Week 6 Tutorial Answer

Criminal Procedure Code II
Week 6 – Tutorial Notes discussion
Issue:
1. The Charge was read and Pity pleaded guilty. On the date set for facts to be
presented by the prosecution, Pity changed his plea.
Q: Can he do so?
S.173(b) – The accused may plead guilty and the guilty plea must be recorded and he
may be convicted and sentenced passed according to law provided he understand the
nature and consequences of his guilty plea.
An accused can withdraw his PG at any time after the plea has been accepted and
recorded by the court but before sentence is passed by the court. However, Accused
cannot do so at his own whims and fancies (Saw Kim Hai [1960]). The court still has
discretion not to accept the withdrawal. The court has to ask for explanation and if the
explanation offered by the accused is not satisfactory, the court can reject the withdrawal.
PP v Jamalul Khair[1986] 2 MLJ 371 and Abdul Mormin v PP(1939)MLJ 323 – shows
what reasons are acceptable.
Lee Weng Tuck (1989) – A may withdraw PG before the court is functious officio.
New Tuck Shen [1982] – A not allowed to withdraw as he was caught red-handed and
had no defense.
Application:
Sentence was not passed. Hence, following Lee Weng Tuck and Jamalul Khair, Pity
can change his plea, however this cannot be done according to his whims and fancies.
Pity is advised that the Court has discretion to allow withdrawal of his guilty plea.
Conclusion: Pity is advised that he may withdraw his plea of guilt on the date of facts
and sentence but the Court has discretion to allow his withdrawal if he can produce valid
reasons. The facts are silent on the reasons.
2. Does the prosecution have the discretion in deciding the number of witnesses to
be called to prove its case? – as discussed in class.
3.
Recalling of Witnesses:
Issue: -
Prosecution calling and Recalling of witnesses.
During the Defence case, DPP witty applied to call one ASP Man who was the
investigation officer in this case to give evidence and to recall Dr. Betty, the medical
Officer. The court dismissed the application to call the investigation officer but granted the
application to recall Dr. Betty. Can the Magistrate do so?
An accused is entitled to recall prosecution witnesses who had already testified. Recalled
for the purposes of further cross-examination : s. 173(j)(iii). During the Defence case the
Defense is to produce all evidence as well.
Section 162, S417(4), S. 425 CPC, s138(4) Evidence Act 1950.
Q: Can the prosecution recall its witnesses at any stage of the proceedings?
The Prosecution may recall its own witnesses for examination aft the commencement of
the trial under the following circumstances:
a. Charge is amended. Can recall during prosecution or defence case.
b. The Prosecution may apply to the court to which a case is transferred under Section
417 of the CPC, for recalling any if his witnesses.
c. The Prosecution may recall any of its witnesses before the close of the prosecution’s
case.
d. The Prosecution may be allowed to recall its witnesses for further examination even
after the close of the prosecution case. But the Prosecution may not reopen its case to
prove some essential part of its case after a submission by the defense has revealed an
inherent weakness.
PP v Lin Lian Chen [1991] 1 MLJ 316 Mohtar Abdullah J pg 318:
“ At the close of the prosecution case, in reply to the submission of the learned counsel
for the defence on this point, the learned deputy public prosecutor urged the court to recall
PW2, the Chemist, in order that this qualifications as an expert court be established.
Although Section 425 of the CPC permits the court to recall and re-examine any
witnesses if his evidence appears to the court to be essential to the just decision of the
day. I exercise my discretion not to recall PW2 as the prosecution had already closed its
case. It is not just and fair to allow the prosecution, after it has closed it case m to make
emergency repairs to defects in its case by its own lack of case in the conduct of its own
case.”
e. The Prosecution may not be allowed to recall any of its witnesses after the defence
has been closed unless it is essential to the just decision of the case.
Ramli Kechik [1989] 1 CLJ 308

“The only real complaint of the appellant is the manner in which the essential evidence
was obtained. In the context of s. 425 CPC and independently of the Court's inherent
power over Court exhibits, a trial Court has power to order examination of any such
exhibits by expert witnesses at any stage of the trial or proceeding, if such examination
is necessary for the procurement of the essential evidence to enable the Court to
get at the truth and to arrive at a just decision. In addition, the Court also has
inherent power to examine Court exhibits in or away from the Court room either by
itself or by witnesses for purpose of identification. It is immaterial that such
examination may amount to an investigation provided it is done for the limited purpose of
determining the truth of a material and essential matter in issue. Whether such inherent
power over Court exhibits has been exercised judicially must depend on the facts of each
particular case.”
Kamaruddin Abd Rashid v PP [2016] 1 LNS 510 applied the case of PP v Abdul
Hamid [1969] 1 MLJ 53:
“No doubt sect ion 425 of the CPC gives a wide power to the court to summon and
examine any per son to give evidence but this power , as has been reiterated by many
authorities which I need not cite here, must be exercised with the utmost caution and only
when as set out in the provisions the evidence of that person appears to the court
essential to the just decision of the case.”
(In Kamaruddin; the appeals court accepted the lower courts reasoning to not allow
recalling of witnesses although no reasons given. The defence failed to give string and
valid reasons for recalling PW3. To reopen such evidence requires strong grounds)
Note:
Ng Ban Leong [1993]
Whatever the accused elects to say at that stage, it is not for the court to investigate its
truth. Either his plea amounts to a guilty plea or it amounts to an plea of not guilty …. That
is all the court need to decide. The truth or relevance, even the logic, of the assertions
made by the accused in response to the charge against him being read to him is a matter
for testing at trial, not at the stage when his plea is taken.
An unrepresented accused, when testify as witness can re-examine himself to clarify the
answer during cross examination: Lee Pak[1937] It is not incumbent upon the
prosecution to call as witnesses all persons from whom statements have been taken. If it
is clear that their evidence will throw no light on the case, it would be a sheer waste of
time and money to bring them to Court.
If the accused should desire to call any such person as a witness he should of course be
given the opportunity to do so, no matter what view the prosecution may have taken as
to the value of the evidence which he is able to give. An unrepresented accused, when
testify as witness can re-examine himself to clarify the answer during cross examination.
Application&Conclusion:
Dpp Witty is advised on the case of Lin Lian Chen and Ramli Kechik. The Magistrate is
right to apply its discretion.
Expert Witnesses further discussion:
(Not related to the question)
Issue: Dpp to tender the ballistics report as evidence in the trial of Ammo without having
to call any witnesses in court.
Q; can he do so?
Discuss. s399 CPC – yes. The prosecution has to serve the expert report 10 days before
the commencement of the trial against the accused. If the court orders for the said expert
to be present in court to testify, the prosecution shall comply – S. 425 CPC.
Chong Yik (1956) – Service requirement is paramount.
PP v David Chung [2007] – Prosecution serving report is a condition precedent and non-
compliance will render report inadmissible.
PP v Lam Peng Hoa & Anor [1996] & PP v Lin Lian Chen [1991] – report becomes
substantive evidence.
Issue: Dpp want to call expert witness after his report which has been served on accused
person is admitted as evidence by the court?
It is submitted that the prosecution may still call the Expert Witness to clarify issues even
though chemist report has been served on Accused.
s. 399 CPC & Muhammad Bin Hassan (1998) 2 CLJ 170 FC:
“Section 399(1) CPC merely enables the report to be used but does not make it obligatory
for the prosecution to make the report substantive evidence simply because it had served
a copy thereof upon the accused in pursuance to s. 399(1). That being so, service of the
notice of intention to produce the chemist’s report under s. 399(1), per se, would not
preclude the prosecution from subsequently declining to tender the report in evidence
pursuant to the said s. 399(1) and calling PW3, as maker of the report, to give evidence
at the trial as a witness.
In calling PW3, the maker of the report, as a witness, the prosecution not only had
complied with the best evidence rule but had also afforded the appellant the benefit of
cross-examining PW3, an opportunity which the appellant had indeed availed himself in
this case. There is thus nothing improper in the production of the report by PW3 as maker
thereof in the course of giving evidence in court.”
Apply to the Facts.

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Criminal Procedure Code II

Week 6 – Tutorial Notes discussion

Section 162, S417(4), S. 425 CPC, s138(4) Evidence Act 1950.

a. Charge is amended. Can recall during prosecution or defence case.

PP v Lin Lian Chen [1991] 1 MLJ 316 Mohtar Abdullah J pg 318:

Ramli Kechik [1989] 1 CLJ 308

Ng Ban Leong [1993]

Expert Witnesses further discussion:

(Not related to the question)

Chong Yik (1956) – Service requirement is paramount.

Apply to the Facts.

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