Judge – Appeal

Types of Law Just for Your Information 🙂 Public Law and Private Law Criminal Law and Civil Law Criminal Law -­? A form of public law. -­? Case must be proved by the prosecution beyond reasonable doubt. -­? Person guilty must be punished by ?nes, or imprisonment. -­? Object -­? to regulate society by the threat of punishment. -­? The state is the prosecutor and prosecution is brought in the name of the Public Prosecutor e. g. PP v Jones. Civil Law -­? A form of private law. -­? Case must be proved on a balance of probabilities. -­? Burden may rest on either party depending on the circumstance. -­? No concept of punishment. -­?

Compensation is paid to the wronged person. -­? Terminology used is di? erent. -­? Claimant sues the defendant so the case would be referred to as e. g Smith v Megacorp plc. -­? State plays no part. Public Law -­? Mainly concerned with government and the functions of public organizations such as councils and local authorities. -­? State prosecutes alleged perpetrator under public law. -­? Criminal law is therefore also part of public law. Private Law -­? Deals with relationships between businesses and customers, employees and other private individuals. -­? The state does not get involved and it is for the individual concerned to take action.

Statute Law and Common Law Statue Law -­? Parliament is responsible for statute law. -­? Usually made in areas so complicated and unique that common law would take an unacceptable length of time to develop e. g. Company Law. Common Law -­? Created and developed by the judiciary. The Court System The Importance of the System of Appeals (D’00 Q1a) -­? It provides an opportunity for those who are dissatis? ed with the decision of one court to have the matter re-­? considered by a higher court, i. e. gives litigants at least two chances to obtain the justice they seek.

-­? It enables a higher court to review the decisions of lower courts and rectify possible errors as to facts or law made by the lower court. -­? It helps to develop greater uniformity in the law as the lower courts are bound by the precedents set by the higher courts (i. e. HC and above) in line with the doctrine of binding judicial precedent. -­? It helps achieve greater justice. 1 -­? 1 ? Teh Joo Ling All rights reserved The Court System (Civil and Criminal) (D’08 Q1a) Advantages of a Court System with Hierarchy (D’08 Q1b) (i) It facilitates a system of appeals.

-­? The court hierarchy distinguishes between higher and lower courts so that persons who are dissatis? ed with the decision of a lower court have an avenue to have the decision reviewed by a higher court. (ii)It facilitates the application of the doctrine of binding judicial -­? which requires the lower courts to follow the decisions of the higher courts, thus achieving greater uniformity in the application of the law. (iii)It Facilitates specialization in the judicial process. -­? The higher courts which are presided by more senior and experienced judges handle the more serious criminal o? ences such as murder, and kidnapping and more serious civil matters where larger sums of money are involved.

-­? The lower courts are left to handle the less serious o? ences and civil disputes involving smaller amounts of money. (iv)It results in greater administrative convenience, e? ciency and cost e? ectiveness. -­? The practical e? ect of a court hierarchy is that it provides for an extensive system of lower courts dispensing justice inexpensively in local areas. Superior Courts Federal Court (Chief Justice) Court of Appeal (President of the Court of Appeal) High Court (Sabah & Sarawak) High Court (Malaya) (Chief Judge) Serves Peninsula Malaysia Subordinate Courts (Chief Judge) Serves East Malaysia Sessions Courts Special Court State Level Courts Native Courts -­?

Exist only in Sabah n’ Sarawak. -­? Deals with native rights. Syariah Courts -­? Deals with matters pertaining to Islamic law in the respective states. (Sessions Court Judge) Juvenile Court Magistrates’ Court (Magistrate) (Magistrate) Penghulu Courts (Penghulu or Village Headman) -­? -­? -­? Has very limited jurisdiction. Deals with local disputes in an informal manner. In practice, these courts hardly function. in Peninsular Malaysia (West Malaysia) the Malaysian Court System -­? Constitution (Amendment) Act 1994 1 -­? 2 ? Teh Joo Ling All rights reserved The Court System Federal Court (Chief Justice) (a) Appellate Jurisdiction.

-­? Occupies the bulk of the Court’s work (90% -­? 95%) -­? In criminal cases an appeal may be made by the Public Prosecutor against acquittal. -­? In civil appeals, it has jurisdiction, whether it is made in the exercise of its original or of its appellate jurisdiction -­? Section 67 of the Courts of Judicature Act 1964. -­? Constraints imposed -­? Section 68 CoJ’64. -­? Appeals to the FC are by way of re-­? hearing and the FC has all the powers and duties of the HC. (b) Original Jurisdiction -­?

Article 128(1) of the Federal Constitution -­? Any question whether a law made by a legislature, federal or state, is invalid on the ground that it deals with a matter to which it has no power to legislate; and -­? Any dispute on any other question between states and between the federation and any state. (c) Referral Jurisdiction -­? The FC determines constitutional questions, which have arisen in the proceedings of another court but referred to it for a decision by way of a special case stated. -­? When it has decided, it remits the case to the original court to be disposed of in accordance with that determination. (d) Advisory Jurisdiction -­?

The FC gives its opinion on any questions referred to it by His Majesty concerning the e? ect of any provision of the Constitution, which has arisen or appears likely to arise. -­? In the Government of Malaysia v Government of the State of Kelantan such advice was in fact sought by His Majesty. Court of Appeal (President of the Court of Appeal) (D’00 Q1a) -­? The composition of the CoA is stated in article 122A of the Federal Constitution. It is headed by the President of the CoA. Proceedings are usually heard and disposed of by 3 judges. But the number of judges may be in any particular case as the President may determine. However, the number of judges must always be uneven. Sometimes a judge of the HC may sit as a judge of the CoA.

This happens where the President considers it necessary in the interests of justice, after consulting the Chief Judge. -­? Article 121(1B) of the Federal Constitution provides that the CoA has jurisdiction to determine appeals from decisions of a HC or a judge thereof (except decisions of a HC given by a Registrar or other o? cer of the court and appealable under federal law to a judge of the court). Sections 50 and 67 of the Courts of Judicature Act 1964 stipulate its appellate criminal and civil jurisdiction respectively.

-­? Section 50(1) gives the CoA jurisdiction to hear and determine any appeal against any decision made by the HC in the exercise of its original jurisdiction. In addition, it may hear and determine appeals from a decision of the HC in the exercise of its appellate jurisdiction in respect of a criminal matter originally decided by the Sessions Court. If the original decision was made in the Magistrates Court, further appeal to the CoA from the HC may only be done with the leave of the CoA. -­? Section 67 in relation to civil appeals allows the CoA to determine any appeal from a judgment of the HC. Exceptions (Section 68(1) JoA’64) (i)

An appeal will not be allowed if the value of the subject matter of the claim is less than RM250,000, except with leave of the CoA. (ii)No appeal will lie if the HC judgement was made by consent of the parties. (iii)No appeal will be allowed where the judgement or order relates to cost only which was within the discretion of the Court, except the leave of the CoA. (iv)No appeal will lie on any matter decided by the HC which is expressly declared in any written law to be ?nal. 1 -­? 3 ? Teh Joo Ling All rights reserved High Court (Chief Judge) (a) Original Jurisdiction -­? Possesses unlimited criminal and civil powers (no upper limit).

-­? Can try any criminal case irrespective of the gravity and any civil case regardless of value although in respect of the latter, in most instances, it hears matters, which cannot be determined in the Subordinate Courts. -­? Deals with cases of drug tra? cking and unlawful possession of ?rearms, ammunition and explosives etc. -­? Although HC has unlimited civil jurisdiction, in practice, it tries mostly disputes where the amount involved is > RM250,000 because the Sessions Court is competent to try any case involving a lesser sum. (b) Appellate Jurisdiction -­? Hear civil and criminal appeals from the Subordinate Courts.

The amount in dispute or the value of the subject-­? matter must ordinarily > RM250,000 except on cases on a question of law. All civil appeals are by way of re-­? hearing. -­? Section 35(1) CoJ’64 confers on the HC general supervisory and revisionary jurisdiction over all subordinate courts. (c) Supervisory Jurisdiction -­? The HC has power to supervise the conduct of and review the decisions of Subordinate Courts, bodies exercising quasi-­? judicial functions and tribunals. One of the methods of supervision is through the issue of the prerogative writs stemming from the prerogative jurisdiction inherited from the UK courts. (d)

Revisionary Jurisdiction -­? If it appears desirable in the interest of justice, may call for the records of any proceedings in the Subordinate Courts whether civil or criminal cases, at any stage of such proceedings. -­? May also remove the case to the HC or give such directions to the Subordinate Courts as it thinks necessary in the interest of justice. -­? Only hear actions where the claim > RM250,000, otherwise, leave of the CoA must ?rst be obtained. -­? No appeal may be made: (i) Where the judgment of the original trial was made by consent of the parties; (ii)Where the judgment relates only to costs; (iii)Where the law stipulates that the decision of the HC shall be ?nal -­?

Further appeal from decisions of the CoA may be made to the FC, which is now headed by the Chief Justice. Appeals on civil matters from the CoA to the FC can be made with the leave of the FC as follows: (a) From any ?nal judgment or order where (i) The matter in dispute in the appeal amounts to or is the value of ? RM250,000 (ii)The appeal involves directly or indirectly, a claim to or respecting property or some civil right of the like amount or value. (b) From any decision as to the e? ect of any provision of the Constitution including the validity of any written law relating to such provision. Sessions Court (Sessions Court Judge) (J’97 Q2) -­?

Section 59 of the Subordinate Courts Act 1948, a Sessions Court has jurisdiction to hear and determine any civil or criminal cause or matter arising within the local limits of jurisdiction assigned to it. Each Sessions Court is presided over by a Sessions Court Judge, appointed by the Yang di Pertuan Agong on the recommendation of the Chief Judge.

-­? Subordinate Courts (Amendment) Act 1994, (a) Unlimited jurisdiction to try all actions and suits of a civil nature in respect of motor vehicle accidents, landlord and tenant, and distress, and (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 RM250,000. -­? Further, even where the amount in dispute or value of the subject matter exceeds RM250,000, the Sessions Court would have jurisdiction to try the matter if the parties to the action have agreed in writing that the Sessions Court shall have jurisdiction to try it.

-­? The Sessions Court does not have jurisdiction in certain matter as stipulated in Section 69. These include actions, suits or proceedings for speci? c performance or rescission of contracts, injunctions, cancellation or recti? cation of instruments, and matters relating to immovable property.

However, in relation to immovable property the Sessions Court has jurisdiction to hear and determine any action or suit for the recovery of immovable property though it cannot adjudicate on title to immovable property except with the consent of the parties -­? Section 70 and 71. 1 -­? 4 ? Teh Joo Ling All rights reserved Magistrate Court (Magistrate) Juvenile Court (Magistrate assisted by 2 lay advisers) (D’94 Q1) (J’99 Q3b) First Class -­? Have the jurisdiction to try all o? ences punishable with a ?ne or up to 10 years imprisonment.

They also can try o? ences under Section 392 and 457 of the Penal Code (dealing with robbery and housebreaking respectively). They may pass sentences of up to ?ve years imprisonment, a ?ne of up to RM10,000, whipping of up to 12 strokes or any of a combination of these. -­? In civil matters they can try cases where the value of the subject matter does not exceed Rm25,000. -­? Have jurisdiction to conduct preliminary enquiries and hold coroners inquests. Juvenile Courts Act 1947 -­? Purpose: to try juvenile o? enders in an atmosphere which is di? erent from the ordinary courts. -­? The philosophy is that these juveniles need care and attention and should therefor be treated with compassion with a view to correcting them.

-­? The court has only jurisdiction to try o? enders who are juveniles (i. e persons between the ages of 10 years and 18 years). -­? The court may try all o? ences except those punishable by death. -­? This is a special court and is closed to the public with a view to shielding the youngster from publicity although reporters may attend the hearing, they may not reveal the name of the o? ender. -­? The case is decided by the magistrate but advice as to the appropriate sentence is given by the lay advisers. -­? If the court ?nds the juvenile guilty, the court has a number of options: -­? (i) The o? ender may be sent to an approved institution for corrective education; or (ii).

Discharged conditionally upon entering into a bond to be of good behavior. (iii)May be ?ned but cannot be sent to prison in default of the payment of such ?ne. (iv)His parent or guardian may be ordered to give security for his good behavior. (v)Where the o? ender is below 14 years of age, the parent or guardian may also be required to pay compensation. Second Class -­? Not required to be quali? ed in law and are usually public servants and minor court o? cers. They perform the function of granting bail and mentioning cases.

They are also eligible to try criminal cases where the maximum punishment is not more than 12 months imprisonment. Penghulu’s Court (Penghulu or Village Headsmen) -­? Proceedings are informal -­? The Penghulu is empowered to try civil disputes where the subject matter does not exceed $50 in value and in criminal cases, the Penghulu can impose a ?ne not exceeding $25. -­? In criminal cases, the Penghulu must inform an accused of his right to elect to be tried before a Magistrate under a jurisdiction of a Magistrates’ Court before the commencement of the trial. -­? An appeal against the decision made by a Penghulu in a Penghulu’s Court lies in a First Class Magistrate. 1 -­? 5 ? Teh Joo Ling All rights reserved.