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The question mainly regards dispute governed under the law of criminal
procedure in Malaysia which is initiation of proceedings.
Once complaint has been made and police had taken reasonable steps with
regards to the case, the case will now be brought forward Magistrate in order to initiate
necessary proceedings with regards to the case.
With regards to the complaint, the Magistrate must warn himself before initiating
any proceedings, that the complaint founded on the belief from information of a credible
witness, or surrounding facts is sufficient, reasonable and lead to probable cause to
impute the guilt of the person complained of. In PP v Mah Chuen Lim, the court was of
the opinion that the application for initiation of proceedings should only be allowed to be
heard if there exist reasonable complaint and in the absence of such complaint, no
action can further be taken.
Adham Hensem
However, despite receiving reasonable complaint, discretion to examine the
complainant and initiate proceedings still lies within the Magistrate. By virtue of Section
128(1) of CPC, it is clear that the phrase ‘may take cognizance’ is discretionary in
nature, of which in Tan Hoe Watt v PP, it has been established that only after the
Magistrate had taken cognizance of the complaint, then only he shall examine the
complainant on oath.
However, if the Public Prosecutor had direct the police to conduct investigation
based on the complaint at any stage of examination; even before examination is
conducted per Section 133(1A) of CPC, the Magistrate shall postpone or not proceed
with examination of the complainant per Section 133(1B) of CPC.
Adham Hensem
CPC. If notice is yet to be given, Magistrate cannot conduct any examination, as per
Section 133(1)(c) of CPC.
In the course of examination, the Magistrate may take external factor and result
of police investigations before delivering his decision on whether to initiate the
proceedings and issue process with regards to the allegation of offence, or not, as
stipulated in Lim Thian Huat v Fozdar.
There are several outcomes that the Magistrate shall consider in exercising his
judicial duty. Firstly, issue process. Once it is satisfied that there is a firm ground in
establishing a case; or in simpler word the Magistrate is satisfied that there is prima
facie case, he has the power to issue a summons or warrant requiring the attendance of
the person complained against to appear before the court at specific date, provided
under Section 136 of CPC.
On whether to issue summons or warrant, the Magistrate shall take into account
the nature of the offence. Per Section 2(1) of CPC, it has been distinguish between
summon case and warrant case. However, apart from that, the Magistrate shall also
consider external factor per Section 47 of CPC, such as possibility that the person
complained against might be absconding and fail to appear before the court. In Karpal
Singh v PP, it has been stated that in issuing warrant, the court shall have good reason
in doing so or else such warrant will have no effect at all. Summon shall be made per
Section 34 & 35, while warrant shall be based on Section 39 & 43 of CPC.
Adham Hensem
truth of complaint, Magistrate has the power to postpone issue of process and process
in order to enable further inquiry on such matter. In the event that further inquiry need to
be conducted, similar process need to be complied with including issuing similar notice
to conduct further examination to the Public Prosecutor, per Section 134(2) of CPC.
Section 380 of CPC: if the offence is committed against his person or property
Also has right to appeal under Section 307 of CPC, as seen in R v Schefelaar.
May appeal in his own name as appellant, as seen in Sarikei District Council v
Hamzah Kiprawi
Adham Hensem