CHAN KOK POH PUBLIC PROSECUTOR

CHAN KOK POH PUBLIC PROSECUTOR

Appeals dismissed. The Sessions Court did not err in declining to transmit the record for reference; the word 'may' in s.30/s.84 CJA confers discretion and referral to the Federal Court is not mandatory where referral would be unnecessary, premature, frivolous or would delay trial. Sections 18 SOACA 2017 and 133A Evidence Act 1950 can be harmoniously construed: s.18 allows conviction on uncorroborated child evidence in prosecutions under the Act but does not absolve the prosecution of its fundamental burden under general evidentiary principles; the impugned provision is not shown to be unconstitutional on the express terms of the Federal Constitution and the strong presumption of...

Citation
JB-42(ORS)-3-02/2021 (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)-3-02/2021 (Mahkamah Tinggi)
Procedural Posture
Criminal Appeal Concerning Constitutional Reference Under S.30 Courts of Judicature Act / High Court Judgment on Appeal (decision Dated 21 December 2021)
Outcome
Appeal dismissed; decisions of the Learned Sessions Court Judge upheld
Legal Topics
Reference Under Section 30 Courts of Judicature Act, Presumption of Constitutionality, Child Witness Evidence (s.18 SOACA 2017), Section 133 a Evidence Act 1950, Burden of Proof, Separation of Powers, Harmonious Construction
Source Language
Malay/English
Constitutional Law Criminal Law Evidence Law Procedural Law Administrative Law Reference Under Section 30 Courts of Judicature Act Presumption of Constitutionality Child Witness Evidence (s.18 SOACA 2017) +4 more

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Parties

Chan Kok Poh

Appellant/applicant

Public Prosecutor

Respondent

Procedural Posture

Criminal Appeal Concerning Constitutional Reference Under S.30 Courts of Judicature Act / High Court Judgment on Appeal (decision Dated 21 December 2021)

Legal Issues

  1. 1 Whether a subordinate court may refuse to refer a constitutional question to the High Court under s.30 CJA
  2. 2 Whether the High Court or Federal Court must decide constitutional questions referred under s.30 and s.84 CJA and when referral is mandatory
  3. 3 Whether s.18 Sexual Offences Against Children Act 2017 permits conviction on uncorroborated child evidence in conflict with Article 5 and 8 of the Federal Constitution

Ratio Decidendi

Appeals dismissed. The Sessions Court did not err in declining to transmit the record for reference; the word 'may' in s.30/s.84 CJA confers discretion and referral to the Federal Court is not mandatory where referral would be unnecessary, premature, frivolous or would delay trial. Sections 18 SOACA 2017 and 133A Evidence Act 1950 can be harmoniously construed: s.18 allows conviction on uncorroborated child evidence in prosecutions under the Act but does not absolve the prosecution of its fundamental burden under general evidentiary principles; the impugned provision is not shown to be unconstitutional on the express terms of the Federal Constitution and the strong presumption of...

Court Disposition

Appeal dismissed; decisions of the Learned Sessions Court Judge upheld

Orders

  • Dismissal of the three appeals
  • Remit the matters immediately to the Sessions Court for continuation and completion of trial