high court trials & trials under escar

8/4/2019 High Court Trials & Trials Under Escar

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HIGH COURT TRIALS &TRIALS UNDER ESCAR

CONTENTS:1. HIGH COURT TRIALS.2. TRIALS UNDER ESSENTIAL(SECURITY CASES) REGULATIONS

1975.

3. TRIAL PROCEDURES IN DIFFERENT COURTS.

RAVINDRAN KUNJAN 2


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1. HIGH COURT TRIALS Consent of PP must be obtained for a

case to be prosecuted in the High Court

s 177A CPC;

High Court has power to conduct trialproceedings for children s 117 Child

Act 2001, except ss 96 & 97;


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Commencement of trials 178

CPC ( same as ST - s 173 CPC )

S 178(1) CPC A appears / brought beforeHC and asked if PG of offence charged;

Law relating to reading & explaining charge to A is similar to STie interpreter, language to be used etc;

S 178(2) CPC plea of guilty shall berecorded & A may be convicted thereon;

but before PG recorded court shall ascertain that A understandsthe nature & consequences of his plea & intends to admit w/oqualification, offence alleged against him;


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PROCEDURE IF A PG: P submits brief facts ( practice rule as no

procedure provided ); A will be asked if he admits to brief facts & wishes to

PG. Plea must be unreserved, unqualified andunequivocal; ( A must understand nature &consequences of the guilty plea );

Guilty plea accepted must be recorded & court mayconvict A;

Before sentence is passed, defence may submit pleaof mitigation, followed by P with any aggravatingfactors;

Court shall pass sentence according to law s 183CPC;


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CASES:LEE WENG TUCK:SC held allowing appeal, that a plea of guilty must be valid &unequivocal & safeguards to follow are:

(a) court must ensure that A himself who wishes to PG;(b) understands nature & consequences of plea;(c) that A intends to admit w/o qualification offence alleged

against him;(d) in capital cases, validity of plea must first be established

before plea said to be unequivocal; issue a question of

mixed law & fact; In capital cases, J has discretion to permit A to change his

plea at any time before sentence, but must be exercisedjudicially & on valid grounds;


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Settled Law that J can entertain application by Ato withdraw his guilty plea at any time beforesentence.

Cases: Sam Kim Kai; Jamalul Khair;

Tang Hee Hing:

SC ordered retrial as plea doubtful;

Dat ak Tuni:

Held: Order set aside as Sessions J wrong to order A bedetained in mental hospital; should have proceeded to take pleafrom A.

Notwithstanding if A refuses to plead / does not plead / if claimsto be tried, court shall proceed to try case s 178(3) CPC;

Or if As guilty plea is unreserved, unqualified or unequivocal,the court shall not accept the guilty plea, but proceed to try thecase.


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Prosecutions Case: S 179(1) CPC - P shall open case & state nature of

offence & evidence by which proposes to prove guiltof A;

Norfaisal:Mandatory to open case; fatal if failed todo so; S 179(2) CPC Examination of witnesses (EIC/X/Re ); If no more witnesses, P will close its case & offer W

to defence;

Defence may make a submission of no case toanswer followed by a reply from P;

but court has discretion to refuse such submission ifPs case very strong; Chong Boo See;


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Procedure after conclusion of

Prosecutions case. S 180(1) CPC provides when Ps case concluded,

court shall consider whether P has made out a primafacieagainst A;

S 180(2) CPC if no prima facie case, court shallrecord/order acquittal;

S 180(3) CPC if prima facie case made out, thendefence called;

Test: (prima facie case: P has adduced credibleevidence proving each ingredient which if un-rebutted/unexplained would warrant a conviction- s180(4) CPC same as s 173(f) & s 173(h)(iii) CPC);


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Issue: What Standard of Proof court shouldadopt at end of Prosecutions case in determining

whether to call A to enter his defence or not.

Pre Haw Tua Tau: General rule was that P had toprove its case beyond reasonable doubt;

{PC stated at the end of Ps case, A may be acquitted if facts

adduced by P are inherently incredible or the facts, though notinherently incredible had not established the ingredients of thealleged offence. Thus, a prima facie case means that the factswere not inherently incredible and had proved the theingredients of the alleged offence}

Cases that followed this approach:Munusamy; Junaidi

( minimum evaluation );Lee Eng Kooi; Tan Boon Kean(maximum evaluation);

Arulpragasan held that court must be satisfied that P hadestablished a prima facie case before calling defence;


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CONTD: Prima facie Case:

Sukumaran Sundramrestatement of Haw Tua Tau where P has made out a prima facie case if evidenceis not inherently incredible;

Subramaniam a/l ArumugamFC refused to be involved in intellectual discoursed of meaning of primafacie case;

Khoo Hii Chiang retained HTT ( maximum evaluation ) approach;

Arulpragasan Beyond reasonable doubt test;

Mohd Amin b Mohd Razalievidence adduced is free from reasonable doubt,uncontradicted &proving each & every essential ingredient of the offence which if unrebutted would warrant a conviction of

A;

Looi Kow Chai Correct test made out u/s 180 CPC (maximum evaluation); further held that by subjectingPs evidence to maximum evaluation did not mean that P had to prove case beyond reasonable doubt atthis stage;

DS Anwar Ibrahim (No:3)a maximum evaluation of the credibility of witnesses must be done at theclose of Ps case before the court can rule that a prima facie case has been made out in order to cal for thedefence.

But Gopal Sri Ram concluded, on this point, the above passage correctly states the law as it stands, madeit clear that P need not prove its case BRD at the close of Ps case & whether it has done so, is a questionto be dealt with at the close of the whole case.


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CONTD: Prima facie case : Balachandran:FC followed Looi Kow Chai that court must

apply maximum evaluation principle in evaluating Ps casewhether made out a prima facie case;

Sidek b Abdullah: though disagreed with maximumevaluation but was bound to follow precedent inBalachandran& Looi Kow Chaienunciated byArulpragasan;

Chong Chai:approved Low Kow Chaisoon after Sidek;

Subsequently, before s 180(4) CPC came into effect, HCs in

Chong Chai & Mohan Dass a/l Ganesanapplied themaximum evaluation principle in determining BOP & SOP by Pin making out a prima facie case;


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Amended Charge: Sidek b Abdullah & Mohan Dass a/l

Ganesan: P failed to establish a prima

facie case for original charge of sellingcannabis & murder( s302 PC)respectively; but P succeeds to make

out a prima facie case on amendedcharges of possession of cannabis &culpable homicide (s304(a) PC).


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Defences Case : S 181(1) CPC D may open case; but not same as P; Proceed

to question W; P will X; D will Re; Same as 174(b) CPC ST; Court will inform (practice rule) 3 electives: (i) remain silent w/o adverse criticism;

(Low Kow Chai:COA stated that prima facie test is as in DatoMokhtar Hashimmaximum evaluation; Balachandran:FCstated if A remained silent convict only if prima facie evidenceis beyond reasonable doubt;)

(ii) give unsworn evidence in the dock w/o subject to crossexamination;

(iii) to give sworn evidence cross examination alloweds181(1) CPC;

D can examine other Ws if present s181(2) CPC; D can make closing submissions s181(1) CPC; S182 CPC allows P right to reply to Ds submission;


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Procedure at Conclusion

of Trial Court shall consider all evidence adduced &

decide if P has proven case Beyond

Reasonable Doubt s 182A CPC; If YES: find A guilty & convict A thereon;

If NO: record an order for acquittal.

S183 CPC court shall pass sentenceaccording to law.


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Trials under Essential (Security

Cases) Regulations 1975 [ESCAR]

Regulation 2 ESCAR two types ofsecurity offences:

(i) offences under ss57 to 62 ISA 1960;

(ii) offences under any written lawopined & certified by AG to be security

offences;eg. S.379 PC theft of militarysecrets.


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Reg.5 ESCAR:Court ofCompetent Jurisdiction:

High court or appropriate lower courtsbut not court for children;

Reg.3(3) ESCARprovides that if A


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Reg.3(1)ESCAR:

Provisions on procedure in ESCARwill OVERRIDEany other inconsistent law;

BUT IF ESCAR SILENT, then ordinary procedure, eg.

CPC, will continue to apply; Lim Hang Seoh: Appeal by 14yr old sentenced to death

u/s 57 ISA that he cannot be sentenced to death u/s 16 JCA;BUT FC held Reg.3(3) ESCAR overrides JCA; Later Agongcommuted to detention until 21yrs at Henry Gurney.

PP v The Offender: Held: Approach where 14 yr oldconvicted 5yrs/10 strokes different as DDA does not overrideJCA.[ see s12; s12(3) & s15(2) JCA;

However doubt if this applies in cases under ESCAR.


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Reg.11 ESCAR:Commencement of Trial

Reg.11(1): ESCAR trials shall begin withcharge read & explained & whether A

pleads guilty or claims trial; Reg.11(2): A PGs must understand

nature & consequences of his plea;

Reg.11(3): A PNG; Court shall proceedto try case.


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Reg.12 ESCAR:OpeningCase by Prosecution

Reg.12(1): P shall open its case & maystate nature of offence( Not mandatory

as in HC u/s179 CPC); Reg.12(2):Examination of witnesses as

in summary trials & HC trials;


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Reg.13 ESCAR:Procedureafter conclusion of Ps case

After P closed its case, court shall order A to enterhis defence (mandatory; but see Sihabduin b HjSalleh);

Reg.3(1): Defence may submit no case to answer; P will offer to D, as a rule of practice, persons whose

statements taken but not called as witnesses;

After submissions, P will reply;

Issue of prima facie case: not provided & notrequired under Reg.13;


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Reg.17 ESCAR:Provides that court willdecide on guilt /innocence of A only at conclusion of Dscase after considering all evidence of P & D

This raises issue of if prima facie case need to be established before defence iscalled; if affirmative THEN what is the standard / test before defence is called;

Johnson Tan Han Seng:FC held trial judge was wrong to acquit A at end ofPs case as Reg. 13 & 17 ESCAR makes it mandatory for defence to be called;

Sihabduin: similar as Johnson Tan ( Suffian LP also) departed & said primafacie case need to be established in security trials before defence is called;

Mohd Amin b Mohd Razali & 28 ors:FC followed Johnson Tan; preferringthe dissenting view in Suhabduin.

Issue of Standard of Proof

Dato Mokhtar Hashim:Applied test in Haw Tua Tau where if the evidence ofP is not inherently incredible then P has established prima facie case;

But in Nordin b Johan:FC seem to apply beyond reasonable doubt test; Jamali b Adnan: HC applied Beyond reasonable doubt test & said if evidence

of P un-rebutted, it warrants a conviction;

It is submitted that the test should be that laid down in Balachandran:FC heldthat P has made out a prima facie case which if un-rebutted would convict A.


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Reg.14;15;16;17 ESCAR:Defences Case

Reg.14(1): A may open his case;

Reg.14(2): 3 same electives for A;

Reg.15: P shall have right to reply on whole case;

Reg.16: Power of court to question or recallwitnesses;

Reg.17: Decision of court at conclusion of trial; Thecourt shall decide on the guilt or innocence of A only

at the conclusion of the defences case afterconsidering all the evidence;


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Reg.18 : ESCAR:Finding &Sentence

Reg.18(1): If the court finds accusednot guilty, it shall record & order

acquittal. Reg.18(2): If guilty, convict & sentence

according to law.

After conviction, before sentence, D canmake plea of mitigation & P can reply.


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OTHER PROVISIONS OF ESCAR:Reg.8;9;10;19;20;21 & 23

Reg. 8: Venue:P may, at any timebefore trial of a security case, by notice

apply for transfer of the case while thecourt to which it is transferred must becompetent & have jurisdiction to try not

withstanding the local limits of itsjurisdiction.


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Reg.9: Bail [ Reg. 27]

Reg.9 states that bail must be granted to the accusedin a security case, but may be allowed where theoffence is not punishable with death or life

imprisonment if the accused satisfies the court thathe should be granted bail.

Besides, Reg.27 provides that if the prosecutionappeals against acquittal, the court may issue awarrant of arrest for the accused to be brought

before the court and may commit him to prisonpending disposal of appeal or grant bail to him.


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Reg.10: Joinder of Offence& Joint Trial

Reg. 10 provides that any number of securityoffences against any person may be tried at

the same hearing notwithstanding theseoffences are not of the same kind.

It further provides that any number ofaccused persons may be tried together and

they shall be tried together where the PPgives a certificate that it is a case fit for a

joint trial.


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Reg.19 & 20: Witnesses

Reg.19 provides that evidence ofwitnesses may be given in a special

manner, example, in camera, whileReg.20 allows witnesses to identify theaccused or other persons or exhibits

without disclosing the identies of thewitnesses.


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Reg.21: Admissibility ofstatements & documents.

Reg.21(1) deals with the admissibility of oral &written statements of the accused where it providesthat statements of the accused are still admissible if

they are made to any person[Reg.21(1)(a)] andwhether or not a caution has been administered[Reg.21(1)(e)].

Furthermore, Reg.21(3) provides that the court hasthe discretion to admit even hearsay evidence &

secondary evidence. This is a relaxation of the strictprinciple & rules of procedure which are applied innormal trials( not security cases).


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Reg.23: Interception ofCommunication.

Reg.23 allows the prosecution to orderinterception of communications during

investigations, e.g. wiretapping;opening of mail & parcels, etc.

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