ONCE a criminal case reaches a court, that court is vested with jurisdiction and authority over the case, including the power to transfer it to another court, though not arbitrarily. The power to transfer a case should be exercised only when the circumstances necessitate it and the law permits the court to do so.

The court is not beholden to the prosecution once it has taken cognisance of the offence committed by the accused who has been brought and charged before it. The court assumes full responsibility for the criminal proceedings to ensure 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) stated:

“[O]nce the court had taken cognisance of the offence and was vested 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, remarked:

“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 relate 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 exercising such power, the court is obliged to uphold the rule of law by applying the relevant law, thereby ensuring that it does not create “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]). – August 11, 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.