AUG 11 — Once a criminal case reaches a court, it is seized with jurisdiction and power over the case including the power to transfer the case to another court, albeit not randomly.
The power to transfer a case should be exercised only if circumstance of the case renders it necessary and the law permits the court to do so.
The court is not subject to the dictates of the prosecution once it has taken cognisance of the offence committed by the accused who has been brought and charged before it. The court takes full charge and control of the criminal proceeding to ensure one, and only one, thing: that justice is served.
In the case of Public Prosecutor v Dato’ Yap Peng [1987] Federal Court Judge Mohd Azmi (as he then was) said as follows:
“[O]nce the court had taken cognisance of the offence and was seized with jurisdiction to try the case, the institution of the proceedings by the Public Prosecutor was complete.... A host of judicial powers will flow to enable the court to proceed to trial and determine the dispute between the parties in accordance with law.
“From then on, the whole conduct of the proceedings should be within the exclusive judicial power of the court until its conclusion.”
In April this year, in the case of Public Prosecutor v Edy Ko’im bin Said & Ors, High Court Judge Muniandy Kannyappan, after citing Mohd Azmi FCJ, said as follows:
“The judicial power exercised by this court shall not be trammelled or encroached upon. Such is also the state of the law of the land, and it has lately received judicial endorsement in most of the recent cases like Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another Case (2017) 5 CLJ 526, where our apex Court ... decided in absolute terms that it is not possible for Parliament to pass laws that have the effect of diluting the exercise of judicial power by the Judiciary because the Federal Constitution which is our supreme law vests that power in the Judiciary. The concept of judicial power is described as follows:
“Judicial power is the power every Sovereign State must of necessity have, to decide controversies between its subjects or between itself and its subjects, whether the rights related to life, liberty or property.”
In that case, the learned High Court judge ruled that “the power to transfer ... is a judicial power bestowed upon this court to exercise in terms of the law available, which is section 12 to the Schedule of the [Court of Judicature Act 1964].”
By such power, it behoves the court to only uphold the rule of law by applying the applicable law so that it does not give “the impression to right-thinking people that litigants can choose the judge before whom they wish to appear for their case to be adjudicated upon”. (See the judgment of Court of Appeal Judge NH Chan in Ayer Molek Rubber Co Bhd & Ors v Insas Bhd & Anor [1995])
*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
