PARTIES in a criminal case in a subordinate court have the right to apply to transfer the case to the High Court. In the case of Public Prosecutor v Abdul Azeez bin Abdul Rahim and another case [2020] it was the prosecution who filed applications by way of notice of motion against the accused persons for the transfer of their cases from the Sessions Court to the High Court under section 417(1)(e) of the Criminal Procedure Code (CPC).

The accused persons were charged in January 2019. The Sessions Court judge (SCJ) had, on August 7, 2019, fixed for the trial of the case to commence on September 25, 2019, and to continue on October 11, 2019, and a number of later dates. The applications to transfer the cases were made on September 19, 2019. On the date fixed for trial, i.e. September 25, 2019, the Sessions Court gave another date for case management pending the decision on the transfer applications.

The applications came before then High Court judge Mohd Nazlan Mohd Ghazali.

The deputy public prosecutor (DPP) advanced a number of reasons to support the transfer applications, and group the same under the ground in section 417(1)(e) of the CPC that the transfers are expedient for the ends of justice.

Based on the court records, Nazlan was able to note the transfer applications were only filed by the DPP on September 19, 2019, when the SCJ had already fixed for the trial to commence on September 25, 2019. It was only on this date, being the date the trial was supposed to have commenced, that the DPP informed the SCJ the prosecution had filed applications for the transfer to the High Court.

To the High Court judge, for a transfer application to have been filed so late in the day, more so by the DPP who had all the evidence it considered sufficient to charge the respondents in the first place, it was quite baffling and difficult to countenance. A delay in the commencement of the criminal trial would ensue in such circumstances.

Nazlan said: “The reliance on the ground that the transfer would be expedient in the ends of justice is difficult to sustain in this case because it is not expedient in the ends of justice if a transfer does not promote judicial efficiency and causes delay in the commencement of trials. I emphasise that it is essential that public confidence in the integrity of the criminal justice system be maintained at all times.

“In my view, a related and crucial aspect to the expression ‘expedient for the ends of justice’ found in section 417(1)(e) of the CPC is the fundamental necessity of ensuring the integrity of the administration of criminal justice is always upheld.

“In the context of transfer of cases, an important facet is the promotion of judicial efficiency. This relates to the efficient management of the scheduling of the cases registered in the courts in general.

“It cannot be denied that unwarranted applications for transfers interfere with the efficient trial arrangements of criminal cases. Commencement of criminal trials ought not to be delayed.

“This is not to say that parties should not resort to transferring cases to the High Court. They have every right to make such applications. But it does not escape my attention that in some situations, the applications to transfers are made quite some time after the charges are filed in the Sessions Court.

“Sometimes the accused indicates he needs time to consider whether or not to make the application for transfer. Other times counsel for the accused mentioned to the Sessions Court that he reserved the right to make such an application after the supply to the defence of the entire documents under section 51A of the CPC, even though there is nothing in the transfer provisions which sanctions such a position.

“The point is all this serves only to delay the commencement of the criminal trial, and the public would be none the wiser and probably form the perception that the court system breeds inefficiencies and delays, even, or especially for ‘high profile’ cases which are the ones usually seeking transfers to the High Court.”

The judge was of the view criminal cases must commence where they were registered under the law in adherence to the remit of the criminal jurisdiction of that court. That should rightfully be the general rule.

Transfer applications under section 417 of the CPC should be the exception, to be invoked only in truly deserving cases which in any event must be in strict compliance with the letter of the law as embodied in the section.

The power to transfer cases under section 417 of the CPC is vested in the High Court as a discretionary power that must be exercised judiciously. In Public Prosecutor v Datuk Harun bin Haji Idris & Ors [1976], the High Court in the context of discussing sections 417 and 418A of the CPC stated in no uncertain terms that under section 417 of the CPC, the ultimate decision as to whether any particular criminal case should be transferred from a subordinate court to the High Court would not depend merely on the whim of the public prosecutor, but determined ultimately on the proper exercise of judicial discretion by the High Court.

To Nazlan, nor can the exercise of that power be dependent on whether the parties in litigation consented to the application, without more.

Despite the fact that the accused persons did not object to the transfer applications, the judge was not persuaded that the DPP had satisfied the court that the requirements stipulated under section 417(1)(e) of the CPC had been met.

The applications were accordingly dismissed.

There is a strong public interest in the prosecution of crimes and in ensuring those charged with serious criminal offences are tried. It is undesirable that the criminal process be interrupted or fragmented by interlocutory proceedings. – January 20, 2024.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.