Assignment 2
Assignment 2
Assignment 2
TRIAL (LAW783)
GROUP ASSIGNMENT 2
PREPARED BY :
Discuss, with reference to the Criminal Procedure Code, Evidence Act 1950 and
decided cases, on the procedures to be adopted in an application for impeachment of
the credit of a witness. (15 marks)
A. Basic Principle
Impeach is define as to ‘call into question’ 1 or ‘to challenge the credibility or validity of the
testimony of a witness’2. It is to discredit the testimony of a witness by proving that he or she
has not told the truth or has been inconsistent 3. The law on impeachment is contained in
Section 155 of the Evidence Act 1950 which stated that the credit of the witness may be
impeached by:
The type of witnesses liable to impeachment may be prosecution and/ or defence witnesses
impeached by the prosecution; or prosecution witnesses impeached by the defence.
An application to impeach the credit of a witness is only made as a last resort after all the
attempts to examine a witness has failed. There may be instances when a witness gives
evidence contrary to his previous deposition or his previous statement to the police. As the
result of that situation, the DPP has to decide whether any part of the witness’s testimony
could be saved so that it be used further in his case:
- If the answer is “yes”, then it is not necessary to impeach the credit of that witness
because part of his evidence is still needed
- If however, the witness’s testimony does not in any way help the prosecution’s case
and such evidence contradicts in material particulars of his previous statement, then
the DPP should apply to impeach the credit of that witness under Section 145(1)
and 155(c) of the Evidence Act 1950.
1
The Pocket Oxford Dictionary (1924)
2
Merriam-Webster Online: Dictionary and Thesaurus www.merriam-webster.com/
3
Legal Dictionary www.dictionary.law.com/
One of the modes is an impeachment by using the testimony of an independent witness
which provided under Section 155(a) of the Evidence Act 1950 as in the case of
Annamalay a/l Narayanan v Public Prosecutor (PP) (Seremban Criminal Appeal No. 41-
109-1989). Secondly is an impeachment by the evidence of the witness misconduct
connected with the proceeding which is provided under Section 155(b) of the Evidence Act
1950 as in the case of Boojilay v Royal Insurance AIR (1928) 54 (PC). Here, the evidence
that witness has been bribed or has accepted an offer of the bribe or has received any other
corrupt inducement to give his evidence. In addition to that, Section 155(c) and 145(1) of
the Evidence Act 1950 provided the:
When the prosecution wishes to impeach the credit of the accused, the cautioned statement
made by the accused may be produced at the defence stage (i.e if it has not been tendered
at the prosecution stage) but a trial within trial has to be conducted to prove that it was
voluntarily made.
As in the case of Ip Ying Wah v PP (1958) MLJ 34, the accused credit cannot be
impeached as the accused elects to make a statement from the dock and not on oath and
not subject to cross examination.
D. Procedure of Impeachment
Party applying for impeachment has to establish by oral evidence that the witness has
given evidence in Court which is materially different from any other statement. Here is an
example of discrepancy noted for a police statement. The groundwork for impeachment
must be laid. DPP must ensure this by perusing the police statement that the statement
was recorded in accordance with Section 112 of the Criminal Procedure Code (CPC)
(for witnesses) or Section 37A of the Dangerous Drug Act (DDA) 1952 or equivalent
for the accused person. Party applying also must inform the Court that he or she intends
to impeach the credit of the witness. Highlight or underline on the police statement (in
red) the portion on which the witness has materially contradicted himself. The police
statement shall be hand over to the Court pointing out the material contradictions.
Subsequently, wait for the Court’s ruling as to whether the contradiction is material. If the
Court rules it to be immaterial, the Court will hand back the police statement to the party
applying and no impeachment will be allowed and DPP can continue with the trial. If the
Court rules it to be material, the party applying will be allowed to proceed with the
impeachment of the witness. Taylor J in Muthusamy v PP (1948) MLJ 57 explained the
discrepancy or difference of the statement that may be divided to 4 categories that are
minor differences not amounting to discrepancies, apparent discrepancies, serious
discrepancies, and material contradictions.
Other example, in deciding whether a discrepancy is material, the Court may be allowed
to recall witnesses to ascertain this fact. In Pavone v PP (1986) 1 MLJ 72 at 74, the
word used by a police witness was opium instead of opiate. It was ruled that for this
purpose, the chemist could be recalled ascertaining whether there is a material
difference between the words opium and opiate.
Section 113 of the CPC now provides that no statement made by any person in the
course of a police investigation shall be used in evidence4 except for the purpose of
impeaching the credit of a prosecution or defence witness 5. This includes declarants of
statements made relevant under Section 32 & 33 of the Evidence Act 1950.6
E. Proceedings of Impeachment
Witness involved will be ask whether he made that particular statement. If the witness
admits making the statement, the statement need to be shown to him for the purpose of
identification. The document will be marked as an exhibit by the Court once it been
identified by the witness. If witness denies making the statement, DPP to proceed to
prove that the statement was made by the witness. Questioning must only be done by
the Court (if the Court insist on the DPP to proceed with the questioning, the DPP can do
so). Court to proceed to point out the material contradictions to the witness by asking the
witness and witness proceed with explanations. It will be up to the Court to consider the
explanation by the witness. Court may want to rule on credibility immediately if the
witness admits to the contradiction. Court will not make any summary ruling as to the
witness’s credit but will rule at the conclusion of the appropriate stage, be it at the close
of the prosecution or defence case as in the case of PP v Datuk Hj Sahar Arpan (1999)
3 CLJ 427. Impeachment proceeding ends and DPP to continue with the main trial.
Manner of proof need to be achieved before the statement marked as an exhibit by the
Court during the proceedings are by calling the recording officer or the interpreter (if an
interpreter was used). The recording officer who made the statement will be ask, answer
to be by the witness. Apart from that, establishment must be made on whether:
- The witness understood the questioning by the recording officer.
- The witness understood the warnings as found in Section 112 of the CPC or Section
37A of the DDA or equivalent to it.
- The statement made was read back to the witness after the recording and the
witness confirmed it to be correct.
Once all the establishment confirmed, can proceed to have the statement marked as an
exhibit by the Court.
4
Criminal Procedure Code s. 113(1)
5
Criminal Procedure Code s. 113(2)
6
PP v Mohd Jamil b. Yahya & Anor (1993) 3 MLJ 702
In Jusoh b. Awang v PP (1950) MLJ 69, the witness was not supplied with a copy of his
earlier written statement. The prosecuting officer then cross examined the witness on the
statement. The witness admitted making a statement, but no attempt was made to prove
his making of the particular statement in question. However, the statement was marked
as an exhibit. Therefore, it was held that this was a clear illegality.
QUESTION 2
A material discrepancy is one where the witness’ version actively assists the defence, but
not where if the witness was to believed, his evidence would be useless either to the
prosecution or to the defence, and if it was not believed, the evidence would be equally
useless.7 The purpose of admitting the contradictory statement in an impeachment
proceeding is to establish that the witness’ evidence is not trustworthy. 8 The proof of the
inconsistent statement under the procedure for impeachment does not constitute evidence of
fact, but only evidence of inconsistency because of the contradiction in the evidence of the
witness with his former statement. There are effects of impeachment proceedings towards
the credibility of a witness in a criminal trial when there is material discrepancy in the
witness's testimony. The principal view is the credibility of the witness is destroyed. The
former statement does not replace his evidence which has been contradicted, but only
renders his testimony in Court untrustworthy, false, and unreliable as in Krishnan & Anor v
PP (1981) 2 MLJ 121 at 124, FC and Pavone v PP (1986) 1 MLJ 72 at 74. Testimony of the
witness is totally erased from the record. As in the case of Ong Joo Chin v PP (1946) MLJ
1, Matthew Lim v Game Warden. Pahang (1960) MLJ 89, dan PP v Munusamy (1980) 2
MLJ 133. Another view is the fact that the credit of a witness has been impeached does not
mean that all his evidence must be disregarded. The Court is in position to scrutinize the
whole of the evidence of the witness in order to determine which aspect might be true and
which shall be regarded as in the case of PP v Somwang Phatthanasaeng (1992) 1SLR
138 and PP v Mohd Ali b Abang & Ors (1994) 2 MLJ 12.
QUESTION 3
7
Jusoh b. Awang v PP (1950) MLJ 69
8
Moh Chuan Pin v PP (2009) 3 MLJ 221, (2009) 5 CLJ 426 at 444, CA
QUESTION 4
A) Based on the fact above and relevant statutory provisions and decided cases,
discuss whether the notice of appeal filed by Mr Ramu on 7th November 2023 is
within the time frame for filing notice of appeal, if the Notice of Appeal filed out if time
suggest the remedy that can be used to cure the irregularities for filing the notice of
appeal.
Furthermore, in PP v Tan Tho Kim the applicant filed notice of appeal on 16/7. The 14
day period ends on 21/7. The applicant also requested for notes of evidence pursuant to
s.307(5). The court did not comply, the applicant wrote to ask for reason why it was not
delivered before the lapse of 14 days. On 21/7, the lapse of 14 days, the court wrote to say
that the notes of evidence was supplied during trial. The applicant then applied for extension
of time. The decision in this case was it was the right given to applicant under the law to ask
for notes of evidence, he was entitled to them however superfluous and redundant they may
be, unless he has chosen to waive that right. Since the applicant never waived that right, the
time for filing his petition had not lapsed.
Next, in filing a notice of appeal, one must get the for grounds of decision from the
trial court in S.307(3) when a notice of appeal has been lodged, the court which was
appealed from shall sign a copy of the grounds of decision and served it on the appellant.
After the notice of appeal is lodged, the subordinate court will give grounds of decision in the
case and serve on appellant. There is however, no time frame stated, thus Interpretation Act
is applicable. S.54(2) of the Interpretation Act states that if no time frame is stated, the act
must be done with all convenient speed. Undue delay can cause convictions to be quashed.
In Voon Chin Fatt v PP, the appellant was convicted of an offence and he filed a notice of
appeal. However, the grounds of judgment was delivered after two years. The decision was
that it is possible that the Judge may have committed to stale something in those grounds
which might have been favourable to appellant by writing the judgment after a long lapse of
time. The appellant has been gravely prejudiced. The interval between notice of appeal and
delivery of grounds of judgment should be a matter of days, not weeks, much less months.
In view of the possibility of prejudice to appellant through long delay, it is impossible for the
conviction to stand.
Next, in serving the grounds of decision and file the petition of appeal, when the
grounds of decision is readily made, it would be served on the appellant/ his advocate either
by way of personal service or by registered post. Then, if the appellant still wants to pursue
his appeal, he has to file the next document known as ‘petition of appeal’ within 14 days after
the copy of decision has been served. S.307(4) stipulates that within 14 days after the
grounds of decision had been serve, the appellant shall lodge at the subordinate courts
(which the case was appealed from) a petition of appeal in 3 copies to the HC. Here, the day
of filling (14 days) runs from the day of receiving the grounds of decision. In PP v Jawan ak
Empaling the subordinate court posted judgment together with notes of proceeding by
registered mail to appellant on 2/12, but was only received by appellant on 10/12. The
Appellant faxed petition of appeal to court on 15/12. Here, the main issue is whether the time
for filing petition run from date of posting or date of receipt of the document. It was held that
the phrase ‘has been served’ in provision means the document should come into hand of
addressee. Hence, the date of filing runs from the date of receipt. The date only began on
10/12. Whereas in PP v Jayaprakasan Thangavel the petition of appeal was lodged on 27
March 2009 and this was alleged to be one day after the 14 days’ period allowable to file the
petition after service of grounds of decision and notes of evidence on the appellant. The
Respondent raised in preliminary objection that as the petition was lodged out of time then
failure to comply was fatal [s307(5)] and by virtue of s 307(9) appeal shall be deemed to be
withdrawn. In this case, the grounds of decision and notes of evidence wrongfully sent to
BPR Perak on 12 March 2009 when it should be sent to BPR Putrajaya. Thus, when BPR
Perak forwarded the documents to BPR Putrajaya on 16 March 2009, who it was already 27
March 2009 when the BPR Putrajaya received the documents. Thus, 14 days from 27 March
(date of receipt) would be 30 March, 21 March was well within the 14 days’ period allocated.
In filing for the petition of appeal, the case of Saw Yew Choy v PP had the applicant
argued that the delay in filing a petition of appeal is entirely caused by the fault of his former
counsel. Here it was held that the courts are generally reluctant to exercise its power to grant
an extension of time under s.310 unless there are compelling reasons to do so. When a
person is convicted, he must be punished without further delay. However, the law allows for
appeal in civilized societies where liberty of subject is paramount but this must be done by
complying with stringent conditions. Therefore, courts are generally reluctant to excuse the
fault of a counsel for a party’s non-compliance of procedure against interest of the other
party. Further in this case, one year had lapsed and he was unlikely to succeed as there was
enough material in the record of appeal to justify conviction.
B) Based on the fact above and relevant statutory provisions and decided cases
discuss how would the Respondent / Prosecution submit to the court with regard to
legality of proceeding.
According to Section 305 of CPC when an accused person has pleaded guilty and
been convicted by a Magistrate on that plea, there shall be no appeal except as to the extent
or legality of the sentence. Under the said provision, the applicant cannot appeal against the
conviction except as to the extent or legality of the sentence. Having referred to the
procedure and principles of law as laid down in the Supreme Court’s case of Lee Weng
Tuck & Anor v Public Prosecutor [1989] 2 MLJ 143 the learned judge found that the
recording of the plea of guilt made by the applicant was in order and according to law.
If an accused pleads guilty to a charge, the plea shall be carefully recorded and once
the plea of guilty is accepted, he may be convicted on the plea of guilty and the court shall
pass sentence according to law. The case of Jafa bin Daud [1981] 1 MLJ 315 justify
“sentence according to law” means that the sentence must not only be within the ambit of
the punishable section, but it must also be assessed and passed in accordance with
established judicial principles. Where is found to be a persistent offender for a similar type of
offences, then it is in the interest of justice that a deterrent sentence should be passed and,
in such a case, unless there are exceptional circumstances, the quantity, nature or value of
the subject-matter of the offence with which he is currently charged can very rarely constitute
a mitigating factor. To determine regard to legality of proceeding there are two factors that
can be look out which is the defective of charge and the issue of interpreter.
The fact of this case, during the prosecution stage Maher and Rahmat agreed to
plead guilty toward the charge and admitted to all facts and exhibits tendered by the
prosecution without realize the consequences of pleadings guilty. The effect of pleading
guilty are extensive, potentially leading to misunderstandings, delays, and unjust outcomes.
Furthermore, pleadings may infringe upon the accused's fundamental right to be informed of
charges, it is a crucial procedure in criminal proceedings. Also, in case Low Hiang Boon v
PP [1948] MLJ Supp 135, it explains that the accused must understands that the nature and
consequence of his plea. It includes they will have no opportunity to put forward or argue his
case also the accuse knows nature of his plea or offence he is plead.
In the process of pleading guilty, the accused must understand the nature of the
charge against him. This does not only confine to the charge but the accused must also
understand the fact to the charge that he was indicted. The brief facts tendered must
explained the content of the charges by disclosing the fact that reflect the true and essential
elements of the charge. In this case, both of the accused Maher and Rahmat, during reading
the charge by the Session Court Judge were not represent by any defence council.
Unrepresented defence counsel and there is no proper explanation of the procedure by the
Court to the accused during the charge were read also may bring to injustice to the accused
and then legality of proceeding can be question. The failure to observe to this requirement
amount to illegality of proceeding as of case Supramaniam v. Kanthasamy [1955] 1 LNS
153 where the Court ordered for the case to be re-trial.
The absent of the interpreter when the accused could not understand Malay
Language or English when the charge been read also can be bring to injustice and cripple
the legality of the proceeding. In this case both of the accused, Maher and Rahmat both
Bangladesh citizen who studied in one of the local universities in English for professional
communication. They maybe understand the charge, however without interpreter they
maybe could not understand the nature of the plea when there is confusion during the
charge were read to them. Nevertheless, there are cases whereby the accused able to prove
that he could not understand Malay or English then the Court will order the case to be Re-
Trial.
The effect of the illegality of proceeding will render the conviction quashed and may
be ordered for retrial before another Magistrate / Session Court Judge. (the rule as off what
should be re trial is based on the Court of Appeal case Chin Choy v Public Prosecutor
1955 21 MLJ 236. When the accused plead guilty it introduce complexities into legal
proceedings and challenging the foundations of the legality of proceeding. By understanding
the implications and adopting measures for resolution, the legal system can navigate these
challenges and ensure a fair and transparent administration of justice.
C) Based on the fact above and relevant statutory provisions and decided cases
discuss how would the Mr Ramu submit to the court with regard sentence passed on
both Maher and Rahmat.
Section 307(1) of CPC provides that when a person is dissatisfied with any
judgement, sentence or order pronounced such as there is error in law, error in fact, severity
of sentence or inadequacy of sentence, he may appeal to the High Court by filing a notice of
appeal within 14 days from the judgement, sentence or order. Having refered to the
procedure and principles of law as laid down in the Supreme Court’s case of Lee Weng
Tuck & Anor v PP [1989] 2 MLJ 143 the learned judge found that the recording of the plea
of guilt made by the applicant was in order and according to the law.
Several factors regarding to the illegality are defective charge, fact of the case read
and explained did not disclouse the offence or there is no fact of the case explained to the
accused, unrepresented counsel and there is no proper explanation of the procedure by the
court to the accused during the plea, the absent of the interpreteur when the accused could
not understand Malay Laungage or English. As in the case of Chin Choy v PP [1955] 21
MLJ 236, the effect of the ilegality of proceeding will render the conviction quashed and
may be ordered for retrial before another Magistrate/Session Court Judge.
Section 305 of CPC Plea of guilty limits the right to appeal - When an accused has
plead guilty, there shall be no appeal against conviction except as to the extent or legality of
the sentence. As in the case of Munawar Ahamd Anees v PP [2009] 2MLJ 1. However, he
may appeal against the conviction if he does not understand the nature & consequences of
his guilty plea. Furthermore, Section 307 (6) CPC provides that every petition of appeal
shall state shortly the substance of the judgment appealed against and shall contain definite
particulars of the points of law or fact in regard to which the court appealed from is alleged to
have erred.
In drafting the petition of appeal, the appellant will refer to the ground of judgment as
well as the notes of proceeding and will states the error of made by the Magistrate/Session
Court judge in making finding facts, deciding on the law, failure to consider facts presented
by the witnesses, and failure to consider the position requrement of the law. As in the case of
Lim Guan Eng v Public Prosecutor [1998] 3 MLJ 14, it is important for the trial court,
when giving a particular sentence, to give reasons in order for the appellate court to be able
to find error in the principle. The case of Re Vir Singh [1898] SSLR 6 also states that the
appellate court can interfere with the sentences if the sentencing judge had erred in applying
the principles in assessing the sentence to the prejudice of the accused. Next, the relevant
case can be seen from Mohamed Abdullah Ang Swee Kang v Public Prosecutor [1988]
1 MLJ 167, where the trial judge took the exact maximum sentence of 20 years in section
409 of Penal Code. The appellate court allowed the appeal due to the reason that the trial
judge had erred in the sense that it was misleading and was wrong in principle. The trial
judge should have passed the sentence judicially.
From the fact given, Mr Ramu advised both Maher and Rahmat that they should
appeal to the conviction and sentence as the plea proceeding is illegal due to absent of legal
representation and Bengali language interpreter and both of them did not understand the
effect of the plea. Subsequently upon instruction of Maher and Rahmat on 7th November
2023 Mr Ramu filed notice of appeal to the High Court of Shah Alam on conviction and
sentence to the charge. Despite the Extension of time to file petition of appeal as it already
explained in answer A, the document filed known as Petition Appeal given by Mr Ramu
would states it against conviction and sentence as the content includes the offence section
and the decision given by the Session Court as in the case of PP v Azizan bin Salleh.
Additionally, the court made an error by not considering the mitigation factors
presented by Maher and Rahmat as the Judge Sentence both Maher and Rahmat twenty
(20) years imprisonment from the date of arrest and 8 strokes of whipping. During mitigation,
Maher is in a desperate situation as he lacks the financial means to pay two months'
overdue rent, and both of his parents are unable to support his sister's education in
Bangladesh, as he is on scholarship as he wishes for the shortest possible term of
imprisonment. Rahmat also pleads for leniency for the same reasons. The trial judge should
have exercised judicial discretion in passing the sentence as in the case of Mohamed
Abdullah Ang Swee Kang v Public Prosecutor [1988] 1 MLJ 167. Thus, Mr. Ramu can
also draft the petition of appeal by asserting that the learned trial judge erred in law and in
fact by failing to consider the mitigation factors presented by the appellants (Maher and
Rahmat) during the mitigation. Nevertheless it is important for the trial court, when giving a
particular sentence, to give reasons in order for the appellate court to be able to find error in
the principle as in the case of Lim Guan Eng v Public Prosecutor [1998] 3 MLJ 14.