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107TH INTERNATIONAL TRAINING COURSE

PARTICIPANTS PAPERS

THE ADMINISTRATION OF CRIMINAL JUSTICE IN


MALAYSIA: THE ROLE AND FUNCTION OF PROSECUTION

Abdul Razak Bin Haji Mohamad Hassan*

INTRODUCTION PART I
Malaysia as a political entity came into A. Constitutional History
being on 16 September 1963, formed by The territories of Malaysia had been part
federating the then independent of the British Empire for a long time. After
Federation of Malaya with Singapore, the Second World War, there was a brief
North Borneo (renamed Sabah) and period of British military administration.
Sarawak, the new federation being A civilian government came into being in
Malaysia and remaining and independent 1946 in the form of a federation known as
country within the Commonwealth. On 9 the Malayan Union consisting of the eleven
August 1965, Singapore separated to states of what is now known as West
become a fully independent republic within Malaysia. This Federation of Malaya
the Commonwealth. So today Malaysia is attained its independence on 31 August
a federation of 13 states, namely Johore, 1957. In 1963, the East Malaysian states
Kedah, Kelantan, Selangor, Negeri of Sabah and Sarawak joined the
Sembilan, Pahang, Perak, Perlis, Federation and was renamed Malaysia.
Trengganu, Malacca, Penang, Sabah and
Sarawak, plus a compliment of two federal B. Parliamentary Democracy and
territories namely, Kuala Lumpur and Constitutional Monarchy
Labuan. The Federal constitution provides for a
Insofar as its legal system is concerned, parliamentary democracy at both federal
it was inherited from the British when the and state levels. The members of each state
Royal Charter of Justice was introduced in legislature are wholly elected and each
Penang on 25 March 1807 under the aegis state has a hereditary ruler (the Sultan)
of the East India Company. Appropriately, or Yang di-Pertua Negeri (Governor) in the
the Malaysian legal system has not been states of Malacca, Penang, Sabah and
plucked out from the sky but it is the Sarawak. The head of state must act in
product of our experiences over the almost all matters on the advice of
centuries; so does its criminal justice ministers drawn from and responsible to
system which goes side by side with the the State Legislative Assembly.
development of its legal system. In This pattern is repeated at the federal
discussing the subject of The level. Parliament is a bicameral
administration of criminal justice, legislature, the lower House (the House of
understanding the constitutional history Representatives) being wholly elected. The
just cannot be avoided. Inadvertently, the federal head of state, known as the Yang
legal system that Malaysia inherited from Di Pertuan Agong, who is appointed from
its colonial masters colours the pattern of among the nine Malay Sultans and serves
the criminal justice system today. a five-year term, must act on the advice of
the Federal Cabinet or a minister acting
* Deputy Head of Criminal Investigation
under the general authority of the cabinet.
Department, Royal Malaysia Police, Sarawak
The Prime Minister has to be a member of
Contingent, Malaysia.

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the House of Representatives commanding which those who suffered any grievances
the confidence of the House. The Upper or those who acted against the countrys
House, the Senate, has two senators elected laws, to seek redress or to be punished. The
by each Sate Legislative Assembly and a courts for the administration of criminal
number of members nominated by the justice are provided for by the constitution
Federal Government. and other laws.
All laws are passed by Parliament, and The highest in the hierarchy of the
there are bodies that see to its enforcement. courts is the Federal Court. It is the final
The interpretation of the laws lies mainly court of appeal. The courts jurisdiction is
with the judiciary. The country exercises appellate, supervisory and advisory. This
formal social control through the court consist of the Chief Justice and two
establishment of a formal criminal justice other judges of the High Court or a greater
system which is characterised by the uneven number as decided by the Chief
existence of criminal laws, law enforcement Justice. The Court of Appeal has appellate
agencies, prosecutors, judges, magistrates, jurisdiction to hear all appeals on question
correction officials, prisons and other of law or sentences from subordinate
institutions. courts. Three judges will sit in the courts
to make decisions on any appeal. The High
C. The Administration of Justice Court has jurisdiction to try all offences
The federal constitution provides for the with the highest maximum sentence of
exercise of power by the Legislature, the death and also has appellate jurisdiction
Executive and the Judiciary. The judiciary to hear appeals of cases from subordinate
plays an important role in this balance of courts.
power. It has the power to hear and The Sessions Court has jurisdiction to
determine civil and criminal matters, and try all offences except those with a possible
to pronounce on the legality of any sentence of death. Normally one judge will
legislative or executive of the federal as sit in the court to hear such cases.
well as state constitutions. The Magistrate Court is the lowest rung
The fundamental principle in Malaysia in the hierarchy of courts. It consists of
is that an accused person is innocent until two categories of magistrates, i.e., First
proven guilty by a competent court of law. Class Magistrates and Second Class
Thus the criminal justice system in Magistrates. First Class Magistrates are
Malaysia provides various safeguards to legally qualified and have jurisdiction to
protect accused persons. A duty is imposed try all offences punishable with
on the states, particularly the police force, imprisonment of up to ten years or with a
to maintain law and order in the interest fine and 12 strokes of whipping. However
of the public. Investigation into an offence their sentencing powers are limited to
resides with the police, and the duty to impose imprisonment sentences of not
decide whether a person ought to be more than 6 years.
charged or not lies with the Attorney Lately because of the high backlog of
General, who is a public prosecutor. cases in the Sessions Court, the power of
the First Class Magistrate Court has been
D. Hierarchy of The Courts and increased to hear cases of robbery under
Their Jurisdiction section 392 of the Penal Code and
The Federal Constitution of Malaysia housebreaking and theft under section 457
specifically provides for the rights of the of the Penal Code, which are punishable
individual and to ensure that those rights with imprisonment of not more than 14
are upheld. It also provides an avenue for years.

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107TH INTERNATIONAL TRAINING COURSE
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Second Class Magistrates are normally to section 376 (I) of the CPC, the Attorney
public servants and junior court officials General shall be the public prosecutor and
experienced in judicial administration. The shall have control and direction of all
sentencing in criminal cases is only limited criminal prosecutions and proceedings
to imprisonment of not more than 12 under the Code.
months or a fine. The Attorney General is appointed by
One interesting point to note is that, the the Yang Di Pertuan Agong on the advice
First Class Magistrates also perform duties of the Prime Minister. Among the criteria
in Juvenile Courts, to try youthful on his appointment, he must be a person
offenders of the ages of 10 to 18 years. The who is qualified to be a judge of the Federal
magistrate sits with two advisors hearing Court. Immediately under him is the
all offences except those punishable with Solicitor General who also performs the
death. The court is being conducted in the same function in the absence of the
Magistrate Chambers, to the exclusion of Attorney General. Holding officers under
the public. The principle of this court is to the Attorney Generals Chamber are the
rehabilitate the youthful offenders, Senior Federal Counsel, Federal Counsel
preventing their development as criminals. and Deputy Public Prosecutor. The
Attorney General oversees all criminal
PART II prosecution in the country and in each
state. There are Senior Federal Counsel
A. Structure and Roles of
and Deputy Public Prosecutors who
Prosecution
perform this duty on the Attorney Generals
The prosecution of criminal cases is the
behalf.
main domain of the public prosecutor. In
The Public Prosecutor may appoint
Malaysia, the person responsible for this
deputies who shall be under his general
is the Attorney General. He holds office by
control and direction. The Deputy Public
virtue of Article 145 of the Federal
Prosecutor may exercise all or any of the
Constitution of Malaysia. The powers
rights and powers vested in or exerciseable
given to the Attorney General is contained
by the Public Prosecutor. The power to
in clause (3) of Article 145 which reads as
institute criminal proceedings by the Public
follows:
Prosecutor includes the power to bring
The Attorney General shall have
criminal charges against persons.
power, exerciseable at his discretion,
The rights to appear before a court
to institute, conduct or discontinue
proceeding accorded to the Public
any proceedings for an offence, other
Prosecutor is contained in sections 377 and
than proceedings before a Syariah
380 of the CPC. Besides the Public
Court, a Native Court or a Court
Prosecutor, the following persons are also
Martial.
authorised to conduct prosecution in court:
The law relating to criminal procedure (1) a deputy public prosecutor,
in Malaysia is contained in the Criminal (2) an advocate authorised in writing by
Procedure Code (F.M.S. Cap. 6) (hereinafter the Public Prosecutor or a deputy
mentioned as CPC). The Code lays down public prosecutor, and
rules for such matters as the mode of (3) a police officer not below the rank of
arrest; search of body, property or premises; Inspector.
police investigation of a case; prosecution
The conduct of criminal proceedings in
of an accused person; and procedure for
the High Court is usually done by the
trial and the court competent to try and
Public Prosecutor or his deputy. The cases
punish offences. In particular, according
that go to the High Court are of a serious

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nature and demand meticulous attention. duty, it is essential that their performance
These are usually the cases that involved be above reproach. Courses and seminars
the death penalty or acts against the are held frequently to train prosecutors on
security of the country. Criminal trials in this aspect. Proper conduct of prosecutors
the Sessions Courts are now being in court is a norm and would greatly assist
conducted by deputy public prosecutors. the court in the smooth running of the court
Formerly, it was done by the police. proceedings. In this respect, most
Prosecution of criminal matters in the prosecutors are well versed with the court
Magistrate Courts are being done by the rules and procedure. Prosecutors have to
police. Besides the police, subsection (I), be ready to proceed with a trial on a given
section 380 of the CPC allows any public date and would only request for
officer to prosecute in any court in any case adjournment in very extenuating
in which he is by any written law circumstances.
authorised to prosecute in such court. This
refers to Immigration Officers, Custom C. Investigation of Criminal Cases
Officers, Income Tax Officers and Anti- The criminal law defines criminal and
Corruption Agency Officers who have been delinquent behaviour and specifies
given powers to prosecute cases coming sanctions which are enforced by a threat
under their respective departments. For of punishment. In Malaysia, most of the
instance, section 117 of the Customs Act penal provisions are contained in the Penal
1967 provides that prosecution in respect Code. The Code declares what acts or
of offences committed under the Act may omission are offences and also provides for
be conducted by a Senior Officer of its punishment. It specifies the
Customs, and section 39(2) of the circumstances in which an act or omission
Immigration Act 1959/63 states that every will be regarded as an offence. This
Immigration Officer shall have authority includes act or omission done intentionally,
to appear in court and conduct prosecution knowingly, voluntarily, fraudulently or
of offences relating to the Act. dishonestly. It classifies offences such as
Deputy public prosecutors are law those affecting the human body (e.g.,
graduates either from local universities or murder, causing hurt), affecting property
from England. Before their appointment, (e.g., theft, robbery), affecting reputation
they received intensive in-service training (e.g., defamation, insult), affecting public
locally at the Judicial and Legal Institute. peace (e.g., unlawful assembly, rioting) and
Similarly with police prosecutors in the those affecting public health and safety
lower courts undergo basic/advance (e.g., adulteration of food). It also
prosecution courses at the Police College. determines the nature and quantum of
Furthermore, section 3(3) of the Police Act punishment to be given for specific offences.
1967 provides that one of the duties of the Beside the Penal Code, there are numerous
police force is to prosecute offenders in statutes which are either designed to
court. punish specific offences such as the
Dangerous Drug Act 1952 or which seek to
B. Professional Ethics of regulate specific activities and only punish
Prosecutors those who violate the rules (e.g., the Food
Public prosecutors are part and parcel Act 1983). Some statutes provide for
of the court officials. They are therefore preventive detention of persons without
bound by the ethics of the legal profession trial in a court of law, and this is to prevent
which are administered by the Law Society. them from engaging in any activity
Due to the public nature of the prosecutors prejudicial to peace, order and security. The

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107TH INTERNATIONAL TRAINING COURSE
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Internal Security Act 1960 is one of those investigate and they must be police officers
laws. of the rank of Sergeant or above or the
officer in charge of the police station. They
D. Law Enforcement Agencies are called Investigation Officers or I.O.s.
The sanctions imposed by the criminal
law are carried out by the law enforcement E. Conduct of Investigation
agencies. The main body that does this is In theory, as soon as the information is
the police apart from other government received, the investigating officer shall
agencies (e.g., Customs and Immigration send the first information report to the
Departments, to name a few). The public prosecutor. However, in practice this
functions of the police and other law is usually not done and the investigating
enforcement agencies are to carry out officer will normally straight away carry
investigation into any act or omission that out the investigation. This includes the
i s c o n t r a r y t o l a w. T h e s e c a n b e making of enquiries on the spot and the
summarised into three categories, namely: visit of the crime scene. The offender has
(1) the discovery that a crime has been to be traced and arrested. There are four
committed, categories of persons who may affect arrest,
(2) the identification of the person/ namely, the police officer, the Penghulu, the
persons suspected of committing the private person and the magistrate. Section
offence, and 23 of the CPC allows a police officer to
(3) the collection of sufficient evidence to arrest without a warrant for any seizable
prosecute the suspect before the offence committed anywhere in Malaysia.
court. A seizable offence is an offence in which a
The powers given to the police in respect police officer ordinarily arrests without a
of investigation are contained in the CPC warrant according to the third column of
although the Police Act 1967 Part VII also the first schedule of the CPC. These are
lists the duties and powers of police officers. offences punishable with death or offences
Section 107 of the CPC requires every punishable with imprisonment for three
information relating to the commission of years and above. Offences punishable with
a crime is to be reduced into writing if given a fine only are described as non-seizable
orally to the officer in charge of a police offences. The Penghulu may arrest without
station. This happens when a person comes a warrant for a seizable offence but section
to the police station and makes a report of 25 of the CPC requires him to hand over
any incident. In legal term, this report is the person arrested to the nearest police
referred to as the first information report station or police officer who shall then
and its significance is that it is usually rearrest the person. A private person may
made very early after the occurrence of a arrest as provided under section 27 of the
crime. Thus the likelihood of fabrication CPC, but the offence committed by a person
is small because the memory of the must be a seizable one and committed in
informant is still fresh. This will form the the view of the private person. Again the
basis of the case and the police will swing person arrested must be handed over to the
into action. Every such information shall nearest police station or a police officer
be entered in a book and kept in the police without necessary delay. The mode of
station. It includes details such as the date arrest is provided in section 15 of the CPC.
and hour when the information was given Specifically, when a person is arrested, he
and the signature of the person making the shall actually be touched or his body
report. A copy of this report is then given confined unless he submits to the custody
to the police officers whose task is to by word or action.

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When a person is arrested, his body may trace and arrest him. Things that are
be searched and all articles found be placed collected from the scene or from the victim
in safe custody. If these articles have any would be properly packed and sent to the
connection with a crime committed, then relevant authority for analysis to
they may be detained until his discharge determine whether they have any
or acquittal. According to section 20 of the connection with the case. These are
CPC, only a police officer can conduct a important because it would help to identify
body search with strict regard to decency. the suspect. The investigating officers are
The investigating officer can, when he given powers to conduct search under
received the first information report, section 116 of the CPC for documents or
discontinue to investigate if he finds that other things necessary to the conduct of an
there is insufficient ground for proceeding investigation into any offence. Any person
further in the matter. In other words, if he arrested must be produced before a
finds that there is no offence disclosed in magistrate within twenty-four hours
the information, he can close the case. inclusive of the time taken for the journey
When the investigating officer has (section 28 of the CPC).
determined that a seizable offence has been Article 5 of the Federal Constitution
committed, he can start the investigation. provides for the personal liberty of a person
He may by order in writing require the and in clause (4) of the same article, it also
attendance of any person being acquainted states that a person arrested and not
with the circumstances of the case to come released must be brought before a
forward (section 111 of the CPC). If a magistrate without unreasonable delay
person refuses to do so, the investigating and cannot be detained for more than
officer may report such refusal to a twenty-four hours. Any longer detention
magistrate who may then issue a warrant from that period has to be as ordered by
to secure the attendance of the person. the magistrate. In this connection, section
Section 112 of the CPC provides for the 117 of the CPC allows the police to detain
recording of statements from witnesses by the arrested person for more than twenty-
the police. Any person giving a statement four hours and this extension of time has
to the police is bound to answer all to be applied to the court when the person
questions relating to the case in question. is produced before the magistrate.
He is legally bound to state the truth, Detention on the order of the magistrate
whether or not the statement is made may not exceed a total of fifteen days, and
wholly or partly in answer to questions. the magistrate has to record his reason for
This is because in the event that he is given granting the detention order. Normally,
earlier to the police, then that statement during the application for the remand order
can be used to impeach his credit. He is before the magistrate, the police would give
also liable to be charged for giving false their reasons in support of the application
evidence in court. of further detention of the person. This is
usually the case when they cannot
F. Further Detention of Person complete the investigation within twenty-
Arrested four hours and are not ready to indict the
From the progress and development of person arrested. Section 119 of the CPC
the case, the investigating officer would provides for the police investigation diary
have collected evidence from the scene of and daily entries are made pertaining to
crime and these would be seized as exhibits the action taken in the conduct of the
of the case. If the suspect is known or is investigation. This includes:
identified, then effort would be made to

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107TH INTERNATIONAL TRAINING COURSE
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(1) the time at which the order for H. Indictment


investigation reached the police After the investigation is completed,
officer, section 120 of the CPC requires the
(2) the time at which he began and closed investigating officer to forward to the
the investigation, Public Prosecutor a report of the
(3) the place or places visited by him, and investigation. However in practice, not all
(4) a statement of the circumstances investigation papers are forwarded to the
ascertained through his investigation. public prosecutor. Where there is sufficient
evidence and the investigation is completed
A copy of the police investigation diary
within twenty-four hours, the person will
is submitted together with the grounds for
be produced in court to answer the charge
further detention whenever an application
by the police or after the expiry of the
i s m a d e u n d e r s e c t i o n 11 7 t o t h e
further detention period (section 117 of the
magistrate. If any person arrested wishes
CPC). However, the Public Prosecutor in
to make a statement, then a statement may
a written directive does require
be taken from him under section 113 of the
investigation papers to be forwarded to him
CPC. This statement may amount to a
before the indictment is made. These are
confession or may be exculpatory in nature.
usually cases of a serious nature like
It can either be oral or in writing. A caution
culpable homicide and those involving very
is required to be administered to a person
important people and government
before he makes a statement in the
servants. Some cases require the consent
following words:
of the Public Prosecutor before any formal
It is my duty to warn you that you are
charges can be brought against any person.
not obliged to say anything or to
For instance, offences committed under the
answer any question, but anything
Immigration Act and the Prevention of
you say, whether in answer to a
Corruption Act. The recorded statements
question or not, may be given in
of witnesses, the suspect and the
evidence.
investigation diary of the investigating
The statement has to be given to police officer form the basis on which it is decided
officer of the rank of Inspector or above. whether the suspect should be prosecuted
in court. The police will prosecute the cases
G. The Role of Public Prosecutors in that need not be referred to the Public
Arresting and Detaining a Prosecutor, but in all cases after the
Suspect completion of the trial, the police must
The supervision of criminal investigation report to the Public Prosecutor the result
is done by the police alone. The powers of the cases. The Public Prosecutor may
are given to the police to conduct decline to prosecute further at any stage
investigation. The Attorney General has of the trial but before judgement. The
no investigative powers, and he is not police, however, cannot exercise this
involved in the process. The Criminal discretion. The approval of the Public
Investigation Department of the police Prosecutor has to be obtained first before
force is the main body that conduct any proceeding can be discontinued.
investigation into criminal matters. Not all cases investigated by the police
Supervision and direction of the end up with prosecution in court. The
investigation are controlled by the Public Prosecutor will study the evidence
immediate superior officer of the available in the investigation papers and
investigating officer. only those with a 50 percent chance of
conviction will be prosecuted. This entails

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close co-operation between the Public conducted by a judge sitting alone in


Prosecutor and the investigating officer, accordance with Chapter XX of the CPC
and discussions are not uncommon and in accordance with ESCAR. Trial
between them prior to the court trial. proceedings in Malaysia follow the
adversarial system and are subject to two
I. Plea Bargaining basic principles:
Plea bargaining is not widely practice in (1) an accused person is presumed
Malaysia. In any case, it does not involve innocent until proven guilty; and
the judge or the magistrate. Thus, in open (2) the prosecution must prove the
court, one does not see the accused person charge against an accused person
plea bargaining with the judge or beyond reasonable doubt.
magistrate. At the most, where an accused
The prosecution will open its case first
person intended to plead guilty to a lesser
by calling its witnesses. Each witness is
charge, this intention is conveyed to the
then cross-examined by the defence counsel
Attorney General or a deputy public
or the accused person personally if he is
prosecutor. If this is accepted, the consent
not represented by a counsel. The
to reduce the charge is given to the
prosecution closes its case when all the
prosecutor. Usually, the accuseds counsel
witnesses have given their evidence.
will communicate directly with the
The judge or magistrate must decide
Attorney-General on the accuseds behalf
whether a prima facie case has been made
and make the proposition. The judge or
out. If the court is satisfied that a prima
the magistrate would not know that a plea
facie case has been made out, the accused
bargain has taken place.
will be called upon to enter his defence. If
the accused succeeds in his defence, he is
PART III
entitled to an acquittal. If not, the court
A. Trial Proceedings will proceed to convict and pass sentence.
Prior to the amendments to the CPC in
February 1995, there were four types of B. Cooperation for a Speedy Trial,
trials conducted in the High Courts in Securing an Appropriate
Malaysia. They were: Sentence and Supervision over
(1) trials conducted by a judge sitting the Fair Application of Law
alone, the procedure of which is laid For every type of offence, the law
out in Chapter XX of the CPC; prescribes a punishment which is either
(2) trials by a judge with the aid of imprisonment not exceeding a certain
assessors, the procedure of which was period or a fine not exceeding a certain sum
laid out in Chapter XXI of the CPC; or a combination of both. In respect of
(3) trials by a judge with a jury, the serious offences, imprisonment is
procedure of which was provided in mandatory, and in more serious types of
Chapter XXII of the CPC; and crimes, a minimum sentence of
(4) trials by a Judge sitting alone imprisonment or death is mandatory. An
according to the Essential (security appropriate sentence will be passed by the
cases) Regulations 1975 (ESCAR). court. Any sentence passed outside the
limits set or less than the minimum is a
Since 17 February 1995, trials by jury
sentence wrong in law and will be reversed,
and trials with the aid of assessors have
set aside or altered by the Appellate Court.
been repealed. Trials that remain are those

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107TH INTERNATIONAL TRAINING COURSE
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C. Execution of Punishments Law breakers have to be dealt with in


The final disposal of the case is the accordance with the law. Thus in any
passing of the sentence on the accused society, there is some form of system in
person. If the sentence consists of a fine, place to tackle this problem. In Malaysia,
the accused person will be given time the justice system has been in place even
(usually until the later part of the day) to before independence in each of the
pay the fine or seek assistance from close individual state, and when Malaysia was
relatives to settle the due. When an formed, the justice system that was
accused person is unable to pay, he would adopted seemed to work well in preserving
have to serve a default sentence in prison. the laws of the country.
Where the sentence is one of imprisonment,
a warrant of commitment will be issued by BIBLIOGRAPHY
the court to the prison authorities. The
Publications
accused will be escorted to the prison
1. Criminal Procedure in Malaysia by Mini
designated and serve his sentence there.
Kamariah Majid.
Where the accused person intends to
2. Law of Evidence in Malaysia (An
appeal against the sentence or conviction,
Outline by Prof. M.R. Zafer.
the court will usually grant a stay of
3. Federal Constitution of Malaysia.
execution of the sentence pending the
4. Criminal Procedure 1994 by Hamid
appeal. The accused person may be
Ibrahim.
released on court bail or remanded in
5. Law of Evidence by Hamid Ibrahim and
prison if the offence is of a serious nature.
Maimunah Hamid.
D. Public Prosecutors Involvement
Statutes
in National Criminal Justice
1. Criminal Procedure Code.
Policy
2. Penal Code.
The Attorney General is also responsible
3. Evidence Act 1950.
for the drafting of laws to be enacted by
4. Subordinate Court Act 1948.
Parliament. Any new laws or amendments
to existing ones are drawn and drafted by
the Attorney Generals Chamber. Changes
in the laws are eminent when the country
progresses. For instance, with the advance
of information technology, new laws are
needed to protect the industries against
unscrupulous opportunists. These are new
crimes that demand new skill and in-depth
knowledge in combating them.

CONCLUSION
People are in general law-abiding, but it
is also true that everyone breaks the law
sometimes and some people break it often.
Compliance with the law is never complete.

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RESOURCE MATERIAL SERIES No. 53

APPENDIX

COUNT ORGANIZATIONAL STRUCTURE

FEDERAL COURT

COURT OF APPEAL

HIGH COURT HIGH COURT


(MALAYA) (BORNEO)

SESSIONS COURT SESSIONS COURT

MAGISTRATES COURT NATIVE


COURTS

PENGHULUS COURT MAGISTRATES COURT

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