Pendakwa Raya v Siti Robiah Binti Che Sa’ari [No. K/P: 630406-02-5870] (KB-89-323-08/2017)

Examination of complainant

When a Magistrate takes cognisance of an offence on a complaint – 3

the Magistrate shall set a date to examine the complainant in accordance with this section;

the Magistrate shall serve on the Public Prosecutor a notice in writing at least seven clear days before the date of the examination of the complainant and such notice shall specify the date of the examination of the complainant and the particulars of the complaint received by the Magistrate under section 128;

the Magistrate shall not proceed to examine the complainant unless the notice required by paragraph (b) has been served on the Public Prosecutor in accordance with that paragraph;

the Magistrate shall examine the complainant upon oath and the substance of the examination of the complainant shall be reduced to writing and shall be signed by the complainant and by the Magistrate;

the Public Prosecutor may appear and assist the Magistrate in the examination of the complainant. [My own emphasis is added] [4]. In compliance to Section 133 of the CPC, this Court had issued a statutory notice dated 13.08.2017 as required under subsection (1) (b) above to the Deputy Public Prosecutor’s office and was duly received on 14.8.2017 [hereinafter shall be referred to as “the 1st Notice”]. The date of the examination of the complainant was fixed on 27.08.2017. [5]. However, through a letter dated 20.08.2017, this Court had issued another letter to the Complainant, her Counsel and the Deputy Public Prosecutor informing about the change of date of the examination of the complainant to 24.08.2017 [hereinafter shall be referred to as “the 2nd Notice”]. 4 [6]. On the date of the examination of the complainant, the said Application was in the presence of the learned Counsel representing the Complainant and the Complainant herself. I was informed by the learned Counsel to have another date fixed for the examination with the presence of the Deputy Public Prosecutor which the said Application was then fixed on 28.08.2017. Pursuant to that, a letter from this Court dated 27.08.2017 was issued to the Deputy Public Prosecutor’s office informing the same [hereinafter shall be referred to as “the 3rd Notice”]. [7]. However, the said Application was only heard on 05.10.2017 in the presence of the Deputy Public Prosecutor, the learned Counsel of the Complainant and the Complainant herself. The Complainant took an oath and gave evidence in Bahasa Malaysia. The complaint under oath was reduced into writing and signed by the Complainant and myself, pursuant to Section 133 (1) (d) of the CPC. [8]. The Deputy Public Prosecutor had then requested the said Application be adjourned for the prosecution to review the investigation done by the police in year 2016 and to get further instruction(s) from Ketua Unit 5 Pendakwaan Negeri Kedah pertaining to the alleged complaint made by the Complainant. [9]. On 28.11.2017, after having perused the complaint of the Complainant and the submissions by the learned Counsel of the Complainant, I am of the opinion that the said Application be dismissed and I had laid down my reason(s) in the notes of proceedings. The reasons of which were as follows: - i. On 28.11.2017, it was argued and submitted by the learned Deputy Public Prosecutor that the prosecution shall neither proceed with the charge nor make any further investigation on this matter against the alleged perpetrator. On this ground alone, I am of the opinion that this application be dismissed in lieu with section 135 (3) of the Criminal Procedure Code. ii. Section 135(3) of the CPC states as follows: -

Dismissal of complaint

… …

Notwithstanding subsections (1) and (2), the Public Prosecutor may, if he thinks fit, inform the Magistrate that no prosecution shall proceed in respect of the offence complained of, and thereupon the Magistrate shall dismiss the complaint. [My own emphasis is added] 6 ii. Further, after having perused the complaint made by the said Complainant, I took cognisance of the offence complaint of [refer to Section 128 of the CPC]. I am of the opinion that the alleged complaint was based on section 447 and/or 448 of the Penal Code which state that: - Criminal Trespass Section 447 “Whoever commits criminal trespass shall be punished with imprisonment for a term which may extend to six months or with fine which may extend to three thousand ringgit or with both.” Definition of “criminal trespass” Section 441 “Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property; or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".” House-trespass Section 448 “Whoever commits house-trespass shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to five thousand ringgit or with both.” Definition of “house-trespass” 7 Section 442 “Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass". Explanation - The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.” iv. However, it is in the forefront of my mind that both sections are in respect of seizable offences. Reference is made to the 3rd column of the 1st Schedule of the CPC and Section 2 of the CPC. v. The definition of “seizable offence” can be seen in Section 2 of the CPC where it states that: - “seizable offence” means an offence for which and “seizable case” means a case in which a police officer may ordinarily arrest without warrant according to the third column of the First Schedule. [My own emphasis is added] Reference is made to the 3rd column of the 1st Schedule of the CPC: - 8 vi. Now, the question lingering in my mind is that whether it is allowed in law a private prosecution be conducted in this manner in particular a seizable case vis-à-vis seizable offence. vii. I shall refer to the case of Tan Hoe Watt v Public Prosecutor [1980] 2 MLJ 46 at page 49 para G-H. It was held by the Learned Judge that: - “Thus, all seizable offences as our law stands are to be at the control and direction of the Public Prosecutor leaving only summons case to private persons. In the instant case, the Complainant complained of assault and criminal intimidation. Assault, which is under section 452 of the Penal Code is a summons case and the Magistrate can therefore take cognisanze if initiatied by a private person. But criminal intimidation under section 506 of the Penal Code is a seizable offence and the Magistrate is not empowered to take cognisanze unless initiated by the Public Prosecutor ... But at the same time, the complainant was in error in bringing before the Magistrate something that the Magistrate was not empowered to hear.” [My own emphasis is added] viii. Reference is made to Section 380 of the CPC where it states that: - “Prosecution by private persons.

Notwithstanding anything in this Chapter contained, any private person may appear in person or by advocate and prosecute for an offence against his own person or property in a non-seizable case in the Court of a Magistrate.” 9 ix. It is of my understanding, applying the case of Tan Hoe Watt and Section 380 of the CPC, that the Complainant may only prosecute an offence against her own persons or property in a non-seizable case in a Court of a Magistrate. x. The learned Counsel representing the Complainant had referred to the case of Tan Hoe Watt (supra). It was submitted by the learned Counsel that in that case where it was made to understand by the learned Counsel in our current case that since this Court has conducted the examination of the complainant i.e. on 05.10.2017, therefore, this Court has taken cognisance that an offence has been committed under section 447 of the Penal Code. Consequently, the Court shall proceed with the issue of process under Section 136 of the CPC. xi. With all due respect, the learned Counsel has failed to consider the other relevant portions of that case which I had enumerated above at para [9]. vii. 10 [10]. On the grounds I have stated above, I am of the opinion to dismiss the said Application. Dated 30th January 2018 ........................................................................ MOHAMAD FARED BIN ABDUL LATIF MAJISTRET MAHKAMAH MAJISTRET (3) SUNGAI PETANI