CWS

Tutorial 4

Question 7

Summary trial in Magistrate or Sessions Court is governed in s.173 of CPC whereas a

Firstly, s.173(a) of CPC provides that when an accused appears or is brought before
the court, a charge shall be framed and read and explained to him and he shall be
asked whether he is guilty of the offence charged or he want to claim for trial. When
Accused is brought before the court, he is not necessary to be in handcuffs as decided
in the case of Ramanathan Chelliah v PP. However, PP may apply to the court for
the order that the accused shall be in handcuffs when being brought before the court.
This is provided in s.178(1) of CPC in High Court.

S.173(b) provides that if the accused plead guilty to the charge, the court shall record
the plea and pass the sentence accordingly. Nevertheless, the court is under duty to
ensure the accused understand the nature and consequences of the plea of guilty
before the plea is recorded. The plea of guilty must be unreserved, unqualified and
unequivocal for the court to accept the PG. This principle can be seen in the case of
PP v Cheah Chooi Chuan. This is provided in s.178(2) of CPC in High Court.

After the plea of guilty, the court will first ask the PP to provide the brief case of the
facts before recording the plea. It is duty of the court to take evidence of the nature of
the charge when the accused pleaded guilty.

S.173(c) of CPC provides that if the accused refuse or does not plead guilty, the court
shall proceed to take all evidence as may be produced in support of the prosecution
and shall held a trial for the case.

The question is how the evidence be taken down by the court? S.264 of CPC provides
that all evidence shall be taken in the presence of the accused or, when his personal
attendance is dispensed with, in the presence of his advocate.

S.173© of CPC is similar to S.178(3) in HC.

S.173(d) of CPC provides that the court may also call witnesses by itself if it thinks
fit, and this situation happens usually when the accused is unrepresented.

S.173(e) of CPC provides that in the commencement of trial, the prosecution and his
witnesses shall be called, and there will be examination in chief. Accused has right to
cross-examine the witnesses and the PP has right to re-examine the witnesses. This is
provided in s.179(2) of CPC in HC. Re-examination confined to area of cross-
examination. The accused can ask leading question during cross-examination.
However, PP cannot ask leading question during examination in chief unless there is
formal evidence.
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S.173(f)(i) of CPC states that after the prosecution’s case, the court shall consider
whether the prosecution has made out a prima facie case against the accused. This is
provided in s.180(1) of CPC in HC.

S.173(f)(ii) provides that if the Court finds that the prosecution has not made out a
prima facie case against the accused, the Court shall record an order of acquittal. This
is provided in s.180(2) of CPC in HC.

S.173(h)(i) of CPC provides that if the PP has made a prima facie case, the accused
shall asked to enter his defence. There are 3 options available to the accused:
examination in chief, cross-examination, re-examination; unsworn statement from the
dock or remain silent under s.173(ha) of CPC.

S.173(h)(ii) provides that if the Court finds that a prima facie case has been made out
against the accused on an offence other than the offence charged which the Court is
competent to try, the Court shall amend the charge.

S.173(h)(iii) provides that where the prosecution has adduced credible evidence
proving each ingredient of the offence means prima facie case is made out against the
accused which if unrebutted would warrant a conviction. This is provided in s.180(4)
of CPC in HC.

S.173(j)(iii) of CPC provides that when the accused is called upon to enter on his
defence, he may produce his evidence and shall be allowed to cross-examine any
witness present in the Court. This is provided in s.181(1) of CPC in HC.

Lastly, s.173(m)(i) of CPC provides that at the conclusion of trial, the Court shall
consider all the evidence adduced before it and shall decide whether the prosecution
has proved its case beyond reasonable doubt.

S.173(m)(ii) of CPC provides that if the Court finds that the prosecution has proven
its case BRD, the Court shall find the accused guilty and may be convicted on it and
the Court shall pass sentence according to law.

In Mat v PP, the meaning of the burden of proof by the accused where it is necessary
for him to rebut the prosecution case against him. The position is :

a) If you are satisfied BRD as to the accused’s guilt, Convict.

Guarantees?

1. Transparency
-open to public (except in special court)

2. Natural justice principle

3. Liberty of individual protected

-P has heavy burden to prove its case BRD;

A only need to prove on BOP

4. S.51, S.51A-right to document

5. Right of Accused to cross-examine

6. for Accused to understand the proceeding

-competent interpretor

7. Right to Appeal

8. Right to Bail

-unless it is unbailable

9. Right to Legal representation

-s.255, Art.5(3) of FC

NOTE: DIFFERENCES BETWEEN SC AND HC

SC HC
1. No necessity for Prosecution to 1. Mandatory-Prosecution to make
Have an opening speech. An opening speech
- State the grounds on which they
are going to rely on in the charge
- How many witnesses?
- How long it is going to take?
 Prosecution cannot go outside
the scope of their opening speech
2. Accused x mandatory to make 2. Similar
an opening speech
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Question 8

The issue of the question is relating to the legality of magistrate in recording the plea
of guilty of the accused.

S.173(a) of CPC provides that when the accused is brought before the court and the
charge shall be read and explained to the accused, the court shall ask the accused
whether he pleads guilty or claims trial.

S.173(b) of CPC provides that when the accused pleads guilty, the court is under duty
to ensure the accused understand the nature and consequences of the plea of guilty.

In the case of Lee Weng Tuck v PP, it was held that before the plea of guilty is
recorded, the court is under duty to make sure the accused understand that he will not
be given a trial and maximum sentence may be passed on him.

Besides, the court must also ensure that the plea of guilty is unreserved, unqualified
and unequivocal for the court to accept the plea of guilty. In the case of PP v Cheah
Chooi Chuan, the court rejected the accused’s plea of guilty as the plea was not
unreserved, unqualified and unequivocal and it is as a result of an occurrence of an
event.

On the facts, Jebon pleaded guilty after charge has been read and explained to him by
virtue of s.173(a) of CPC. However, the Magistrate didn’t take steps to ensure Jebon
understand the nature and consequences of the plea of guilty. Thus, the Magistrate
breach his duty under s.173(b) of CPC and the principle in Lee Weng Tuck’s case.

Furthermore, the Magistrate was wrong to reject Jebon’s plea on the ground that the
plea was frivolous and vexatious as the court should only reject the plea if the plea
was not unreserved, unqualified and unequivocal.

S.173(c) of CPC provides that if the accused refuse or does not plead guilty, the court
shall proceed to take all evidence as may be produced in support of the prosecution
and shall held a trial for the case.

On the facts, the magistrate recorded a plea of guilty and proceeded with the
prosecuting officer tendering the facts of the case. This action was not in accordance
with the law where the court should only proceed with the tendering of facts of the
case if the court accepted the plea of guilty by the accused as stated in s.173(c) of
CPC.

The magistrate then recorded plea of not guilty and fixed the case for case
management after Jebon insisted that he was innocent and refused to admit the facts.
Jebon is considered as withdrew his plea of guilty and this is permissible before
sentence was passed on him as decided in the case of PP v Jamalul Khair.
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In conclusion, the act of the Magistrate was illegal on the part where it failed to
ensure Jebon understand the nature and consequences of the plea of guilty after Jebon
pleaded guilty. Besides, the Magistrate was wrong to reject the plea on the ground that
the plea was frivolous and vexatious as the court should only reject the plea if the plea
was not unreserved, unequivocal and unqualified. The Magistrate was also wrong
when he rejected the plea and still proceeded with the tendering of facts of the case
where this situation only happens when the magistrate accepted the plea of guilty.
However, after Jebon withdrew his plea by claiming he is innocent, the magistrate
was right in recording the plea of not guilty and proceeded with trial.