NATURE OF CRIMINAL PROCEDURE CODE IN MALAYSIA

NATURE OF CRIMINAL PROCEDURE CODE IN MALAYSIA Raja Badrol Hisham Raja Mohd Ali Department of Public Law International Islamic University Malaysia... Criminal procedure Code contains pr

NATURE OF CRIMINAL PROCEDURE CODE

IN MALAYSIA Raja Badrol Hisham Raja Mohd Ali

Department of Public Law International Islamic University Malaysia

BASIC FEATURES:

1 Criminal procedure Code contains procedural laws.

 Criminal Procedural laws refers to law

governing the manner to which rights under criminal law can be enforced and crime

prosecuted under criminal law.(i.e how do we

go about)

 In comparison, substantive laws tell us what the law is, i.e the requirement, exception,

punishment.

2 Criminal Procedure Code (CPC) is drafted and intended to be the most comprehensive and exhaustive.

 Section 3 of CPC – all criminal laws in

Malaysia must be done in accordance to CPC.

 However, although it is the most comprehensive) if there is any other specific law/provisions, that

specific law/provision shall prevail.

 The relevant maxim: ‘generalia specialibus non derogant’ – general things do not derogate from special things

 - special law shall prevail over the specific law.

 Eg: under First Schedule of CPC (general

provision) there are bailable offences However,

under Sec 41B of Dangerous Drugs Act

(specific provision) mentions that no one can be given bail over the provision in CPC The provision in DDA shall prevail over the provision

in CPC

 PP v Chew Siew Luan

Held: “being a general legislation must

ex-necessitate yield to the specific provision of

Section 41B of Dangerous Drugs Act 1950

relating to bail.”

3 Whenever there is lacunae in our CPC and no case law decided on the matter, English cases can be authoritative.

- Sect 5 CPC

 Ong Lai Kim v PP

In this case, it is correct to follow English case which provides identification parade by using one way mirror to identify accused person since our CPC is silent on the manner to identify accused person under custody of police and no local case deal with this matter.

4 Approach in interpretation of provisions found in code.

 Sec 2 of CPC – Interpretation section for CPC.

 Sec 2(3) of CPC – “all words and expressions used herein

and defined in the Penal Code or Police Act 1967, and not herein before defined shall be deemed to have the meanings attributed to them by that Code or that Act, as the case may be”.

 It means that, we have to refer the definition of words in CPC first, then only can refer to Penal Code and Police Act 1967.

 Eg:if one is looking for the definition of

‘Inspector’ appearing in Sec 113(1) of CPC, it

is already defined under Sec 2(i) that the term

‘Inspector of Police’ is defined to mean

‘Inspector of Police of any class but does not include a Sub-Inspector’.

 That would mean that a ‘probationary inspector’ would be considered to be an

‘Inspector’ for the purpose of Sec 113(1) of

CPC.

 However, the then Federal Court in Abdul

Ghani bin Jusoh & Anor v PP, appeared to

have erred in this regard when straightaway referred to the provisions of the Police Act 1967

in deciding whether a Probationary Inspector

was as ‘Inspector’ for the purpose of Sec 113(1)

of CPC

5 Criminal Procedure Code: mandatory or mere directory?

 Mandatory the provisions must be

followed If it is not followed,

it is substantially wrong

 Directory  the provisions (procedure) is

just as a guide

 CPC is mandatory! This is based on case law

 Secretary of State for Defence v Warm (English

case)

Secretary of State for Defence v Warm

Lord Hodson:- “the presumption is that criminal

procedures are mandatory unless proven otherwise”.

 The decision of this case has been followed by

Malaysian

(i) Kamarul Azman v Lef Colonel Wan Abdul Majid (ii) Mersing Omnibus v Minister of Manpower.

 Sec 422 of CPC – provides that we must follow the procedures laid in CPC, however, if we fail

to follow the procedure and such failure will lead to minor breach, it can be cured by this provision.

 2.2jurisdiction.ppt