section 256
 If the accused elects to make an unsworn statement from the dock or remain silent, he
is still in the position to call witnesses to support his defence. This means that although
he gives an unsworn statement or remain silent, it doesn’t mean he isn’t defending
himself
 Section 173(k): The accused is also entitled to put in any written statement. The moment
he puts a written statement, that piece of written statement will form part of the
Court’s record
 Section 173(j)(iii): If the accused decides to give sworn evidence from the witness box,
he has to take the witness stand first before other defence witnesses testify.
 Section 173(j)(iii): Accused is also entitled to recall prosecution witnesses who had
already testified. Recalled for purpose of further cross-examine
 If there are more than one accused in a criminal proceedings (accused and a co-
accused), the first accused is entitled to cross-examine the other accused person,
especially so if their defense is not going to the same (If same defense, they wouldn’t
want to cross-examine each other)
 The procedure involve in hearing the defence case is similar as the case for the
prosecution
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 Scenario: If accused elects to give sworn evidence, he will be DW1, followed by his
witnesses that will be DW2,DW3 and etc
 After the accused and his witnesses has adduced their evidence, the Defence Counsel or
the accused himself if he is unrepresented has got a right to make a submission at the
end of the defence case. This is provided for under Section 174(b)
 If the defence makes a submission, the DPP or the prosecution has got a right to reply.
That is under Section 174(c)
 Normal case: The duty of the prosecution is to prove the case beyond reasonable doubt.
The defence bares no duty but only to create or cast a reasonable doubt on the
prosecution’s case or on his guilt.
 But if there are presumptions of law applicable to him, for example in Drugs trafficking
case. In this kind of situation, the accused or the defence bears the burden to displace
the presumption on the balance of probabilities. Akim Khan b Abd. Rahman v PP [1987]
2 MLJ 217 + PP v Yuveraj (Privy Council’s decision)
 On the duty of the prosecution to have proven a case beyond reasonable doubt is stated
in Section 173(m)(i)
 Section 173(m)(iii): If the accused has been successful in creating a reasonable doubt as
to his guilty or the prosecution has failed to prove a case beyond reasonable doubt, then
the accused would be acquitted and discharged.
 Section 173(m)(ii): If the prosecution has been successful in proving a case beyond
reasonable doubt or in another words, the defence / accused has failed to cast a
reasonable doubt, then, the accused would be convicted and sentenced according to
law.
 In a nutshell, at the end of the defence case, the Court is entitled to make two orders
which are either:
o To acquit the accused
o To convict the accused

 What should the defence do under the law in order to obtain an acquittal?
 Mohammad Radi Yakob v PP [1991] 1 CLJ Rep 311: In this case, it is illustrated that the
burden lies on the prosecution throughout from the start to the end of the case. This
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case also demonstrates that there is no similar burden placed on the accused in order to
prove his innocence. It is for the prosecution to prove the guilt but not for the accused
to prove his innocence. In order to earn an acquittal, his duty is only to cast a reasonable
doubt on the prosecution’s case.

 Following from this principle, the next question is what is the correct law for the Court
to follow at the end of the defence case?
 Mat v PP [1963] MLJ 263 (Duty of the Court at the end of the Defence case): The
principles in this case:
o At the end of the defence case, if the Court accepts the explanation or the
defense given by the accused or his witnesses on his behalf, then the Court must
of course acquit the accused
o If the Court does not believe the explanation or the defense by the accused, the
Court cannot convict because the accused is still entitled to an acquittal if the
explanation or the defence raises a reasonable doubt as to the guilt of the
accused. The effect is if the Court does not accept the explanation or the defence
of the accused, the Court must ask a further question as to whether the
explanation or the defence put forward by the accused has the effect of raising a
reasonable doubt as to his guilt. If the answer is yes, then the accused is entitled
to an acquittal. If the answer is no, the accused is ought to be convicted
o At the end of the defence case, if upon the whole evidence (meaning the
prosecution case as well as the defence case), the Court is left behind in a real
state of doubt. It means the prosecution has failed to prove a case beyond
reasonable doubt and therefore the accused would be acquitted

 The next stage is for the Court to sentence the accused if it finds the accused guilty
either on the principal charge or the amended charge. Before passing sentence, the
Court will hear anything the accused has got to say in mitigation of sentence.
 End of Defence case  Court find the accused guilty  Court convicts the accused 
Sentencing. But before sentencing, the Court has to hear the accused plea in mitigation
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 Sometimes, there can be an error made by the Court. The error could be the Court finds
the accused guilty but fails to convict the accused. That has been decided by case
authority that it is a curable irregularity as it doesn’t prejudiced the accused and there is
no failure of justice. Abdul Hamid v PP [1956] MLJ 231.
 Before sentencing, if the Court fails to hear the plea in mitigation by the accused, that
would amount to an illegality and not irregularity. Plea in mitigation is mandatory and
must be heard. Section 173(m) does not talk about plea in mitigation therefore it can be
concluded it is the rule of natural justice.
 However, under Section 176(2)(r), plea in mitigation is provided.
 What the Court would hear from the accused would be regarding his background and his
character. As a reply to the mitigation, the Court will hear submissions by the
Prosecution on the aggravating factors. The aggravating factors are any previous
convictions of the accused person which is admissible as evidence under Section 400.
 Section 173(m)(ii) proviso for Summary Trials & Section 183A for High Court Trials: The
Court will hear the Victim Impact Statement (VIS) either for the victim or the family
member
 Section 173(m)(ii): After considering all this three (mitigation, aggravating factors, VIS),
and all the circumstances of the case, the Court will finally pass a sentence according to
law
 Once the Court passes a sentence according to law, the Court becomes functus officio. In
practice, functus officio means the Court arises from the day.

IF TWO ACCUSED PERSONS ARE CHARGED TOGETHER

 One other aspect which is very important is when two accused persons are charged
together
o Section 170 CPC: They can be jointly charged. The charge will say “That you
jointly”
o Section 34 Penal Code: They are charge in furtherance of a common intention.
 The issue would be if one accused / one co-accused PG and the other CT
 In a criminal trial where there are more than one accused, and a co-accused PG before
the commencement of the trial (Savirimuthu v PP (Supreme Court) & Goh Tong v PP
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[1953] MLJ 251: Commencement of the trial is before the first witness is called), the
Court shall inquired from the DPP / Prosecutor whether the prosecution would be calling
the co-accused who pleaded guilty as a prosecution witness / crown witness against the
other co-accused who had CT
 If the prosecution says yes, what the Court should do is to proceed to sentence the
accused who had PG and remove him all together from the Court (He cannot be found in
the Court room anymore). The Court should not postponed the sentence and should
dispose his case all together
 Toh Ah Loh & Anor [1949] MLJ 54: This case demonstrates that it is not desirable for the
co-accused who had pleaded guilty to remain in Court if he is going to testify against the
other accused person who had CT
 Yap See Teck [1983] 1 MLJ 410:
o This case illustrates the rationale why the accused who had pleaded guilty and is
due to testify against the other accused to be remove from the Court. The
rational is if he remains in Court, he would be hearing all the evidence adduced
against the other co-accused who had CT. The effect of this is he would be
rhyming the same tune with the other witnesses when his turn comes to testify.
o If the co-accused is not sentenced by the Court, his testimony as a prosecution or
defence witness would carry very little weight since there is always the strong
probability that when giving evidence, particularly for the prosecution, he would
hope for a lighter sentence or even for the charge against him to be withdrawn if
he gives evidence in favour of the prosecution
 The law does not allow an incentive to the co-accused who had pleaded guilty if he is
called as a witness.

 What if the prosecution chooses not to call him as a witness?

 Then, the principle is the sentence against him should be postponed until the
completion of the trial against the remaining co-accused. In principle, this is to avoid an
awkward situation
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 What amount to an awkward situation is discussed in the case of Lee Weng Sang [1976]
1 MLJ 83. In this case, where one of the accused person pleads guilty to the charge
whereas the other claims trial. An awkward situation will arise in this manner.
 For example, both are charged for joined possession of dangerous drugs under Section
39A(2) of the DDA 1952. One accused PG, the other CT. The Court has to ask the
prosecution whether they want to call him as a witness. The prosecution says no. If the
prosecution wishes not to call the accused who pleaded guilty as a witness, the case
against the other accused who claims trial goes on and he is acquitted in this charge. If
the accused who had pleaded guilty is convicted and sentenced earlier, it would be
unfair as both are charged for joint possession. This is the awkward situation.
 In order to avoid awkward situation, the law expects the Court to postpone sentence
against the accused who pleaded guilty until the trial of the case involving the accused
who claimed trial to be completed
 2 accused charged together, one PG, the other CT. First thing Court must do is ask
prosecution whether want to use the. Call  dispose. Not call  postpone

HIGH COURT TRIALS

 Provisions found in Chapter XX (20). Section 178 to Section 183A.

 Section 178(1): When the High Court is ready to commence the trial, then the accused
shall appear or brought before the Court  CREU  Accused PG or CT.
 Issue: When the High Court is ready to commence the trial?
 This is similar to Section 173(a) except that at the Subordinate Court, the accused can
appear for the first time or in other words, fresh to answer a charge. And his is brought
to the Subordinate Court by way of summons or warrants or after his remand has
expired
 As for the High Court, the accused does not appear for the first time to answer a charge
at the High Court. This is because of Section 177A. If an accused person is charged of the
offence of murder under Section 302 of the Penal Code which carries the death penalty,
as such, the offence is triable only by the High Court.
 If accused CT: In such a situation, the accused would be brought before the Magistrates
Court to face a tentative charge for murder under Section 302 of the Penal Code. The
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reason for the tentative charge is because the prosecution is waiting for the pathologist
record and the post-mortem report in order to confirm the act of killing is in fact
murder. Only if it is confirmed that it is murder, the PP will deem it fit to issue a consent
to prosecute under Section 177A. Once the consent to prosecute under Section 177A is
issued, the case involving the accused would be transmitted to the High Court for trial.
Following from there, once the High Court receives the consent to prosecute, then, the
accused would appear at the High Court and the High Court will then be ready to
commence the criminal trial under Section 178(1)
 If accused PG: If the accused would to plead guilty for offence which carries a death
penalty that is murder or drug trafficking, can the accused do so? Yes he can. What
should the Court do when the accused PG to a charge involve a death penalty. The
answer is found in the case of Lee Weng Tuck v PP [1989] 2 MLJ. The duty of the Court is
to explain to the accused that if he PG, he can be convicted in a charge involving a death
penalty and the only punishment which the Court may impose is the death sentence and
nothing else. After search and explanation, if the accused maintains his plea of guilty,
then, the Court can proceed to record his plea of guilt and convict him accordingly.
 Section 178(2) which relates to PG proceedings is quite similar to Section 173(b)
 The concept of UNCP prevails
 Section 178(3) is if the accused CT which means either he CT by saying so or he refuses
to plead or he does not plead, which is quite similar to Section 173(c)
 Section 179: It is mandatory for the prosecution to introduce an opening statement by
stating:
o The nature of the offence charged
o The evidence by which the prosecution proposes to prove the guilt of the
accused
 Section 179(2) which is similar to Section 173(c) and Section 173(d):Subsequent to that,
the DPP will start his case by calling witnesses
 Section 179(2) for High Court trials which is similar to Section 173(e): After EIC of those
witnesses, cross-examination will follow.
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 Section 180: At the end of the prosecution case, before the Court calls for defence, the
duty of the prosecution is to establish a prima facie case.
 Section 180(1) is similar to Section 173(f)(i) which says that the Prosecution has to
establish a prima facie case against the accused
 What amounts to a prima facie case is found in Section 180(4) similarly worded with
Section 173(h)(iii). Together with this, bear in mind the cases of Looi Kow Chai +
Balachandran + DSAI
 Section 180(2) equivalent to Section 173(f)(ii): which stipulates that if the prosecution is
unsuccessfully in establishing a prima facie case, the Court will acquit the accused
 Section 180(3): If the prosecution is successful in establishing a prima facie case, the
accused shall be call to enter his defence

(WEEK 10’S BEFORE BREAK): END OF PP’S CASE

 Principle:
 There will be submission by the defence counsel to say that there is no prima facie
case made out by the PP/submission of no case to answer Section 180
 The submission at the end of prosecution case-mandatory and the defence cannot
be deprive of their right to submit – Lee Kwan Who v PP[2009] 5 CLJ 631 - if the
accused is deprived of making his submission at the end of PP’s case, the result is the
accused would not have a fair trial.
 The PP would submit there is a prima facie case to submit, hence the accused shall
be ordered to enter defence.
 The court has to make decision whether to acquit the accused at the end of PP’s case
or to call for defence
 High Court trial defence if called is pursuant to Section 181 of CPC. Once defence is
called three alternative will be explain to the accused
i) Right to remain silent
ii) Make unsworn statement in the dock
iii) Testify on oath from the witness box
 If the accused remain silent/ unsworn statement he is still entitle to call witness in
order to raise reasonable doubt on the PP’s case.
 Testify on oath- proviso to Section 181(1)- the accused shall testify first and follow by
other witnesses.
 At the end of the defence case, the procedure as found in Section 173(m) for
summary trials is found in Section 182A of CPC. Similar provision that the court will
consider all the evidence adduced by the prosecution and the defence together with
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the submission made by Defence Counsel and PP and to decide whether PP has
proved it case beyond reasonable doubt against the accused.
i) If yes, the court will find the accused guilty on the charge and convict
him accordingly under Section 182A(2).
ii) Of the court find that the PP has not prove the case beyond
reasonable doubt against the accused the court would acquit the
accused person under Section 182A(3).
 The only difference is opening statement by PP before commencement of PP’s case in
HC trial.
 The manner by which an accused person is brought to High Court. High Court trial
concern the accused person is brought to the High Court by way of transmission under
Section 177A or transfer by virtue of Section 177, Section 417 or Section 418A