MALAYSIAN LEGAL SYSTEM / LLS 1213

TITLE : ESTABLISHMENT AND JURISDICTION OF MAGISTRATES COURT

PPREPARED FOR : PN. SHARIFFAH NURIDAH AISHAH BT SYED NONG MOHAMAD

MALAYSIAN LEGAL SYSTEM / LLS 1213

TITLE : ESTABLISHMENT AND JURISDICTION OF MAGISTRATES COURT

PREPARED BY : ALYAA SYAHIRAH BINTI AHMAD MADIHAH BINTI KHUSAINI NURNABILAH BINTI ZHAMRIEE SITI RAHMAH BT ZULKIFLI SOLEHAH MARDHIYAH BINTI MISNAN LDA11029084 LDA11029078 LDA11029076 LDA11029116 LDA11029205

MALAYSIAN LEGAL SYSTEM / LLS 1213 CONTENTS INTRODUCTION ESTABLISHMENT JURISDICTION - FIRST CLASS - SECOND CLASS APPEALS SMALL CLAIMS PROCEDURE REFERENCES CONCLUSION

MALAYSIAN LEGAL SYSTEM / LLS 1213 INTRODUCTION The Federal Constitution vested the power to hear and determine civil to the judiciary. The Judiciary also can pronounce the legality of legislative or executive acts and interpret the Federal Constitution. There are 6 courts that have the power of the judiciary vested by the Federal Constitution which is the Federal Court, the Court of Appeal, the High Court, the Sessions Court, the Magistrate Court and the Children Court. All this courts are categorized into two groups, the Superior Courts and Subordinate Courts. Figure 1.0 shows the hierarchy of the courts in Malaysia.

Figure 1.0 The Magistrates Court are the lowest in the hierarchy of the courts, and they are the most important. The Magistrates Courts deal with the vast majority of cases, both civil and criminal, and sit in almost all major towns in Malaysia. These court are more numerous than other court. They handle the greatest volume of work. In fact, for the majority of people, their exposure to the courts would be likely to be only the Magistrates Court because these courts deal with everyday matters such as road traffic. The Magistrates Court also exercises civil as well as criminal jurisdiction. All civil proceedings in the Magistrates Court are regulated by the Subordinate Court 1980 (SCR) and criminal proceedings are regulated by the Criminal Procedure Code (CPC). A Magistrates Court constituted under the SCA is deemed to be the Court of a First Class Magistrates. In practice it is cheaper to bring and

MALAYSIAN LEGAL SYSTEM / LLS 1213 maintain a civil action in the Magistrates Court and the procedures are less complex than in the High Court. All Criminal cases are tried summarily under s.173 of the Criminal Procedure Code. The Magistrates' Courts hear all civil matters of which the claim does not exceed RM25,000-00. Generally in criminal matters, the Magistrates' Courts have power to try all offences of which the maximum term of imprisonment does not exceed 10 years or which are punishable with fine only but may pass sentences not exceeding 5 years imprisonment, fine not exceeding RM10 000 and or whipping up to 12 strokes.

MALAYSIAN LEGAL SYSTEM / LLS 1213 ESTABLISHMENT The Magistrates Court are established under section 76 Subordinate Court Act 1948. The Yang di-Pertuan Agong may by order constitute so many Magistrates Court as he may think fit, and shall have power, if he thinks fit, to assign local limits of jurisdiction thereto.1 A Magistrates Court shall have jurisdiction to hear and determine any civil or criminal cause or matter arising within the local limits of jurisdiction assigned to it under this section, or, if no such local limits have been assigned, arising in any part of Peninsular Malaysia: Provided that no Magistrate shall have jurisdiction to hear or determine any cause or matter arising in any State in and for which he has not been appointed to be a Magistrate save in the manner and to the ext ent provided in the Criminal Procedure Code [Act 593] and the law for the time being in force relating to civil procedure.2 Magistrates Courts shall ordinarily be held at such places as the Chief Judge may direct, but should necessity arise they may also be held at any other place within the limits of their jurisdiction.3

MALAYSIAN LEGAL SYSTEM / LLS 1213 JURISDICTION Magistrates are divided into First Class and Second Class Magistrates, the former being legally qualified and having greater powers. Second Class Magistrates are now not normally appointed. 1. First Class Magistrate A first class magistrates has original and appellate jurisdiction. Original Jurisdiction The original may be over civil and criminal action. (a) Civil Under s 90 SCA 1948, a First Class Magistrate shall have jurisdiction to try all actions and suits of a civil nature where the amount in dispute or value of the subjectmatter does not exceed RM25 000.4 Nevertheless, such a magistrate may exercise jurisdiction in action involving an amount or value exceeding RM25 000 if both parties agree in writing.5 A first class magistrate also has the jurisdiction of a Session Court in specified matters subject to the limits imposed by s 93 (1) SCA 1948. (b) Criminal A first class magistrate may try all offences punishable with up to ten years of improsonment or with a fine only. He or she may also try offences under ss 392 and 457 of the Penal Code. Section 392 concerns robbery and s 457 deals with lurking, house trespass,or housebreaking by night in order to commit an offence punishable with improsonment. The maximum punishment for these offences is fourteen years improsonment.6 The sentencing powers of the first class magistrate are prescribes in 87(1) SCA 1948. He or she may pass any sentence allowed by law no exceeding: five years imprisonment a fine of RM10 000 whipping up to 12 strokes or any sentence combining any of the aforesaid sentences. If, however, the magistrate considers that because of any previous conviction or antecedents of the convicted person, a punishment in excess of that prescribed in s 87(1) is appropriate, the magistrate may award the full punishment allowed by the law, but he or she must record his or her reasons for doing so. The magistrate may alsp award punishment in excess of that prescribed in s 87(1), provided power to do so is given by any law in force.7

MALAYSIAN LEGAL SYSTEM / LLS 1213 Appellate Jurisdiction A first class magistrate has jurisdiction to hear and determine both civil and criminal appeals from any decision of the Penghulus Court, within the local limits of his or her jurisdiction.8 The magistrate may dismiss a criminal appeal if he or she considers there is no sufficient ground for interfering. If the appeal is against a conviction, the magistrate may : Reverse the finding and sentence, and acquit and discharge the appellant Order retrial by a court of competent jurisdiction Alter the finding and make such order as he or she deems fit. In an appeal against sentence, the magistrate may reduce or vary, but not enhance, the sentence and in an appeal against any other order, alter or reverse the order. Example of cases In Re Subramaniam Sanasi & Ors9, the Magistrate had doubts as to whether he could try the accused who had been charged under s.392 and 3.97 of the Penal Code (PC). The Magistrate entertained some doubts as to his competency to try the case, as the accused was charged for an offence under s.397, which was not specifically mentioned in s.85 of SCA 1948. In Public Prosecuter v Mohd Noor Bin Jaafar10 , the accused was charged for maintaining a religious scholl which was not registered pursuant to s.5 of the Control of Islamic Religious School (Malacca) Enactment 2002. The High Court ruled that s.33 of the Control of that Magistrate should have jurisdiction to try any offence under the enactment. The vesting of jurisdiction in the Magistrate Court was consistent with federal law as provided under s.85 SCA 1948.As thejurisdiction to try offence had been expressly conferred upon a magistrate, it meant that it was not a matter in which Syariah Court had exclusive jurisdiction and therefore there could be no contravention of Article 121(1A) of the Federal Constitution.

MALAYSIAN LEGAL SYSTEM / LLS 1213

2. Second Class Magistrate A second class magistrate has only original jurisdiction. (a) Civil Under s 92 SCA 1948, a second class magistrate has jurisdiction to try action of a civil nature where the plaintiff seeks to recover a debt or liquidated demand in money not exceeding RM3000, payable by the defendant. (b) Criminal The criminal jurisdiction of a second class magistrate is to try offences for which he maximum penalty is twelve months improsonment or which are punishable with a fine only.11 If the magistrate thinks that the accused, if convicted deserves a penalty which exceeds his or her powers of punishment, the case must be adjourned for trial by a first class magistrate.12 Sentencing Jurisdiction of Second Class Magistrate Section 89 of the SCA 1948 authorises a Second Class Magistrate to pass the following sentence A second class magistrate may pass any sentence allowed by law : not exceeding six months imprisonment a fine not more than RM1000 or any sentence combining either of these sentences aforesaid.

MALAYSIAN LEGAL SYSTEM / LLS 1213

APPEALS Appeals against decisions of the Magistratess Court in both criminal matter lie to the High Court. Generally, no appeal can be made in any civil matter where the amount in dispute is RM10 000 or less, except on a question of law. However, this monetary limit does not apply to appeals in any proceedings concerning the maintenance of wives or children.13

MALAYSIAN LEGAL SYSTEM / LLS 1213

SMALL CLAIMS PROCEDURE IN THE MAGISTRATES COURT In Tan Ah Chai v. Loke Jee Yah14 has been explained the purpose of establishing a procedure for small claims by Augustine Paul J whereby his Lordship said: The object of the small claims procedure is to serve as an inexpensive, simplified and speedy mode of prosecuting a claim which is small without legal representation. There is a purpose in denying legal representation in such cases. It has been said that this is to ensure that the objects of such denial are not reduced in value. Though this procedure would therefore serve the needs of a litigant of insifficient means it is not solely targeted at achieving that result. Its underlying purpose is to ensure that there is a balance between the claim made the expense incurred in pursuing that claim The small claims procedure was introduced via the Subordinate Courts (Amendment) Rule 1988 PU (A) 67/88 which came into force on 1st August 1987. The procedure initially applied to recovery of debts of not more than RM3000. However the amount was increased to RM5000 by Subordinate Courts (Amendment) Rule 1993 PU (A) 193/93. It must be pointed out the there are no special small claims court. There are is only a small claims procedure that must be followed where the claim is below RM5000. The small claims are hears by a Magistrate in the Magistrates Court. Where the claim is less the RM5000 it is mandatory to bring the claim within Order 54 of the SCR. In Pushpaneela a/p VN Suppiah v Ong Yen Chong & Anor15, the Plaintiff had commenced an action against the Defendant for RM3840 in the Magistrates Court. Both parties used the normal pleadings instead of the forms prescribed under Order 54 of the SCR 1980. The High Court in invoking its revisionary powers set aside the proceedings in the Magistrates Court as both parties had failed to comply with Order 54 SCR 1980. The High Court then directed the case to be retried before another Magistrate with a direction to adhere to Order 54 SCR.

MALAYSIAN LEGAL SYSTEM / LLS 1213

CONCLUSION The are a few differences between a First Class Magistrate and a Second Class Magistrate: Legal Qualification o A First Class Magistrate has legal qualification and a member of the judicial and legal service of the federation. o A Second Class Magistrate does not have legal qualification and is only civil servants who do magisterial work in additon of theor administration work. Appointment o First Class Magistrates are appointed by recommendation of the Chief Judge. Second Class Magistrates are now not normally appointed.

Magistrate Courts in Malaysia has 2 different jurisdictions, one for each class of Magistrate. For the First Class Magistrate, it has 2 jurisdictions, an original jurisdiction and an appellate jurisdiction. First Class Magistrate Original For civil cases, a First Class Magistrate can try all cases where the value of the state matter or amount in dispute is not more than RM25 000. The value of the state can be more than RM25 000 if both parties, the plaintiff and defendant, agreed inwriting beforehand. For criminal cases, cases that be tried are cases where the maximum punishment is not more than 10 years imprisonment or offences that are punishable with fine only. First Class Magistrates can also try offences under Section 392 for robbery and Section 457 for lurking, housr-trespass and housr breaking at night, of the Penal Code. The criminal sentencing jurisdictions of a First Class Magistrate are any sentence that are allowed by law not exceeding five years imprisonment, fine up to RM10 000, whipping up to 12 strokes, or the combination of the above. The sentence given to the accused can exceed the sentencing jurisdiction of the Magistrate. But the Magistrate must record the reason for doing so. Usually, it it because of grave offences and repeated offenders. Appellate First Class Magistrates can hear and determine civil and criminal appeal for any decision of the Penghulu Court within its jurisdiction. A First Class Magistrate can reverse the charges, acquit discharge and order retrial of a case. A First Class

MALAYSIAN LEGAL SYSTEM / LLS 1213 Magistrate can also appeal, reduce or vary sentences, but cannot enhance sentences. For Second Class Magistrates, its only has an original jurisdiction and no appellate jurisdiction. Second Class Magistrate Original For civil cases, the Second Class Magistrate has monetary jurisdiction, which means it can only handle cases of the recovery of liquidated demand in money not more than RM3000. For criminal cases, a Second Class Magistrate can only handle cases where the sentence does not exceed 12 months of imprisonment or fine only. The criminal sentencing jurisdictions of a Second Class Magistrate are imprisonment not exceeding six months, fine not exceeding RM1000 or the combination of the above. But, if the Magistrate feels that the accused deserves a harsher punishment, in which exceed the Magistrates powers, the Magistrate must adjourned case for trial to the First Class Magistrate. All appeals of the decision of the Magistrate Court are handled by High Court. As Malaysia does not have a Small Claims Court, all small claims procedures are introduced into the Magistrate Court. All small claims have been handled by the First Class Magistrate Court since New Years Day of 1991. It has less procedure than the usual court proceeding as they do not have legal representatives to keep it informal and inexpensive. This procedure is mandatory for claims that are below RM5000.

MALAYSIAN LEGAL SYSTEM / LLS 1213

REFERENCES 1. Idid and Allan (1994). Magistrates Court Handbook. Kuala Lumpur: MLJ 2. Lee Mei Phei (2005). General Principles of Malaysian Law. Selangor: Oxford Fajar. 3. Srimurugan Alagan (2010). Jurisdiction of Courts In Malaysia. Kuala Lumpur: MyCase Solution 4. Wan Arfah Hamzah (2009). A First Look At The Malaysian Legal System. Selangor: Oxford Fajar. 5. 2006. Laws Of Malaysia, Act 92, Subordinate Courts Acts. 1948. THE COMMISSIONER OF LAW REVISION, MALAYSIA

1 2

S 76, Subordinate Courts Act. S 76(2), Subordinate Courts Act. 3 S 76(3), Subordinate Courts Act. 4 S 90, Subordinate Courts Act. 1948 5 S 93(1). Subordinate Courts Act. 1948, S 65(3) 6 Act A434, Act A459 7 Wan Arfah Hamzah (2009). A First Look At The Malaysian Legal System. Selangor: Oxford Fajar. 219 8 S 86, Subordinate Courts Act. 1948, S 91, Subordinate Courts Act. 1948 9 [1983] 1 CLJ 40
10
11

[2005] 6 MLJ 745, [2006] 1 AMR 587 S 88, Subordinate Courts Act. 1948, Act A671 12 S 88, Subordinate Courts Act. 1948 13 Wan Arfah Hamzah (2009). A First Look At The Malaysian Legal System. Selangor: Oxford Fajar. 220 14 [1999] 1 AMR 431
15

[1999] 4 AMR 3867