INTRODUCTION TO CRIMINAL AND CONSTITUTIONAL LAW (PCC0012)

TUTORIAL 1

1. Define criminal law.

Criminal law or sometimes can be known as the penal law , is one of the branches for the
public law which deals with the relationship between the citizens and also the country .In a
narrow sense , it can be understood as the rules or regulations that elucidate the conducts
prohibited by the country that may potentially put the public welfare and well-being at stake
along with the specific punishments for those who are found to have committed these
prohibited acts . Criminal law has been explained by the Privy Council in the case of
Proprietary Articles Trade Association v Canada that is criminal law connotes the acts or
omissions that are prohibited under the appropriate penal provisions by the authority of the
country where in Malaysia the penal provisions can be found in various statutes such as the
Penal Code , Dangerous Drug Act 1952 and also Anti-Money Laundering , Anti-Terrorism
Financing and Proceeds of Unlawful Activities Act 2001. In this case, it is also further
explained that the areas covered by the criminal jurisprudence can only be ascertained by
examining what acts are declared by the country to be the prohibited acts at a particular time
and the common nature of these acts are that these acts are banned by the country and those
who commit them will have to face the corresponding punishments .
However , in order to understand the meaning of criminal law in a broader sense , three
different aspects have to be delved into which are the substantive criminal law , criminal
procedure and also the administration and enforcement of the criminal law . With regards to
the substantive criminal law in Malaysia , it is mostly explained under the Penal Code
.Generally speaking , substantive criminal law encompasses the description of all acts
prohibited by the country along with the respective punishments towards those who
transgress them . For instance , under the S.302 of the Penal Code , whoever commits murder
shall be punished with death . Regarding the procedural criminal law , it deals with the ways
to enforce the criminal law in order to make sure that justice is always dispensed with
adequately and it is explained in details under the Criminal Procedure Code . For example , it
addresses how an individual accused of a crime should be handled ,dealt with and also
prosecuted . Under the S.15(1) of the Criminal Procedure Code , it explained that in making
an arrest , the police officer or other person shall touch or confine the body of the person to
be arrested unless the person to be arrested has shown submission to the custody by word or
action . Pertaining the administration and enforcement of the criminal law , the Public
Prosecutor will act on behalf of the country in order to prosecute those who violate the
criminal law as these criminal conducts are vigorously prohibited by the country for the good
sake of the public welfare and safety . In order to convict that one has committed the criminal
conduct , he or she must be proven to have the mens rea which means the intention to
commit such criminal conducts .(criminal liability) Various punishments will be sentenced to
the accused once the Public Prosecutor can prove the case against the accused beyond the
reasonable doubt such as imprisonment and also death penalty . The criminal court can only
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 sentence the punishments towards the accused according to the limitation stipulated under the
statutes . For example , under the S.376 of the Penal Code , those who have been convicted
for rape shall be punished with imprisonment for a term which may extend to twenty years
and shall be liable for whipping . Apart from giving punishments to those who has committed
the criminal conducts , the gist of the criminal law is that it has its own objectives to be
attained which include retribution , deterrence , prevention , rehabilitation and restitution .
This has also be reaffirmed by the Federal Court in the case of Iki Putra bin Mubarrak v
Kerajaan Negeri Selangor [2020] 4 MLJ 213 where it was explained that in essence , a
valid criminal law must be a law which provides for an offence ,backed by a penalty and has
a criminal purpose, that is to address public concern relating to peace ,order ,security ,
morality , health or some similar purpose .(no nid to write)
2. What are the characteristics of criminal law?(the accused commit wrong against the state ,
criminal law deals with the well-being of the society)( pubic prosecutor, victim lodge a report
to police station , investigation , public prosecutor initiate the criminal proceedings)(seek to
punish the offender) ( can add on whatever u want)
There are various characteristic of criminal law .Indubitably , the first characteristic is
that criminal law mainly deals with the offences or conducts that are prohibited by the
country as these conducts may significantly endanger the public welfare and safety . From
another point of view , those who transgress the criminal law are considered to have
committed wrong against the country . In this situation, the Public Prosecutor who is the
highest legal officer in our country will bring an action against the accused instead of the
victim himself such as the case of Public Prosecutor v Dato’ Seri Anwar bin Ibrahim &
Anor [2001] 3 MLJ 193 . Normally , the accused who violate the criminal law will be tried
in front of a criminal court and its main objective is to punish the offender once he is
convicted of committing certain criminal conducts and the reasons behind the punishments
include retribution , deterrence , prevention , rehabilitation and restitution . This has also be
reaffirmed by the Federal Court in the case of Iki Putra bin Mubarrak v Kerajaan Negeri
Selangor [2020] 4 MLJ 213 where it was explained that in essence , a valid criminal law
must be a law which provides for an offence ,backed by a penalty and has a criminal
purpose, that is to address public concern relating to peace ,order ,security , morality , health
or some similar purpose .Besides , in order to successful in the action brought against the
accused , the onus is on the Public Prosecutor to prove the case against the accused beyond
reasonable doubt compared to the civil law where the plaintiff is responsible to prove the
case on a balance of probabilities . In the case of Public Prosecutor v Saimin & Ors [1971]
2 MLJ 16 , Sharma J had explained that reasonable doubt is a doubt that makes us hesitate
as to the correctness of the conclusion that have been reached after fully investigating the
evidence and comparing it in all its part .Besides , it is further emphasized that a reasonable
doubt must be a doubt arising from the evidence and a mere imaginary doubt or conjecture
unrelated to evidence is not considered as a reasonable doubt . In a criminal court , the
offender may be convicted if he is found to be guilty of committing the criminal conducts
and otherwise acquittal will be announced by the court if he is found not to be guilty of
committing the prohibited conducts . The last characteristic is that in a criminal court , the

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 accused will be sentenced to penalty once he is found to be guilty such as imprisonment
,whipping and death penalty .
3. What are the sources of criminal law?
The sources of criminal law can be mainly divided into primary sources and also
secondary sources . Basically, primary sources refer to the sources that will firstly be referred
to whenever it comes to deal with the criminal law in our country .Federal Constitution ,
legislation and also subsidiary legislation are those elements that constitute the primary
sources . Federal Constitution which is the supreme law of Malaysia is considered as one of
the primary sources for criminal law because when promulgating the criminal law , the
responsibilities of the legislature is to enact the criminal law to the extent that it is not
inconsistent with the provisions in the Federal Constitution . According to the Art.4 of the
Federal Constitution , it provides that the Federal Constitution is the supreme law of our
country and any law passed after the Merdeka Day which is inconsistent with the Federal
Constitution shall be void .With regards to the legislation as well as the subsidiary legislation
, there is no doubt that Penal Code is definitely the most important legislation related to the
criminal law in Malaysia . Penal Code is an exhaustive compilation of description of various
prohibited criminal conducts and the respective punishments to those who committed such
criminal conducts . For instance , under the S.302 of the Penal Code , whoever commits
murder shall be punished with death . Besides , to facilitate the enforcement of the criminal
law , Criminal Procedure Code has also become the primary source of criminal law which it
basically addresses how the accused should be arrested and prosecuted as well as the rules of
evidence . To elaborate , S.15(1) of the Criminal Procedure Code has unequivocally
explained the way on how the police officer and other person should act when arresting the
suspects . According to this section , in making an arrest , the police officer or other person
shall touch or confine the body of the person to be arrested unless the person to be arrested
has shown submission to the custody by word or action. In addition to Penal Code and also
Criminal Procedure , there are also a multitude of others legislation related to criminal law
that act as supplements to the criminal law in Malaysia such as Dangerous Drug Act 1952 ,
Evidence Act 1950 , Firearms (Increased Penalties) Act 1972 and also Anti-Money
Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001.
On the other hand , the secondary sources of the criminal law comprise of judicial
decision , English law and as well as the Indian law . The word “secondary” has itself
implied that these resources are not referred to in the first place when dealing with criminal
law in our country and most of the time these resources will be referred to when there is a
lacuna or loophole regarding the criminal law which means that the existing criminal law in
country is silent on certain criminal matters . For case law or can be understood as the
judicial decisions ,this basically refers to the legal principles formulated and laid down by the
judges presiding the superior courts when they pass decisions for cases that come before
them and these principles are the important elements that uphold the foundation of the
decisions made .As a result of these judicial decisions , this has brought about the emergence
of the doctrine of stare decisis or the doctrine of judicial precedent . In Latin term , stare
decisis means to stand by the decision . Under this doctrine , the judges from the lower courts
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are bound to follow the decisions made by the judges from higher courts when the material
facts in the previous cases and the pending cases are the same . With reference to the
Learning the Law(9th ed. 1973) , Glanville Williams has described that the gist of the
doctrine of stare decisis is that cases must be decided in the same way when their material
facts are the same . It was also further emphasized that all the facts in the cases are not
required to be the same because all the facts of a case will never recur in our daily lives and
element that matters the most is the recurrence of the legally material facts .
As we all know ,the hierarchy of the court system in our country is divided into two main
categories .First category is superior courts which consist of Federal Court, Court Of Appeal
and also High Court .While the second category is Sessions Court and Magistrates Court
which are considered as subordinate courts According to the doctrine of stare decisis ,it
works depending on the hierarchy of the court system in our country whether it works
horizontally or vertically. For vertical function, decisions made in a higher courts always
bind on the lower courts and the judges of lower courts cannot question its validity .For the
horizontal function ,in the meantime ,both superior courts and also the subordinate courts are
also bound to its own prior decisions and also decisions of courts with the co-ordinate
jurisdiction. To elaborate more on the horizontal function, if the judges of either superior
courts or subordinate courts manage to find the previous cases tried in their own courts or the
courts of co-ordinate jurisdiction, which have the same material facts as the present case
,they have to make sure whether the cases have been appealed to higher courts or not before
they can refer to the previous cases in making any decision. The judges have to make sure
that the cases referred to are already final and no more appeal because from each appeal ,the
decisions for the cases are likely to be either overturned or remained as before .For example ,
originally,in the case of Director of Forest,Sarawak ,Sarawak & Anor v TR Sandah Ak
Tabau & Ors ,the judges in the High Court and also Court of Appeal had acknowledged the
claim for NCR towards the pulau and also pemakai menoa by the indigenous people in
Sarawak .However ,this decision was subsequently overruled by the Federal Court after a
few years which was in 20th December 2016, where the Federal Court held that not all
customs practised will become the law in the Malaysia because according to the Art.160 of
the Federal Constitution, “ law” means the customs or usages having the force of law .Since
according to the Statutes and Orders of Proclamation made by the White Rajahs in the past
and the Tusun Tunggu which is the written codification of Iban customs,only Temuda is
recognized without mentioning about the pulau and also pemakai menoa , hence both of
these custom are decided to be not having the force of law .
There is no doubt that our country Malaysia is under the colonization of British before
achieving independence on 31 August 1957 as a result of the robust solidarity and
cooperation amongst citizens with various races .Therefore , , English law is also regarded as
the secondary source for criminal law in our country .Since under the Penal Code , there is no
any express provision which allows or prohibits the adoption of English law, there are two
distinctive point of views regarding the adoption of English law as reference in enforcing the
criminal law in our country . Firstly , some judges opine that English law should not be
referred to when administering the criminal law in our country . In the case of Rex v Lee
Siong Kiat , Terrell J had said that in criminal matters the law in our country is provided by
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the Penal Code to the exclusion of the English law or English Statute Law . Besides ,
Murray – Ansley CJ in the case of Woo Sing and Sim Ah Kow v Regina has also opined
that the Penal Code is not a codification of English law and therefore it is very dangerous to
introduce English cases into the consideration of Penal Code . Nevertheless , there are judges
who possess another point of view which they suggest that English law can be applied but it
is not too recommended due to the concern that there may be some judges who will simply
refer to the English law due to their educational background and ignore the Penal Code who
is actually supposed to be the one of the most paramount compilations of criminal law in our
country . Normally , the courts will apply English law for interpretation if the provision is in
pari materia which means to be the same . For instance , in the case of Mat Sawi B.
Bahodin , the judge had referred to the English case of Holmes(1946) for interpretation for
the word “provocation” under the Penal Code . In this case , the husband had killed the wife
due to her provocation . His wife had scolded him including calling him names like pig when
he was in pain and his wife was also cold to the pain suffered by him . All this had made him
to suspect that his wife was having an affair with someone else and finally lead to the killing
of his wife . The court had recognized the existence of provocation from his wife , and finally
held that the conviction of murder could not stand because the provocation received was
sufficient to deprive any man or husband of his self-control .
On the other hand , there are also cases which the judges choose to refer to the English
law even though there are express provisions in the Penal Code , meaning that there is no any
lacuna found in the criminal law . In the case of Kee Ah Bah , on question regarding attempt
at fraudulent evasion of export duty , the court did not refer to the S.511 of the Penal Code
but straightly refer to the English case of Haughton v Smith , Hope v Brown and Regina v
Eagleton .Furthermore ,the same issue happens as well in the case of Zainal Abidin B. Ismail
where the court ignored S.79 and S.375 of the Penal Code and directly applied English case
of DPP V Morgan when dealing with issue of consent . Even though under the Penal Code ,
there is no any express provision which warrants the adoption of English law in dealing with
criminal cases , S.5 of the Criminal Procedure Code has clearly stipulated that law relating to
criminal procedure in force in England can be applied if there is lacuna as long as it must not
in conflict with the provisions of Criminal Procedure Code itself . This can be further
elucidated in the case of Sanassi . In this case , the accused was asked to give defence and
choose to make an unsworn statement from the dock and the issue in this case was that
whether the statement made by the accused was admissible in the court or not .The court held
that the accused in this country has the right to make an unsworn statement from the dock
because it is derived from the Criminal Evidence Act 1898 of England as reading along with
the S.5 of the Straits Settlements Criminal Procedure Code . It must be remembered that if
there is already express provision in Criminal Procedure Code dealing with certain issues ,
there is definitely no room for the adoption of English law as can be shown in the case of
Dato’ Seri Anwar Ibrahim where the judge said that there is no lacuna under the S.51 of the
Criminal Procedure Code that warrant the court to resort to the S.5 of the Criminal Procedure
Code which allows the adoption of law in England regarding the criminal procedure . In fact ,
the Criminal Procedure Code promulgated in our country can be considered as exhaustive
because the judge in the case of Karpal Singh had said that the Criminal Procedure Code
which is an exhaustive pronouncement of the criminal procedure and the pronouncement and
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 effect of the Criminal Procedure Code leave no lacuna under normal circumstances .The final
element of the secondary sources for the criminal law is definitely the Indian law . This is
said so because the Malaysia Penal Code was enacted based on the Indian Penal Code 1960
and Indian law can be applied when the provision is in pari materia with the criminal law in
our country . Besides , in the case of Sanassi , the judge also said that the Criminal Procedure
Code in Malaysia is also more or less modelled on the Indian Criminal Procedure Code and
the wording of various sections of our Criminal Procedure Code are identical.

4. Explain bailable offences, non-bailable & unbailable offences.

5. Briefly explain the factors for consideration in granting bail.
6. What are the powers of a Public Prosecutor?

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