DR MOHD MUNZIL MUHAMAD (FOR ACADEMIC PURPOSES ONLY)

TOPIC 7: POWERS OF PUBLIC PROSECUTOR

Introduction

 The Attorney General’s Chambers is the office of the Attorney

General of Malaysia. The Attorney General (AG) is a civil servant
appointed by the Yang di-Pertuan Agong on the advice of the Prime
Minister (Article 145 of the Federal Constitution).

 According to art 145(3) of the Federal Constitution, the AG shall

have power, exercisable at his discretion, to institute, conduct
or discontinue any proceedings for an offence, other than
proceedings before a Syariah court, a native court or a court-
martial. (See SUKMA DARMAWAN SASMITAAT MADJA v
KETUA PENGARAH PENJARA, MALAYSIA & ANOR [1999] 2
MLJ 241(FC))

 Section 376(1) Criminal Procedure Code (CPC) clarifies further the

position by rendering that the AG, who shall be the Public
Prosecutor (PP), shall have control and direction of all criminal
prosecutions and proceedings under the CPC.

 In the exercise of the prosecutorial discretion, the AG/PP is assisted

by legal functionaries. For example, s 376(2) of the Criminal
Procedure Code states that the Solicitor General shall have all
powers of a Deputy Public Prosecutor and shall act as Public
Prosecutor in case of the absence or inability to act of the Attorney
General.

 In addition, the PP may appoint fit and proper persons to be Deputy

Public Prosecutors (DPPs) and Assistant Public Prosecutors (APPs)
(See s 376(3) and (3A) of CPC). Who may conduct prosecution will
be discussed further below.

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Institution of Proceedings for An Offence

 Meaning of “institute” has been explained by case law:

PUBLIC PROSECUTOR v LIM SHUI WANG & ORS [1979] 1 MLJ 65

The word "institute" means to set on foot, initiate, start, so that the
Attorney-General has power, at his discretion, to initiate a case
such as the present ones, before a Special President or a High
Court judge. We respectfully agree with Abdoolcader J. when he said at
page 119 in Public Prosecutor v Datuk Harun bin Haji Idris [1976] 2
MLJ 116 119:

"'Institute' in article 145(3) … must necessarily refer to the

commencement of proceedings and prosecutions…. It may well be
…that the Public Prosecutor has power … to direct any case triable in
the Magistrate's or Sessions Court to be tried in the High Court after a
preliminary enquiry. This power to so direct would, if exercised, fall
squarely within his discretion to institute and conduct criminal
prosecutions and proceedings."

 The wide discretion enjoys by the PP includes in the determining

which offence to be preferred against a person and which court the
person should be charged and tried.

 In LONG BIN SAMAT & ORS v PUBLIC PROSECUTOR [1974] 2

MLJ 152 (FC), the evidence disclosed during the trial indicated the
victim suffered a grievous hurt (s 326 of PC) but the accused was
charged under s 324 voluntarily causing hurt by means of an
instrument for cutting, namely a parang. The defence argued that
should the accused had been charged under s 326, it would be
beyond the jurisdiction of the Magistrate Court. In answering this
issue, the Federal Court held:

In our view, this clause from the supreme law clearly gives the
Attorney-General very wide discretion over the control and direction
of all criminal prosecutions. Not only may he institute and
conduct any proceedings for an offence, he may also
discontinue criminal proceedings that he has instituted, and
the courts cannot compel him to institute any criminal
proceedings which he does not wish to institute or to go on

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DR MOHD MUNZIL MUHAMAD (FOR ACADEMIC PURPOSES ONLY)

with any criminal proceedings which he has decided to

discontinue.
 In JOHNSON TAN HAN SENG v PUBLIC PROSECUTOR; SOON
SENG SIA HENG v PUBLIC PROSECUTOR PUBLIC
PROSECUTOR v CHEA SOON HOONG; TEH CHENG POH v
PUBLIC PROSECUTOR [1977] 2 MLJ 66 – Accused was charged
under s 57 of ISA 1960 which carry the death penalty. PP in other
occasions has charged others under s 8 of FIPA 1971 or s 8 of Arms
Act 1960 which carry punishment of imprisonment. The Federal
Court decided held:

The Attorney-General cannot name any particular magistrate,

president or judge to try an accused nor direct that a court
should convict or impose a particular sentence; but apart from
this, he has very wide discretion under the Criminal Procedure
Code and the constitution…

The language of this provision is very wide, for it includes the word
"discretion" which means liberty of deciding as one thinks fit. In view
of the deliberate decision of our constitution-makers to write this
provision into our constitution I do not think that it can be said that it
must be read subject to article 8. Rather, in my view, the contrary:
article 8 it is that must be read subject to article 145(3).

 Although, the Public Prosecutor shall have powers exercisable at

his discretion, to institute conduct or discontinue any proceeding for
an offence based on evidence that he has had upon investigation
but once the case comes to court the power of the Public
Prosecutor ceases there and immediately the court is seized with
jurisdiction to try the case in accordance with the time-honoured
rules of procedure and rules of evidence (PUBLIC PROSECUTOR
v JORGE ENRIQUE PELLON TELLON [1998] 5 MLJ 44)

 The Public Prosecutor’s discretion as to what charges should be

preferred, subject of course to the power of the court to amend
charges in the course of a trial (LONG BIN SAMAT & ORS v
PUBLIC PROSECUTOR [1974] 2 MLJ 152 (FC), PUBLIC
PROSECUTOR v JORGE ENRIQUE PELLON TELLON [1998] 4
MLJ 183 and s 158 of the CPC)
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When the Prosecution is said to be officially instituted?

 In PERUMAL v PUBLIC PROSECUTOR [1970] 2 MLJ 265 the

Federal Court decided that prosecution is instituted when the
accused is called upon to plead to the charge. (i.e., to plead
guilty or claim trial) [murder cases – accused will be brough to MC
first – charge will be read, but no plea is taken – only done when it
goes to HC]

Whether AG’s discretion to institute, conduct and discontinue

criminal proceedings under art 145(3) of the Federal Constitution
was amenable to judicial review?

 Previously, case law has indicated that the AG/PP has unfettered
discretion. The decision of the AG to institute or not to institute
criminal proceedings was not justiciable or amenable to judicial
review. (See JOHNSON TAN HAN SENG v PUBLIC
PROSECUTOR; SOON SENG SIA HENG v PUBLIC
PROSECUTOR PUBLIC PROSECUTOR v CHEA SOON HOONG;
TEH CHENG POH v PUBLIC PROSECUTOR [1977] 2 MLJ 66;
PUBLIC PROSECUTOR v ZAINUDDIN & ANOR [1986] 2 MLJ 100
(SC); PP v Lee Tin Bau [1985] 1 MLJ 388; Long bin Samat & Ors
v PP [1974] 2 MLJ 152, PP v Datuk Harun bin Haji Idris and Ors
[1976] 2 MLJ 116;Poh Cho Ching v PP [1982] 1 MLJ 86; Repco
Holdings Bhd v Public Prosecutor [1997] 3 MLJ 68;Karpal
Singh & Anor v PP [1991] 2 MLJ 5441)

 Recent cases suggest that there is a change of trend shifting from

unfettered discretion to restricted supervision. The AG/PP did not
have absolute or unfettered discretion under art 145(3) of the
Federal Constitution to institute, conduct or discontinue any
proceeding for a criminal offence. In appropriate, rare and
exceptional cases, such discretion was amenable to judicial review.
(See Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri,
Malaysia & Ors [2021] 5 MLJ 209 (FC) and Peguam Negara
Malaysia v Chin Chee Kow (as secretary of Persatuan
Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and
another appeal [2019] 3 MLJ 443 (FC))

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The Requirement of Sanction or Consent to Institute a Criminal

Proceeding

 The effect of section 376(1) CPC read together with Article 145 (3)
FC is that the sanctioning authority for criminal prosecution is the
Public Prosecutor.

 Parliament may require that the instrument sanctioning the

institution of prosecution by the Public Prosecutor is tendered to the
court before it takes cognisance of certain offences (See PUBLIC
PROSECUTOR v MANAGER, MBF BUILDING SERVICES SDN
BHD [1998] 1 MLJ 690)

 Such an instrument may take the form of sanction in writing or

consent to prosecute by the Public Prosecutor. Where there is
such a requirement under the written law before prosecution is
instituted against an accused for an offence under that law, it has to
be tendered to the court before it takes cognizance of the offence
committed by the said accused.

 The difference between Sanction and Consent were explained in

the case of ABDUL HAMID v PUBLIC PROSECUTOR [1956] 1
MLJ 231:

There is an essential difference to my mind between a sanction and

a consent. A prosecution can be sanctioned without any deep
consideration of the particular case: full consideration is
required for consent since "'Consent' is an act of reason,
accompanied with deliberation, the mind weighing, as in a
balance, the good and evil on each side" (Stroud 3rd Edition vol.
I page 582). The sanction was therefore no evidence of consent.

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Consent to Prosecute

 Some provisions of law that require consent:

(a)Section 177A of the CPC- Transmission of a criminal case to be

tried by the High Court (e.g Murder)

(b)Section 39B (3) of Dangerous Drugs Act 1952- Prosecution for

Drug trafficking offence.

(c) Section 126(1) of Child Act 2001- In respect of an offence under

the Act.

(d)Sedition Act 1948- Section 5

 Consent in practice is given in writing by the PP before the

institution of proceeding (Sometimes, the provision of a particular
statute requires this). It is normally marked as the first exhibit in
courts (Exh P1). See Manimaran a/l Amas v Public Prosecutor
and other appeals [2015] 1 MLJ 18 and PP v KHAW BAK MOH
@ KHOR HUN KIAT [2002] MLJU 99)

 Can DPPs give the consent? In PP v Mohamed Halipah [1982] 1

MLJ 155 and PP v Datuk Hj Dzullkifli [1982] 1 MLJ 340 it was
decided that the Deputy Public Prosecutor is the alter ego of the
Public Prosecutor. See also the case of Oei Hee Koi [1968] 1 MLJ
148.

 Therefore, the DPPs are empowered to provide consent unless the

law specifically stated that the discretion must be exercised by the
Public Prosecutor personally. See for example s 376(4) and 418A of
CPC. (Abdul Hamid v Public Prosecutor [1956] 1 MLJ 231;
Johnson Tan Han Seng v Public Prosecutor & associated
appeals [1977] 2 MLJ 66; PP v Mohd Noor bin Jaafar [2005] 6

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MLJ 745; Public Prosecutor v Dato’ Seri Anwar bin Ibrahim

[2014] 1 MLJ 633; Dato’ Sreesanthan a/l Eliathamby v Public
Prosecutor [2020] 8 MLJ 624)

 The presence of DPP who conducts the prosecution also indicates

implied consent and there is no need for a formal consent (PUBLIC
PROSECUTOR v OIE HEE KOI & ASSOCIATED APPEALS
[1968] 1 MLJ 148; PP v Mohamed Halipah [1982] 1 MLJ 155).
The only exception to this is if the law specifies that consent must
be in writing (GOH KEAT PENG v PUBLIC PROSECUTOR [2001]
3 MLJ 172)

 A fresh consent is not needed if the original charge has been

amended unless the amended charge causes to the accused to be
charged with a different offence. (Compare PP v Datuk Hj
Dzullkifli [1982] 1 MLJ 340 and Public Prosecutor v Lee Chwee
Kiok [1979] 1 MLJ 4)

 What is the effect if there is a want of consent? If the DPP is

prosecuting, you may argue on alter ego and implied consent.

 But what if a case is prosecuted by a Prosecution Officer (e.g.,

Police Officer as mentioned under s 377 of CPC)? A want of
consent would not be curable under s 422 of the CPC which deals
with Irregularities not to vitiate proceedings (See LYN HONG YAP v
P UBLIC PROSECUTOR [1956] 1 MLJ 226 and ANG THEAM
CHOOM v PUBLIC PROSECUTOR [2002] 4 MLJ 401). As a result,
a trial will be null and void.

Sanction to Prosecute

 Some provisions of law which require sanction include:

(a)Section 129 of CPC- Previous sanction in writing by Public

Prosecutor for certain offences under the Penal Code

(b)Section 58(2) of the Immigration Act 1959/63 (Revised - 1975)-

sanction in writing of the Public Prosecutor.

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(c) Section 34(1) of the Poisons Act 1952 (Revised - 1989)- sanction
in writing of the Public Prosecutor.

 The sanction if required under the law must be produced in courts.

Without it, a court cannot take cognizance of the offence under the
and does not have the jurisdiction to hear the case (see Ng Chuan
& Anor v Rex [1948] MLJ 185; Re Abu Kassim [1964] MLJ 12;
Haji Mohamed Paiman v PP [1966] 1 MLJ 58; PUBLIC
PROSECUTOR v LEW KOY [2001] 4 MLJ 655)

 The doctrine of alter ego could not be invoked in a case that

requires sanction because the law usually requires that the sanction
must be in writing (See DATUK MAHINDAR SINGH v. PUBLIC
PROSECUTOR [1987] 2 CLJ 39)

 A new sanction is not needed if an amended charge is an offence

which also requires sanction relates to the same offence (CHIEW
POH KIONG v PUBLIC PROSECUTOR [2001] 4 MLJ 280)

 What if there is a want of sanction? Is it curable by s 422 of CPC?

Section 422(b) of CPC states that a want of sanction will not vitiate
a proceeding unless it has occasioned a failure of justice. However,
there are two different views regarding this issue. The views are
different due to circumstances of each case.

 In DATUK MAHINDAR SINGH v. PUBLIC PROSECUTOR [1987]

2 CLJ 39 the Court followed Hassan bin Isahak v PP [1948-49]
MLJ Supp 179 and Pitchaykutty v PP [1961] MLJ 293 which held
that the absence of sanction renders the proceedings null and void.
It is important to note that objection on the want of sanction in Datuk
Mahindar’s case was done during the preliminary stage of the
proceeding. Furthermore, s 422 of CPC was not
discussed/considered in Hassan’s case.

 In DP VIJANDRAN v PUBLIC PROSECUTOR [1999] 1 MLJ 385

(CA) the argument on the want of sanction only raised by the
defence at the end of trial during submission. This showed that the
appellant was not deprived in preparing his case including cross-

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examining prosecution witnesses or calling his own witnesses.

Therefore, there is no failure of justice. Thus, it is curable under s
422 of CPC (See also Joginder Singh v PP [1984] 2 MLJ 133;
MADJAI BIN SANUSI v PENGARAH IMIGRESEN, JOHOR &
ORS [2000] 5 MLJ 116)
 If the trial is declared null and void due to want of sanction, should
the accused be acquitted? NO. Rereferring to DATUK MAHINDAR
SINGH v. PUBLIC PROSECUTOR [1987] 2 CLJ 39, the
Prosecution may proceed afresh with the charges after due regard
being paid to the requirements specified in s. 129(i)(b) of the
Criminal Procedure Code.

Conduct of Criminal Proceedings

 The conduct of a prosecution relates to the prosecutor who appears

in court to prosecute.

 The power to conduct includes the power to decide whether or not

to call a particular witness or to produce a particular document or
whether or not to introduce an accused person’s confession as
evidence in court. This power is very wide as it goes into the core of
the role of a prosecutor to prosecute an accused who has
committed an offence under the law. The law relied upon will include
inter alia the Penal Code, CPC, Evidence Act etc.

PP v Datuk Harun bin Haji Idris and Ors [1976] 2 MLJ 116

Pursuing its signification, 'to conduct' means 'to lead, guide, manage'
(In re Bhupalli Malliah AIR 1959 And Pra 477;Pride of Derby v British
Celanese Ltd [1953] 1 Ch 149 167 at p. 167 per Lord Evershed, M.R.). It
conveys the idea of leading and guiding, that is to say, the person who
conducts the prosecution determines all important questions of policy
involved in the course of the trial and the attitude to be adopted by the
prosecution towards material objections raised or demands made by the
accused with respect to the evidence.

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 Section 377 of the CPC provides the persons who may conduct
the Prosecution. Section 377(a) states that every criminal
prosecution in any court shall be conducted by the PP, Senior
Deputy Public Prosecutor, Deputy Public Prosecutor, Assistant
Public Prosecutor. (Normally gazetted-REPCO HOLDINGS BHD v
PUBLIC PROSECUTOR [1997] 3 MLJ 681). (See also Dato’ Sri
Mohd Najib bin Hj Abdul Razak v Public Prosecutor [2019] 5
MLJ 623; Datin Seri Rosmah bt Mansor v Public Prosecutor
and another appeal [2022] MLJU 379 (CA))

 Section 377(b) explains six categories of persons who may be

authorised in writing by the Public Prosecutor to conduct the
prosecution. They are:

(1) an advocate;
(2) a police officer not below the rank of Inspector;
(3) an officer of any Government department;
(4) an officer of any local authority;
(5) an officer of any statutory authority or body; or
(6) any person employed or retained by any local authority or any
statutory authority or body:

 An authorized prosecuting officer from any government department,

a local authority, municipal council, income tax department, customs
department, immigration department or Ministry may prosecute if he
has been authorized in writing by the Public Prosecutor. (See
PUBLIC PROSECUTOR v MOHD NOOR BIN JAAFAR [2005] 6
MLJ 745)

 Every person who prosecutes under order of the PP are to be

considered his alter ego. This is so because section 377(b) of the
CPC stipulates that the person authorized in writing by him to
prosecute are under his control and direction.

 When someone is appointed under s 377(b) of the CPC, it is not

necessary to tender or file the written authority in courts but is only
required to show to the court if ever there is any challenge that the

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prosecuting officer who is having conduct of the prosecution did not

have the authority in writing of the Public Prosecutor to appear in
court and conduct the proceedings (PUBLIC PROSECUTOR v
LEW KOY [2001] 4 MLJ 655).

 However, if there is no written authority to prosecute at all, such

omission is an illegality which is not curable under s 422 of the CPC
(Public Prosecutor v KM Basheer Ahmad [1982] 2 MLJ 78).

 However, no person shall appear on behalf of the Public Prosecutor

on any criminal appeal other than the Public Prosecutor, Senior
Deputy Public Prosecutor or a Deputy Public Prosecutor (section
378 of CPC). One exception to this rule can be found in s 379 CPC.

 Section 379 of CPC deals with employment of advocate to conduct

any criminal prosecution or inquiry, or to appear on any criminal
appeal or point of law reserved on behalf of the Public Prosecutor
(See Dato’ Seri Anwar bin Ibrahim v Public Prosecutor [2014] 1
MLJ 317)

 Section 380 of CPC deals with prosecution by private persons for

an offence against his own person or property in a non-seizable
offence in Magistrate court. The private person or his advocate may
appear to conduct the prosecution (See ss 128 and 133 of CPC on
Taking Cognisance and Complaint to Magistrate).

 Section 380A of CPC states that ss 377 and 380 shall prevail
notwithstanding any inconsistency with any other written law.

Power to Discontinue Criminal Proceedings

 This power which is stipulated in s 145 is similar to the power to stay

proceedings in English courts known as “nolle prosequi” (Poh Chi
Ching v Public Prosecutor [1982] 1 MLJ 86)

 The exercise of this power can be divided into two forms:

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(1)Outright or total withdrawal of the charge against the accused

(2)Public Prosecutor may decline to prosecute further at any stage

before the delivery of judgment.

 When a charge is withdrawn and the accused discharged, the

discharge should amount to an acquittal unless good cause is
otherwise shown (PUBLIC PROSECUTOR v MAT ZAIN [1948-
1949] supp MLJ 142; TAN AH CHAN v REGINA [1955] 1 MLJ
218)

 Section 254 of CPC provides that Public Prosecutor or Prosecuting

officer may inform the court that he or she will not further prosecute
the accused. However, there are differences between subsection
(1) and (2) of s 254.

 First, Section 254(1) provides that it is the Public Prosecutor who

may inform the Court whereas, s 254(2) refers to prosecuting
officer.

 Secondly, in s 254(1) once the Public Prosecutor informs the Court,

it shall stay the proceeding and discharge the accused. It shows
there is no discretion of the Court. Section 254(2) stated “may be
stayed by leave of the Court and, if so stayed, the accused
shall be discharged”. This seems to imply that where it is only the
prosecuting officer that informs the Court, there is no automatic stay
of proceeding.

 The next issue is when the accused is discharged, what is the

nature of the discharge? Section 254(3) of the CPC states that
“Such discharge shall not amount to an acquittal unless the
Court so directs.” This plain and literal reading of s 254(3) of the
CPC means that any discharge granted by the court under s 254, is
a discharge not amounting to an acquittal (DNAA). But for a
discharge amounting to an acquittal (DAA), it must be specifically
directed by the court (Vigny Alfred Raj a/l Vicetor Amratha Raja v
Public Prosecutor [2022] 5 MLJ 639 (FC))

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 A court is vested with the discretionary power to direct an acquittal

of an accused person pursuant to s 254(3) of the CPC and that
such discretion is to be exercise judiciously (Public Prosecutor v
Ambika a/p MA Shanmugam [2021] 2 MLJ 723; Mohamed bin
Kanathi Meerah Mydin v Public Prosecutor [2019] 2 MLJ 194;
Goh Cheng Chuan v Public Prosecutor [1990] 3 MLJ 401; Koh
Teck Chai v Public Prosecutor [1968] 1 MLJ 166; Seet Ah Ann v
Public Prosecutor [1950] 1 MLJ 293b; Goh Oon Keow & Anor v
Rex [1949] 1 MLJ 35; and Tan Ah Chan v Regina [1955] 1 MLJ
218).

 An order of DAA under s 254(3) of the CPC should only be given if

the PP does not desire to pursue the matter further (PP v Au Seh
Chun [1998] 6 MLJ 179; PP v Syed Abdul Bahari Shahabuddin
[1976] 1 MLJ 87; Koh Teck Chai v Public Prosecutor [1968] 1
MLJ 166; Kuppusamy v PP [1948] MLJ 25)

 The rationale behind this is that it would not be right to leave an

individual for an indefinite period with a charge hanging over him or
her (Koh Teck Chai v Public Prosecutor [1968] 1 MLJ 166; K
Abdul Rasheed v PP; Ah Chak Arnold v PP [1985] 1 MLJ 193;
Public Prosecutor v. Suppiah Pather (Penang Criminal
Revision No. 14 of 1951 unreported))

Section 254A of CPC

 This new provision was inserted in 2010.

 If the accused is discharged (DNAA) and recharged for the same

offence, the case is to continue from where it stopped. But this
section only applicable when witnesses have been called to give
evidence at the trial before the order for a discharge. (Tan Chow
Cheang v Public Prosecutor [2018] 5 MLJ 411 (CA))

Section 171 of CPC

 This is another provision which allows the Prosecution to exercise
its nolle prosequi power.

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 It is applicable when the accused is charged for multiple charges

and the Prosecution has secured the conviction for one or more
charges, the Prosecution may with the consent of the court
withdraw the remaining charges which have yet to be concluded.

 Such withdrawal shall have the effect of acquittal unless the

conviction is set aside, in which case the said Court (subject to the
order of the Court setting aside the conviction) may proceed with
the inquiry into or trial of the charge or charges so withdrawn or not
proceeded with (See Public Prosecutor v Syed Feisal Bin Yahya
[2007] 8 MLJ 294

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