Transfer taking of a case out of the court having trial and local jurisdiction over the matter for

r trial in another court of either equal or superior court : Lateral transfers - courts of similar or coordinate powers Vertical transfers - courts of different powers Transmission an accused person is transmitted from the Magistrates court to the High Court for capital cases (abolition of preliminary inquiry) S 177A CPC / DDA 1952 / FIPA 1971 Type of transfer: S177 CPC = Vertical transfer Where the magistrate in the opinion that the case ought to be tried by court of higher jurisdiction or Application by PP Raja Petra bin Raja Kamaruddin v PP (2009) 8 AMR 439, 411 Section 177 did not spell out the conditions enabling the PP to apply for a case to be transferred to the higher court; when is made by the PP, the Mgt shall stay proceedings and transfer the case to a higher court Grounds for transfer: Any cause of the case PP v Ng Ah Tak (1959) MLJ 19- The powers of punishment which the magistrate possesses would be inadequate (a fine of $400 was inadequate for an offence of acid-throwing) PP v Fan Yew Teng - [1973] 2 MLJ 1 including the grounds set out in section 417 of the CPC Sultan bin Rahmansa v R (1955) MLJ 55 it is improper for a magistrate to exercise the power of transfer once he has called upon the accused for his defence ----------------------------------------------------------------Type of Transfer: S104 SCA = LATERAL transfer Co-ordinate jurisdiction > Ho Huah Teong (2001) > ( Sc. Ct ---- Mgt Ct) = different jurisdiction Ordered by the transferor court Manokaran & Anor v PP (1979) 1 MLj 262 ( special sc ct president ordered transfer from sc ct = invalid) Grounds for Transfer: Interest of justice - the fundamental requirements of fairness and justice Ahmad Abu Bakar (1998] 7 MLJ 391 Likelihood of Bias wanted to act impartial > magistrate 'A' transferred the case directly to magistrate 'B' on the ground that he felt cheated that he was no told about the appellant's previous convictions. Manshor Omar [2005] Series of corrupt practices involving the same housing project, same parties, same witnesses Segaran a/l Mathavan [2009] Joint trial : series of acts : it involves the same witnesses and reference to the same documents. This is with the purpose of saving time and costs for all the parties. It will make it convenient for all parties but it will not prejudice the Accused -------------------------------------------------------------Type of Transfer: S99A SCA + para 3(2) of the 3 Sc LATERAL transfer Power in the court by its own motion or on application to transfer the case to another ct of co-ordinate jurisdiction Co-ordinate jurisdiction - Kee Chai Heng v Ketua Polis Daerah Kuala Muda & Anor (1999) 2 MLJ 668 - only the power to transfer from Sessions Court to another Sessions Court ; not the power to transfer the case to the Magistrates Court. PP v Dato Yap Peng (1987) 2 MLJ 311 no power to transfer proceedings to a court of higher jurisdiction Manokaran & Anor v PP (1979) 1 MLj 262 - the transfer was purportedly effected by the transferee court to itself and not by the transferor court as should be the case. It was also not a court of co-ordinate jurisdiction as the Special President had wider powers that a President by virtue of the provisions of s 63(3) of the SCA then in force --------------------------------------------------------------------Type of Transfer: S 177A CPC = vertical transmission No proceeding in the HC may be instituted except by written consent of PP Public Prosecutor v. Oladotun Lukmaru Umaru & Ors [1990]
rd

In my view when a magistrate makes an order for transmission under s. 41A(1) DDA, that event although a judicial event, is a further step in the prosecution of the accused. It follows that that further step is barred until and unless the prior consent of the public prosecutor has been obtained. 41A(1) Where any case in respect of an offence under this Act is triable exclusively by the High Court or is required by the Public Prosecutor to be tried by the High Court, the accused person shall be produced before the appropriate subordinate court which shall, after the charge has been explained to him, transmit the case to the High Court without holding a preliminary inquiry under Chapter XVII of the Criminal Procedure Code, and cause the accused person to appear or be brought before such Court as soon as may be practicable. s177A - PP v. TOHA M YUSUF & ORS [2006] 2 CLJ 800 : when an accused is produced before subordinate courts in respect of all other criminal offences triable in the High Court, have the charge read and explained to the accused and immediately, thereafter, transmit the case to the High Court. This would ensure that there would be no hibernation at the magistrate's court of cases triable in the High Court. PP v Marwan bin Ismail (2008) 3 MLJ 51 - The act of a magistrate in transmitting the case to the High Court under s 41A of the DDA is not a further step in the prosecution. The DDA does not also empower a magistrate to remand an accused tentatively charged for trafficking under s 39B(1), pending the outcome of the drug analysis/chemist's report. Section 417 NOT from HC to subordinate courts PROSECUTOR v CHEAH CHENG ENG [1986] 2 MLJ 39 - the learned Judge in this case had erred in law in that he had no power to transfer the case from the High Court down to the Sessions Court for trial Not from itself to another HC for trial - CHONG SIEW CHOONG v PUBLIC PROSECUTOR[1986] 2 MLJ 39 - Section 20 of the Courts of Judicature Act 1964 gives an absolute power to the Chief Judge to distribute business among the judges of the High Courts in accordance with the directions which he may give of a general or particular nature. In construing s 20 of the Act, the inescapable conclusion was that only the Chief Judge could direct the judge of High Court No 2 ('J2') to take and dispose of the case from the judge of High Court No 1 ('J1') Sub (2) 1 Report from sub. ct 2 PPs application + By way of motion ( s 418 CPC) 3 Accuseds application + By way of motion supported by affidavit ( S 418 CPC) 4 HCs own initiative The High Court May order (cc) transfer cases to itself (bb) Subordinate courts to another subordinate courts PUBLIC PROSECUTOR v FAN YEW TENG[1973] 2 MLJ 1 where an order for transfer is made under section 417 of the Criminal Procedure Code, it is not necessary that the case be tried by the judge who made the order of transfer Ground a) b) c) d) e)

Fair and impartial trial Ques of law of unusual difficuty View of place is required General convenience of parties/witness Expedient for the ends of justice

Fair & Partial: PUBLIC PROSECUTOR v. OH KENG SENG Power should be exercised only if appears that if do not do so, it may result to impartial or unfair trial or otherwise appears expedient in the interest of justice

Unusual Difficulties: PUBLIC PROSECUTOR v DATO KEE YONG WEE & ORS [1988] for all practical intents and purposes, section 417(b) of the Criminal Procedure Code has fallen into desuetude and obsolescence for transfer of cases to the High Court - For the provisions of section 417(1)(b) to be successfully invoked today, the case must be an extraordinary one - It was extremely difficult to see any question of law of unusual complexity arising in the course of trial which the judicial officers of the Sessions Court could not competently deal with. LIN v PUBLIC PROSECUTOR [1987] 1 MLJ 106 - He applied for transfer of his trial to the High Court on two grounds. He claimed that the charges arose out of "letters of hypothecation" involving a company of which he was director and given to banks and that the law on this topic and on banking and securities raised questions of law of unusual difficulty under section 184(1)(b) of the CPC - as District Judges today are all professionally qualified and as it was the duty of the prosecution and defence counsel to present the relevant law comprehensively to the trial Court, the reasons for section 184(1)(b) had diminished considerably from the day when presiding officers in subordinate courts were not professionally qualified. Novelty in a topic of law did not necessarily mean difficulty. Very wide & can be grounds outside the scope of s 417 PUBLIC PROSECUTOR v SU LIANG YU [1978] this convinced me that the sole reason why this case was transferred to the High Court was the fact that the accused was a Member of Parliament and this I think was, with due respect, a false reasoning. Hundreds of this type of cases have been dealt with by the Sessions Court throughout the country - When the case is within the competency of the subordinate court and it appears that there is no difficulty in questions of law or there is no mention or indication of matter of public interest involved the sole fact that the accused person is a Member of Parliament does not entitle him to be charged and be heard in a court higher than the court of competent jurisdiction. All are supposed to be equal before the law and I can never accept the exception that some be made more equal than others. S 25(2) CJA & Para 12 Schedule CJA empowers HC to transfer to or from sub. ct PUBLIC PROSECUTOR v LIM SHUI WANG & ORS [1979] paragraph 12 of the Schedule must be read in conjunction with the proviso to section 25(2) LOCAL JURISDICTION OF THE COURT Sessions court - S59(1) SCA Transfer between two courts in different local jurisdictions - any part of the local jurisdiction of High Court (CJA) federation wide - 1 interpretation: the Sessions Court can sit anywhere, at any branch in Peninsular Malaya or West Malaysia- Public Prosecutor v Segaran a/l S. Mathavan[2009] MLJU 766 district/state territorial limit i.e. Ipoh Sessions Court territorial jurisdictional areas of: Ipoh, Batu Gajah, Parit, Kampar, Sitiawan, Lumut, nd and Pantai Remis. - 2 interpretation: A lower court is subordinate to administrative control of the HC of the state it is located in - PP v Ina/ tengku muiz shah Transfer between two sessions court in different local jurisdiction Manshor Omar [2005] - Transfer from KL Sc ct to Ampang Sc Ct - Valid as no jurisdictional territorial limit Magistrate court s 76(2) SCA st local jurisdiction of the respective HC: 1 interpretation S 2 CPC limits of the ordinary administrative of the court house situated nd Practice Direction: 2 interpretation Taman Rimba (Mentakab) Sdn. Bhd. V. Sin Yew Poh Tractor Works [2002] The High Court does not have such jurisdiction except that it cannot go beyond the shores of the Malay Peninsular, vice versa with the High Court of Sabah & Sarawak whose territorial jurisdictional limits are confined to the two states in East Malaysia. But within each of the High Courts' territorial limits, a High Court judge has concurrent and cost

ordinate jurisdiction to try cases as his counter-part in another city or town where there is a High Court. HC of Ipoh- S 417 SC Kangar - SC KL

Subordinate to HC of Ipoh federation wide

X subordinate to HC of Ipoh state

HC of Ipoh- S 417 MC kANGAR- KL MC

SCA - No territorial Jurisdiction High Court Practise Direction limited to Ipoh & surrounding districts

federation wide - no ** the issue of legal territorial jurisdiction limits of a Magistrates Court has not come for determination before the HC = no case law

HC

SC

MAGISTRATES CT

FEDERATION WIDE

STATE- SUBORDINATE TO THE HC OF THAT STATE

STATE- SUBORDINATE TO THE HC OF THAT STATE

Transfer of cases by PP > S 418A CPC PP may issue a certificate specifying the HC in which proceeding to be transferred. The certificate should be handed to sub. Ct whereupon the court shall transfer the case to the HC specified in the certificate However, transfers are only allowed from sub. Ct to HC - PUBLIC PROSECUTOR v LIM SHUI WANG & ORS [1979] - There is a safeguard to the accused in that a transfer under section 418A can only be made where the accused has not pleaded guilty and no evidence against him has begun to be adduced. > S 41A DDA Transfer to the HC for 2 types of offences: (a) a case triable exclusively by HC ( punishment with death) Any other case that are not punishable with death within the discretion of PP for these type of cases to be tried in HC Procedure the accused shall be produced before sub. Ct which shall after the charge is explained, transmit the case to the HC Lee Chan Sang no recording of plea > Section 11 of the Firearms (Increased Penalties) Act 1971 Cases are transferred under FIPA by the issuance of a requisition by the PP It is done after the accused is produced & charged The court will then transmit the case to the HC