Lower courts cannot usurp prosecutor’s powers, says High Court judge
2 hours ago
V Anbalagan
Justice Johan Lee says subordinate courts have no inherent jurisdiction to strike out criminal charges for perceived prejudice or abuse of process
A High Court judge said trial courts are ‘gatekeepers of legality, not directors of prosecution’, and once a valid charge is filed, they must hear the evidence and determine the case on its merits. (Pexels pic)
PETALING JAYA: A High Court judge has reminded lower court judicial officers that they cannot interfere with the public prosecutor’s (PP) constitutional discretion in framing criminal charges or terminate criminal proceedings because they disagree with how a charge is drafted.
Justice Johan Lee, who is based in Alor Setar, said the PP’s powers are protected under Article 145(3) of the Federal Constitution.
He said trial courts are “gatekeepers of legality, not directors of prosecution”, and once a valid charge is filed, they must hear the evidence and determine the case on its merits.
Johan made the remarks in allowing the prosecution’s criminal revision to overturn an Alor Setar sessions court decision granting three men a discharge not amounting to an acquittal (DNAA) before trial after finding a drug possession charge defective.
Azizan Saad, 51, Hosmi Ali, 43, and Rizal Mat Zain, 49, were arrested in Jerlun, Kedah, on Oct 13 last year after police allegedly seized 2.74g of heroin, 2.46g of monoacetylmorphines and 21.81g of methamphetamine.
They were initially charged with drug trafficking under Section 39B(1)(a) of the Dangerous Drugs Act 1952 (DDA).
After the chemist’s report, the charge was reduced to possession under Section 12(2) of the DDA, punishable under Section 39A(2)(d), as the combined weight of the heroin and monoacetylmorphines was found to be 5.2g.
Although the sessions court allowed the amended charge, it ruled that the two drugs should have been charged separately because their individual weights were below the 5g threshold for enhanced punishment under Section 39A(2).
It then granted all three accused the DNAA before the trial began.
Johan disagreed, holding that Section 39A(2)(d) of the Act expressly allows the total weight of heroin, morphine and monoacetylmorphines to be aggregated.
He also rejected what he described as a persistent misconception that subordinate courts have the inherent jurisdiction to strike out criminal charges for perceived prejudice or abuse of process.
He said sessions and magistrates’ courts may only exercise powers conferred by legislation, unlike the superior courts established under Article 121 of the Federal Constitution which possess inherent jurisdiction to prevent the abuse of their own process.
Describing the sessions court’s decision as a “flagrant violation” of Article 145(3) of the constitution and the doctrine of separation of powers, Johan said it had encroached on the PP’s constitutional function.
He quashed the DNAA, reinstated the charge and ordered the case to proceed to trial.
Johan also directed that the accused be jointly tried on a separate methamphetamine possession charge arising from the same police raid.
Justice Johan Lee, who is based in Alor Setar, said the PP’s powers are protected under Article 145(3) of the Federal Constitution.
He said trial courts are “gatekeepers of legality, not directors of prosecution”, and once a valid charge is filed, they must hear the evidence and determine the case on its merits.
Johan made the remarks in allowing the prosecution’s criminal revision to overturn an Alor Setar sessions court decision granting three men a discharge not amounting to an acquittal (DNAA) before trial after finding a drug possession charge defective.
Azizan Saad, 51, Hosmi Ali, 43, and Rizal Mat Zain, 49, were arrested in Jerlun, Kedah, on Oct 13 last year after police allegedly seized 2.74g of heroin, 2.46g of monoacetylmorphines and 21.81g of methamphetamine.
They were initially charged with drug trafficking under Section 39B(1)(a) of the Dangerous Drugs Act 1952 (DDA).
After the chemist’s report, the charge was reduced to possession under Section 12(2) of the DDA, punishable under Section 39A(2)(d), as the combined weight of the heroin and monoacetylmorphines was found to be 5.2g.
Although the sessions court allowed the amended charge, it ruled that the two drugs should have been charged separately because their individual weights were below the 5g threshold for enhanced punishment under Section 39A(2).
It then granted all three accused the DNAA before the trial began.
Johan disagreed, holding that Section 39A(2)(d) of the Act expressly allows the total weight of heroin, morphine and monoacetylmorphines to be aggregated.
He also rejected what he described as a persistent misconception that subordinate courts have the inherent jurisdiction to strike out criminal charges for perceived prejudice or abuse of process.
He said sessions and magistrates’ courts may only exercise powers conferred by legislation, unlike the superior courts established under Article 121 of the Federal Constitution which possess inherent jurisdiction to prevent the abuse of their own process.
Describing the sessions court’s decision as a “flagrant violation” of Article 145(3) of the constitution and the doctrine of separation of powers, Johan said it had encroached on the PP’s constitutional function.
He quashed the DNAA, reinstated the charge and ordered the case to proceed to trial.
Johan also directed that the accused be jointly tried on a separate methamphetamine possession charge arising from the same police raid.
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