APRIL 20 — In the case of Ahmad Zubair Hj Murshid v PP [2014], the accused was charged in the Sessions Court with two principal amended charges under Section 409 of the Penal Code and two alternative amended charges under Section 418 of the same Code.
Before the commencement of the trial at the Sessions Court, the accused applied to the High Court by way of notice of motion to strike out the charges preferred against him on the ground that the charges were defective in substance and form.
The High Court dismissed the motion. Aggrieved, the accused appealed to the Court of Appeal.
While the appeal was pending before the Court of Appeal, the accused made a similar application before the Sessions Court for the charges preferred against him to be struck out and for him to be given a discharge not amounting to acquittal. The application was dismissed by the Sessions Court.
The accused’s appeal to the Court of Appeal was also dismissed by the appellate court which held that the High Court was correct in not exercising its inherent jurisdiction to set aside and quash the charges against the accused.
The accused appealed to the Federal Court. One of the issues for the apex court’s determination was whether doctrine of inherent jurisdiction and inherent power can be exercised to strike out the charges and to have the accused acquitted and discharged on the charges.
While the Federal Court accepted the English common law doctrine of inherent jurisdiction allowing the High Court to prevent an oppressive and mala fide prosecution, and abuse of process, the apex was mindful to caution that the inherent powers of the court must be exercised in exceptional circumstances to prevent undue oppression and abuse of the process of the court.
Malaysian courts must pause to consider the constitutional consequences of relying on the English common law concept. The Federal Constitution is specifically declared to be the supreme law of the land.
Article 145(3) of the Constitution states that the Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before Syariah Court.
The discretion vested in the Attorney General is unfettered and cannot be challenged and substituted by that of the court’s. (See the cases of Long bin Samat & Ors v PP [1974] and PP v Datuk Harun bin Haji Idris [1976])
Also, the UK has no criminal procedure code like the Malaysian Criminal Procedure Code (CPC) enacted by Parliament which, as its name suggests, was intended to be an exhaustive pronouncement of the criminal procedure.
The court must therefore be careful that its decision is not in conflict with the intention of the legislature — that is Parliament. The inherent power cannot be invoked to override an express provision of law.
Where the legislature has provided a particular mode of action or has vested an authority with powers to act in a particular manner and has prescribed the conditions limiting the scope of such action, the court cannot act outside those powers and conditions.
Delivering the judgment of the Federal Court, President of the Court of Appeal Raus Sharif (as he then was) said:
“We have to come out strongly on this issue because it is our observation that lately there has been a growing trend for accused persons to apply to the High Court by way of a notice of motion to strike out a charge or charges preferred against them by the Public Prosecutor at the subordinate court.
“This has resulted in considerable delay in criminal prosecution before the subordinate courts. To illustrate this point further we will take the present case as an example. The accused was charged before the Sessions Court.
“However, because of the preliminary issues raised on the legality of the charges, as well as the appeal process, it took nearly two years for the full trial to proceed before the Sessions Court.”
The learned President then added:
“We are of the view that the appeal by the accused to the Court of Appeal and later to this court on a preliminary issue whether the charges against him in the Sessions Court were defective in form and substance was clearly an abuse of the court process.
“This is especially so when the accused concurrently has made a similar application before the Sessions Court to have the charges preferred against him to be struck out.”
The courts must therefore be alert to the accused abusing the court process through motions and applications to strike out the charges preferred against him on the ground that the charges are defective in substance and form.
*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
