NAMA: NALINA A/P SANTHIRAN

NO MATRIK: A154205

FIRMA: TETUAN NORADURA & CO (FIRMA 7)

KUMPULAN TUTORIAL 4

WAKTU TUTORIAL: 9 AM-10 AM

TUTOR: TUAN MOHD ZAMRE BIN MOHD ZAHIR

SOALAN 1
Tutorial 1 11 October 2018

1. With the advent of information and communication technology, crimes have escalated
to be more complex and complicated, hence the emergence of a multitude of dedicated
statutes catering for such a phenomenon. Evaluate and submit if these dedicated
statutes have diluted the scope and extent of section 3 CPC.

2. Provisions in a statute are there for a purpose. Likewise section 4 CPC which is known
as a non-derogation clause serves a purpose. Evaluate and submit on the effect and
benefit of that provision to the criminal justice process in Malaysia.

3. It is a rebuttable presumption that a Code signifies comprehensiveness. This applies

with equal force to the CPC.
(i) Evaluate and discuss the extent of the application of the common law of England
pursuant to section 5 CPC to matters and issues on criminal procedure by the
courts in our country. You can support your answer with decided cases which had
followed the common law of England.
(ii) Do you still need section 5 in the CPC?
1.Section 3 of the CPC states that all offences under the Penal Code may be tried in accordance
with the CPC. Likewise, for offences in offences in statutes other than the Penal Code.
However, this is subject to any written law which provides to the contrary. Hence, if a specific
statute lays down a special mode of trial or investigation, then that statute will prevail over the
CPC as far as offences covered by that statute are concerned.
For example, search in relation to drug offences would have to be conducted according to the
provisions of the Dangerous Drugs Act 1952(DDA), and not the CPC.There is the special
procedure governing juvenile offenders spelled out in the Child Act 2001.Furthermore, there
are special procedures also spelt out in the Kidnapping Act and Anti-Trafficking in Persons
and Anti-Smuggling of Migrants Act 2007 respectively.
The principle generalia specialibus non derogant therefore applies: a specific provision in a
specific statute overrides a general provision in a general statute. This principle was interpreted
by the courts in the case of PP v Chew Siew Luan (1982) where the facts are a woman who
was pregnant was charged with trafficking in 157.08 g of Heroin, an offence under the
Dangerous Drugs Act 1952, which carried a punishment of death or imprisonment for life. The
learned President of the Sessions Court granted her bail pending the hearing of the case relying
on the proviso to Section 388(1) of the CPC where he expounded that the cardinal rule is that
specific provisions be followed excluding the oppression of special law. An appeal by the
Public Prosecutor against the order granting bail was dismissed by the learned judge of the
High Court who held that Section 41B(1) and (2) of the DDA 1952, does not override the
proviso to Section 388(1) of the CPC. He later referred the following questions to the Federal
Court:
(i) Whether or not Section 388 of the CPC overrides the provisions of Section 41B of
the DDA 1952.
(ii) If the answer to question (i) above is in the negative, whether it is right in law for
bail to be granted in respect of a person charged for an offence under Section 39B
of the DDA 1952.
The court referred to the case of PP v Chu Beow Hin [1982] which had previously applied the
principle of generalibus specialia derogant as a cardinal principle of interpretation in holding
that The Price Control Act deals with a special case and to that extent the general provisions of
the CPC do not affect its operation. It means that where a special provision is made in a special
statute, that special provision excludes the operation of a general provision in the general law.
Hence, in this case it was held that the provisions regulating the granting of bail order under
the DDA must be construed in the context of that Act and not in the CPC and to that extent the
general provisions of the CPC must ex necessitate yield to the specific provisions of Section
41B of the DDA in that regard. The answer to the first question must be in the negative and the
second was accordingly a non sequitur.
Apart from the CPC, these statutes provide and regulate certain aspects of criminal procedure.
Indeed these dedicated statutes may on the outset seem to have diluted the scope and extent of
Section 3 of the CPC, however this is necessary for procedure set out in specific statutes would
be better suited to deal with specific crimes according to its nature.

2. Section 4 provides that ‘Nothing in this Code shall be construed as derogating from the
powers or jurisdiction of the High Court’. This provision is declarative in nature and hence
effectively declares that the provisions of the CPC do not restrict or reduce the powers of the
High Court. The CPC cannot override the powers of the High Court for they have very inherent
powers vested in the Federal Constitution and the Courts of Judicature Act 1964. The benefits
of this Section can be illustrated through its application in the case of PP v S. Selvanathan
(1994) concerning disposal of exhibits. In this case, the magistrate had ordered for a rogue dog
which had mauled a person to death to be disposed of. However, there were doubts surrounding
the method of disposal for they were not underlined in any specific act or by the magistrate
herself.
According to S. 35 of the Courts of Judicature Act 1964, the High Courts have unrestricted
“general supervisory and revisionary jurisdiction over all subordinate courts” so long it feels I
is suitable “in the interests of justice ...”. The judge in this case referred to the case of Emperor
v. Lachiram where it was held that “the powers of the High Court in revision are excercisable
at the discretion of the Court and that discretion is untramelled and free so as to be exercised
according to the exigencies of each case.
In this case, the High Court judge pointed out that Section 406A (2) was enacted for the
forgetful Magistrate. He further expounded that it would only be suitable for each magistrate
to order in what manner or a specific method in which the exhibit is to be disposed whether it
be through forfeiture, confiscation or destruction or any other methods. Since this was not done,
the High Court exercised its powers under Section 410 of the CPC to modify or amplify the
order of the disposal of the dog where it is to be confiscated and rehabilitated by the Police and
after a couple of months, should the police consider that the dog is beyond redemption, then
they will put it to sleep.
Hence, it can be seen that this saving of power of the High Court allows it to compensate for
the lackings of the lower courts.

3.(i) The case of PP v Karpal Singh [1991] considered at length the Criminal Procedure Code
and its relationship with present English Common Law. It held that the “Criminal Procedure
(Amendments and Extension) Act 1976, which came into force on 9 January 1976 is applicable
to the whole of Malaysia, amending and codifying the previous separate legislations. The Code,
as its name suggests was intended to be an exhaustive pronouncement of the criminal
procedure. Section 5 of the Code is indicative of the principles to be applied by local Courts.
This section provides for the English Law relating to criminal procedure to be applied when
there does not exist any special provision on the matter either in the Code or any other existing
law. English Law is applicable insofar as it does not “conflict or be inconsistent with this Code
and can be made auxiliary thereto.” The court further expounds that the pronouncement and
effect of the Code leave no lacuna under normal circumstances.”
Hence, it is trite law that the courts do allow for the adoption of English Law given 2
preconditions are first satisfied. First, there must be a lacuna in the CPC. Second, the proposed
principle of English Law on criminal procedure must not be inconsistent with the provisions
of the CPC.
However, since there have been several circumstances which have seen the necessary
importation of English Laws to fill in the gaps in the CPC. In the landmark case of Re Kah Wai
Video Ipoh Sdn Bhd (1987) the police had obtained a search warrant to search for infringing
copies of films of certain titles specified in the warrant to search for infringing copies of films
of certain titles specified in the warrant. They seized both specified and unspecified items.
Subsequently the Magistrate held that the seizure of the unspecified titles was unlawful and
ordered their return. On revision by the High Court, Edgar Joseph Jr. J set aside the Magistrate’s
order on two grounds:
 By virtue of an implied extension of the search warrant, the police had power to seize
those articles.
 Alternatively, at common law following the decisions of Chic Fashions (West Wales)
Ltd v Jones and Ghani v Jones , the police had power to seize the unspecified articles.
However, there are criticisms on this case where it is submitted that his Lordship should have
first referred to the provisions under the CPC and the Copyright Act 1969 before referring to
the common law. In the event that Section 435 of the CPC is deemed to be irrelevant or
inapplicable, then Section 5 of the CPC should be invoked and the common law principles
could be referred to.
Following that in the case of Justin Milroy Narakera v PP (1990) there was a lacuna in the
local laws as to whether a company may put in an action. Hence, the courts adopted the
common law principle where a company has the power to many a plea in criminal trials. Further
in the case of, Ong Kai Lim v PP(1991) where the courts have adopted the English laws
relating to the use of one way mirror in an identification parade.
In more recent cases such as Sara Lily v PP (2004) in dealing with the issue as to who has the
right to participate in an inquest invoked Section 5 of the CPC, and applied the English
Coroners Rules, in particular Rule 20 of the Coroners Rule which underlines as follows:
(i)Parent, child, spouse and any personal representative of the deceased.
(ii) Any other person who in the opinion of the coroner is a properly interested person.
This case has therefore shown that our local courts can take guidance from the English
Coroners Rules in refining the inquests procedures in our country.

Hence, the courts in Malaysia have used Section 5 from time to time with the previously set
out guidelines in referring to the Common Law when necessary.

(ii)In my opinion, Section 5 is still necessary for times are constantly changing and the laws of
our land may not be able to fully adapt to these changes in time. It would be unjust to leave a
potential plaintiff without a proper recourse in court simply due to this reason. Section 5 when
used in the right manner ensures that justice can be upheld with the importation of English Law
under the circumstances where there is a lacuna in our local laws on the matter. Hence, it would
always be handy to have such a section considering English Laws are pari materia to local laws
so long as they do not contradict the latter.