Judicial Committee of the Privy Council
| DOI | 10.1177/002201837403800106 |
| Published date | 01 January 1974 |
| Date | 01 January 1974 |
| Subject Matter | Article |
Judicial Committee of the
Privy Council
TRANSFER
FROM
SUMMARY
TRIAL
TO
HIGH
COURT
Public Prosecutor v. Fan Yew Teng
Bys.138 of the Criminal Procedure Code of Malaysia, it is
provided
that
no person shall be tried before
the
High
Court
unless he has been committed for trial after apreliminary enquiry
as provided in
the
Code.
But
s.417 of the Code provides
that
in
certain circumstances ajudge of the
High
Court may order
that
any
particular
criminal case be transferred to
and
tried before
himself.
The
appeal to
the
Judicial Committee of the Privy Council
in Public Prosecutor v. Fan Yew Teng (1973, 2
W.L.R.
1053)
raised the question of the relation between these two provisions.
The
respondent was charged with an offence
under
the Sedition
Act, 1948.
This
charge was laid before the President of
the
Sessions
Court,
where the defendant would have been tried
summarily. He successfully applied to a judge of the
High
Court,
however, for
the
transfer of his trial to
the
High
Court,
on the
ground
that
some question of
law
of unusual difficulty was likely
to
arise--one
of the circumstances set
out
in s.417 (above).
He
was convicted,
but
he appealed to the Federal
Court
on
the
ground
that
his trial was a nullity.
That
Court
(by
amajority) upheld his
appeal, which was in
turn
upheld by the Judicial Committee.
The
first
ground
of appeal was
that
the generality of
the
provision in s.138 of the Code
(to
the
effect
that
no person shall
be tried in the
High
Court
unless he shall have been committed
for trial after apreliminary enquiry) was clear
and
unambiguous
and
could
not
be made subject to
any
exception arising by implica-
tion. Certainly, the section contains no reservation in respect of
the case in which ajudge of the
High
Court
may
order
the
transfer of a trial into
that
Court.
The
Board refused to accept
the
argument
that
such areservation
must
be implied, in
order
to make sense of
the
judge's power to
order
such atransfer
under
s.417.
In
its opinion,
the
words "transferred to
and
tried" in the
High
Court
mean no more
than
"transferred for
trial".
There
is no reason why a
judge
who orders such atransfer should give
instructions as to the holding of a preliminary enquiry, so
that
the
absence of provision for his doing so is
not
significant.
The
result
of this decision is, therefore,
that
where ajudge orders a case to
be
heard
in the
High
Court,
this means no more
than
an order
that
apreliminary enquiry is to be made
and
that,
if
that
results
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