LAW 037

INTRODUCTION TO
LAW II
CHAPTER 6 :
LEGAL INSTITUTION
(COURT SYSTEM)
BY:
NORSYAZRAH BINTI
ZULKIFLI

CHAPTER 6 LEGAL
INSTITUTION

1.
2.
3.
4.

Court system and trial process

Types of cases heard in court
Question of fact and question of law
Appellate system

INTRODUCTION TO THE
COURT SYSTEM
COURT: Place to administer justice. As platform to
settle the dispute between individual or
individuals & other parties.
Jurisdiction : the power of the court or judge to
hear and decide a case or make a particular order

HOW DOES THE COURT SYSTEM OPERATES?

FEDERAL COURT
May hear appeals from Court of Appeal
COURT OF APPEAL
May hear appeals from High Court regarding civil and
criminal matters

Superior court

HIGH COURT
Has original jurisdiction on civil and criminal matters and also
appellate jurisdiction
SESSION COURT
Has original jurisdiction on civil and criminal
matters
MAGISTRATE COURT
Has original jurisdiction on civil and criminal
matters

Subordinate Court

JUDICIAL INSTITUTION
(GENERAL)
ARTICLE 121 Of the Federal Constitution lays
down the power of superior courts in Malaysia;
Federal Court, Court of Appeal and High Court.
JURISDICTION OF FEDERAL
COURT (ARTICLE 121(2))
a) To determine appeals from
decisions of a High Court or a
judge thereof and
b) Such other jurisdiction as may be
conferred by or under federal law

JURISDICTION OF COURT OF
APPEAL (ARTICLE 121 (1B))
a) Jurisdiction to determine appeals
from decisions of Court of appeal,
of the High Court or a judge
thereof
b) Such original or consultative
jurisdiction as specified in
Articles 128 and 130
c) Such other jurisdiction as may be
conferred by or under federal law

TYPES OF JURISDICTION

ORIGINAL JURISDICTION :
The power of the court to hear the case in the first instance

APPELATE JURISDICTION:
The power of the court to hear and determine appeal case from
the lower court.
REFERRAL JURISDICTION :
The power of the court to interpret/confirm on the application of
law or effect of any provision of the Federal Constitution.
ADVISORY JURISDICTION
Article 130 : YDPA may refer to the Federal Court for its opinion
regarding the effect of any provision in the Federal
Constitution which has arisen or likely to arise.
SUPERVISORY JURISDICTION :
To control activity of lower court or tribunal.

TYPE OF CASES HEARD

IN COURT
CIVIL CASES
Example: breach of contract, partnership, hire
purchase contract
CRIMINAL
Example: murder, robbery, theft

QUESTION OF FACT
AND QUESTION OF LAW

1. FEDERAL COURT
CONSTITUTION

COMPOSITION

ARTICLE 122

1.Chief Justice (President)

2. President Court of Appeal
3. 2 Chief Judges of High Court &
4. 11 other judges. Additional judges
may be appointed according to Article
122 (1A).
Every proceeding must be heard and
disposed by three or greater uneven
number. Majority decision.

JURISDICTION OF FEDERAL COURT

ORIGINAL JURISDICTION

APPELLATE JURISDICTION

ARTICLE 128(1)
-Determine whether the law passed
by Parliament/ State Legislature is
valid and
-Determine/decide disputes on any
question between States and
Federation or vice versa (give a
declaratory judgment)

a) Civil
- From any judgment/order from Court of Appeal
on any civil matters decided by High Court
b) Criminal
- From any judgment of Court of Appeal on
criminal matters.
c) Referral
- For any question arose in other courts about the
interpretation/effect of any provision in Federal
Constitution.
d) Advisory
YDPA may refer to Federal Court if there is any
question of provision in Federal Constitution. It
will be pronounce its opinion in the open court.

SECTION 92 COURTS OF JUDICATURE ACT

92. (1) At the hearing of an appeal the Federal Court shall hear the
appellant or his advocate, if he appears, and, if it thinks fit, the
respondent or his advocate, if he appears, and may hear the appellant
or his advocate in reply, and the Federal Court may thereupon
confirm, reverse or vary the decision of the Court of Appeal, or may
order a retrial or may remit the matter with the opinion of the
Federal Court thereon to the High Court, or may make such other order
in the matter as to it may seem just, and may by that order exercise
any power which the Court of Appeal or the High Court might have
exercised: Provided that the Federal Court may, notwithstanding that it
is of opinion that the point raised in the appeal might be decided in
favour of the appellant, dismiss the appeal if it considers that no
substantial miscarriage of justice has occurred.
(2) At the hearing of an appeal the Federal Court may, if it
thinks that a different sentence should have been passed, quash the
sentence passed, confirmed or varied by the Court of Appeal
and pass such other sentence warranted in law (whether more or
less severe) in substitution therefor as it thinks ought to have been
passed.

2. COURT OF APPEAL
CONSTITUTION

COMPOSITION

Established b y Article 121(1B)

Article 122A:
1.Chairman (President of Court of
Appeal)
2.22 other judges

JURISDICTION OF COURT OF APPEAL

It has the appellate jurisdiction only.
1. Civil (Section 67 Courts of Judicature Act):
Has jurisdiction to hear and determine appeals from
any judgment or order of any High Court in any
civil cause or matter.
However, this jurisdiction restricted by Section 68 of
the same act.
Power of the court:
The court may order new trial or reverse or vary the
decision of the High Court

Cont.

2. Criminal (Section 50 Courts of Judicature Act)

May hear and determine any criminal appeal
against any decision made by High Court in the
exercise of its :
a)Original jurisdiction
b)Appellate or revisionary jurisdiction in respect of
any criminal matter decided by the Sessions Court
#Section 50(4)- an appeal may lie on a question of
fact or a question of law or on a question of
mixed fact and law.

POWERS OF COURT OF APPEAL

SECTION 60 CJA

(1) At the hearing of an appeal the Court of Appeal shall hear the
appellant or his advocate, if he appears, and, if it thinks fit, the
respondent or his advocate, if he appears, and may hear the appellant or
his advocate in reply, and the Court of Appeal may thereupon confirm,
reverse or vary the decision of the High court, or may order a
retrial or may remit the matter with the opinion of the Court of
Appeal thereon to the trial court, or may make such other order in the
matter as to it may seem just, and may by that
order exercise any power which the trial court might have exercised:
Provided that the Court of Appeal may, notwithstanding that it is of
opinion that the point raised in the appeal might be decided in favour of
the appellant, dismiss the appeal if it considers that no substantial
miscarriage of justice has occurred.
(2) At the hearing of an appeal the Court of Appeal may, if it thinks that a
different sentence should have been passed, quash the sentence
passed, confirmed or varied by the High Court and pass such
other sentence warranted in law (whether more or less severe) in
substitution therefor as it thinks ought to have been passed.
(3) The Court of Appeal shall in no case make any order under this
section as to payment of costs of any appeal to or by the appellant or
respondent.

3. HIGH COURT

CONSTITUTION

COMPOSITION

Article 121 (1)(a) and Article 121(1)(b)

-Two High Courts:
i)High Court Malaya
ii)High Court in Sabah and Sarawak

Article 122AA
1.Chief Judge
2.Not less than four other judges
but limited to
60 judges in High Court in Malaya
13 judges in High Court in Sabah and
Sarawak

JURISDICTION OF HIGH COURT

It has jurisdiction for:
1.Original jurisdiction
2.Appellate jurisdiction
3.Revisionary and supervisory

1. ORIGINAL JURISDICTION
1. CIVIL
1.1 GENERAL CIVIL JURISDICTION(Section 23 CJA)
Subject to the limitation in Article 128, High Court may try all
civil matters regardless the value, where:
(a) the cause of action arose;
(b) the defendant or one of several defendants resides or has
his place of business;
(c) the facts on which the proceedings are based exist or are
alleged to have occurred; or
(d) any land the ownership of which is disputed is situated,
within the local jurisdiction of the Court and notwithstanding
anything contained in this section in any case where all parties
consent in writing within the local jurisdiction of the other High
Court.

Cont.

1.2 SPECIFIC CIVIL JURISDICTION (SECTION 24 CJA)

(a) jurisdiction under any written law relating to divorce and

matrimonial causes;
(b) the same jurisdiction and authority in relation to matters of
admiralty as is had by the High Court of Justice in England
under the United Kingdom Supreme Court Act 1981;
(c) jurisdiction under any written law relating to bankruptcy or
to companies;
(d) jurisdiction to appoint and control guardians of infants and
generally over the person and property of infants;
(e) jurisdiction to appoint and control guardians and keepers
of the person and estates of idiots, mentally disordered
persons and persons of unsound mind; and
(f) jurisdiction to grant probates of wills and testaments and
letters of administration of the estates of deceased persons
leaving property within the territorial jurisdiction of the
Court and to alter or revoke such grants.

Cont.

2. Criminal (Section 22 (1) (a) of CJA)

The high Court has jurisdiction to try offences
committed:
(i) within its local jurisdiction;
(ii) on the high seas on board any ship or on any
aircraft registered in Malaysia;
(iii) by any citizen or any permanent resident on the
high seas on board any ship or on any aircraft;
(iv) by any person on the high seas where the
offence
is piracy by the law of nations;

EXTRATERRITORIAL CRIMINAL
JURISDICTION(Section 22 (1)(b) of CJA
offences under Chapter VI of the Penal Code [Act 574], and
under any of the written laws specified in the Schedule
to the Extra-Territorial Offences Act 1976 [Act 163], or
offences under any other written law the commission of
which is certified by the Attorney General to affect the
security of Malaysia committed as the case may be,
(i) on the high seas on board any ship or on any aircraft
registered in Malaysia;
(ii) by any citizen or any permanent resident on the high
seas on board any ship or on any aircraft; or
(iii) by any citizen or any permanent resident in any place
without and beyond the limits of Malaysia.
# may impose the maximum sentence allowed by law.

2. APPELATE JURISDICTION
CIVIL (SECTION 27 CJA)

CRIMINAL(SECTION 26 CJA)

No appeal to be made if the amount in The appellate criminal jurisdiction of

dispute less than RM10,000 except for the High Court shall consist of the
question in law .
hearing of appeals from subordinate
courts according to any law for the
time being in force within the
territorial jurisdiction
of the High Court.

3. REVISIONARY AND
SUPERVISORY JURISDICTION
It has a revisionary jurisdiction over criminal and
civil proceedings in subordinate courts (Section
31 & Section 32 CJA)
Criminal revise criminal proceedings
Civil- revise correctness, legality or propriety of
any decision recorded or passed/ regularity of any
proceedings

General supervisory and revisionary

jurisdiction of High Court (Section 35 CJA)
(1) In addition to the powers conferred on the High Court by
this or any other written law, the High Court shall have
general supervisory and revisionary jurisdiction over all
subordinate courts, and may in particular, but without
prejudice to the generality of the foregoing provision, if it
appears desirable in the interests of justice, either of its own
motion or at the instance of any party or person interested,
at any stage in any matter or proceeding, whether civil or
criminal, in any subordinate court, call for the record
thereof, and may remove the same into the High Court or
may give to the subordinate court such directions as to the
further conduct of the same as justice may require.
(2) Upon the High Court calling for any record as aforesaid
all proceedings in the subordinate court in the matter or
proceeding in question shall be stayed pending further order
of the High Court.

4. SESSION COURT
CONSTITUTION (Section 59 of
SCA)
- YDPA may constitute Sessions
Court

COMPOSITION
1. Presided by a Sessions Court judge

* SCA : SUBORDINATE COURTS ACT 1948

JURISDICTION OF SESSIONS COURT

1.

ORIGINAL

1.1 CIVIL (SECTION 65 OF SCA)

(1) Subject to the limitations contained in this Act, a Sessions Court shall have

(a) unlimited jurisdiction to try all actions and suits of a civil nature in respect of
motor vehicle accidents, landlord and tenant and distress;
(b) jurisdiction to try all other actions and suits of a civil nature where the
amount in dispute or the value of the subject matter does not exceed one
million ringgit; and
(c) without prejudice to the generality of paragraph (b), jurisdiction to try all
actions and suits of a civil nature for the specific performance or
rescission of contracts or for cancellation or rectification of
instruments, within the jurisdiction of the Sessions Court.
(2) (Deleted by Act A434).
(3) When the parties to an action or suit which, if the amount in dispute or value
of the subject matter thereof did not exceed the limit of the jurisdiction,
would be cognizable by a Sessions Court, have entered into an agreement
in writing that the Sessions Court shall have jurisdiction to try the action or
suit, the Sessions Court shall have jurisdiction to try the same, although the
amount of the subject matter thereof may exceed the value limit of
jurisdiction.

Powers of Sessions Court

(Civil)
Section 65 (5) SCA:
- May :(a) grant an injunction; and
(b) make a declaration,
whether or not any other relief, redress or remedy is
or could be claimed.

Cont.

1.2 criminal jurisdiction (Section 63 of SCA)

-Try offences other than offences punishable by death
Section 64 : Sentences
-May pass any sentence allowed by law other than
punishable by death
1.3 Supervisory jurisdiction (Section 54 SCA)
-Call and examine record of any civil proceeding before
the Magistrates court as to the correctness, legality or
propriety of any decision recorded or passed and also as
to the regularity of any proceedings of that court.
-If the judges in the Sessions Court view that any decision
is illegal or improper, or any proceedings is irregular, she
or he must forward the record to High Court.

5. MAGISTRATE COURTS
CONSTITUTION

COMPOSITION

Established by Section 76 SCA

1. Magistrate (Section 81 SCA)

1. GENERAL POWERS OF MAGISTRATE (Section 82)

-May try any civil /criminal cases within the local limits of
its jurisdiction
2. PRELIMINARY PROCESS & INTERLOCUTORY ORDERS
(Section 83)
-Issue summons, writs, warrants or other process,
-make interlocutory/interim orders
(including remand, adjournment and bail)

TYPES OF MAGISTRATE
FIRST CLASS MAGISTRATE

SECOND CLASS MAGISTRATE

Criminal Jurisdiction (Section 85

SCA):
all offences for which the maximum
term of imprisonment provided by
law does not exceed ten years
imprisonment or which are
punishable with fine only and offences
under sections 392 and 457 of the
Penaljurisdiction
Code.
Civil
(Section 90) :
shall have jurisdiction to try all actions
and suits of a civil nature where the
amount in dispute or value of the
subject matter does not exceed one
hundred thousand ringgit.

Criminal Jurisdiction (Section 88 SCA):

to try offences for which the maximum
term of imprisonment provided by
law does not exceed twelve months
imprisonment of either description or
which are punishable with fine only:

Civil jurisdiction (Section 91):

shall only have jurisdiction to try
original actions or suits of a civil
nature where the plaintiff seeks to
recover a debt or liquidated demand
in money payable by the defendant,
with or without interest, not exceeding
ten thousand ringgit.

SENTENCES BY MAGISTRATE
(CRIMINAL)
FIRST CLASS MAGISTRATE
(SECTION 87)
(a) five years imprisonment;
(b) a fine of ten thousand ringgit;
(c) whipping up to twelve strokes; or
(d) any sentence combining any of the
sentences

SECOND CLASS MAGISTRATE

(SECTION 89)
(a) not exceeding six months
imprisonment;
(b) a fine of not more than one
thousand ringgit; or
(c) any sentence combining either of
the sentences

APPELATE SYSTEM

Section 28 CJA:
Appellate criminal
jurisdiction
The appellate criminal
jurisdiction of the High Court
shall consist of the hearing of
appeals from subordinate
courts according to any law
for the time being in force
within the territorial
jurisdiction of the High
Court.

Section 27 CJA:
Appellate civil jurisdiction

Section 28 CJA: Civil appeals

from subordinate courts

The appellate civil

jurisdiction of the High Court
shall consist
of the hearing of appeals
from subordinate courts.

No appeal to the High Court

from a decision of a
subordinate court in any civil
cause or matter where the
amount in dispute or the
value of the
subject-matter is *ten
thousand ringgit or less
except on a question
of law.
- An appeal shall lie from any
decision of a subordinate
court
in any proceedings relating to
maintenance of wives or
children,
irrespective of the amount
involved.

HOW TO APPEAL?
ORDER 55 COURT RULES 2012:
Where under any written law an appeal lies from
any decision of any person or body of persons to
the High Court such appeal shall be made to the
High Court in the State where the decision was
given by way of an originating summons setting out
the grounds of the appeal and supported by an
affidavit, and if the Court so directs at the hearing
of the appeal, by way of oral evidence.

TRIAL PROCESS
(CIVIL LITIGATION)
PRE TRIAL
TRIAL
POST TRIAL

* Reference must to be made to Rules of Court

2012 (which comes into force on 1 August
2012)

1. PRE TRIAL
OBJECTIVE:
1. To fully prepare the case
2. To define the case clearly or precisely
3. To prevent surprise in the nature of the case
and documentary evidence
4. To eliminate the case that can dispose without
trial

PROCESS IN PRE TRIAL

1. ORIGINATING PROCESS (Order 5)
I. Writ of summons
- For a substantial dispute of facts (O.5 R 2)
ii. Originating summons
- For any application that to be made to the judge/ court
2. SERVICE (Order 10)
- Sent to the last known defendants address by A.R.
registered 1 months after issuance of writ.
3. APPEARANCE (Order 12)
- The defendant must complete memorandum of appearance
- Specify : i) address of the residence of defendant or
ii)the business address of his solicitor

Cont.

4. Pleadings (what is in the pleadings?) Order 18

1.Statement of claim
2.Statement of defence or counterclaim
3.Plaintiffs reply (or defence to counter claims)
- Will be closed 14 days after reply has been served
Why?
1. Define the issue in dispute to be solve in trial (you should plead the facts not the evidence in
the pleadings)
2. Give notice to other parties to answer
5. Resolution before trial :
1.Default judgment (when defendants fail to enter appearance or fail to file defence within the
prescribed time)
2.Summary judgment (if there is no defence to the case, may apply judgment for defendant
(Order 14)).
-However, it will not apply for :
a) a claim by the plaintiff for libel, slander, malicious prosecution,false imprisonment, seduction
or breach of promise of marriage; or
(b) a claim by the plaintiff based on an allegation of fraud.
3. Striking out (Order 18)- if the following occurs:
(a)it discloses no reasonable cause of action or defence, as the case
may be;
(b) it is scandalous, frivolous or vexatious;
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment to be entered
accordingly, as the case may be.

Cont.
6. Discovery ( Order 24)- exchanging documents
- It can be done by documents/persons
-Interrogatories allowed - give question to other
party to reply/answer the dispute (any matter in
question) within 14 days (Order 26)
Why?- to assess the strength/weakness of the case
or encourage compromise (settle outside the court)
7. Pre trial case management
1.Appear in court
Order 34 : at any time court may direct the parties
to attend the court, if fail- court ill dismiss/strike/
makes any order

TRIAL
Order 33 : trial can be done before any of the
following persons:
i)A judge or
ii)Registrar or
iii) With or without the assessor

POST TRIAL
1.
2.
3.
-

Cost
Appeal
Enforcement:
If the judgment debtor fails to obey the order,
court may give order / judgment for
1. Writ of seizure and sale (seize and sell property)
2. Writ of delivery (recovery from any movable
property / its assessed value)
3. The garnishee order ( required the third party
who owes money to judgment debtor to pay
directly to judgment creditor)

TRIAL PROCESS:CRIMINAL TRIAL

PRE TRIAL
TRIAL
POST TRIAL

PRE TRIAL
Types of offence:
i) Seizable (arrestable) offences: police may
investigate without order from warrant from
magistrate
ii) Non seizable : police must get order/ warrant
STEPS
1. Begins with First Information Report (police report)
2. Arrest Rights of arrested person(Article 5)
3. Search body search or place/premises
(if needed, they will seize the if it is believed to be
stolen property/object/things that creates
suspicion to commit crime)

Cont.
4. The suspect makes statements
-It will be recorded and admissible in court.If it was recorded it
will be informed to the suspect
-Suspect should answer all questions except it has tendency to
expose him/her to criminal charge
-If that so, suspect has a right/ not bound to answer
if the police makes a caution statement :
it is my duty to warn you that you are not obliged to say
anything or any to answer question but anything you say
whether in answer to a question or not may be give evidence
5. Charge (should be clarify and certain)
6. Bail (set free)- police officer
- court (bond)
- surety (find another person)
# non bailable offences offences punishable with
death/imprisonment

TRIAL
A suspect may bring the court by three ways;
1. By summons
2. By a warrant of arrest (order by court)
3. By arrest without warrant for seizable offences

PROCEDURE IN HIGH COURT TRIAL

1. The accused is brought before the court.
2. The charge will be read and explained to the accused; will
be asked to plead guilty or not
3. The accused will plead. Silent amount as plead not guilty.
4. If the accused plead guilty:
a)Court must satisfy with the plead(whether it was made
voluntarily)
b)Court must ensure that the accused understand the nature
and consequences of the plea and intends to admit it
c)The prosecution reads out the statements of facts
d)The accused admits the facts as stated
e)Courts accept the accuseds guilty and convicts him/her.
f)A plea of mitigation will be applied, followed by reply made
by the prosecution
g)Sentence is passed and trial is concluded

Cont.
5. If the accused refused to plead guilty, the full trial will
begin.
6. It will be started by opening speech made by Public
Prosecutor (describe the nature and evidence proposed to
prove the guilt).
7. It will undergo the three stages of examination.
8. At the close of the prosecution case, the accused may
submit there is no case to answer or prosecution has
failed to make out all the ingredients in the charge.
9. Where the accused makes such a submission,
arguments from both side will be presented.
10. The court will decide; if the prosecution failed to made
out the case, the court will acquit the accused. If they
succeed, the accused will enter to defence his/her case.

POST TRIAL
APPEALS
Criminal appeals can bring in three stages; against
decision of subordinate courts to High Court, then to
Court of Appeal and lastly to the Federal Court.
REVISION
Examine the :
1. correctness any decisions( normally will decline on
question of fact)
2. Legality any decisions that refers to assumption of
jurisdiction
3. Regularity exercise the jurisdiction
4. Propriety of any decision sentencing/orders within
the discretion of the subordinate courts

TUTORIAL QUESTION
PLEASE READ THE CASE :
Dato' Seri Anwar Ibrahim v PP (FC) [2004] 2 CLJ 737