CHAN KOK POH PUBLIC PROSECUTOR

CHAN KOK POH PUBLIC PROSECUTOR

The High Court upheld the Sessions Court's exercise of discretion under s.30 CJA to decline transmission; s.30 and s.84 use permissive 'may' and do not mandate referral in every case; s.18 SOACA 2017 is a specific legislative provision applicable to child victims and must be harmonised with the Evidence Act rather than read down as unconstitutional; s.18 does not absolve the prosecution of its burden to prove guilt and questions concerning corroboration under s.133A and burden of proof are jurisprudential and procedural matters properly addressed in trial; the defence failed to discharge the heavy burden to show s.18 contravenes express constitutional provisions, therefore the appeal is...

Citation
JB-42(ORS)-4-02/2021 (Mahkamah Tinggi)
Parties
Appellant: Chan Kok Poh; Respondent: Public Prosecutor
Court
ORS
Jurisdiction
Malaysia
Judgment Date
21 December 2021
Case Number
JB-42(ORS)-4-02/2021 (Mahkamah Tinggi)
Procedural Posture
Criminal Appeal With Constitutional Reference / High Court Appeal From Sessions Court Decision on Referral of Constitutional Questions; Judgment Delivered 21 December 2021
Outcome
Appeal dismissed; decisions of the Learned Sessions Court Judge upheld
Legal Topics
Reference Under S.30 Courts of Judicature Act, Uncorroborated Evidence of Child Victims (s.18 SOACA 2017), Interaction Between Specific and General Statutes, Presumption of Constitutionality, Separation of Powers, Harmonious Construction, Article 5 and 8 Federal Constitution, Jurisdiction of Subordinate Courts to Refer Constitutional Questions
Source Language
Malay/English
Criminal Law Constitutional Law Evidence Law Child Protection Law Procedural Law Reference Under S.30 Courts of Judicature Act Uncorroborated Evidence of Child Victims (s.18 SOACA 2017) Interaction Between Specific and General Statutes +5 more

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Parties

Chan Kok Poh

Appellant

Public Prosecutor

Respondent

Procedural Posture

Criminal Appeal With Constitutional Reference / High Court Appeal From Sessions Court Decision on Referral of Constitutional Questions; Judgment Delivered 21 December 2021

Legal Issues

  1. 1 Whether a subordinate court may refuse to refer a question as to the effect of a provision of the Constitution to the High Court under s.30 CJA
  2. 2 Whether the High Court must transmit constitutional questions to the Federal Court under s.84 CJA or may refuse
  3. 3 Whether referral to the Federal Court is mandatory

Ratio Decidendi

The High Court upheld the Sessions Court's exercise of discretion under s.30 CJA to decline transmission; s.30 and s.84 use permissive 'may' and do not mandate referral in every case; s.18 SOACA 2017 is a specific legislative provision applicable to child victims and must be harmonised with the Evidence Act rather than read down as unconstitutional; s.18 does not absolve the prosecution of its burden to prove guilt and questions concerning corroboration under s.133A and burden of proof are jurisprudential and procedural matters properly addressed in trial; the defence failed to discharge the heavy burden to show s.18 contravenes express constitutional provisions, therefore the appeal is...

Court Disposition

Appeal dismissed; decisions of the Learned Sessions Court Judge upheld

Orders

  • Dismiss the three appeals
  • Remit the case to the Sessions Court at Segamat for immediate continuation of trial until final conclusion