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Law is divided into substantive law and adjective law

*Substantive law
deals with rights and duties of parties

*Adjective law
law to gain access to court of law to vindicate the rights

04 PRINCIPLES OF INTERPRETATION

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*Legal procedure to prosecute / claim / defend

and study evidence to prove the case.

*A is charged with murder of B.

Penal Code determines whether the act amounts to murder; Criminal Procedure Code determines how A is to be prosecuted; and Evidence determines what evidence shall be received by the court in proving the alleged offence.

*Adjective law is lex fori (law of the forum).

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*How interpretation of statutes being made?? *Referring to Common Law of England, English

*EA 1950 is a code. In interpreting the EA, have

to look at the clear words of the Act itself. state of common law.

decision, using the illustration in the statutes, Indian decisions, Privy Council decisions, Commonwealth decisions??

*We cannot interpret by looking at previous

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*House of Lords decision in Bank of England

v Vagliano Bros [1891] AC 107, Lord Herschell said (at page 144):

*If a statute, intended to embody in a code a

*I think the proper course is in the first instance

to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.

particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in order to discover what the law was,.

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*Further been emphasized in Mohd Syedol

Ariffin v Yeoh Ooi Gark [1916] 1 MLJ 165 i.e. in interpreting the Enactment, we cannot look at the previous statement of common law to vary the express view of the code.

*Yeo Hock Cheng v Rex [1938] MLJ 104 *The appellant who killed and thrown his girlfriend, a

Chinese girl Low Koh to a river, was convicted of murder. by the deceased to her father and to her sister respectively, on different dates before her death, were admitted in evidence.

*At the trial two statements alleged to have been made

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*The statement to her father was to the

effect that she had denied sleeping at the appellants house on a specified date because the appellant had threatened to kill her if she told; and *the statement to her sister was that she was going out with the appellant and that he had told her to wear mans clothing. *The appellant appealed to the Court of Criminal Appeal.

*The general rule of English law is that hearsay is

inadmissible.

*That rule is subject to very limited exceptions, which

may be divided into two classes:

*(1)

When the hearsay is admissible as evidence of the truth of the subject matter of the hearsay.

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*(2)

When the hearsay is admissible to prove that something was said which may account for or explain something done by a person in consequence of his having heard or been told something. In this case the hearsay is admissible as part of the res gestae it is not admitted as evidence that what was heard is true.

*S.32 (1) Statements, written or verbal,

of relevant facts made by a person who is dead are themselves relevant facts in the following cases: *(a) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question.

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*The first point of difference from English law is

that this statement is admissible in England only in cases of murder and manslaughter,

*The second point of difference is that

*Whereas in EA it is admissible in any case in

which the death of the maker of the statement is in question.

in England the person who makes the statement must be in expectation of death with no hope of recovery; *While in EA he need be under no such expectation, i.e need not be under settled, hopeless expectation of death and can be admitted in both civil & criminal cases.

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*Held (on appeal), the first statement could not be

admitted under Section 32 (1) of the Evidence Ordinance in that the alleged threat contained in the statement was too remote and could not properly be treated as one of the circumstances of the transaction resulting in the accuseds death. *Held further (McElwaine, C.J., dissenting), that the second statement was admissible in evidence on the ground that the arrangement made by the appellant for the deceased to go out with him and to wear mans clothing, presumably to avoid recognition, was a circumstance of the transaction which resulted in the deceaseds death.

*Pakala Narayana Swami v King-Emperor [1939]

MLJ 59 Lord Macmillan held:this is a code and we cannot look at the previous state of law. If the code is silent or fails to be explicit then we can import English law.

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*In Jayasena [1970] 1 All ER 219, the

*Generally, burden of proof is on the

prosecution.

question before the Privy Council was whether the jury was rightly directed on the burden of proof on the issue of self-defence in a trial for murder. *This case dealt with s.105 EA of Sri Lankan Ordinance in pari materia with EA 1950. *Held: on balance of probabilities

*Under common law, when the burden shifted

to the accd, the accd have put up a defence to discharge the evidential burden by only create a doubt. *Under EA, when the burden shifted to the accd, it become a legal burden & to disprove it the accd must prove on balance of probabilities

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*These are some ways of interpreting the Act;

Common Law of England English decision using the illustration in the statutes Indian decisions Privy Council decisions Commonwealth decisions

*In LAI TIN v PP [1939] MLJ 248 MurrayAynsley, J held:-

*The degree of negligence required to support a

conviction under Section 304A of the Penal Code is not the same as, and in no way comparable to, that required to support a conviction for manslaughter under English Law. and serious degree of negligence that would be sufficient to support a conviction under the section quoted above.

*Where the facts of a case disclose a substantial

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*C. K. was convicted by the First Magistrate,

*Aitken, J. section 304A of the Penal

Kuala Lumpur, sitting as the Magistrate, Kajang, of an offence against section 304A of the Penal Code arising out of the driving of a motor vehicle and sentenced to three months rigorous imprisonment.

Code was nothing more than an attempt to codify the offence designated in English law as manslaughter by negligencethat the principles of English common law should be applied to interpret that attempt at codification and that the same high degree of negligence was necessary to support a conviction under the section as was required to support a conviction for manslaughter by negligence in England

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*The negligence must be so great as to

satisfy a jury that the offender had a wicked mind in the sense of being reckless and careless whether death occurred or not.

*Penal Code, S 225A negligently allowing a

prisoner to escape

*degree of negligence required to be

established to support conviction

*Cheow Keok @ Lai Tin?

*Appeal allowed and conviction set aside. *So in Cheow Keok, degree to prove under
304A PC = manslaughter in England.

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*
*The same high degree of negligence which must be
proved to support a conviction under Section 304A of the Penal Code must be proved to establish a conviction under any of the other sections of the Penal Code which make negligent acts a criminal offence. *i.e = follow Cheow Keok

*WOO SING AND SIM AH KOW v REGINA [1954]

MLJ 200 ; Cheow Keok not followed.

*PP v MILLS [1971] MLJ 400I Williams C.J. said:

it is to the effect that the Penal Code is not a codification of English law and it is dangerous, particularly in homicide cases, to try and introduce English case law into the consideration of the Code.
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*Anthonysamy v PP [1956] MLJ 247 a High

Court decision of Buhagiar J. on appeal from the sessions court. bound by Cheow Keok, although he, the judge, obiter, considered that Woo Sing was the proper interpretation of section 304A.

*Buhagiar J. declared that the president was

*ADNAN BIN KHAMIS v PP [1972] 1 MLJ 274

* This was a reference to the Full Bench of the Federal
Court, by the High Court at Alor Star ( [1971] 2 MLJ 231) pursuant to the provisions of section 66 of the Courts of Judicature Act, 1964.

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*The question of law to be determined was

as follows: Whether the standard of proof on the prosecution on a charge under section 304A of the Penal Code is;
(i) a high degree of negligence similar to that required to support a conviction for manslaughter by negligence in England; or (ii) the same as that in any other act carried out so rashly or negligently as to endanger human life or the safety of others where that act was the immediate cause of death and not the remote cause.

*(1)

the test to be applied for determining the guilt or innocence of an accused person charged with rash or negligent conduct is to consider whether or not a reasonable man in the same circumstances would have been aware of the likelihood of damages of injury to others resulting from such conduct and taken adequate and proper precautions to avoid causing such damage or injury;

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*(2)

the judgment delivered in Cheow Keok v Public Prosecutor [1940] MLJ 103 must be regarded as per incuriam and must therefore be overruled. Accordingly, the answer to the first question must be in the negative, which implicitly provides the answer to the second question.

*In the first place, mere carelessness or

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inadvertence, without more, is not enough, in our opinion, to establish guilt. An essential ingredient of all offences under the Penal Code is mens rea; although, in the context of culpable rashness or negligence, mens rea should not be understood as synonymous with criminal intention or wicked mind. Rather, it should be construed as connoting fault or blameworthiness of conduct. In the second place, the fault or blameworthiness must, as in all criminal cases, be proved by the prosecution beyond reasonable doubt not, as in civil cases, on balance of probabilities.

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*Bank of England v Vagliano Bros [1891]

*Illustrations are relevant in the

construction of the text.

AC 107 *Here, in this country, where we have got definite Statutes, we have to follow the same. The rules of the common law of England or the legal maxims embodying certain judicial principles, however wholesome they may be, cannot be grafted upon the Penal Code.

*Privy Council in Mohamed Syedol Ariffin

v Yeoh Ooi Gark [1916] 2 AC 575; 1 MC 165:
Illustrations appended to sections of a statute should be accepted if that can be done, as being of relevance and value in construing the text; they should only be rejected as repugnant to the section as the last resort of construction.

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*In this case the appellant had agreed to

sell a house to the respondent for $26,000. The respondent obtained an order of specific performance of the agreement and the appellant appealed. *At the appeal, counsel for the appellant submitted that there was no consideration for the offer to sell and the agreement was void as being without consideration.

*Illustration (a) to s.24 Contract Act:

* A agrees to sell his house to B for $10,000.
Here, Bs promise to pay the sum of $10,000 is the consideration for As promise to sell the house and As promise to sell the house is the consideration for Bs promise to pay the $10,000. These are lawful considerations.

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*Held: It is clear from illustration (a) to section

24 of the Contracts Act, 1950, that consideration can consist of mutual promises and the contention that there was no consideration in this case was entirely unfounded

*Saminathan & Ors v PP [1955] MLJ 121,

124.

*The issue was on Evidence Ordinance,

1950, s 3 to define what is Proved and proven Beyond reasonable doubt *In the word of Buhagiar J, The doctrine of reasonable doubt has been so constantly impressed upon juries that it has come to possess some of the characteristics of superstition.

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*This Ordinance is in the main in

*No satisfactory definition has been given of this phrase

and any explanation that has been given is very confusing when considered in relation to the definition of proved in section 3 of the Evidence Ordinance, 1950.

accordance with English law though it does in several respects materially diverge from that law. English decisions serve as valuable guides and indeed are binding authorities where the English law has been followed in the Evidence Ordinance, but such decisions upon the meaning of particular words are of little or no assistance when those words have been specially defined in the Ordinance.

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*MEELAMCHAN & ANOR v PP [1962] MLJ

*In this case the appellants were charged with

213, CA KL *Thomson CJ at 215 said; *A decision of the Supreme Court of India is, of course, not in any way binding on this Court. When, however, it relates to the interpretation of a statutory provision which is the same in India and in this country such a judgment is entitled to the very highest degree of respect.

attempted murder and both were convicted and sentenced to ten years imprisonment each. Both appellants were the subject of identification parades conducted by the police in the course of their investigations. *The trial judge rejected complainants identification of the first appellant but accepted his identification of the second appellant because of certain evidence relating to the identification parades conducted by the police.

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*In the first identification parade, the

complainant picked out the appellant Raju but he failed to pick out Maniam the first appellant and went on and picked out two innocent persons. In the second parade, neither of the two appellants was present but the complainant again picked out an innocent person. The trial judge in coming to his conclusions attached considerable weight to the evidence of what happened at the identification parades.

*Evidence of what happened at the

identification parades conducted by the police was not admissible in evidence; Ramkishan v Bombay State AIR 1955 SC 104; [1955] 1 SCR 903, followed;

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*Evidence relating to the conduct and

*what is inadmissible is not evidence of
identification parades as such but only evidence of what happens at such parades in the presence of the police. The prohibition arises from the provisions of section 113 of the Criminal Procedure Code.

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statements of witnesses at an identification parade which consists of an accused person and a number of innocent persons of similar racial type can, however, be of very great value and if conducted by prison officials or indeed any persons of responsibility other than police officers evidence of what happens at such a parade is admissible under section 157 of the Evidence Ordinance, 1950 as corroborative of the evidence of any witness called at the trial;

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*KHALID PANJANG & ORS v PUBLIC PROSECUTOR

(NO 2) [1964] MLJ 108 Thomson LP at 111

*The Privy Council were not discussing the law of

England. They were discussing a section in an Indian statute which is word for word the same as the corresponding section of a local statute. In these circumstances a decision of their Lordships is binding on this Court and a fortiori it is binding on every High Court in Malaysia and no Judge is at liberty, whatever his private opinion may be, to disregard it.

*In GHOUSE BIN HAJI KADER MUSTAN v REX[1946] MLJ 36,

McElwaine, CJ referred to East African cases of R v Amkeyo 7 East African Law Report 14 and Robin v R 12 East African Law Report 134 on this Court but they are entitled to great respect.

*He said however Those cases are of course not binding

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*LIM SENG CHUAN v PUBLIC PROSECUTOR [1977]

1 MLJ 171 referred to the case of R v Amo and Amuna [1963] Papua and New Guinea Law Reports 22.

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