(a) In light of the facts and evidence highlighted above, draft appropriate charges against:

(i) Oren; and

(ii) Jambu
(20 marks)

Answer for a(i) Oren:

IN THE MAGISTRATE COURT AT SHAH ALAM

IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA

CRIMINAL TRIAL NO: 45B-351-12/20

[Arrest Case No.: 01-12 of 2020]

PUBLIC PROSECUTOR
V
OREN
(NRIC: 760711-14-7533)

You are charged at the instance of the Public Prosecutor, and the charge against you is:

CHARGES

That you, on the 1st day of December 2020, at about 3.15 pm located at a renovated house opposite a property
addressed at No. 76, Jalan Mewah, Taman Indah, Shah Alam, in the State of Selangor, had committed the offence of
dishonestly receiving stolen property, when you were found to be in possession of a sapphire diamond bracelet
belonging to Cantik (NRIC: 960204-14-5664), knowing or having reason to believe the same to be stolen property,
and thereby committed an offence under Section 411 of the Penal Code.

PUNISHMENT

If convicted, shall be punished with imprisonment for a term which may extend to five years or with fine or with
both.

Dated 1st December 2020

(NURUL SYAHIEZA MD HADZAID)

Deputy Public Prosecutor
SELANGOR

1
Answer for a(ii) Jambu:

IN THE SESSIONS COURT OF SHAH ALAM

IN THE STATE OF SELANGOR DARUL EHSAN

CRIMINAL TRIAL NO: 45B-351-12/20

[Arrest Case No : M3-25-124-2020]

PUBLIC PROSECUTOR

JAMBU
(NRIC: 780626-02-2728)

You are charged at the instance of the Public Prosecutor and the charge against is:

CHARGES

That you on the 1st day of December 2020 at about 3:15 p.m. located at a renovated house opposite a property
addressed at No. 76, Jalan Mewah, Taman Indah, Shah Alam, in the state of Selangor, had committed the offence of
house-breaking and committed theft, where your fingerprint was found at the cabinet in Cantik's (NRIC:
960204-14-5664) house and stole a Rolex Watch and thereby committed an offence punishable under section 457 of
the Penal Code.

PUNISHMENT

If convicted for housebreaking, shall be punished with imprisonment for a term which may extend to five years and
shall also liable to fine.

If convicted for committing theft, shall be punished with imprisonment for a term which may extend to fourteen
years and for second or subsequent offence shall either be liable to fine or whipping.

Dated 7th December 2020

(NURUL SYAHIEZA MD HADZAID)

Deputy Public Prosecutor
SELANGOR

2
(b) Based on the charges drafted in (a) above, should a joint trial be conducted for Oren and Jambu?

(10 marks)
The general rule under Sec. 163 of the CPC dictates that every person shall be tried separately. However, more than
one accused person may be charged and tried together at one trial, where more than one accused person committed
the same offence, or different offences, in the same transaction as per Section 170(1) of the CPC. In the case of
Amrita Lal Hazra, what constitutes ‘same transaction’ is that there should be proximity of time, unity or proximity
of place, continuity of action, and continuity of purpose or design.

In the case of PP v Low Kian Boon & Anor, where the accused persons’ joint presence at the scene and their
participation in the murder could be inferred from the injuries Inflicted on the deceased coupled with their flight
from the scene, which supported the existence of a common intention. The presence of a common intention where
the same offence was committed in Sec. 34 of Penal Code, when a crime is done by several persons, in furtherance
of the common intention of all, each person is liable for that act. The provision implies that there was a pre-arranged
plan in existence. Thus, in order to convict several accused persons for the same offence, it must be proven that the
crime was done in concert pursuant to such plan. In the case of PP v Ayyavoo Subramaniam & Anor, there must
be a prior meeting of minds to form the pre-arranged plan to commit the offence of the interval prior to the attack.

Distinct offences may be a “series of offences of the same or a similar character” or offences committed in the
“same transaction”. Persons accused of theft, extortion, criminal breach of trust, cheating or criminal
misappropriation may be tried with persons accused of receiving, or retaining, or assisting In the disposal or
concealment of such property under section 403 of Penal Code. The stolen property received, retained, disposed or
concealed by the second accused Must have been transferred through any of the offences listed committed by the
first accused. However, a joint trial would be improper where the persons are charged with the offences at different
times and different places. As per in the case of Chan En Cheng v PP, where both accused persons were charged in
a joint trial, even though the properties were the subject of the same theft, both offences were committed at a
different time and different place. On that basis, the court held that the joint trial conducted at the trial court was
illegal. Thus, in order for the provision to apply, it is still a necessity for the offences to form part of the same
transaction particularly in regards to proximity of time and place, as well as continuity of action and purpose as in
the case of Amrita Lal Hazra.

In applying the said law above, both Oren and Jambu was charged at different times and for difference offences,
provided that, Oren was charged on 1 December, for the offence of receiving stolen goods under section 411 of the
Penal Code, and Jambu was charged on 7 December for housebreaking and committing theft under section 457,
therefore conducting a joint trial are illegal, as per the case of Chan En Cheng.

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(c) Based on the information above, draft appropriate charge/charges in respect of offences committed by Oren.
(20 MARKS)
IN THE SESSIONS COURT OF KOTA BHARU
IN THE STATE OF KELANTAN DARUL NAIM

CRIMINAL TRIAL NO:408-351-12/20

[Arrest Case No: DA3-25-124-2020]

PUBLIC PROSECUTOR
V
OREN
(No.K/P: 760711-14-7533)
You are charged at the instance of the Public Prosecutor, and the charge against you is:
CHARGES
That you, Oren, (No.K/P: 760711-14-7533), between February 1, 2019 until January 31, 2020 at Kota Baru,
Kelantan did commit a criminal breach of trust in your capacity as clerk in such company to wit by misappropriating
the sum of RM 75,000 belonging to DiGi Malaysia Sdn. Bhd., and entrusted into your custody and that you have
thereby committed an offence punishable under Section 408 of the Penal Code.
PUNISHMENT
Imprisonment for a term which shall not be less than six months and not more than five years and with whipping
and shall also be liable to fine.
____________________________________________________________________________________________

CHARGES
That you, Oren, (No.K/P: 760711-14-7533) on April 10, 2020 and April 9, 2021 at Kota Baru, Kelantan did commit
a criminal breach of trust by in your capacity as a clerk in such company to wit by misappropriating the sum of RM
75,000 belonging to DiGi Malaysia Sdn. Bhd., the company, and that you have thereby committed an offence
punishable under Section 408 of the Penal Code.
PUNISHMENT
Imprisonment for a term which shall not be less than one year and not more than fourteen years and with whipping
and shall also be liable to fine.
Dated 1ST December 2020

(MOHD HASAN BIN KHAMIS)

Deputy Public Prosecutor
KELANTAN
4
(d) Can the offences committed by Oren above against DiGi Malaysia Sdn. Bhd. be tried at one trial with the
offence Oren committed against Cantik highlighted above? (10 marks)

In Section 163 CPC, it mentioned that there shall be a separate charge for a separate offence and every such charge
shall be tried separately. This term has been known as the rule against duplicity. However, there is an exception of
this rule that is stated if applied to several sections and one of it is Section 164 CPC. Furthermore, if a person is
accused of the same kind of offences, it can be tried in a trial together for any number of them not exceeding three
and as long as it is committed within the duration of twelve months under Section 164 (1) CPC.

In Azahan Mohd Aminallah v PP [2005] 5 MLJ 334 discussed that where the accused was charged with
committing four separate acts of rape over a period of five years, the court found that there was a violation of
Section 164(1) CPC thus ruling that the trial was a nullity and must be quashed.

Moreover, Section 164(2)CPC provides that in general, offences are of the same kind when they are punishable
with the same amount of punishment under the same section of the Penal Code. In Amrita Lal Hazra v Emperor
[1915] ILR 42 Cal 957, such circumstances which must bear on the determination of the question of the same kind
of offence in an individual case may be easily indicated through their proximity of time, unity or proximity of place,
continuity of action and community of purpose or design. It is essential to show the community of purpose or design
and continuity of action in order to construe whether a number of acts may be so connected together as to form part
of the same transaction by virtue of PP v Ridzuan Kok Abdullah [1996] 2 CLJ 346. Moreover, in Lim Meng See
v PP [1950] 1 MLJ 86 provides that the joint trial of the accused's charges on offence of cheating and criminal
breach of trust was held as illegality as both offences were not of the same kind and had no connection with each
other.

As for Oren, he is charged under Section 408 PC for the offences committed by him against DiGi Malaysia Sdn.
Bhd. and in Cantik’s case he is charged under Section 411 PC. Both of these offences are proven to be committed
by Oren within the period of 12 month thus it fulfilled Section 164(1) CPC. However, Section 164(2)CPC must be
complied in order for both charges to be tried in a trial together. It is deemed that Section 408 and 411 of PC are not
the same kind of offences as they are not even punishable with the same amount of punishment by virtue of Section
164(2) CPC. Moreover, such offences committed were not complied with the proximity of time, unity or proximity
of place, continuity of action and community of purpose or design by virtue of Amrita Lal Hazra v Emperor and
PP v Ridzuan Kok Abdullah. In applying, Lim Meng See v PP, it could be said that the offences committed by
Oren, i.e. Section 408, criminal breach of trust by a clerk against DiGi Malaysia Sdn. Bhd and Section 411,
dishonestly receiving stolen property against Cantik are not the same kind of offences. Thus, by virtue of Section
164 CPC, it cannot be tried in a trial together and Section 163CPC will be applied instead.

In conclusion, Oren’s charges of Section Section 408 and 411 of PC cannot be tried in a trial together by
virtue of Section 163 and Section 164 of CPC.
5
(e) In light of the above, explain whether Socrates should accept both Apel and Mangga’s offer as sureties for
Jambu.
(15 marks)

Answer for (e):

The issue is whether the judge, Socrates, should accept both Apel and Mangga’s offer as sureties for Jambu?
Bail is defined as some form of property which is deposited or pledged to court in order to persuade
it to release a suspect from custody, on the understanding that the suspect will return for trial or forfeit the
bail.
There are 3 types of offences which are bailable offence, non-bailable offence and unbailable
offence. This question concerned bailable offence. Bailable offence is an offence shown as bailable under
Column 5 of the First Schedule of Criminal Procedure Code (CPC) or which is made bailable by any
other law. Section 387 (1) of the CPC states where any person other than the accused person of a
non-bailable offence is arrested or detained without warrant by a police officer or is brought before the court
and prepared to give bail, such person shall be released on bail.
In Mohd Jalil Abdullah v PP [1996] 5 MLJ 564, the term “shall be released on bail” is mandatory.
By virtue of the provision, a person accused of a bailable offence is entitled to bail as of right. There is no
question of any discretion in granting bail and the court is bound to comply with the provision. In this case,
even where the bail had been increased, both the applicants were absent. As a result, warrants for their arrest
were issued. The learned magistrate refused to accept their explanations and subsequently revoked bail. The
applicants’ application for bail was refused. On appeal, the High Court ruled that, where a release on bail
was mandatory, upon revocation of the previous bail, the magistrate should have granted a new bail with
sufficient sureties as he deemed fit.
In applying to the situation given, Jambu committed the offence of housebreaking under section 457
of the Penal Code, therefore the offence is bailable as stated under the Column 5 of First Schedule of CPC.
By virtue of section 387(1) of the CPC, as Jambu was not arrested under non-bailable offence, hence he
shall be released on bail. As the bailable offence required to release the accused on bail, the court must
comply with the provision and furnish the bail to Jambu who is entitled to bail as of right.
Further, in order for a bond to be executed, section 390 of the CPC provides that before the accused
is released on bail, or released on his own bond, a bond for such sum of money as the police officer or the
court thinks sufficient, shall be executed by the accused. Alternatively, if the accused is released on bail by
one or more sureties, the condition is that the sureties must ensure that the accused attends at the time and
place mentioned in the bond as directed by the police officer or the court. Moreover, once the bond has been
executed, the accused shall be released even though he is in prison.
In Chang Khee Chien v PP [1980] 1 MLJ 183, the two accused were released on bail in the sum of
RM500 with one surety. There were several postponements of their case and on each occasion the accused
had duly appeared in court. When the case was mentioned again the two sureties were not present in court
and because of their absence the magistrate ordered the two accused to be remanded. The court held it is not
6
necessary for any person who stands as a surety to personally present himself in court on each and every
occasion that the accused has to attend court. A surety only gives an undertaking that the accused shall
attend court to answer the charge on the date specified in the bail bond and continue to attend until
otherwise directed by the court. But nowhere is it stated in the bail bond or in any provision in the Code that
the surety must also be present when the accused is required to attend court.
In applying to the situation given, Apel and Mangga offered to stand as sureties for Jambu. As
sureties, Apel and Mangga need to ensure that Jambu will appear before the court as scheduled by virtue of
section 390 of the CPC. However, their presence to attend each and every time Jambu has to appear before
the court is not needed as applied in Chang Khee Chien v PP [1980] 1 MLJ 183. It is Jambu’s presence
that is necessary for the court to consider. This is because the duty of a surety is to make sure that the
accused will appear before the court as scheduled but it is not mentioned that a surety too must appear
before the court in every trial. Therefore, although Apel often travels to Indonesia for his business trips he
can still become a surety for Jambu since it is not necessary for him to attend every trial scheduled for
Jambu.
In conclusion, the court should accept Apel and Mangga’s offer as sureties for Jambu as it is only
Jambu’s presence that is required under section 390 of the CPC .

7
(f) Jambu is unhappy with the bail amount of RM 100,000 set by Socrates and is unable to raise the bail sum.
Discuss the propriety of the bail sum set by Socrates. (10 marks)

The issue is whether the bail amount of RM100,000 set by Socrates towards Jambu is excessive and punitive in
nature.

Section 389 of CPC provides that such amount of bond must be given in accordance to the circumstances of the
case and shall not be excessive. This section grants a wide discretion to the judge in granting and in deciding the
amount of the bail. The case of Manickam & Ors v PP [1982] 1 MLJ 227 highlighted that the amount of bail must
be reasonable and not excessive as the principle that every person is innocent until proven guilty must be
emphasized.

Zulkiflee bin Hj. Hassan v PP [1987] 2 MLJ 527 case stated that such amount of bail shall not be treated as a
punishment in nature. In the said case, the amount of bail offered has the effect of punishing before he is convicted.
In addition, Soo Shiok Liong v PP [1993] 2 MLJ 381 highlighted that the court must consider the nature and the
severity of the punishment, an excessive amount of bail may make it difficult for the accused to find a bailor that is
willing to bail, the principle that a person is innocent until proven guilty, bail must not have the effect of punishing
before the accused is convicted before setting the quantum of bail.

In application, Socrates has the power to determine, pursuant to Section 389 of the CPC, on the amount of bail for
Jambu. However, as stated in Manickam & Ors v PP and Zulkiflee bin Hj. Hassan v PP, Socrates failed to
acknowledge that the amount of RM100,000 was disproportionate, unreasonable and punishable until he is
convicted and the principle that Jambu is innocent until proven guilty must be upheld because the amount must not
be punishable.

In addition, it is clear that Jambu is unable to raise the bail amount, so this would make it difficult for him to find a
bailor who is willing to bail him and Jambu could also be held for months as he is unable to pay the bail. This is
endorsed by Soo Shiok Liong v PP that Socrates, being the judge, must weigh all the variables while determining
the bail quantum.

To conclude, the amount of RM100,000 bail set for Jambu is unreasonable and punishable. Therefore, the amount of
bail as per Section 389 CPC must be decreased by Socrates.

8
(g) Whether the issue of process made against Nini under Section 133 was complied with.

We have to distinguish between a warrant case or a summons case in order to know the proper process to
issue. In Karpal Singh v Public Prosecutor [1986] 2 MLJ 319, the court had stated the importance in determining
whether the offence is one that falls under a summons or warrant case and provided that Section 2 of Criminal
Procedure Code (CPC) has defined “warrant case” as a case with death punishment or imprisonment exceeding six
months. Meanwhile “summons case” is defined as a case related to an offence that is not a warrant case. Reference
can also be made to Fourth Column, First Schedule of CPC for the choice of process that shall, in the first
instance, be ordinarily issued. Applying this, since Nini’s offence was under Section 323, it is provided under Fourth
Column First Schedule that a summons is the choice of process to be issued against her.

Invoking S128 of CPC, the Magistrate may take cognisance of an offence upon receiving a complaint as
defined by the CPC when happlies his mind to the suspected commission of an offence before taking any judicial
action on it, but with a view of deciding whether or not he should take such action. In order to know whether an
issue of process made was procedurally correct we would have to refer to S133(1) of the CPC. The procedures
under S133(1)(a)-(e) are mandatory to be complied with. For (a), we can see that the Magistrate has set a date to
examine the complainant, Nenas. Next, (b) it is to be noted that the Public Prosecutor shall be served a written
notice specifying the date of the examination of the complainant and the particulars of the complaint received by the
magistrate at least seven clear days before the date of the examination. Furthermore, ( c) states that the complainant
shall not be examined by the Magistrate unless (b) has been complied with whereby the notice has been served 7
clear days before the examination.

Applying this, a notice has been issued by the Magistrate to the Public Prosecutor on 20 December 2020 and
the examination was done 23 December 2020. There is only a gap of 3 days and the Public Prosecutor was not given
notice 7 days before the date of the examination. This is clear that paragraph b of S133 has not been complied with
and reference shall be made to paragraph c as Hero shall not examine Nenas as the notice was not issued to the
Public Prosecutor 7 days before. Invoking Re Rasiah Munusamy [1983] 2 MLJ 294, the court stated that the
requirements given under S133 are mandatory, their object being to enable the magistrate to decide on the veracity
of the complaint for upon that will depend his decision as to whether or not a process should issue. The court held
that in this case the record clearly showed that there was not even a semblance of compliance with the said
requirements. Order by the learned Magistrate directing the issue of a Warrant of arrest in this case was made
without jurisdiction and was therefore void. Applying this, since para b of S133 is not complied with, this renders
the order of the court to be void. S136 of CPC which states that the Magistrate shall issue summons after taking
cognizance of an offence is not applicable here in this question as there is no sufficient ground for proceeding as
S133 of CPC is not complied with.

In conclusion, the issue of process made against Nini is void as it did not comply with S133.