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    Criminal Procedure I Tutorial 1

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    Ammar Mustaqim
    I would advise the supervisor that the learned judge does have the inherent jurisdiction under Section 52(1) of the Courts of Judicature Act 1964 to supplement the first judgment by delivering an additional judgment under Section 278 of the Criminal Procedure Code. While the courts have inherent powers to ensure proper administration of justice, substantive law cannot be altered by invoking inherent powers in this case.

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    Criminal Procedure I Tutorial 1

    Uploaded by

    Ammar Mustaqim
    104 views10 pages
    I would advise the supervisor that the learned judge does have the inherent jurisdiction under Section 52(1) of the Courts of Judicature Act 1964 to supplement the first judgment by delivering an additional judgment under Section 278 of the Criminal Procedure Code. While the courts have inherent powers to ensure proper administration of justice, substantive law cannot be altered by invoking inherent powers in this case.

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    I would advise the supervisor that the learned judge does have the inherent jurisdiction under Section 52(1) of the Courts of Judicature Act 1964 to supplement the first judgment by delivering an additional judgment under Section 278 of the Criminal Procedure Code. While the courts have inherent powers to ensure proper administration of justice, substantive law cannot be altered by invoking inherent powers in this case.

    Copyright:

    © All Rights Reserved
    Download as PPTX, PDF, TXT or read online from Scribd
    Download as pptx, pdf, or txt
    104 views10 pages

    Criminal Procedure I Tutorial 1

    Uploaded by

    Ammar Mustaqim
    I would advise the supervisor that the learned judge does have the inherent jurisdiction under Section 52(1) of the Courts of Judicature Act 1964 to supplement the first judgment by delivering an additional judgment under Section 278 of the Criminal Procedure Code. While the courts have inherent powers to ensure proper administration of justice, substantive law cannot be altered by invoking inherent powers in this case.

    Copyright:

    © All Rights Reserved
    Download as PPTX, PDF, TXT or read online from Scribd
    Download as pptx, pdf, or txt
    of 10

    CRIMINAL

    PROCEDURE I
    TUTORIAL 1
    1. ALINA BALQIS BINTI HANIF
    1161101117
    2. AMMAR MUSTAQIM BIN ARIFF HAZNAL
    1151100066
    3. NROSHA A/P MANOKARAN
    1171301990
    4. NUR IZZATI SYAMIMI BINTI MOHAMMAD ZAKARIA
    1161102055
    5. SHANFARANZI BIN ROSLI
    1161102014
    Question (a)
    It is a rebuttable presumption that a Code signifies comprehensiveness. This
    applies with equal force to the Criminal Procedure Code (CPC).

    Why the Malaysian courts still applies common law of England in criminal
    procedure despite the fact that the CPC is already comprehensive?
    Question (a) Answer
    ➔ It is a rebuttable presumption that a Code signifies comprehensiveness. Code means
    exhaustive.
    ➔ In the case of Karpal Singh v PP, it was stated that the code was intended to be an
    exhaustive pronouncement of the criminal procedure. The pronouncement and effect
    of the code leave no lacuna under normal circumstances.
    ➔ However, Malaysian courts still applies common law of England in criminal procedure
    despite the fact that the CPC is already comprehensive.
    Question (a) Answer
    ➔ S 5 of CPC = allows reference to law relating to criminal procedure for the time being in
    force in England.
    ➔ There are two conditions to it: (i) whenever there’s lacuna

    (ii) cannot be inconsistent with the code

    ➔ Karpal Singh v PP = S5 of the code is indicative of the principles to be applied by local


    courts.
    ➔ PP v Sanassi = by applying criminal Evidence Act read together with S 5 of the CPC the
    accused was given a right to make an unsworn statement from the dock.
    ➔ Mohamed Bin Jamal v Public Prosecutor = Applications of Eng law for additional
    evidence after trial.
    Question (b)
    Saving clause is a provision in a contract, statute, or other legal document containing an
    exemption from one or more of its conditions or obligations.

    (Adapted from English Oxford Living Dictionaries)

    Explain the effect of a saving clause under section 4 of the Criminal Procedure Code to the
    criminal justice process in Malaysia.

    (FE, 2017-2018)
    Question (b) Answer
    ➔ The general rule is that a saving clause shall not be included automatically in
    legislation, it should be specific and be used only when necessary.
    ➔ S.4 of CPC provides that nothing in the code shall be construed as derogating from
    powers or jurisdiction of the High Court.
    ➔ In other words, CPC provides that its provision does not detract from the powers and
    jurisdictions inherent in High Court and conferred by any other law on the High
    Court. Therefore, other jurisdiction of High Court which are not stated in the CPC will
    not be affected.
    ➔ As can be seen in the case of Saat Hassan, the court held that S.4 of CPC protects
    the inherent jurisdiction of High Court to make any order necessary to give effect to
    other provisions under the code, or to prevent abuse of the process of any court and
    to secure the needs of justice.
    Question (b) Answer
    ➔ Moreover, in the case of S Selvanathan, the court held that S.4 of CPC indeed does
    not restrict the power of High Court.
    ➔ Furthermore, in the case of Tan Boon Hock v PP, the court held that the power of an
    appellate court to order a retrial on a proper charge before another magistrate when it
    is of the opinion that an accused was convicted on a wrong charge is discretionary.
    Thus, the appellate jurisdiction of the High Court is clear.
    ➔ In addition, in the case of Hari Ram Seghal v PP, the court held that the powers of
    the courts in England to intervene and make rules not provided in the criminal
    procedure are inherent and are exercisable in order to correct any injustice.
    Question (c)
    On 15 August 2019, the High Court judge had passed a written judgment,which found the
    Accused guilty as charged. The Accused’s defence counsel filed an appeal and requested
    for grounds of judgment. The Registrar informed the defence counsel that the High Court
    judge had written an additional ground of judgment under section 278 of the CPC. The
    defence counsel contended that the learned judge is incompetent to supplement the first
    judgement by delivering additional judgment under s.52(1) of the Courts of Judicature Act
    1964.

    As a legal attachment student is the defence counsel’s firm, you have been instructed by
    your supervisor to do research on the above issue. How would you advise your supervisor?
    Question (c) Answer
    ➔ Issue

    Whether the learned judge has the inherent jurisdictions.52 (1) of CJA to supplement the
    first judgement by delivering additional judgement under .

    ➔ Intro

    Order 92, Rule 4 of Rule Of Court says that for the removal of doubt, nothing in the rules
    shall limit or affect the inherent powers of the court to make any order as may be necessary
    to prevent injustice of the court's processes.
    Question (c) Answer
    ➔ Law

    In the case of Perbadanan Pembangunan Pulau Pinang v Tropiland Sdn Bhd mentions
    that the courts have an inherent jurisdiction to ensure the proper administration of justice in
    the judicial process.

    ➔ Conclusion

    The learned judge is incompetent to supplement the first judgement by delivering additional
    judgment under S.52(1) of the CJA 1964. This is because the inherent power is not to be
    made to strike off the substantive law which the judge had clearly made an alteration by
    adding the ground of judgement on a later date ahead the first judgement. therefore, the
    decision of alteration has to be set aside.

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