Young Lawyers Convention 2011: The Malacca Statement

Recognising :-

1. That the National Young Lawyers Committee of the Bar Council represents ALL young lawyers of the Malaysian Bar;

2. That by seniority in the Malaysian Bar, more than 60% of the members of the Malaysian Bar are in practice for 3 years or less; and

3. The need for ALL lawyers to continuously strive for self-improvement and self-development in all areas of practice;

Acknowledging:-

1. The imminent liberalisation of the Malaysian Legal Services by the Malaysian Government by allowing non-Malaysian owned Legal Firms to operate and offer legal services in Malaysia;

2. The proposal by the Bar Council to put forward a Motion at the coming Annual General Meeting of the Malaysian Bar to call for the continuing compulsory professional development of the members of the Malaysian Bar;

3. The National Young Lawyers Committee's intent to conduct a working conditions survey for Young Lawyers of the Malaysian Bar with the view and intent to conduct forums and talks with relevant parties to improve the working conditions of Young Lawyers;

4. That a lawyer has a duty to uphold the cause of justice without regard to its own interests uninfluenced by fear or favour and that a lawyer has a duty to protect and assist the public in all matters ancillary or incidental to the law, Young Lawyers are now the forerunners of activism in Malaysia; and

5. That the bearing and standing of the members of the Malaysian Bar will create a better Bar.



To be continue..

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Exceptions of the general rules of Charge

General rule is that a person should be formally charged so that he is made aware of the offence with which he is charge and eventually convicted of. However there are exceptions to this rule. There are four exceptions to these rules as follows in s. 167, 168, 169 (i) and 169 (ii) of the Criminal procedure Code.For the first exception, it is provided under s.167 of the CPC. This section also must be read with s. 166 of the CPC.

According to s. 167, if the accused is charged with one offence and it appears in evidence that he had committed a different offence for which he might have been charged according to the section 166, he may be convicted of the offence which he has shown to have committed although he was not charged with it.

The qualification before this power may be exercised by the court is mentioned by the section itself, that is, the eventual offence must have been available to the prosecution under s. 166. It will be recalled that the section gives an option to the prosecutor whether to charge the accused with all the offences likely to be proved by a set of facts, or all the offences in the alternative. S. 167 show a situation where the prosecutor had chosen not to charge the accused with all likely offences but just one or two.

There are two tests in applying the s. 167 which has been stated in the case of Lew Cheok Hin. In this case, Tailor J stated that the first test is the facts must be such that the unframed charged was available from the start and could have been framed and tried concurrently under (s.166). The second test is the evidence must have been presented in such a way as to raise all the same issues of fact as would have been raised had the unframed charge been framed and trial claimed on it. Not only the evidence for the prosecution be the same but the court must be satisfied that the evidence for the defence could also be the same.

Now we can look at the cases that apply the exception of the general rule that apply in 167. In Sivalingam, the accused was charged for an offence of cheating under section 420 of the Penal Code. He was convicted and sentenced. He appealed to the High Court, where it was held that an offence of CBT under s. 409 was actually proved. The court substituted the conviction to one under s. 409 and maintained the sentence. The Federal Court, after hearing the question for reference held that in hearing an appeal from a conviction the power of the judge to alter a finding must be exercised subject to section 166 and 167 of the CPC. There must be clear evidence that a case for the substituted offence would have been made out or established in the court below.

In Gurdit Singh, the appellant was charged under s. 454 of the PC for the offence of housebreaking in order to commit theft. He was convicted and sentenced at the end of the trial at the magistrate’s court. His sole ground of appeal was that the sentence for four years imprisonment was manifestly harsh. Whe the appeal came before the high court, the DPP informed the court that from the appeal record the appellant could not have been convicted for an offence under s. 454. Instead, he should have been convicted for theft in a dwelling house punishable under s. 380. The HC was asked to exercise its revisionary powers by substituting a conviction for an offence under s. 380 of the PC. The judge then refeered to Sivalingam and Lew Cheok Hin, the latter where Taylor J. mentioned the two main tests required before s. 167 may apply. He was satisfied and he subsequently substituted the conviction to one under s. 380 of the PC and reduced the sentence to three years imprisonment.

Section 168 provides for the second exception where a person may be convicted for an offence he is not charged with. When an accused person is charged with an offence he may be convicted of having attempted to commit that offence, although the attempt is not separately charged. In the case of Quinn Howland, the court held that the accused could be convict for attempted robbery although he was tried for robbery.

The third exception is provided in s. 169 (1). When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence though he was not charged with it. Illustration (a) to the section serves as good example. If a person is charged under s. 407 of PC, among the elements which the prosecution has to prove are the offence of CBT, and that it is in respect to property and that the property is entrusted to him as carrier. If the prosecution succeed in proving CBT, and that it is in respect to property but not the fact that he is entrusted as a carrier, than the court may convict him of an offence under s. 406, instead. S. 406 requires proff of those elements only. Another example is the offence of voluntarily causing grievous hurt under s. 325 of PC. If, in the course of the trial, it is discovered that the hurt was only simple hurt, that is, that one of te conditions in s. 320 of the PC was not proved, then the court may proceed to convict the accused of voluntarily causing hurt under s. 323.

In Latip bin Ahmad, the first accused was charged under s. 148 of the PC with rioting while armed with a weapon. He was convicted under s. 147 with simple rioting. Terrel Ag. C.J. was of the view that this could be done in accordance with s. 169 (1) of the CPC without need to amend the charge. An accused person may be convicted of a minor offence of the same character without being charged. Hence, a person charged with murder may be convicted of culpable homicide not amounting to murder, or of voluntarily causing grievous hurt, without being specifically charged for it. In Kundan Singh, the appellants were charged with rioting under section 147 of the Penal Code but were convicted for causing hurt under section 323. The conviction was set aside on appeal. Murray-Anysley J stated that the The word “minor: means merely an offence with a smaller punishment attached than the offence with which an accused person was originally charged. On section 169 (1), his lordship said that the offence for which the accused is convicted must be one which necessarily included in the offence originally charge. Here, this was not the case, although causing hurt might have been an element in a case of riot.

Finally, s. 169 (2) provides for the fourth exception. Here, when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it. Illustration (b) to the section provide a good example. When a person is charged with the offence of voluntarily causing grievous hurt under s. 325 of the PC, and he manages to prove that he acted so on provocation, then the court may convicted him under s. 335 of the PC. Provocation is an extraneous element which reduces the offence to minor offence. Likewise, when a person is charged with voluntarily causing hurt under s. 323 but he has managed to prove provocation, the court may convict him of an offence under s. 334 of the PC instead.

Subsection (ii) therefore covers the case where additional facts are proved, unlike subsection (i) which covers the case with only some of the facts constituting the original offence are proved. In the case Lew Cheok Hin, a “minor offence” understood in s. 169 is not identical with “less serious”. IT only means produced by deletion without other alteration. The maximum sentence for the comprised offence will usually be lighter.

In Francis Dang Anak Nuya, the accused was to have stood trial for the offence of murder. At the beginning of the trial, the DPP indicated that the accused wished to plead guilty to the lesser offence of culpable homicide not amounting to murder and sought the court’s advice as to whether the charge ought to be amended or not. According to Macdougall J, the correct procedure is for the charge of murder to be read to the accused for the plea. If he wishes to plead guilty to the lesser offence, it is open to him to plead not guilty to murder but guilty to culpable homicide not amounting to murder. The agreed facts should then be read to the accused. If he confirms that they are correct, it is open to prosecution to state whether it accepts that plea.

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Impeachment proceedings: Cross-examination

Cross-examination is a very important process in summary trial. The main object of cross-examination is to find the truth and defection of falsehood in human testimony. It is design to destroy or weaken the force of evidence a witness has already given in person or elicit something into your favour which he has not stated to discredit him by showing object of cross-examination from a litigious standpoint.

Whether a prosecution witness once had impeachment proceeding completed against him, ought to be still cross examined by the defence counsel or not ? The matter about the cross-examined has been stated in the section 173 (e) of the Criminal Procedure Code. Section 173 (e) of the CPC stated that :

(e) The accused shall be allowed to cross-examine all the witnesses for the prosecution.

So, we can see that this section makes provision for the accused to cross-examine all witnesses for the prosecution. Okay, that is the basic. Denial of opportunity to the accused to cross-examine the prosecution witness will be an improper exercise of judicial discretion and will amount to miscarriage of justice[1]. It is trite that there is an obligation on the defence during the stage of cross-examination to put all question that are relevant and known to the particular witness, which the accused intends to rely upon his defence to enable the witness a chance to agree or disagree with the defence case.[2] The problem is whether the defence counsel also can still cross-examine the prosecution witness although the impeachment proceeding has been completed against him. Actually in practice, our courts have been very liberal and does not deny or interfere in cross-examination. To the credit, of our courts, notwithstanding, there is no express provision to defer cross-examination. Our courts have permitted the cross examination of any witness to be deferred until any other witnesses to be recalled for further cross examination. If we look at the Evidence Act 1950, section 138 of the Evidence Act provided that :

Order of examinations and direction of re-examination

138. (1) Witnesses shall be first examined-in-chief, then, if the adverse party so desires, cross-examined then, if the party calling them so desires, re-examined.

(2) The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-inchief.

(3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

(4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.

It is trite that there is an obligation on the defence during the stage of cross-examination to put all question that are relevant and known to the particular witness, which the accused intends to rely upon his defence to enable the witness a chance to agree or disagree with the defence case.

In the case of Paramasivam v PP[3] . The issue of before this case is whether the learned judge was right in refusing to allow a prosecution witness, to be cross examined. counsel for the accused asked that he be allowed to cross-examine the witness before the ruling was made and that in the interest of justice she should be allowed to complete her evidence. He was denied the opportunity asked for. The court then ruled that the witness was successfully impeached by the prosecution and that her evidence would not be considered. But, on the appeal stage, the appeal court held that the defence should at all times be allowed the opportunity of defending within the well-established principles of adversary trial as against the inquisitorial system, and where there is prima facie a valid complaint, however thin it might be, it must be entertained. In this case, the court had quashing the conviction and ordering a retrial.

Meanwhile, in PP v Munusamy[4], it was held that the refusal to allow a witness for the prosecutor who had been impeached to be cross-examined by the accused did not constitute a misdirection and even if it was, the Federal Court has power to dismiss the appeal, as there was no failure of justice. The respondent in this case had been convicted by the learned magistrate for an offence under section 197 of the Penal Code. One of the points submitted by the defence before the Federal Court was that paragraph (e) allows him to cross-examine every prosecution witness. Thus, when witness PW 16 was impeached by the prosecution, an application by the defence to cross-examine that witness should have been allowed. Refusal to allow such application was fatal to the proceedings. According to the Federal Court, after the rulling made by the learned magistrate to impeach the credit of PW 16, that witness was longer a witness for the prosecution in the real sense of the word for his evidence no longer constituted any part of the prosecution case. Even should there be a misdirection, since there was no failure of justice occasioned thereby the appeal should be dismissed.

In other case of Dato’ Mokhtar Hashim v PP[5], the court held that the order made by the learned trial judge in impeaching the credit of the witness Abdullah bin Ambek and denying the right to counsel for all the accused to cross-examine him was clearly wrong. Here, the Federal Court decided that when impeachment proceedings have been completed, no rulling should be made as to the credibility of the witness. This should be done only after all witness prosecution have been called and given evidence at the end of the prosecution’s or defence case. It would follow that according to this later view, when a prosecution witness had impeachment proceedings completed against him, he may still be cross-examined by the defence.

We can see that all the three main cases that have been mention by me above, it were held that all the judges agree that the defence counsel can cross-examine the prosecution witness although the impeachment proceeding had completed them. It showed us that the cross-examine process is so important to the right of the parties especially the right of an accused.

In PP v Abang Abdul Rahman[6] it was held that whenever a witness is not cross-examined, his evidence should be accepted. The other party to the proceedings accepts the evidence and the court should likewise accept it.

In Wong Swee Chin v PP[7], Raja Azlan Shah, CJ held that the failure to cross-examine a witness on material point of the case will amount to an acceptance of the witness’s testimony. Meanwhile, the importance of cross-examine the witness also held in the Indian case like in AEG Carapiet v AY Derderian[8], the court stated that it is therefore important for the accused to put his essential and material case to the prosecution witness in cross-examination. In section 256 of the Indian Criminal Procedure Code, and as also same as mentioned in the case Biswas v Stated[9] , the court held that an accused has an abosolute right to further cross-exam prosecution witness although they have been thoroughly cross-examined before the charge.

In conclusion, by referring to the new view of the main case of Dato’ Mokhtar Hashim we can understand that the cross-examine can be allowed although the impeachment proceeding against the prosecution witness or defence witness had completed.

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[1] Janab’s Keys to Criminal Procedure and Evidence, Second Edition 2010, pages 340-341.

[2] Putting and Suggesting On Cross-Examination [1984] 1 MLJ xi.

[3] [1970] 2 MLJ 107

[4] [1980] 2 MLJ 133

[5] [1983] 2 MLJ 232

[6] [1982] 1 MLJ 346

[7] [1981] 1 MLJ 212

[8] AIR 1961 Cal 359.

[9] AIR 1950 Pat 550 (551).

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Basic about Summary judgment

Example: I would like to obtain judgment from the court without trial because the defendant has no defence and there is no triable issues.

The summary judgment provided in Order 14 of the Rules of The High Court 1980. The procedure is to enable plaintiff to obtain early judgment in cases where the defendant has no hope of success and any defence he raises would merely have the effect of delaying judgment (Jones v Stone). The summary judgment must file when the defendant has enter the appearance.

Reasons for summary judgment:
1. such defence is just a mock defence (pembelaan olok-olok)
2. that defence only a mere denial
3. there is no triable issues

What is 'triable issues' ?
It is an issue that the court cannot decided without hearing the disputes (defences and evidences) from both parties and if made, it will causes injustice to the other parties.

When to file the summary judgment?

If has been seen in the brief that the defendant cannot defend themselves. For example, in civil action (summon) by bank, where the debtor failed to pay the debts within the promised period. So, the plaintiff will file the summon in chamber for summary judgment. So, now, the summary judgment has to be heard by judge (in chamber), not in open court.

So, in that situation, the plaintiff must prove the case on the probability (must prove that the defendant has no defence). The plaintiff must prove it by supporting an affidavit that the defendant has no defence. Examples, all below should be exhibits:
1. the loan agreement become exhibit of affidavit
2. attach/show the receipt of loan payments
3. attach the reminders from the bank
4. attach the notice of demand

So, the plaintiff will show to the court that there is a cause of action to sue the defendant. ( the cause of action is the plaintiff has right to sue the defendant because the defendant failed to pay the credit).

When the summon in chamber has been submitted, the judge will read all the document, so, if there is the triable issue, or for example if the defendant has the reason that the bank has give him the re-schedule of the loan, the plaintiff cannot obtain the summary judgment. ( the court will set a side the summary judgment, but it does not mean that the plaintiff has lost the case, but the judgment will be given after the trial of the case. However, if the court held that the defendant has no defence, plaintiff will obtain the summary judgment after the court hearing the case in chamber.

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Basic about Notice of appearance

Order 12 Rule 4 of Rules of High Court 1980 provided about the notice of appearance. It is the rule about writ. It provides if the defendant failed to file the notice of appearance, the plaintiff will obtain the judgment in default (JID). Meanwhile, "notice of conditional appearance" is an indication that the defendant will objection to the jurisdiction of the court before the case start (in condition that the objection is going to be overruled by the court. In the case of Bank Negara v Gerald Glpsy the court held that plaintiff must file the appearance although defendant disagree that the courts has not have jurisdiction. But, the defendant will filed in the notice " notice of conditional appearance". It must file within 8 days. So, if there is not submitted within the day, the plaintiff will obtain JID. The short services only in two days. Moreover, if the defendant did not file the notice of defence, the plaintiff can file the JID.

How to file JID?
Plaintiff can file the JID when the other parties does not file the appearance within 8 days. So, the plaintiff will file the draft order of JID and the registrar must file in the JID to the defendant. But before that, the certificate of non-appearance also have to file in. Meanwhile, the defendant will file the summon in chamber to set aside the JID.


* this is only for basic understanding, for more info's please refer the books and ask your lecturer.

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Selamat Hari Raya Aidiladha

Malaysian Law Student wishes you Selamat Hari Raya Aidiladha to all Muslim around the world.

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How to build up the cause of action?

In easy words, the cause of action (COA) is a set of circumstances which brings the P to sue the D and the P is going to win. How to build up the cause of action? (without fabrication).

(1) get the evidence
(2) prove the fact
(lawyers should be able to take up the case, confident and win the case)
(3) Client: full story A to Z (whether there is a COA or not)

Example:

~what is the law to be applied? - Law Reform (Marriage and Divorce) Act
~Under section? Cases? What the remedies? (divorce or damages(money) )

~ Is there any gaps of facts that the client didn't tell? (if so, persuade client)

So, for the brief :

(1) summary

(2) structure frame

(3) fact

(4) evidence

(5) relevant Acts

(6) cases

(7) remedies

At the end of the brief, is there a cause of action or not? If no COA, forget the divorce! haha.. (because the court cannot provide any remedy if there is no COA).

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