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2024 MarsdenLR 1169
HIGH COURT MALAYA KUALA LUMPUR
MAYA AHMAD FUAD – Appellant
Versus
PP – Respondent
[Criminal Appeal No: WA-41(ORS)-4-11-2022]
A Magistrate retains jurisdiction despite transfer, and proceedings remain valid unless a clear legal objection is established.
Headnote:(A) Penal Code – Section 181 – Criminal Procedure Code – Section 261 – Appeal against dismissal of application to nullify criminal proceedings – Appellant contended that the learned Magistrate ceased jurisdiction upon transfer – Court found that the learned Magistrate retained jurisdiction and the proceedings were valid – Appeal dismissed. (Paras 14, 29, 53)
(B) Jurisdiction – Change of Magistrate – The court held that a Magistrate does not cease to exercise jurisdiction merely due to transfer, provided he is still gazetted as a Magistrate – The proceedings conducted by the learned Magistrate were valid and not a mistrial. (Paras 14, 32, 34)
Facts of the case: The appellant was charged with making a false statement on oath. The trial was ongoing when the learned Magistrate was transferred. The appellant argued that this transfer invalidated the proceedings. (Paras 2, 12)
Findings of Court: The court found that the learned Magistrate retained jurisdiction despite the transfer and that the trial was valid. (Paras 14, 32)
Issues: Whether the learned Magistrate ceased jurisdiction upon transfer and whether the proceedings were valid. (Paras 12, 29)
Ratio Decidendi: The court ruled that a Magistrate does not lose jurisdiction due to transfer, and the proceedings conducted were valid under Section 261 of the CPC. (Paras 14, 32)
Result: Appeal dismissed.
JUDGMENT
[1] This is an appeal against the decision of the learned Magistrate dismissing the appellant's application to nullify the entire criminal proceeding against her and to be discharged and acquitted.
Background Facts
[2] On 30 January 2019, the appellant was charged with the offence of making a false statement on oath under s 181 of the Penal Code before the Magistrates Court (Case No: WA-83-715-01/2019). The appellant pleaded not guilty and claimed trial. The appellant was represented by the law firm The Law Office of Parmjit Singh throughout the trial at the prosecution stage.
[3] The trial began on 18 November 2019 before the learned Magistrate, Tuan Saravanan a/l Meyappan (hereinafter referred to as "M1").
[4] On 30 November 2020, during cross-examination of prosecution's witness PW7, the defence applied for PW7 to be impeached and that cross examination of the same to be continued only after a ruling is made by the learned M1 relating to the impeachment application/proceeding. Learned Counsel for the appellant further seeks to reserve his right to cross-examine another prosecution's witness, PW5 until the same ruling is made. The learned M1 then directed learned Counsel for the appellant to file a formal application.
[5] Thereafter, the learned M1 was transferred to the Ministry of Entrepreneur and Cooperatives Development ("MECD") effective 4 January 2021. At this point in time, six (6) prosecution witnesses had testified, whilst cross-examination of two prosecution witnesses PW7 and PW5, was still pending. In addition, 35 exhibits have been produced before the Court.
[6]Vide letter dated 14 January 2021, Counsel for the complainant then wrote to the Chief Registrar seeking for the learned M1 to continue hearing the case and the letter was copied to the appellant's solicitor and the prosecution.
[7] Learned M1 returned to continue hearing the impeachment application on 12 April 2021. On 22 September 2021 learned M1 further heard the application for the statement of PW7 under s 112 Criminal Procedure Code (" CPC "). Both applications were rejected by the learned M1 and he had instructed for cross-examination of PW5 and PW7 to be continued. On 10 November 2021, examinations of both PW5 and PW7 were completed and the case for the prosecution was closed.
[8] On 21 January 2022, the appellant was ordered to enter her defence.
[9] On 18 April 2022, Messrs Jagjit Singh & Co wrote to the Court informing that they have taken over the conduct of the appellant's case from The Law Office of Parmjit Singh.
[10] On 9 June 2022, Messrs Jagjit Singh & Co wrote to the Registrar of the Subordinate Courts Malaya, Tuan Azhaniz Teh asking for confirmation regarding whether the learned M1 still has the power as a Magistrate and is still gazetted as the same.
[11] On 13 June 2022, Tuan Azhaniz Teh replied and informed Messrs.Jagjit Singh that the trial will proceed before a new Magistrate (hereinafter referred to as "M2") who will be taking over the learned M1.
[12] Before the learned M2, learned Counsel for the appellant then applied for the trial to be postponed on the ground that an application would be filed for the appellant to be acquitted and discharged on the ground inter alia that the learned M1 has ceased jurisdiction when he continued to hear the case after his transfer as Federal Counsel at the MECD. A formal application was filed on 12 July 2022.
[13] On 28 December 2022, the learned M2 set aside the application hence, the appeal was filed herein.
Findings Of The Learned M2
[14] The pertinent parts of the learned M2's findings are reproduced:
"28. Di dalam kes ini, Tuan Majistret terdahulu telah ditukarkan ke KUSKOP sebagai Peguam Persekutuan. Mahkamah ini telah menggunakan kes-kes di atas sebagai panduan dan dengan mengaplikasikan kes tersebut di dalam situasi kes ini, Mahkamah berpendapat bahawa tiada halangan untuk Tuan Majistret terdahulu sambung mendengar kes rayuan Perayu selepas bertukar sebagai Peguam Perseku
