Summary Trial

- It is applicable in Subordinate Courts - Sec 173(a) : when the accused appears /

- No opening speech is brought before the court, a charge
- Carried out expeditiously without jury. containing the particulars of the offence of
- which he is accused of shall be framed,
- Chapter XIX: Summary Trial By Mg. read and explained to him and he shall be
- Sec 173 (a) (o) + Sec 174 -177A asked whether he is guilty of the offence
- charged / claims to be tried.
- -
- (i) A appears before C
Appearance' = A appears on his own, either
Trials because he is out on bail or upon receiving summon
for appearance under s.136.
Attend willingly
-
Summary Trials - (ii) A brought before C
Brought = A brought after arrest or from
(Subordinate High Court Trials
custody (from prison due to inability to provide
Courts) bail, under remand or not granted with bail.)
- Already in custody under remand / court x
- bagi bail unbailable / nonbailable
- Tengku Abdul Aziz -
- Even though the title mentioned - Issue: Whether it was
Magistrate, it is applicable also to Sessions desirable to keep A in
Court handcuffs?
-
-
- The trial will always be held in open court - Yaakub bin Ahmad v PP (FC)
(public has got access to the court). - As A person is presumed innocent until he
Sometimes, the trial take place in camera is proved guilty, it is not the normal
(involves child, public security, rape case). practice to put any restraint on him when
- he appears before a C to be tried for a
- Even if the judge carries out certain criminal offence. Some sort of restraint,
proceeding in chambers, the normal practice however, may be become necessary where
is for the judge to declare it in an open court. A is violent or has committed a crime of
- violence or may have attempted to escape.
- There may be provision in other statute which -
may require different mode of trial e.g. - Ramanathan Chelliah v PP (COA)
ESCAR, Child Act 2001 - It is in the sole discretion of the presiding
- officer to consider whether it is essential
- Specific statute will prevail to have an A person handcuffed be it
- during the entire trial or at the
- arraignment, if and when an application is
made by the prosecution. Needless to say
such discretion must be exercised
judiciously.
-
 - = Firstly there must be an application by - Subramaniam + Chua Ah Gan
the prosecution + in order for the Court to - As a matter of practice whether A PG or
exercise its discretion judiciously there not, it should always be clear in the record
must be some credible material before the that the charge had been read, explained
Court in support or otherwise of the and understood.
application. -
- (iii) Charge shall be framed, read - Ah Poon + Fong Hong Sium
and explained (understood?) - The role of an interpreter. A understanding
- Goh Tong should be in accordance with the language
- Frame: For the purposes of s.173, the trial he prefers. It is the duty of C to find an
begins with the framing of the charge interpreter for the language required.
which means, in practice, the approval by - Koh Mui Keow + Munandu
C of the draft charge entered beforehand Sangaran
by P. - Where the charge contains one or more
- ingredients or questions, and where A is
- Subramaniam not represented by DC, it is desirable that
- Read & Explain: If A is facing several each ingredient and each question involved
charges, each charge must be read & should be explained by the M himself
explained separately and the plea recorded through the interpreter to A.
separately on each charge. -
- - PP v Huang Chin Shiu
- Subramaniam + Fong Siew Poh - Essential to the validity of a PG that A
- Where A are jointly charged with more should fully understand what he is
than one A, there is a duty for C to ensure pleading to; and it is impossible to be sure
the charges are read and explained to each that he has understood, unless the charge
A separately. has been explained to him in a language
- with which he is entirely conversant. Legal
The whole purpose of is to ensure A phraseology is apt to be confusing to a
understands the charge against him. layman, even in his own native language,
- and nobody can be expected to understand
- When is the commencement of trial? all the implications of a criminal charge, if
- Sec 173 - Trial begins when the charge is it is read out to him in what is to him a
read foreign language.
- -
- Issue: Whether C must ensure - (iv) Court shall ask A whether PG
A understands the charge? or CT
- -
- Rogayah Che Man It is the duty of the Police to produce A
- It is not mandatory for the C to explain the before C within 24 hours of arrest. It is
charge to A. No hard and fast rule is to be normally the duty of C to have A charged and
laid down merely from the use of the word his plea taken as soon as he appears in C.
"shall" in s. 173(a). -
- - Yong Chen
- It is not mandatory for the court to explain the
However, there are many cases in which it
charge because the provision does not mention
is quite impossible for P to have the full facts
understand
-
 of the alleged offence available when A is 1 st - Chow Sai Let v PP
produced in C. - The jurisdiction to accept a PG by post
This means that P are not in a position to also under s.137(ii) - offence punishable
put before C at that particular stage a by fine only/by imprisonment not
comprehensive statement of the facts which exceeding 3 months.
might properly affect the assessment of -
sentence in the event of a conviction.
In these circumstances it is not only open
to a President or Mg, it is his duty, to defer
acceptance of A's PG until he has the facts
alleged by P fully before him. He should in
such circumstances postpone the case to give
the P a reasonable opportunity of completing
their enquiries, granting bail to A the case is
one in which it seems fitting to do so.
-
-
- Sec 173(b) : if the accused pleads guilty
to a charge, whether as originally framed /
as amended, the plea shall be recorded and
may be convicted thereon and the court
shall pass sentence according to the law.
-
(i) A PG
-
- Tan Thian Chai + Leng Chow
Teng
A plea must in all cases be made by A
personally irrespective of whether he is
unrepresented / represented by DC. It is not
sufficient for DC to say that A wishes to CT or to
PG. A must himself plead. This is necessary as C
must be satisfied that A is not PG by force or
under pressure.
Must plead by the Accused himself to
ensure there is no coercion, undue influence etc
-
- Issue: Can A PG by letter?
-
- Leng Chow Teng v PP
The only exception is where the charge is
preferred under statute which expressly allows A
to PG by letter. E.g. Road Traffic Ordinance.
If there is a specific statute which allows
the guilty plead to be made by way of letter, yes
it would be allowed.
-
 - Issue: Can Accused PG in If they do not require him as witness, it is in the
absence of Defence Counsel and interest of justice not to postpone the sentence.
without his notice? - (ii) (Proviso) Examination of
- PG to determine its validity
- Leng Chow Teng v PP -
- It is mandatory under S 173 (b) for C to ascertain (a) C shall ascertain that A understands the
that A understands the nature and consequences nature & consequences of his plea.
of his plea and that he intends to admit without -
qualification the offence alleged against him. - Leng Chow Teng + Munandu
- For such ascertainment, apart from an enquiry
Sangaran
from A himself, it is necessary for C to enquire
- The requirement in the proviso before a
why his Counsel is absent where one is still on
PG is recorded and accepted is clearly mandatory.
record and has not been discharged.
- Where the records show that A is represented, C -
should be put on guard whenever A changes his - Heng Kim Khoon + Munandu
plea from not guilty to one of guilty in the Sangaran
absence of his DC particularly in a case where - C is not bound to accept a PG in all cases.
the offence with which he is charged and to C must carefully consider whether A has fully
which he has PG would likely attract a term of understood the nature of the charge to which he
imprisonmenta PG by A under sub-s.173(b) in PG.
the absence of his Counsel is not unlawful. The -
plea should be recorded but not accepted. - Yusoff v PP
- Thus, whilst the plea itself is perfectly lawful, the - If the charge is of a technical nature and A
acceptance of such a plea in the absence of is not represented by DC it is the duty of the trial
Counsel is bad in law as without Counsel's M to satisfy himself that A understands the
advice the A could not be said to have technical nature of the charge before accepting
understood the nature and consequences of his his plea.
plea or to have intended to admit without -
qualification the offences alleged against him.
- Petrus Ak Belaka v PP
-
- If consequences of PG involves forfeiture,
- Subramaniam + Fong Siew Poh C need to explain / inform to the accused that the
- A joint PG by two or more A persons is punishment will involve forfeiture
bad and irregular. The charge should be - In this case: the vehicle was forfeitured
explained to the accused persons -
separately and their pleas recorded
- (iii) Accused intends to
separately. Also, where there are two or
admit, without
more charges against an accused person
the charges should be read out and qualification, the offence
explained to him separately and the plea alleged vs. him. i.e. PG
recorded separately on each charge. have to be unqualified,
- unreserved and
- Issue: What is the procedure if unequivocal. C should not
one A PG while co-A CT? accept PG if the validity of
- the plea is doubtful. -
- Lee Weng Tuck v PP Munandu Sangaran
- C must enquire whether P/DC wants to -
call A who PG as witness. If they still want to call
him as witness, then sentence must be postponed.
 - Plea must be unqualified / absolute required by s 178(iii) of the Criminal Procedure
admission. The Accused cannot explain. If Code. (not acquitted)
explained = qualified. -
-
- Example: Yusoff: Accused in this case
made a qualified PG. The M was informed
in Ct by A that the keris had been
borrowed from him by a friend for a
marriage ceremony. It was returned to him
that night and he was taking it home when
the police party stopped him.
- Admission is qualified
-
- Heng Kim Khoon.
- A PG only amounts to an admission that A
committed the acts alleged against him and
not an admission of the guilt under a
particular section of the Act. If A PG under
an erroneous view of the law his
conviction cannot stand. In such a case the
PG does not avail because he cannot be
said to have committed the offence in
question in the eyes of the law.
-
-
- Lee Weng Tuck v PP
- Hence, in order to determine the validity of
a PG certain safeguards as provided by
the sub-section must be followed. They are
as follows:
-
(i) C must ensure that it is A himself who wishes to
PG.
(ii)Ct must ascertain that A understands the nature
and consequences of his plea.
(iii) C must ascertain that A intends to admit
without qualification the offence alleged
against him.
-
- = if these three safeguards are satisfied, the
plea is unqualified.
-
-
Where the plea of guilty is equivocal, ie where
it is not clear, or is doubtful or qualified, the
plea must in law be treated as one of not guilty
and the court shall proceed to try the case as
 - (iv) PG recorded (and
accept)
- -
If accused is facing several charges, plea
must be recorded separately.
- guilt in law but also to enable C to form an
C may just record the PG, but is not bound
to accept a PG in all cases.
- -
- Mohammad Hassan v PP
- The record must show that PG has been
accepted before recording a conviction. A
confession of guilt does not become a PG
unless and until it is accepted.
- +
- If, after recording PG, the M is in any
doubt whether the plea is an unequivocal, a
plea of not guilty should be entered.
- +
- A PG in the absence of DC should not be
accepted unless C is satisfied that the
absence of DC has been properly
accounted for.
- -
1. Write in the notes of evidence that the A had
plead guilty
2. Plea has been accepted and recorded
3. Record the conviction
-
- (v) In Practice Tender of
Brief Facts of the Case and
Exhibits (not in CPC.
Practiced by court)
-
After PG is recorded, P will tender a brief
statement of facts and Exhibits.
-
- Mohammad Hassan v PP
- Augustine Paul JC explain on this practice
in detail (how to tender brief facts)
-
It is therefore a necessary corollary of the
proviso to set out an outline or a statement of
the facts of the case to satisfy the stipulated
requirements. Its object is to ensure that A
understands the nature and consequences of his
plea and intends to admit, without
qualification, the offence alleged against him.
It is designed not only to ascertain whether
admission of the facts amounts to a plea of
opinion on the conduct of A in assessing the
sentence.
- Nadesan [1966] HC).
- Failure to take evidence or a statement of
the facts and record them will result in the
conviction being quashed.
-
The facts presented to C after a PG should
be a short summary of the facts of the case.
-
- Lian Kian Boon v PP
- It should be confined to facts which P is
able to prove and then only to facts
necessary to establish the charge.
-
- Mok Swee Kok
In simple and straightforward cases the
outline of the facts is usually done orally
but in more involved cases the outline may
be in the form of a written statement
-
The course adopted in each case must be
left to C's discretion (Chin Ban Keat [1949]
HC; Abdul Aziz [1978] HC).
-
- .Nadeson v. PP [1966]
- + Abdul Aziz [1978]
- A record of the facts merely as "facts as in
charge" is not sufficient as it does not
indicate whether an offence is disclosed
-
- Yong Chen v PP
- It is the duty of M to defer acceptance of a
PG until he has the facts alleged by the P
fully before him. Accordingly, he should,
where necessary, postpone the case to give
the P a reasonable opportunity of
completing their inquiries and grant bail to
A if the case is one in which it seems
fitting to do so.
 - - It is settled law that a judge can entertain
- Lee Yu Fah v PP an application by an A person to retract a
- When recording the facts M will also have PG at any time before the case is finally
to record A's admission or denial of them. disposed of by sentence.
The A's answer on the accuracy of the -
facts should be recorded.
-
- (vi) Withdrawal of PG (x
exist in the CPC)
-
No provision in the CPC expressly govern
the procedure to be followed when there is a
retraction of plea either from CT to guilty or
vice versa.
-
PG may be withdrawn by A any time
before sentence subject to approval of C. The
power was clearly discretionary and must be
exercised judicially and on valid grounds,
depending on the facts and circumstances of
each case. [Lee Weng Tuck [1989] SC;
Abdul Mormin [1939] discretion to reject
PG must be exercised judicially. (E.g. if there
was a question of mistake or
misunderstanding.)
-
- Sam Kim Kai
- In non - capital cases (dont involve death
penalty), the law in this country has always
been that C are empowered to entertain a
change of plea, provided the power is
exercised judicially and on valid grounds,
either at the commencement or in the
course of the trial.
-
- Issue: When the application to
withdraw can be made?
-
- Wong Sin Yeow v PP
- Before a C is functus officio, it can in a
proper case reject a PG which it may have
accepted. Even if the M had not been
functus officio, there was discretion to
allow the retraction of plea before
sentence.
-
- Lee Weng Tuck v PP
 - (vi) A may b Convicted and -
Sentence - Chong Fook Fatt v PP
- - HC = by virtue of S 173(c) if there was
- Maung Min Aung evidence available and the prosecution was
- A conviction only takes place if ready to proceed with the hearing, as they
there is an acceptance of the plea have the conduct of the prosecution, the
amounting to a determination of guilt by court could not grant a DNAA to the
the court. This will occur after the plea in accused even though the investigations
mitigation has been made and a conviction were underway.
will accordingly be recorded just before -
sentence is passed. - evidence
- - Includes exhibits / documents / things to be
Before C sentences the A, C shall consider produced as evidence
the following matters. -
(i) Plea in mitigation raised by A. - Chong Ah Chai v PP
(ii) Submissions on the aggravating factors
- The stolen cement mixer could be viewed
raised by P.
at the location as it was too heavy to bring
-
it to court
Finally, the court will sentence the A
-
person according to law.
- - Sec 264 : court must take all evidence in
the presence of the accused / his advocate
- Sec 173(c) : If the accused refuses to
-
plead / does not plead / says he claims
trial, the court shall proceed to take all - Sec 266 + 267 : all evidence must be
such evidence as may be produced in taken down I legible handwriting by the
support of the prosecution. presiding magistrate
- -
- = the court will then fix an hearing date. At - Sec 268: the evidence must be recorded
the said hearing date, the DPP / in the form of a narrative
prosecuting officer will appear and -
consider to make an opening statement - Sec 270(1) : the evidence must be
- interpreted to the accused in open court in
- Sec 174(a) : it is not necessary for the the language which he understands
DPP to make an opening statement -
- - Sec 173(d) : if necessary, the court shall
- to take all such evidence as may be obtain from the complainant the names of
produced in support of the any persons likely to be acquainted with
prosecution the facts of the case and able to give
- evidence for the prosecution and shall, if
- PP v Mohamed Said necessary, summon to give evidence.
- = to take all evidence available at the time -
- - complainant
- Zainuddin v PP - Includes cases of both private summons and non-
- The Supreme Court disagreed with PP v private summons
Mohamed Saids interpretation + opined -
that it means all evidence the prosecution - Sec 133 : the magistrate shall examine
wants to adduce to support its case the complainant under oath
 - - The prosecution was unable to produce
- Muharam bin Anson v PP two material witnesses at the trial. On
- The prosecution has the discretion to call appeal, the judge held that after a final
any witnesses and the court will not postponement has been granted, if no such
interfere. evidence is forthcoming / if the available
- evidence adduced is insufficient to
- Sec 173(e) : the accused shall be allowed establish a prima facie case against the
to cross-examine all the witnesses for the accused, the learned Mg did not erred in
prosecution law in ordering an acquittal of the
- respondent under Sec 173(f)
-
- Procedure where the accused does not
understand the proceedings - Looi Kow Chai v PP
- - Test to determine whether a prima facie
- Sec 258 : if the accused does not case had been made out under Sec 180 =
understand the proceedings, the court may 1) the Judge must subject the prosecution
proceed with the trial, and if the trial evidence is subjected to maximum evaluation
results in a conviction, the magistrate must 2) to ask himself the question if I decide to call
forward the proceedings to the HC which upon the accused to enter his defense and he
will make such order / pass sentence as it elects to remain silent, am I prepared to
thinks fit. convict him on the totality of the evidence
- contained in the prosecution case?
if the answer is in negative, then no
- PP v Munusamy
prima facie case had been made out and
- FC = where the prosecution witness was
the accused would be entitled to an
impeached, the defense was not allowed to
acquittal
cross-examine that prosecution witness
- *subjecting the prosecution evidence to
-
maximum evaluation does not mean that
- Dato Mokhtar bin Hashim v PP the prosecution had to prove its case BRD
- FC overruled PP v Munusamy at this immediate stage.
- + Held that when a witness is impeached, - +
no ruling on his credibility is to be made
- the court also referred to DSAI v PP
until after the prosecutions case /
- the prosecution has established a prima facie
defences case. Thus if the prosecution
case, which if unrebutted by the defense
witness is impeached, the defence may still
would convict the accused. The judge must
cross-examine him.
carry out a maximum evaluation to conclude
-
whether there is a prima facie case.
- S 173(f) : at the close of the prosecutions -
case, the court shall consider whether the
-
prosecution has made out a prima facie
case against the accused + if the court - PP v Hanif Basree
finds that the prosecution has not made out - COA = the trial judge was correct to
a prima facie case against the accused, the follow the test in Looi Kow Chai v PP
court shall record an order of acquittal. -
- - PP v Chan Wai Heng
- If the prosecution has not closed its case, the - There is no mandatory rule that the trial
trial must be postponed judge must record in the notes of evidence
- that a prima facie case has been made out
- PP v Mohamed Said at the conclusion of the prosecution case
 before calling upon an accused to enter his
defence.
- -
- Sec 173(g) : nothing in para (f) shall
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.
- evaluate the evidence and decide whether
- The CPC is silent on what constitutes
groundless charge
- -
- Chu Chee Peng v PP
- Groundless charge = when the very corner
stone of the prosecutions case collapses
- +
- the magistrate may discharge the accused
not amounting to an acquittal (DNAA) if
the charge is groundless.
- as was done
- PP v Au Seh Chun
- The prosecution applied to postpone the
case to produce the doc requested by the
defense under S 51. Previously, the
prosecution had postponed the case a
number of times. The Mg discharged the
accused not amounting to an acquittal.
- However the Mg could refer to the DPP
- On Appeal, HC held:
i. Under S 173(g), the court may discharge the
accused not amounting to an acquittal
(DNAA) if the charge is groundless.
ii. Under S 254, the prosecution may decline
to further prosecute at any stage but in this
case there was no indication that the
prosecution intended to discontinue.
iii. The magistrate has no inherent power to
discharge not amounting to acquittal unless
the charge is groundless
-
- Uthayakumar v PP
- The HC on revision discharged the
accused on the ground that even at the
early stage, prior to the commencement, let
alone the closing of the prosecutions case,
the charge was apparent to all and sundry
that it was groundless.
-
- PP v Ling Leong Kong
The Session Court granted a DNAA due to
numerous delays and absence of
complainant. The HC upon revision held
that before invoking S 173(g) the court
should at least allow the prosecution to
continue with the case so that the court can
the charge is indeed groundless.
-
Whether the Mg may discharge when
investigation is incomplete:
-
-
- PP v HLS Pereira
- Where the investigation was not
completed, the Mg should not discharge
amounting to an acquittal and not to acquit
-
- PP v Karumah
- When the investigation was completed, the
Mg had to postpone the case if the
prosecution was not ready to proceed as
the prosecution witness was not available.
The Mg could not discharge the accused.
for further directions. The PP could
discontinue the prosecution under S 254.
-
- PP v Tan Kim San
- Where the investigation is not completed,
the Mg should discharge the accused not
amounting to an acquittal as the charge is
groundless since the prosecution has no
grounds to prefer the charge.
-
- PP v Choong Fook Fatt (2004)
- The court should not interfere with the
prosecution decision to proceed with the
case and could not grant a DNAA to the
accused eventhough the investigations
were underway.
-
-
-
 - PP v Ling Leong Kong (2009)
- The session court granted a discharge not
amounting to an acquittal before a trial due
to constant delays by the prosecution and
the absence of the complainant. The HC
upon revision held that the court before
invoking S 173(g) must at least allow the
prosecution to proceed with the case. The
judge opined that only then can the court
evaluate the evidence and its
circumstances to consider and conclude
whether the charge is groundless.
- -
- Sec 173(h) :
-
i. If the court finds that a prima facie case has been
made out against the accused on the offence
charged, the court shall call upon the
accused to enter on his defense
ii. If the court finds that a prima facie case has
been made out against the accused on an
offence other than the offence charged with,
such court is competent to try and which in
the opinion of the court it ought to try, the
court shall amend the charge
iii. A prima facie case is made out against the
accused where the prosecution has adduced
credible evidence proving each ingredient of
the offence which if unrebutted /
unexplained would warrant a conviction.
-
-
- The application of Sec 173(h)(ii) can be
seen in PP v Muhamad bin Atan
- The accused was initially charged with
murder under S 302 of PC. However after
hearing the prosecutions case, the judge
amended the charge to one under S 304(b) of
PC.
-
-
- Court may alter / add to charge
-
- Sec 158 : the court may amend the charge
and the amended charge must be read and
explained to the accused.
-
- Salamah v PP
- It is preferable that the charge is amended
at the end of the prosecutions case only if
it does not cause injustice to the accused.
-
- Heng You Nang v PP
- The subordinate courts have a duty to
consider the charge and amend it if
necessary, but the court should not search
the law for offences which the accused
may have committed. It is for the
prosecution to decide on such matters.
- Mohamed Yusof v PP
- If the Mg finds the evidence does not
support the charge, he is duty bound to
amend it.
-
- PP v Tan Kim Kang
- Even though it is possible to amend the
charge after the defense is called, a safer
and better way is ought to follow Sec
173(h),(i) and (j)
-
- PP v James Tan
- If the facts disclose to another offence for
which the accused is not charged, then the
Mg ought to amend the charge unless he
has good reasons not to do so.
-
-
Previously there was a lot of uncertainty as to
what is required to establish a prima facie case
and the standard of proof at the end of the
prosecution case.
-
The new clarification in Sec 173(h)(iii) was to
circumvent the majority decision in
Arulpragasams case [the test at the end of
the prosecutions case is that the court must be
satisfied BRD before calling for the defence] and
return to Hwa Tua Taus case [the
prosecution had to prove its case BRD]
-
- Prima facie case
 - Sec 173(h) (iii) : a prima facie case is
made out against the accused where the
prosecution has
(a) adduced credible evidence by calling material
witnesses who are subjected to CE
(b) those evidence by the witnesses (oral +
documentary) has the ability to have proved
each and every ingredient of the offence /
charge against the accused person
(c) those evidences if unrebutted / unexplained
by the accused person via CE would warrant a
conviction (no conviction at the end of the
prosecutions case. The earliest time would be
at the end of the defence case)
-
-