Immediately at the commencement of the hearing of the murder trial of Duis Akim, Vincent bin Gisup and Hendry bin Motodud (hereinafter referred to jointly as 'the accused'), the learned assigned counsel for the 1^st and 2^nd accused, Mr. Yunof E Maringking, raised five (5) preliminary objections as follows:-

1. The accused was unconstitutionally remanded;
2. The case was illegally transferred to the High Court;
3. The prosecution was instituted without consent of the Public Prosecutor;
4. That the s 177A of the Criminal Procedure Code ('CPC') is ultra vires of the Constitution; and
5. The charge against the accused is illegal.

Datuk Chau Chin Tang, learned counsel retained by the 3^rd accused, endorsed, the preliminary objections raised by Mr. Yunof E Maringking.

"Bahawa kamu pada 25.05.2001 jam lebih kurang 2.30 pagi, di Kedai 7 Eleven, Pekan Donggongon, di dalam Daerah Penampang, di dalam Negeri Sabah dengan niat bersama telah melakukan kesalahan Bunuh, menyebabkan kematian keatas Welfred bin Thomas dengan cara menikam menggunakan parang lalu menyebabkan kematian. Oleh yang demikian kamu telah melakukan suatu kesalahan dan boleh dihukum dibawah sek 302 Kanun Keseksaan."

After the charge was read and explained to the accused, the Prosecuting Officer,

Inspector Lim Swee Beng notified the Court in the following manner:

Mr. Yunof Maringking who was present on that day said: "I am retained to do a watching brief for the families of all the 3 accused would like to request for a copy of the charge."

The learned Magistrate thereafter recorded in the notes of proceeding thus: "6/8/2001 (Mention). Remand section 259 then weekly thereafter."

Magistrate.

To the prosecution this charge is known as tentative charge that is before the case is transferred to the High Court. Upon receipt of the evidence needed, in this instant case, the Post Mortem and Chemist reports and upon re-evaluating the whole evidence again, only then the Public Prosecutor would issue his consent.

(2) On 10/7/2001 the three accused persons were brought back to the Court where the
Prosecuting Officer, Inspector Faiezul applied for the extension of the remand and said:
"Mohon extend remand terhadap ketiga-tiga."

It was further recorded: "1^st accused, 2^nd accused and 3^rd accused - faham" which means all the three accused "understood" the application for an extension of the remand period.

The notes of proceeding further say: "Remand extended until 17/07/2001, then weekly."

Magistrate.

(3) On 26/07/2001 the notes of proceeding indicate that the learned Magistrate, Zaman
Mohd Noor, allowed the prosecution's application for an 'Order to Produce Person in
Custody' to enable all the accused to be brought to hospital for medical examination after an allegation by family members that the accused was beaten up by the police. The Court notes read as follows:

"Prosecution: Insp. Kenneth

Pohon OTP untuk membolehkan ketiga-tiga tertuduh dibawa ke hospital. During the last mention date the family members alleged they were beaten by the police.

Court: OTP to issue with covering letter stating the reason i.e. to conduct a medical check up as a result of their allegation that they had been beaten. The case is under police investigation.

To 27.07.2001.

Magistrate.

(4) As scheduled, on 6.8.2001 the case was brought for mention. In the presence of the three accused and Mr. Yunof Maringking, the Police Officer told the court that the Chemist report and Post Mortem report were not ready yet and requested for another date. The case requires closer scrutiny. The notes of proceeding read: "Prosecution: Laporan kimia, laporan postmortem belum siap lagi. Pendakwa pohon satu tarikh baru. Kes perlu penelitian teliti."

Learned counsel, Mr. Yunof Maringking, who was present on 6.8.2001 urged the Court to discharge the accused and alleged that the detention of the accused was illegal.

The learned Magistrate in rejecting learned Mr. Yunof Maringking's argument, inter-alia, said in the notes of proceeding:

"Today's mention is to see whether the Public Prosecutor has already given his consent to the institution of the Prosecution in the High Court and not for further Prosecution."

(emphasis is mine).

Further the learned Magistrate said: "This case is fixed for re-mention to confirm whether the Public Prosecutor has given the consent or not. To 24/09/2001. OTP.

Magistrate.

(5) On 24/9/2001 Insp. Kenneth for the prosecution said: "Prosecution terima arahan dari Senior Federal Counsel untuk pindahkan kes ke Mahkamah Tinggi. Izin dibenarkan."

(6) On 3.1.2002, the accused was produced at the High Court where the case was fixed
for mention on 1.2.2002 to fix a trial date.

At the High Court, a fresh charge was preferred against the accused and it reads as follows:

"That you all, on the 26^th day of May 2001 at about 2.00 a.m. at a Seven Eleven Shop Donggongon Town in the District of Penampang in the State of Sabah in furtherance of common intention did commit murder by causing the death of one, Welfred Bin Thomas 23 years, Dusun and that you all have thereby committed an offence punishable under Section 302 of the Penal Code (F.M.S Cap 45) read together with Section 34 of the same code."

The five grounds of preliminary objections are closely connected and I shall deal with them in the manner outlined in the submission of the learned counsel at enclosure 46 but there may be some inevitable overlapping of the facts and laws involved.

Under the provision of s117 CPC, when a suspect is arrested and detained and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 28 and there are grounds for believing that the accusation or information is well founded the police officer making the investigation shall produce the accused before a Magistrate who may authorise the detention of the suspect for a term not exceeding 15 days. S 117 specifically provides for the remand of a person arrested and detained in custody when it appears that the investigation cannot be completed within 24 hours as fixed by s 28 CPC.

Our section 117 CPC corresponds with section 167 of the Indian CPC 1973. It comes into operation only if the investigation cannot be completed within 24 hours as fixed by s 28 CPC. It allows the detention of a suspect to enable the police to complete their investigation, see Hashim bin Saud v Yahya bin Hasim & Anor [1977] 1 MLJ 259. However, such detention shall not exceed 15 days.

After 15 days remand under the proviso of s 117 CPC, the Police shall charge the accused and in this instance case the three accused were charged on 4th July, 2001. Therefore, it should be noted here that from the date of arrest, which was 22^nd June, 2001 to 4^th July, 2001, being the date of the charge being read to them were all done within the 15 days time frame allowed under the law. Hence, there is therefore nothing illegal or unconstitutional here.

Since the charge involves murder under s302 Penal Code, the Magistrate has no power to hear the case. Such case must therefore be transmitted to the High Court. This is governed by s.177A CPC and for easy reference it is appended hereunder in full.

S 177A Transmission of case to, and trial by, the High Court

(1) A prosecution in respect of an offence which is to be tried by the High Court in accordance with Chapter XX, shall not be instituted except by or with the consent of the Public Prosecutor:

Provided that a person may be arrested, or a warrant for his arrest may be issued and executed, and any such person may be remanded in custody notwithstanding that the

consent of the Public Prosecutor to the institution of a prosecution for the offence has not been obtained, but the case shall not be further prosecuted until the consent has been obtained.

(2) In any prosecution pursuant to subsection (1), the accused shall be produced before
the Magistrate's Court which shall, after the charge has been explained to him, transmit
the case to the High Court and cause the accused to appear or be brought before such
Court as soon as may be practical:

(3) When the accused appears or is brought before the High Court in accordance with
subsection (2), the High Court shall fix a date of his trial and shall be held in accordance
with the procedure under Chapter XX.

It is necessary at this juncture to examine the history of the insertion of s 177A into our CPC. This section was inserted by the Criminal Procedure Code (Amendment) Act 1995, which inter alia, abolished the preliminary inquiry procedure under the repealed chapter XVII of the CPC. Prior to this amendment Act, persons accused of offences ordinarily triable in the High Court had to first undergo a preliminary inquiry under the repealed chapter XVII, save for certain offences (see Mallal's Criminal Procedure, Fifth Edition - Synopsis of section [7030]-[7050] Division I p 3281).

This section attempts to facilitate the transmission of cases ordinarily triable in High Court. Before the amendment such cases had to proceed by way of committal after a lengthy and often slow process of a preliminary inquiry.

It can also be seen here that it allows for the accused to be produced before the Magistrate's Court during which time the charge will be read and under the proviso of subsection (2). Although the charge must be explained to the accused, he is not called upon to plead thereto. Therefore what was done on 4^th July, 2001 before the learned Magistrate in not asking the accused to plead is allowed under the law.

The other important element of this amendment is that the consent of the Public Prosecutor. The Magistrate must wait for the consent of the Public Prosecutor to be obtained pursuant to subsection (1).

It has to be noted here that s 120 CPC requires the Police to report to the Public Prosecutor of every investigation under Part V - Information to the Police and their Powers to Investigate - Chapter XIII, unless the offence be of a character which the Public Prosecutor has directed need not be reported to him. Cases which need not be reported to the Public Prosecutor are essentially minor offences. As this instant case relates to s 302 Penal Code, a report must be forwarded to the Public Prosecutor.

Before an instruction to the Police to charge the accused could be made by the Deputy Public Prosecutor, evaluation of the then available evidence must have been undertaken

and after being satisfied, instruction was given to the Police to frame the charge against the accused on 4^th July, 2001. It is obvious therefore that the charge preferred against the accused on 4^th July, 2001 had the blessing and therefore the consent of the Public Prosecutor. The contention of the learned assigned counsel that the prosecution of the accused was instituted without the consent of the Public Prosecutor is without any basis.

At this stage a pertinent point was made by the learned Deputy Public Prosecutor, Tuan Amir bin Nasruddin. He asked, while waiting for the consent of the Public Prosecutor, what can the Magistrate do with the person who has been arrested and detained? He asked further, as to how the accused person can be dealt with when he is brought before the Magistrate?

Although section 177A CPC allows the arrested person to be remanded, it does not have any specific provision as to how remand should be dealt with. Generally remand is covered under s 117 and s 259 CPC. As observed earlier, the accused was initially detained under s 117 CPC. Upon such remand order being made the Police forwarded the Investigation Papers to the Office of the Deputy Public Prosecutor who thereafter instructed the Police to charge the accused pending the completion of the certain reports, in this case, the Chemist and Post Mortem reports. After the lapse of 15 days, s 117 CPC will no longer be applicable. Therefore s 259 CPC comes into play.

Section 259 CPC provides for the power to postpone or adjourn proceedings and the full provision is as follows:

259 (1) If, from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of or adjourn any inquiry or trial the Court may, by order in writing, from time to time, postpone or adjourn the same on such terms as it thinks fit for such time as it considers reasonable and may, by warrant, remand the accused if in custody; provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding eight days at a time: provided further that where a Government Medical Officer has certified that the complainant will not be able to give evidence before a certain date the accused may be remanded until such date notwithstanding that the term of remand may exceed eight days.

(2) Every order made under this section by the Court of a Magistrate shall be in writing, signed by the presiding Magistrate, and shall state the reason therefore. Explanation- If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence and it appears likely that further evidence may be obtained by remand, this is a reasonable cause for a remand, (emphasis is mine).

This section corresponds with s 309 of the Indian CPC 1973 (Act 2 of 1974). It also corresponds with s 198 of the Singapore CPC. This section specifically empowers the Court to postpone or adjourn any proceeding in the event of the absence of any witness or any other reasonable cause. In Tan Foo Su v PP [1967] 2MLJ 19 at p19, Raja Azlan Shah J (as His Royal Highness then was) sagaciously said, "Reasonable cause is a term of art for lawyers and no definite ruling can be laid down, each case must be dealt with according to its own peculiar circumstances. It is no doubt an important adjunct to the administration of justice ..."

It is also pertinent to note here that subsection (2) requires that the reason for the order of postponement or adjournment must be stated.

It would appear however, that "under the Indian 1898 Code an order for remand in the course of investigation when sufficient evidence had been collected to raise a suspicion that the accused might have committed the offence, could be made under section 344. This the Court could do because of the expression in section 344 (now section 309) of that Code. From the words "postpone the commencement of or adjourn any inquiry or trial, it was held that during investigation also the power to remand can be exercised under section 344 of that code." See page 3427 - 27. Remand when investigation not complete in Sohoni's The Code of Criminal Procedure, 1973 19^th Edition.

I agree with the submission of the learned Deputy Public Prosecutor that the expression "...postpone the commencement or adjourn any inquiry or trial" is covered by the explanatory part of section 259 CPC which reads: "If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand." Therefore I am of the view that it is proper for the lower court to remand the accused person under s 259 CPC.

The authority of PP v Oladatun Lukmaru & Ors [1991] 1 MLJ 187 as adduced by learned assigned counsel strengthened the prosecution case as it requires the consent of the Public Prosecutor before the Magistrate may transfer the case to the High Court. In

the said case, the act of transmitting the case to the High Court prior to the consent of the Public Prosecutor is contrary to the legal provision.

On the argument that where Article 5(4) of the Federal Constitution read together with section 117 (2) CPC, a Magistrate can only authorise detention for a term not exceeding fifteen days, it seems to me that the phrase "shall not be further detained in custody without the Magistrate's authority" under Article 5(4) allows such detention provided there is such authority. I am of the view that sections 177A and 259 CPC provide the Magistrate with such authority.

The other authority of Haji Mohamed Paiman v Public Prosecutor [1966] 1 MLJ 58 adduced by learned assigned counsel is of no relevance as it relates to the non production of a written consent. In this instant case, as it will be shown later, written consent was produced.

It was further argued by learned assigned counsel that when the Magistrate remanded the accused under s259 CPC from 4^th July, 2001 until 6^th August, 2001, which is a total of more than 30 days, the Magistrate also pre-empted further weekly remand thereafter but did not record the ground for it. It has been shown earlier that although the order made on 4.7.2001 puts 6.8.2001 as the next date for mention, the accused was brought before the Court again on 10^th July, 2001, just 6 days later. This was because of the provision stipulated in section 259 CPC where the Magistrate may only remand an accused person to custody under this section for a term of not more than eight days. A perusal of the

Warrant of Remand in respect of all the three accused persons show in no uncertain terms that the remand which were issued under section 259 CPC were properly extended until the case was referred to the High Court on 4^th January, 2002.

As regards the contention that the Magistrate did not record the ground for it, this Court takes judicial notice that anyone familiar with the workings of the subordinate courts would agree the fact that they have been inundated with cases, day after day especially on a day assigned to hear mention cases. It is therefore not unusual in a case scheduled for mention for the Prosecuting Officer to briefly notify the Court the reason for the application for extension of remand. After that the Magistrate would normally give an appropriate order based on the submission of the Prosecuting Officer. Therefore it can be seen from the notes of proceeding dated 4.7.2001 that the prosecuting officer said that "Not received chemist report. Request (mention) date. Under section 259."

Acting on that submission, the learned Magistrate ordered that the case be mentioned again on 6^th August, 2001. Remand section 259 then weekly thereafter."

Similarly on 10.07.2001 where the prosecuting officer said: "Mohon extend remand terhadap ketiga-tiga".

The learned Magistrate extended until 17.07.2001, then weekly.

On 6.8.2001 the prosecuting officer notified the court that the Chemist report and post mortem report are not ready and that the prosecution needed another new date as the case require closer scrutiny. On 6.8.2001 the learned Magistrate did give his reason when he said: "This case is fixed for re mention to confirm whether the Public Prosecutor has given the consent or not."

On 24.9.2001, the prosecuting officer said: "Prosecution terima arahan dari Senior Federal Counsel untuk pindahkan kes ke Mahkamah Tinggi. Izin dibenarkan." The learned Magistrate said: "Kes dipindahkan ke Mahkamah Tinggi."

It can be observed from the above that although the grounds for further detention may not have been specifically recorded, it is obvious that the learned Magistrate agreed to extend the application for remand based on what has been notified earlier to the Court by the prosecuting officer. Of course, section 259(2) provides that the Magistrate shall state the reasons for such extension of remand and this should have been done. However, having regard to what has been discussed earlier, I am of the considered view that no injustice has been occasioned on the accused.

I therefore rule that the accused was correctly and properly placed on remand in accordance with the law from 4^th July, 2001 until the case was transferred to the High Court after the consent of the Public Prosecutor. I fail to find anything unconstitutional about it.

As these two matters are closely related, I shall deal with them together. For fear of overly repeating myself, I wish to say that when remand order was made under s 117 CPC, Investigation Papers are required under the law, specifically s 120 CPC, to be sent to the Office of the Deputy Public Prosecutor. Based on the then available evidence, instruction was given by the Office of the Deputy Public Prosecutor to the Police to frame the charge, known to the prosecution as the tentative charge, which is essentially to inform the accused of what offence they are facing and for what purpose they are placed on remand under the provision of s 259 CPC.

In order to determine the accuracy of the claim by the learned Deputy Public Prosecutor that a consent letter issued by an officer appointed under s 376 (iii) CPC had been filed in the lower Court, I caused a search to be made in case docket at the Magistrate's Court. I am to state categorically here that I have found in the case docket at the Magistrate's Court a consent issued under s 177A(1) CPC by one Abdul Rashid bin Sudin, Deputy Public Prosecutor, the then Senior Federal Counsel based in Kota Kinabalu. The consent which was dated 21^st September, 2001 allows prosecution against all the three accused in this case. I am unable to determine as to when exactly it was received by the lower Court but judging from its location in the case docket, it is quite reasonable to say that it could have been sent on the alleged date of 24^th September, 2001.

I have no reason to doubt the integrity and honesty of the learned Deputy Public Prosecutor when he claimed that the consent dated 21^st September, 2001 was sent to the Magistrate Court on 24^th September, 2001. In the same breath may I say here that it is also apparent to me that the Magistrate, who conducted the case on 4^th July, 2001, the learned Magistrate Puan Siti Zulaiha Abdullah, harbours not an iota of doubt to the claim made by the learned assigned counsel that he was "retained to do a watching brief for the families of all the three accused" when no document to that effect was ever produced in Court. In the event that such a document was produced, at least it was not recorded as such in the notes of proceeding!

It has also been explained earlier the requirement of section 120 CPC for the Investigation Papers to be forwarded to the Office of the Deputy Public Prosecutor, who would after perusing the then available evidence give instruction to the Police to frame the charge against the accused resulting on the above mentioned tentative charge. After the Chemist and Post Mortem reports are available, then the case needs a careful study. As seen in the earlier part of my ruling this cannot be taken to mean that it demonstrates that the police officer did not consult the DPP before the accused was charged for murder and that the Public Prosecutor had never obtained consent to prosecute the accused. The authorities of Haji Mohamed Paiman v Public Prosecutor (supra), PP v Chua Chor Kian [1998] 1 MLJ 167 and PP v Then Mee Kom [1983] 2 MLJ 344 are neither appropriate nor relevant to this instant case.

Given the facts as outlined above, I am of the considered view the case was legally and properly transferred to the High Court and that the prosecution was surely instituted with the consent of the Public Prosecutor.

There are two aspects of the submission of the learned assigned counsel under this heading. Firstly Article 145(3) of the Federal Constitution which conferred the Attorney General with the power to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial. It is alleged that section 177A CPC tantamounts to usurpation or curtailing the discretionary power of the Public Prosecutor and indirectly authorises remand of the accused person beyond 15 days.

After discussing at great length the mechanism and procedure adopted from the investigation stage where reports must be forwarded to the Public Prosecutor as required by s 120 CPC, up to the time when the matter is referred to the High Court, I am of the view that the powers of the Attorney General as enshrined in Article 145(3) of the Federal Constitution will not be usurped nor curtailed. The consent to prosecute under s 177A CPC lies solely with the Public Prosecutor and no one else. The 'caveat' found in s 177A (1) CPC is that prosecution can only be instituted with the consent of the Public Prosecutor. Further a person may be remanded in custody BUT the case shall not be further prosecuted until the consent has been obtained.

As discussed earlier s 177A CPC provides for the mechanism of transmission of a case to and trial by the High Court. Section 259 CPC allows for postponement or adjournment of proceedings. No Magistrate may remand an accused person to custody for a term exceeding eight days at a time.

I agree with the submission that charged read on 4.7.2001 and the charge preferred by the DPP are for one and the same offence under section 302. The main difference is the date and the time. As the accused are still the same as well the deceased mentioned in the charge and the incidents that took place are still the same, I am of the view that no injustice has been occasioned here.

The charge before this Court today is for the purpose of the commencement of the trial where the accused is required to plead and it should not be confused with the charge before the Magistrate where the accused was never called upon to plead thereto. There cannot be any confusion as the person alleged to have been murdered remained the same and no murder can happen twice.

The charge before this Court is as per the consent of the Deputy Public Prosecutor as contained in his letter dated 21^st September, 2001 after a thorough evaluation of the evidence had been done.

In view of illustration (e) of section 154 CPC where it says as follows: "A is accused of the murder of B at a given time and place. The charge need not state the manner in which A murdered B", I feel that there is no need for the prosecution to specify the killing or the object used for the killing in the charge. As such the decision in PP v LKI Holidays 1998 [1981] 1 MLJ 315 need not necessarily apply in this instant case.

I have read the submission of both the learned Deputy Public Prosecutor and the assigned counsel and I have also gone through the authorities adduced in this Court and I am satisfied that there has not been any blatant disregard of the constitutional rights of the accused. Every thing appears to have been done lawfully and legally. I am further satisfied that no injustice has been occasioned here on to the accused. In the circumstances the preliminary objection is hereby dismissed.

As today is already the third day of the Court vacation, coupled by the fact that I have a medical appointment at 2 p.m. this afternoon, this case will be now be heard from 19^th September, 2005 until 23^rd September, 2005.

In the meantime, the remand of the accused is now extended under the provision of s 259 CPC. They must be brought back to this Court on 19^th September, 2005.

Judgment delivered on 1^st June, 2005 at 10.48 a.m. in the Open Court.

Justice Datuk Sulong Matjeraie
High Court Judge

1^st June, 2005. 10.48 a.m.

For the Public Prosecutor - Mr. Clarence Foo, Deputy Public Prosecutor

For the 1^st & 2^nd accused - Mr. Yunof E Maringking

For the 3^rd accused - Datuk Chau Chin Tang