Malaysia legislation
Section 68
Section 68
When a person is accused of the commission of any offence by reason of anything which has been done or of any consequence which has ensued, such offence may be tried by a Court within the local limits of whose jurisdiction any such thing has been done or any such consequence has ensued.
Place of trial where act is an offence by reason of relation to other offence 69.
When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, a charge of the first-mentioned offence may be tried by a Court within the local limits of whose jurisdiction either act was done.
Illustration — A charge of abetment may be tried either by the
Court within the local limits of whose jurisdiction the abetment was committed or by the Court within the local limits of whose jurisdiction the offence abetted was committed.
Where scene of offence is uncertain 70.
Where—
(a)
it is uncertain in which of several local areas an offence was committed;
(b)
an offence is committed partly in one local limit of jurisdiction and partly in another;
(c)
an offence is a continuing one and continues to be committed in more local limits of jurisdiction than one; or
(d)
it consists of several acts done in different local limits of jurisdiction, the case may be heard by the Court having jurisdiction over any of such local limits of jurisdiction.
When doubt arises, Chief Syariah Judge to decide 71.
Whenever any doubt arises as to the Court by which any offence should, under the preceding provisions of this Chapter, be tried, the Chief Syariah Judge may decide by which Court the offence shall be tried.
Conditions Requisite for Initiation of Proceedings
Cognizance of offences by Judge 72.—
Subject to this Ordinance, a Judge may take cognizance of an offence—
(a)
upon receiving a complaint as defined by this
Ordinance;
(b)
upon his own knowledge and with evidence to support that such offence has been committed;
(c)
upon any person being brought before him in custody without process accused of having committed an offence which such Judge has jurisdiction to try.
(2)
When a Judge takes cognizance of an offence under subsection (1)(b), the accused or, when there are several persons accused, any one of them shall be entitled to require that the case shall not be tried by such Judge but shall be tried by another Judge.
Sanction to prosecute from Chief Syariah Prosecutor 73.
No prosecution for any offence under section 4, 8, 9, 12 or 13 of the Syariah Criminal Offences Ordinance, 2001 [Cap. 46] shall be instituted except with the sanction of the Chief Syariah Prosecutor.
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OF COMPLAINTS TO JUDGE
Examination of Complainant 74.—
When a Judge takes cognizance of an offence on complaint, he shall at once examine the complainant upon oath as in
Form 6 of the Schedule, and the substance of the examination shall be reduced into writing and shall be signed by the complainant and also by the Judge.
(2)
This section shall not apply to a complaint of an offence where a summons is applied for in summons case made by a Religious
Enforcement Officer.
Postponement of issue of process 75.
If the Judge has reasonable doubt as to the truth of a complaint of an offence of which he is authorized to take cognizance he may, when the complainant has been examined, record his reason for doubting the truth of the complaint and may then postpone the issue of process for compelling the attendance of the person complained against and either inquire into the case himself or direct a
Religious Enforcement Officer to make inquiries for the purpose of ascertaining the truth or falsehood of the complaint and report to him the result of such inquiries.
Dismissal of complaint 76.—
The Judge before whom a complaint is made may dismiss the complaint if, after examining the complainant and recording his examination and considering the result of the inquiry, if any, made under section 75, there is in his judgment no sufficient ground for proceeding.
(2)
The Judge who dismisses the complaint shall record his reasons for so doing.
Issue of process 77.
If in the opinion of a Judge taking cognizance of an offence there is sufficient ground for proceeding, he shall issue a summons for the attendance of the accused.
OF THE CHARGE
Form of charge 78.—
Every charge under this Ordinance shall state the offence with which the accused is charged.
(2)
If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only.
(3)
If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.
(4)
The law and provision of the law against which the offence is said to have been committed shall be mentioned in the charge.
(5)
The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.
Particulars as to time, place and person 79.
The charge shall contain such particulars as to the time and place of the alleged offence and the person, if any, against whom or the thing, if any, in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged.
When manner of committing offence must be stated 80.
When the nature of the case is such that the particulars mentioned in sections 78 and 79 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose.
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Sense of words used in charge to describe offence 81.
In every charge, the words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable.
Effect of error 82.
No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars shall be regarded, at any stage of the case, as material unless the accused was in fact misled by such error or omission.
Court may amend or add to charge 83.—
Any Court may amend or add to any charge at any time before judgment is pronounced.
(2)
Every such amendment or addition shall be read and explained to the accused.
When trial may proceed immediately after amendment or addition 84.—
If an amendment or addition is made to a charge pursuant to section 83, the Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such amended or added charge.
(2)
If the accused declares that he is not ready, the Court shall duly consider the reasons he may give and if proceeding immediately with the trial is, in the opinion of the Court, not likely to prejudice the accused in his defence or the Prosecutor in the conduct of the case, the
Court may, in its discretion, after such amendment or addition has been framed or made, proceed with the trial as if the amended or added charge had been the original charge.
When new trial may be directed or trial adjourned 85.
If the amended or added charge is such that proceeding immediately with the trial is, in the opinion of the Court, likely to prejudice the accused or the Prosecutor, as mentioned in section 84, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
Stay of proceedings if prosecution of offence in amended charge requires previous sanction 86.
If the offence stated in the amended or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the amended or added charged is founded.
Recall of witnesses when charge amended or added 87.
Whenever a charge is amended or added by the Court after the commencement of the trial, the Prosecutor and the accused shall be allowed to recall or re-summon and examine, with reference to such amendment or addition, any witness who may have been examined, and may also call for any further evidence which may be material.
Separate charges for distinct offences 88.
For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately except in the cases mentioned in sections 89, 90, 91 and 95.
Three offences of same kind within twelve months may be charged together 89.—
When a person is accused of committing offences of the same kind within a period of twelve months from the date such offence was first committed, whether in respect of the same person or not, he may be charged with and tried at one trial for any number of them not exceeding three.
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(2)
Offences are deemed to be of the same kind when they are punishable under the same provisions of any law for the time being in force.
Trial for more than one offence 90.—
If the offences are a series of acts so connected together as to form the same transaction, the person accused of them may be charged with and tried at one trial for every such offence.
(2)
If the acts alleged constitute offences falling within two or more separate definitions of offences, the person accused of them may be charged with and tried at one trial for each of such offences.
(3)
If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with and tried at one trial for the offence constituted by such acts when combined, or for any offence constituted by anyone or more of such acts.
Where it is doubtful what offence has been committed 91.
If a single act or series of acts is of such a nature that it is doubtful which of the several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once, or he may be charged in the alternative with having committed anyone of such offences and may be tried at once.
When a person charged with one offence can be convicted of another 92.
If, in the case mentioned in section 91, the accused is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged, he may be convicted of the offence which he is proven to have committed although he was not charged with it.
Person charged with an offence can be convicted of the attempt 93.
When the accused is charged with an offence he may be convicted of having attempted to commit that offence, although the attempt is not separately charged.
When offence proved is included in offence charged 94.—
When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence although he was not charged with it.
(2)
When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.
When persons may be charged jointly 95.
When more than one person are accused of the same offence or of different offences committed in the same transaction, or when one person is accused of committing an offence and another of abetment of or attempt to commit the same offence, they may be charged and tried together or separately as the Court thinks fit.
OF TRIALS
Procedure in trials 96.
The following procedure shall be observed by Judges in trials:
(a)
when the accused appears or is brought before the
Court, a charge containing the particulars of the offence of which he is accused shall be framed, read and explained to him, and he shall be asked whether he is guilty of the offence charged or claims to be tried;
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(b)
if the accused pleads guilty to a charge, whether as originally framed or as amended, the plea shall be recorded and he may be convicted thereon:
Provided that before a plea of guilty is recorded, the Court shall ascertain that the accused understands the nature and consequences of his plea and intends to admit, without qualification, the offence alleged against him;
(c)
if the accused refuses to plead or does not plead or claims trial, the Court shall proceed to hear the complainant, if any, and to take all such evidence as may be produced in support of the prosecution;
(d)
when the Court thinks it necessary it shall obtain from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before itself such of them as it thinks necessary;
(e)
the accused or his Peguam Syarie shall be allowed to cross-examine all the witnesses for the prosecution through the
Judge;
(f)
if, upon taking all the evidence referred to in paragraphs (c), (d) and (e), the Court finds that no case against the accused has been made out which if unrebutted would warrant his conviction, the Court shall record an order of acquittal;
(g)
nothing in paragraph (f) shall be deemed to prevent the
Court from discharging the accused at any previous stage of the case if for reasons to be recorded by the Court it considers the charge to be groundless;
(h)
if, when such evidence has been taken, the Court is of the opinion that there are grounds for presuming that the accused has committed the offence charged or some other offence which such Court is competent to try and which in its opinion it ought to try, it shall consider the charge recorded against the accused and decide whether it is sufficient and, if necessary, shall amend the charge;
(i)
the charge if amended shall be read to the accused as amended and he shall be again asked whether he is guilty or has any defence to make;
(j)
if the accused does not plead guilty to the charge as amended or if no amendment is made the accused shall then be called upon to enter upon his defence and to produce his evidence, and shall at any time while he is making his defence be allowed to recall and cross-examine any witness through the
Judge;
(k)
if the accused puts in any written statement, the Court shall file it with the record;
(l)
if the accused applies to the Court to issue a summons for compelling the attendance of any witness, whether he has or has not been previously examined in the case, for the purpose of examination or cross-examination or the production of any document or other thing, the Court shall issue a summons unless it considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice; and such ground shall be recorded by it in writing;
(m)
if the Court finds the accused not guilty, the Court shall record an order of acquittal;
(ii)
if the Court finds the accused guilty or if a plea of guilty has been recorded and accepted, the Court shall pass sentence according to the law;
(n)
when the proceedings have been instituted upon the complaint of some person upon oath under section 74 and upon any day fixed for the hearing of the case the complainant is absent, the Court may, in its discretion, notwithstanding anything contained in this section, discharged the accused.
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Power to discharge conditionally or unconditionally 97.—
Notwithstanding anything contained in section 96, the
Court shall have the powers contained in this section.
(2)
When any person is charged before the Court with an offence punishable by such Court, and the Court finds that the charge is proved, but is of the opinion that having regard to the character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment other than a nominal punishment or that it is expedient to release the offender on probation, the Court may, without proceeding to record a conviction, make an order—
(a)
dismissing the charge or complaint after such admonition or caution to the offender as to the Court seems fit;
(b)
order the offender to be detained in a welfare house approved by the Majlis for such period not exceeding six months as the Court considers fit; or
(c)
discharging the offender conditionally on his entering into a bond, with sureties, to be of good behaviour for such period, not exceeding three years, as may be specified in the order, and to appear for the conviction to be recorded and for sentence when called upon at any time during such period.
(3)
The Court may, in addition to any such order, order the offender to pay such compensation for injury or for loss, not exceeding the sum of one thousand ringgit, or to pay such costs of the proceedings as the Court thinks reasonable, or to pay both compensation and costs.
(4)
If the Court is satisfied by information on oath that the offender has failed to observe any of the conditions of his bond, it may issue a warrant for his apprehension.
(5)
Any offender when apprehended on any such warrant shall, if not forthwith brought before the Court having power to sentence him, be brought before a Judge who may—
(a)
either remand him by warrant until the time at which he is required by his bond to appear for judgment or until the sitting of a Court having power to deal with his original offence, whichever shall first happen; or
(b)
admit him to bail with a sufficient surety conditioned on his appearing for judgment.
(6)
The offender, when so remanded, may be committed to prison and the warrant of remand shall order that he shall be brought before the Court before which he was bound to appear for judgment or to answer as to his conduct since his release.
Addresses 98.
In trials under this Chapter—
(a)
the officer conducting the prosecution need not open the case but may forthwith produce his evidence;
(b)
when the accused is called upon to enter on his defence, he or his Peguam Syarie may, before producing his evidence, open his case stating the facts or law on which he intends to rely and making such comments as he thinks necessary on the evidence for the prosecution, and if the accused gives evidence or witnesses are examined on his behalf, may sum up his case;
(c)
the officer conducting the prosecution shall have the right of reply on the whole case when the accused has adduced evidence.
Power to award compensation 99.
If in any case the Court acquits the accused and is of the opinion that the complaint, information or charge was frivolous or vexatious it may, in its discretion, either on the application of the accused or of its own motion, order the complainant or the person on whose information the complaint or charge was made to pay to the
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accused, or to each or any of the accused where there are more than one, such compensation, not exceeding one thousand ringgit, as the
Court thinks fit:
Provided that the Court—
(a)
shall record and consider any objections which the complainant or informant may raise against the making of the order; and
(b)
shall record its reasons for making such order.
Particulars to be recorded 100.—
In proceedings under this Chapter, the Court shall keep a record of the particulars of each case by using and completing or causing to be completed a charge sheet in accordance with such forms as may be prescribed and, where all necessary particulars cannot conveniently be entered on any such form, by annexing thereto any requisite number of continuation sheets.
(2)
The particulars to be incorporated in the record shall include—
(a)
the name of the Court and the serial number of the case;
(b)
the name, identity card number, and the sex of the accused;
(c)
the address of the accused;
(d)
the charge;
(e)
the return date of the summons, if any;
(f)
the date of issue of the summons or warrant, if any;
(g)
the name and address of the complainant, if any, the date of the complaint and the value of any property involved;
(h)
the date of arrest;
(i)
the date of first appearance before the Court;
(j)
the nationality of the accused;
(k)
the age of the accused;
(l)
the particulars of any bail or bond;
(m)
the plea of the accused;
(n)
the name and title of the officer or name of the person conducting the prosecution and the name of the Peguam Syarie, if any, appearing for the accused;
(o)
the date of each adjournment or postponement and the date to which such adjournment or postponement was made and the grounds for making the postponement or adjournment;
(p)
the court’s notes of the evidence, if any;
(q)
the findings;
(r)
the Court’s notes on previous convictions, evidence of character, and plea in mitigation, if any;
(s)
the sentence or other final order;
(t)
the judgment, if written;
(u)
the date on which the proceedings concluded;
(v)
the particulars of any remand warrant, fine receipt and warrant of committal; and
(w)
in the event of an appeal being lodged—
(i)
the dates of the notification of appeal, of any request for notes of evidence, of any notice that the notes of evidence can be had on payment, of the service of the
Court’s grounds of decision and of the transmission of the
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record to the Syariah High Court or Syariah Appeal Court, as the case may be;
(ii)
if the judgment was oral, the grounds of decision;
(iii)
the Syariah High Court or Syariah Appeal
Court’s serial number of the appeal; and
(iv)
the result of the appeal and the date on which the Court was informed thereof.
(3)
The record shall be authenticated by the signature of the
Judge and shall be filed in such manner as the Chief Syariah Judge may direct.
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