Essence of Regulation and Punishment Quiz

Criminal Law and Procedure

• The Malaysian Criminal Procedure Code (CPC) is based on the Indian Code, with provisions adopting English law where there is a lacuna (gap) in the law.

Consent in Criminal Law

• The court ignored Sections 79 and 375 of the Penal Code and directly applied the English case of Morgan (1976) regarding consent.

Importing English Law

• Section 5 of the CPC allows for the application of English law or other foreign laws if there is a lacuna in the Malaysian law, provided it does not conflict with the Code.
• Courts are generally reluctant to import English law, but some cases accept it (e.g., SANASSI 2 MLJ 198, HARI RAM SEGHAL v PP 1 MLJ 165).

Characteristics of Criminal Law

• Criminal law is a subset of substantive law that codifies and defines criminal conduct.
• The state takes action against the offender, and prosecution is brought by a Public Prosecutor (PP).
• The law prescribes punishments for commission of criminal conducts.
• The purpose of criminal law is to punish the offender and prevent future crimes.

Difference between Criminal Law and Civil Law

• Criminal law seeks to punish the offender, while civil law seeks to compensate the injured person.
• Criminal law focuses on the state vs. the offender, whereas civil law is concerned with individual parties.

Stare Decisis

• The doctrine of stare decisis applies in Malaysia, where lower courts are bound by the decisions of higher courts.
• The High Court and Federal Court have reaffirmed the doctrine of stare decisis in various cases (e.g., MAH KAH YEW 1 MLJ 1, PP v DATUK TAN CHEN SWEE & ANOR 2 MLJ 276).

Application of English Law

• Courts may apply English law for interpretation if the provision is in pari materia (similar material).
• However, the first view is that English law cannot be applied if there is an express provision in the Penal Code (e.g., REX V. LEE SIONG KIAT 1 MLJ 53).

Bailable and Unbailable Offences

• Bailable offences are those where the accused has a right to be released on bail, as stated in Section 2 of the CPC.
• Unbailable offences are those where the accused does not have a right to be released on bail, and specific provisions in written laws do not grant bail.

Conditions for Bail

• The accused must be capable of giving bail and not under remand.
• The court may consider various factors when deciding on bail, including the nature of the offence, the accused's character and standing, and the danger of the accused absconding.

Public Prosecutor (PP)

• The PP is the state officer responsible for bringing prosecution against the offender.

Attorney General (AG)

• The AG is the principal legal advisor to the government and has the power to institute and conduct criminal proceedings.