CHAN KOK POH PUBLIC PROSECUTOR

CHAN KOK POH PUBLIC PROSECUTOR

The High Court has discretion under s.30 and s.84 Courts of Judicature Act to decline transmission of constitutional questions; s.18 Sexual Offences Against Children Act 2017 is a specific provision applicable to child victims and does not, on proper harmonious construction, render the Evidence Act or constitutional protections inapplicable or relieve the prosecution of its burden; absent clear constitutional violation the presumption of constitutionality applies and s.18 is not struck down. The appeals are dismissed and the trial is remitted to the Sessions Court.

Citation
JB-42(ORS)-2-02/2021 (Mahkamah Tinggi)
Parties
Appellant/applicant: Chan Kok Poh; Respondent: Public Prosecutor
Court
ORS
Jurisdiction
Malaysia
Judgment Date
21 December 2021
Case Number
JB-42(ORS)-2-02/2021 (Mahkamah Tinggi)
Procedural Posture
Criminal Appeal and Constitutional Reference / High Court Appeal From Sessions Court Refusal to Refer Constitutional Questions Under S.30 Courts of Judicature Act
Outcome
Appeal dismissed; decision of Sessions Court judge upheld; case remitted to Sessions Court for continuation and conclusion of trial
Legal Topics
Reference Under S.30 Courts of Judicature Act, Uncorroborated Child Evidence (s.18 Sexual Offences Against Children Act 2017), Interaction With S.133 a Evidence Act 1950, Presumption of Constitutionality, Separation of Powers, Harmonious Construction, Reasonable Classification (article 8)
Source Language
Malay/English
Criminal Law Constitutional Law Evidence Law Child Protection Law Procedural Law Reference Under S.30 Courts of Judicature Act Uncorroborated Child Evidence (s.18 Sexual Offences Against Children Act 2017) Interaction With S.133 a Evidence Act 1950 +4 more

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Parties

Chan Kok Poh

Appellant/applicant

Public Prosecutor

Respondent

Procedural Posture

Criminal Appeal and Constitutional Reference / High Court Appeal From Sessions Court Refusal to Refer Constitutional Questions Under S.30 Courts of Judicature Act

Legal Issues

  1. 1 Whether a subordinate court may decline to refer a constitutional question under s.30 CJA
  2. 2 Whether the High Court must transmit constitutional questions to the Federal Court
  3. 3 Whether referral to the Federal Court is mandatory in all cases

Ratio Decidendi

The High Court has discretion under s.30 and s.84 Courts of Judicature Act to decline transmission of constitutional questions; s.18 Sexual Offences Against Children Act 2017 is a specific provision applicable to child victims and does not, on proper harmonious construction, render the Evidence Act or constitutional protections inapplicable or relieve the prosecution of its burden; absent clear constitutional violation the presumption of constitutionality applies and s.18 is not struck down. The appeals are dismissed and the trial is remitted to the Sessions Court.

Court Disposition

Appeal dismissed; decision of Sessions Court judge upheld; case remitted to Sessions Court for continuation and conclusion of trial

Orders

  • Dismiss the three appeals
  • Uphold the decision of the Learned Sessions Court Judge dated 25 January 2021