CONTOH MOOTING OLEH PELAJAR TAHUN AKHIR DI UUM

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CREDIT TO :
ASMAH BINTI CHE WAN
NURHAFFIZAH BINTI AHMAD
*FINAL YEAR STUDENT OF UUM*
MOOT PROBLEM, SEMESTER II SESSION 2016/2017
[QUESTION ONE]: [CRIMINAL CASE]
COURT OF APPEAL
Kader
V
Public Prosecutor
The appellant in this case was charged with the offence of rape of a 15 year old girl.
On the date of the trial, the appellant who was unrepresented, applied for legal aid.
The trial was then postponed to another date, on which date the appellant sought
another adjournment as the counsel assigned to him was not present in court. The
adjournment was refused and the Sessions Court proceeded with the trial without
the accused having the benefit of legal representation. The principal witness for the
prosecution was the appellant's 15 year old daughter (PW2) whose evidence-in-chief
formed the subject matter of the charge. PW2 in the course of her testimony, also
said that there had been previous incidents of sexual abuse, dating back to 2013. At
the conclusion of the prosecution's case, and as a consequence of PW2's evidence,
the charge against the appellant was amended as to the time of the alleged incident,
and three additional charges of rape were framed against the appellant. From the
record, the charges were read out to the appellant, but there was nothing to show
that the same were explained to him.
Upon being called to enter his defence to the charges, the appellant chose to make
an unsworn statement from the dock, which statement was summarily rejected by

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the court as being a bare denial. The Sessions Court convicted the appellant on all
four charges and imposed a sentence of 18 years' imprisonment and 2 strokes of the
rattan on each charge. The High Court, upon appeal by the appellant, endorsed the
Sessions Court's findings and held that there had been no procedural errors by the
trial court.
In this appeal the appellant argued, inter alia, that the trial before the Sessions Court
was a nullity in that he had been tried for more than three offences of the same kind
allegedly committed within the space of more than twelve months and therefore his
conviction ought to be quashed.
Issues
1. Whether the four charges against the appellant were regularly tried.
2. Whether the Sessions Court had failed to act in accordance with s 257(1) of the
Criminal Procedure Code (CPC) thereby seriously prejudicing the appellant.
3. Whether the Sessions Court had misdirected itself by acting on similar fact
evidence to add three further charges against the appellant.
4. Whether the Sessions Court had erred in refusing the appellant's request for an
adjournment for the purpose of enabling him to obtain legal representation.

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SKELETON OF ARGUMENT
Kader bin Ali v PP
Issue 1: Whether the four charges against the appellant was irregularly tried.
Argument in issue:
1. The charges against the appellant has violated Section 164(1) of Criminal Procedure Code (CPC).
a) Section 164(1) of Criminal Procedure Code
b) Subramania Iyer v King Emperor LR 28 IA 257
c) Bunga Jalong v. Public Prosecutor [2015] 5 CLJ
d) Azahan Bin Mohd Aminallah v Public Prosecutor [2005] 5 MLJ 334
2. The trial court has violated Section 158(2) of the CPC
a) Singah Mohamed Hussin v Public Prosecutor [1973] 2 MLJ 109
Issue 2: Whether the Sessions Court had failed to act accordance with Section 257(1) of
CPC thereby seriously prejudicing the appellant.
Argument:
1. The Session Court judge had failed to explain the principal points of prosecution case
against him.
b) Azahan Bin Mohd Aminallah v Public Prosecutor [2005] 5 MLJ 334
c) Awaluddin bin Suratman & Ors v Public Prosecutor [1992] 1 MLJ 416
2. Whether unsworn statement from the dock is an evidence.
a) Azahan Bin Mohd Aminallah v Public Prosecutor [2005] 5 MLJ 334
b) Mohd Nazri Bin Omar & Ors. v. PP [2014] 5. MLJ 644

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Issue 3: Whether the session court had misdirected himself by acting on similar fact
evidence to add three further charges against the appellant.
Argument in issue:
1. The amendment of charges was made at the close of prosecution case without leave of
court and prejudice to the appellant. Amendment of charges should be made by referring to
provisions and precious cases as cited below:
b) Heng You Nang v PP [1949] MLJ 285
c) PP v Azman bin Ismail and another trial [2007] 3 AMR 617
2. Similar fact evidence ought not to be admitted.
a) Section 14 of Evidence Act 1950
b) Section 15 of Evidence Act 1950
c) Makin v Attorney General for New South Wales [1894] AC 57 (PC)
d) Azahan Mohd Aminallah v PP [2005] 1 CLJ 374
3. Accused was charged with four offences of the same fact and it was in violation of Section
164(1) of CPC which renders the trial a nullity.
b) Azahan Mohd Aminallah v PP [2005] 1 CLJ 374
Issue 4: Whether the Sessions Court Judge had erred in refusing the appellant request
for adjourment for the purpose of enabling him to obtain legal representation.
Argument in issue:
1. The Sessions Court Judge refusal to appellant request for adjournment was unfair and
prejudicial to the accused.
b) Tan Foo Su v PP [1967] 2 MLJ 19
Prepared by:
Louis & Partners
(The Appellant)

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IN THE COURT OF APPEAL OF MALAYA AT PUTRAJAYA
[APPELLATE JURISDICTION]
CRIMINAL APPEAL NO:R-09-13-2017
BETWEEN
KADER BIN ALI ...APPELLANT
(NCRIC NO: 651008-02-5023)
AND
PUBLIC PROSECUTOR … RESPONDENT
….……………………………………………………………………………………….
WRITTEN SUBMISSION
(APPELLANT)
….……………………………………………………………………………………….
LOUIS & PARTNERS
Aras 2, Wisma Mutiara
Jalan Bistari Jaya 1,
05400 Alor Setar,
Kedah Darul Aman.
Our Reference : LNP/5/2017CA/KADER-01

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TABLE OF CONTENTS
Index
Brief Facts
Summary of Pleadings
ISSUE I: THE FOUR CHARGES AGAINST THE APPELLANT WAS
IRREGULARLY TRIED
A. The charges against the appellant has violated Section 164(1)
of Criminal Procedure Code (CPC)
B. The trial court had violated section 158(1) of the CPC
ISSUE II: THE SESSION COURT HAD FAILED TO ACT
ACCORDANCE WITH SECTION 257(1) OF TH CPC
A. The Session Court judge had failed to explain the principal points
of prosecution case against him.
B. Unsworn statement from the dock is an evidence.
ISSUE III: WHETHER THE SESSION COURT HAD MISDIRECTED ITSELF BY
ACTING ON SIMILAR FACT EVIDENCE TO ADD THREE FURTHER
CHARGES AGAINST THE APPELLANT.
A. The amendment of charges was made without leave of court
B. Similar fact evidence ought not to be admitted
C. Accused was charged with four offences of the same fact and it was in
violation of Section 164(1) of CPC
ISSUE IV: WHETHER THE SESSIONS COURT HAD ERRED IN REFUSING
THE APPELLANT’S REQUEST FOR AN ADJOURNMENT FOR THE
PURPOSE OF ENABLING HIM TO OBTAIN LEGAL REPRESENTATION.
A. The Sessions Court Judge refusal to appellant request for adjournment was unfair
and prejudicial to the accused.
Prayers for relief

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LIST OF AUTHORITIES
STATUTE
Criminal Procedure Code [Act 593]
Evidence Act 1950 [Act 56]
CASES
Awaluddin bin Suratman & Ors v Public Prosecutor [1992] 1 MLJ 416
Azahan Bin Mohd Aminallah v Public Prosecutor [2005] 5 MLJ 334
Bunga Jalong v. Public Prosecutor [2015] 5 CLJ
Heng You Nang v PP [1949] MLJ 285
Makin v Attorney General for New South Wales [1894] AC 57 (PC)
Mohd Nazri Bin Omar & Ors. v. PP [2014] 5. MLJ 644
PP v Azman bin Ismail and another trial [2007] 3 AMR 617
Singah Mohamed Hussin v Public Prosecutor [1973] 2 MLJ 109
Subramania Iyer v King Emperor LR 28 IA 257
Tan Foo Su v PP [1967] 2 MLJ 19

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BRIEF FACT
Appellant was charged with the offence of rape of a 15 year old girl. On the date of the trial,
the appellant who was unrepresented, applied for legal aid. The trial was then adjourned to
another date, on which date the appellant sought another adjournment as the counsel assigned
to him was not present in court. The adjournment was refused and the Sessions Court
proceeded with the trial. The principal witness for the prosecution was the appellant's 15 year
old daughter (PW2) whose evidence-in-chief formed the subject matter of the charge. PW2 in
the course of her testimony, also said that there had been previous incidents of sexual abuse,
dating back to 2013. At the conclusion of the prosecution's case, the charge against the
appellant was amended and three additional charges of rape were framed against the
appellant. From the record, the charges were read out to the appellant, but there was nothing
to show that the same were explained to him. Upon being called to enter his defence, the
appellant chose to make an unsworn statement from the dock, which statement was
summarily rejected by the court as being a bare denial. The Sessions Court convicted the
appellant on all four charges and imposed a sentence of 18 years' imprisonment and 2 strokes
of the rattan on each charge. The High Court, upon appeal by the appellant, endorsed the
Sessions Court's findings and held that there had been no procedural errors by the trial court.

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PLEADINGS
I. THE FOUR CHARGES AGAINST THE APPELLANT WAS
IRREGULARLY TRIED
A. The charges against the appellant have violated Section 164(1) of Criminal
Procedure Code (CPC).
1. Section 164(1) of the Criminal Procedure Code (CPC) stated that when a person is
accused of more offences than one of the same kind committed within the space of
twelve months from the first to the last of such offences, whether in respect of the same
person or not, he may be charged with and tried at one trial for any number of them not
exceeding three.
2. This section permits the joinder in single trial of three charges for three
offences of the same kind committed by a person within one year
3. In Subramania Iyer v King Emperor LR 28 IA 257, the appellant was charged with
41 acts extending over a period of two years. The Privy Council quashed the convictions
and held that a breach of s 234(1) of the Indian Criminal Procedure Code 1898, (which is
ipsissima verba ours 164(1)) is an illegality and not curable under s 537 (ours 422). Lord
Halsbury LC said:
4. “Their Lordships are unable to regard the disobedience to an express provision as
to a mode of trial as a mere irregularity. Such a phrase as irregularity is not
appropriate to the illegality of trying an accused person for many different
offences at the same time, and those offences being spread over a longer period
than by law could have been joined together in one indictment. The illustration of the
section itself sufficiently shows what was meant.”
5. In Bunga Jalong v. Public Prosecutor1 the court held that:
“Although the alleged incidents involved the same accused, same victim, same
offence and same place, they were committed in different months and constituted
separate offences of rape. The argument that time and expense would be saved by a
joint trial of the charges could find no merit in the light of the specific provisions of s.
164 that only three offences of the same kind committed within the space of twelve
months could be charged and tried together.”
6. In Azahan Bin Mohd Aminallah v Public Prosecutor2, where the appellant was
charged with committing four separate acts of rape over a period of five years
1 [2015] 5 CLJ
2 [2005] 5 MLJ 334

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which constituted a violation of section 164(1) of the CPC. The court held that the
trial was a nullity and had to be quashed. It reads:
“we are constrained to hold that the appellant was a nullity and must be quashed.”
7. In this instant case the appellant was tried for more than three offences of the same kind
allegedly committed within the period more of twelve (12) months. The appellant was
charged with committing four (4) separates act of rape over a period two year. Therefore,
there has been violation section 164(1) of CPC. As a consequent of this breach, the trial
should be considered as nullity because it is illegal and cannot be cured under section
422 of CPC. We also think a re-trial should be done.
B. The trial court has violated section 158(2) of the CPC
8. Section 158(2) of CPC stated that, every such alteration or addition of charge made by
court shall be read and explained to the accused.This section shall be read together with
section 173(h) of the CPC where subordinate court have a duty to consider the charge
and amend if it necessary.
9. In Singah Mohamed Hussin v. PP3 the appellant had been charged under section 414 of
the Penal Code on two charges. At the close of the defence, the learned magistrate
ordered the charges to be amended by substituting the words "assisted in disposing of"
for the words "disposed" but he did not read over and explain the amended charges to the
appellant. The appellant appealed against his conviction and sentence. It was held that:
“The omission by the learned magistrate to read and explain the amended charges
to the appellant was an irregularity which was not curable under section 422 of the
code as it was contrary to statutory requirement. The conviction and sentence of the
appellant must therefore be quashed and a retrial ordered.”
In this instant case, at the conclusion of the prosecution's case, the charge against the
appellant was amended, and three additional charges of rape were framed against the
appellant. From the record, the charges were read out to the appellant, but there was
nothing to show that the same were explained to him. Therefore trial court has violated
section 158(2) of the CPC.
3 [1973] 2 MLJ 109

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ISSUE II: THE SESSION COURT HAD FAILED TO ACT ACCORDANCE WITH
SECTION 257(1) OF CPC THEREBY SERIOUSLY PREJUDICING
THE APPELLANT.
A. The SessionCourt judge had failed to explain the principal points of prosecution
case against him.
10. Section 257(1) of CPC stated that:
“At every trial before the Court of Magistrate if and when the Court calls upon the
accused for his defence it shall, if he is not represented by an advocate, inform him of his
right to give evidence on his own behalf, and if he elects to give evidence on his own
behalf shall call his attention to the principal points in the evidence for the prosecution
which tell against him in order that he may have an opportunity of explaining them.”
11. In the case of Azahan Bin Mohd Aminallah v Public Prosecutor, section 257(1) would
apply in the event where the accused was unrepresented by counsel and choose to make
unsworn statement from the dock. The court held that
“The fact that the appellant elected to make an unsworn statement from the dock did not
exclude the operation of s 257(1).”
12. In the case of Awaluddin bin Suratman & Ors v Public Prosecutor4 where Mokhtar
Abdullah J observed:
“The appeal record did not show whether the Session Court judge had complied with
section 257(1) of CPC by calling the attention of the undefended accused to the principal
point in the prosecution evidence in order for them to have an opportunity to explain. The
appeal record also did not show that the session court judge had explained to the
unrepresented accused the main points of the prosecution witnesses to enable the said
accused to properly cross-examine such witness properly.”
B. Unsworn statement from the dock is evidence
13. The important question under this provision is whether the appellant who elected to
make an unsworn statement from the dock 'elected to give evidence'. Unsworn statement
shall be considered as evidence.
4 [1992] 1 MLJ 416

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14. In the case of Azahan Bin Mohd Aminallah v Public Prosecutor where the
court said:
“In our judgment, the context of section 257(1) of CPC the critical phrase is
'elects to give evidence' and not 'elects to give evidence on oath'. The former is
much wider than the latter and must (ex necessitae rei) include the making of an
unsworn statement from the dock. Accordingly, the fact that the appellant elected
to make an unsworn statement from the dock did not exclude the operation
of section 257(1).”
15. In Mohd Nazri Bin Omar & Ors. v. PP5 the appellants were charged for an offence of
drugs trafficking. The 3rd Appellant gave a statement from the dock where the learned
judge rejected his defence. It was held:
“We found that the learned trial Judge had made an error in not giving any
consideration to the 3rd Appellant’s defence. The unsworn testimony by the 3rd
Appellant should have been given due consideration and not dismissed outright
because it did not constitute evidence even though in the final analysis it may not have
merits. The defence by the 3rd Appellant must be considered before a finding of
guilt can be made.”
16. In this instant case, appellant was unrepresented as the counsel assigned to him was not
present in court. The appellant chose to make an unsworn statement from the dock,
which statement was summarily rejected by the court as being a bare denial.We believe
that the Session Court judge had failed to act according the provision of section 257(1)
the Criminal Procedure Code (CPC) thereby seriously prejudicing the appellant. This is
because the provision under section 257(1) allowing the accused ‘elect to give evidence’
and not ‘elect to give evidence on oath’. Besides that, it is the duty of court to inform the
undefended accused regarding his right to give evidence on his own behalf and the
evidence he elect to give. Thus statement made by appellant shall be considered as
evidence.
5 [2014] 5. MLJ 644

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ISSUE III: WHETHER THE SESSION COURT HAD MISDIRECTED ITSELF BY
ACTING ON SIMILAR FACT EVIDENCE TO ADD THREE FURTHER CHARGES
AGAINST THE APPELLANT.
A. The amendment of charges was made at the close of prosecution case without leave
of court.
17. By adding charges, it falls under amendment of charge by the court. The power of court
to amend charges has been given under Section 158 of CPC. This provision is as follow:
(1) Any Court may add or alter to any charge at any time before judgment is pronounced.
18. The above provision simply states that the court may alter or add to any charge at any
time before judgment is pronounced. The word ‘may’ here indicate that it is upon
discretionary of the court. In the case of Heng You Nang v PP6, it has been held that
leave of the court is required before the prosecution is entitled to amend the charges at
any stage of the trial. References can be made to the case of PP v Azman bin Ismail and
another trial7, in this case, the court disallowing the amendment since the additional
charges was made at very late stage which is at the close of prosecution case. There were
insufficient materials to justify the inclusion of the additional charge. Thus, it would be
oppressive to the accused to grant it at that stage of proceeding. So, leave of court was
not granted.
19. Therefore, by referring to the said provision and cases, we can see that in present case,
there is nothing to show that leave was granted by the Court in adding three charges
against the accused. This is, like has been stated in the case of PP v Azman bin Ismail
and another trial, is a gross injustice on the part of the accused as the charges was
amended at the close of prosecution case and the leave was not granted in accordance
with Section 158 of CPC.
6 [1949] MLJ 285
7 [2007] 3 AMR 617

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B. Similar fact evidence ought not to be admitted
20. Evidence Act 1950 mentioned about similar fact evidence under Section 14 and 15.
Section 14 states that fact that shows intention or state of mind are relevant when the
existence of any such state of mind or body or bodily feeling is in issue or relevant8.
While Section 15 of the same Act states that when there is a question whether an act was
accidental or intentional or done with a particular knowledge or intention, the fact that the
act formed part of series of similar occurrences, in each of which the person doing the act
was concerned, is relevant.
21. Generally similar fact evidence is not admissible. However, section 14 and 15 of
Evidence Act 1950 states about how the similar fact could be admitted. The general
principle of inadmissibility of similar fact evidence was spelt out in the case of Makin v
Attorney General for New South Wales9 where it has been held that it is not competent
for the prosecution to adduce evidence showing that accused is a person likely to commit
such offense because this will surely be prejudiced to the accused. However, such
evidence may be permissible if it can show that the acts committed were intended not
accidental. Also, in admitting this kind of evidence, probative force must be stronger than
prejudicial effect. In the case of Azahan Bin Mohd Aminallah v Public Prosecutor, it
was held that similar fact evidence would only be admitted if its probative force was so
strong that it overrode any prejudicial effect. So here it can be sum up that main criterion
for the admissibility of similar fact evidence depends on its probative value. However in
the present case accused came to court prepared to face a single charge, however the
prosecution without leave of court adduced highly prejudicial similar fact evidence. The
trice practice for court is to intervened at once and asks prosecuting officer to justify his
course. This is necessary because accused is layman and unrepresented. So here, similar
fact evidence ought not to be admitted because prejudicial effect is higher than probative
value.
8 Section 14 Evidence Act 1950
9 [1894] AC 57 (PC)

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C. Accused was charged with four offences of the same fact and it was in violation of
Section 164(1) of CPC.
22. There were three similar fact evidence added to this case which shows it is contrary to
Section 164(1) of CPC like we have mentioned earlier. In Azahan Mohd Aminallah v
PP10, the accused was charged with four separate acts of rape over a period of five years,
in clear contravention of Section 164(1). It is not mere irregularities but an incurable
illegality which render the trial a nullity. Therefore, in this instant case, Kadir bin Ali v
PP, the appellant who was tried for four offences of the same kind committed within the
space of 12 months is a clear contravention of Section 164(1) of CPC.
10 [2005] 1 CLJ 374

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ISSUE IV: WHETHER THE SESSIONS COURT HAD ERRED IN REFUSING THE
APPELLANT’S REQUEST FOR AN ADJOURNMENT FOR THE PURPOSE OF
ENABLING HIM TO OBTAIN LEGAL REPRESENTATION.
A. The Sessions Court Judge refusal to appellant request for adjournment was unfair
and prejudicial to the accused.
23. The power given to the court in granting adjournment is stated under Section 259(1) of
CPC. Basically this provision gives discretionary power to the court to adjourn
proceeding in criminal trial. It states that:
‘If, from the absence of a witness or any other reasonable cause, it becomes necessary or
advisable to postpone the commencement of or adjourn any inquiry or trial the Court
may, by order in writing, from time to time, postpone or adjourn the same on such terms
as it thinks fit for such time as it considers reasonable…’
24. The phrase ‘reasonable cause’ above was interpreted by Raja Azlan Shah in the case of
Tan Foo Su v PP11 as a term of art for lawyers and no definite ruling can be laid down.
Each case must be dealt with according to its own peculiar circumstances. Also, granting
of adjournment is a matter of discretion, however not an arbitrary one but has to be
exercised judicially. Also in this case, the Judge held that every latitude must be given to
an accused person to defend his case and to call witnesses, more so when the accused
person is not represented.
25. Therefore as for the present case, Kader bin Ali v PP, the appellant was unrepresented at
the trial and the case had been adjourned only once before to enable him to engage
counsel. On the second occasion he had asked for a postponement of the case once again
to enable him to obtain legal representation. Considering the serious nature of the charge
framed against him, we do not see what injury the justice system would have suffered if
the sessions court had granted his request. Also, in relation to amendment of charges we
in the opinion that the accused, who was unrepresented and facing three additional
11 [1967] 2 MLJ 19

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charges against him with similar fact evidence, shall be entitled for adjournment.
Reference can be made in the Section 159 of CPC. It states as follow:
If a charge is framed or alteration or addition made under either section 157 or 158, the
Court shall immediately call upon the accused to plead thereto and to state whether he is
ready to be tried on the charge or altered or added charge. If the accused declares that
he is not ready, the Court shall duly consider the reasons he may give and if proceeding
immediately with the trial is not likely, in the opinion of the Court, to prejudice the
accused in his defence or the prosecutor in the conduct of the case, the Court may, in its
discretion, after the charge or alteration or addition has been framed or made, proceed
with the trial as if the new or altered or added charge had been the original charge.
26. So, based on the abovementioned provision, in regard of amendment of charges, the
court should consider whether it would prejudice the accused if the proceeding started
immediately without adjournment. We are in the opinion that adjournment should have
been granted to the accused that was unrepresented to have benefit of legal
representation in facing three more charges against him and give him time to prepare.
This is because, even though granting of adjournment is upon discretion of the court,
however, it must be exercised judicially, not arbitrarily.

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PRAYERS FOR RELIEF
The appellant in this case has been highly prejudiced, therefore, in the light of facts of the
case, issues raised and arguments advanced, counsel for appellant respectfully requests:
(i) the court to quash the conviction of the appellant; and
(ii) order for retrial.
3,495 words.

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ORAL SUBMISSION
PARA SUBMISSION NOTES
INTRO
My lady,
May it please the court.
My name is NURULHAFFIZAH BINTI AHMAD, Senior Counsel acting
on behalf of the Appellant in this proceeding.
Together with me today is my Co-counsel Miss Asmah
Across the way, my learned friends, Miss Nor Aatifa and
Miss Nabila Mardiyyah as the Respondent.
I will be speaking for 7 minutes addressing the 1st issue which is
Whether the charges against the appellant has violated Section 164(1) of
Criminal Procedure Code herein should be referred as (CPC) and 2nd issues of
appeal whether the session court had failed to act accordance Section 257(1)
of the CPC thereby seriously prejudicing the Appellant?
My co-counsel will be speaking for another 7 minutes addressing the 3rd
which is whether the Sessions Court had misdirected itself by acting on
similar fact evidence to add three further charges against the appellant and the
4th issues of the appeal which is whether the Sessions Court had erred in
refusing the appellant's request for an adjournment for the purpose of enabling
him to obtain legal representation. My co-counsel also will be speaking for
the next 2 minutes for rebuttal.
IF NO
NEED
THEN
PROCEED

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The case before us concerns with four(4) different grounds. Do Your
Ladyship need assistance on the facts of the case?
BRIEF FACTS
If there is no inquiry from the bench, I will now begin with my submission.
(wait until the judge nod).
Much obliged.
1st
Issue
My lady,
The first ground is whether the four charges against the appellant was
irregularly tried?
There are two (2) contentions.
Firstly, The charges against the appellant has violated Section 164(1) of
Criminal Procedure Code herein should be referred as (CPC).
Secondly, The trial court has violated section 173(a) of the CPC
Moving back to the first contention.
Section 164(1) of the Criminal Procedure Code (CPC) stated that when a
person is accused of more offences than one of the same kind committed
within the space of twelve months from the first to the last of such offences,
whether in respect of the same person or not, he may be charged with and
tried at one trial for any number of them not exceeding three.

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Under the first contention, we submit base on one reason.
We contended that the trial before the Session Court was a nullity.
We refer to the case of In Subramania Iyer v King Emperor LR 28 IA 257,
the appellant was charged with 41 acts extending over a period of two years.
The Privy Council quashed the convictions and held that a breach of s 234(1)
of the Indian Criminal Procedure Code 1898, (which is ipsissima verba
our s 164(1) of CPC is an illegality and not curable under section 537 or (our
section 422). Lord Halsbury LC said:
“Such a phrase as irregularity is not appropriate to the illegality of trying an
accused person for many different offences at the same time, and those
offences being spread over a longer period than by law could have been
joined together in one indictment.”
My lady,
Further we make reference to the case of Bunga Jalong v. Public
Prosecutor. The court in this case held that:
“Although the alleged incidents involved the same accused, same victim,
same offence and same place, they were committed in different months and
constituted separate offences of rape. The argument that time and expense
would be saved by a joint trial of the charges could find no merit in the
light of the specific provisions of section 164 that only three offences of the
same kind committed within the space of twelve months could be charged and
tried together.”
In Azahan Bin Mohd Aminallah v Public Prosecutor, where the appellant
was charged with committing four separate acts of rape over a period of five
years which constituted a violation of section 164(1) of the CPC. The court

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held that the trial was a nullity and had to be quashed.
My lady,
In today case, the appellant was charged with committing four (4) separates
act of rape over a period two year. Therefore, there has been violation section
164(1) of CPC. As a consequent of this breach, the trial should be considered
as nullity because it is illegal and cannot be cured under section 422 of CPC.
We also think a re-trial should be done.
As for the second contention.
We contended that the trial court has violated section 173(a) of the CPC
Section 173(a) of the CPC stated that when the accused appears or is brought
before the Court a charge containing the particulars of the offence of which he
is accused shall be framed and read and explained to him, and he shall be
asked whether he is guilty of the offence charged or claims to be tried.
Merely read out the charges to the Appellant would not amount to
explanation.
We refer to the case of Cheng Ah Sang v. Public Prosecutor, it was held
that before a court before the Court records a plea of guilty by the accused, it
should satisfy itself by questioning the accused that he does really understand
the charge and admit to each ingredient that goes to make it up.
My lady,
If you have no inquiries on the contention of the first issue, I shall now
proceed to the second issue of appeal.

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Much obliged.
2nd
Issue
The second issue is whether the session court had failed to act accordance
Section 257(1) of the CPC thereby seriously prejudicing the Appellant?
My lady,
Section 257(1) of the CPC places a duty on court to inform the undefended
accused regarding his right to give evidence on his own behalf and if he does
to bring to his attention main points of the prosecution evidence which is
against him to enable him to explain. Failure to act according this provision of
thereby seriously prejudicing the appellant.
In the case of Azahan Bin Mohd Aminallah v Public Prosecutor, section
257(1) would apply in the event where the accused was unrepresented by
counsel and choose to make unsworn statement from the dock. The court held
that
“The fact that the appellant elected to make an unsworn statement from the
dock did not exclude the operation of s 257(1).”
Further, in the case of Awaluddin bin Suratman & Ors v Public
Prosecutor where Mokhtar Abdullah J observed:
“The appeal record did not show whether the Session Court judge had
complied with section 257(1) of CPC by calling the attention of the
undefended accused to the principal point in the prosecution evidence in
order for them to have an opportunity to explain. The appeal record also did
not show that the session court judge had explained to the unrepresented
accused the main points of the prosecution witness’s to enable the said
accused to properly cross-examine such witness properly.”

ASLOW GLUP4094
For this contention, we submit based on one reason, which is unsworn
statement from the dock is an evidence.
My lady, the important question under this provision is whether the appellant
who elected to make an unsworn statement from the dock 'elected to give
evidence'. Therefore, unsworn statement shall be considered as evidence
under section 257(1) of CPC.
In the case of Azahan Bin Mohd Aminallah v Public Prosecutor where the
court said:
“In our judgment, the context of section 257(1) of CPC the critical phrase is
'elects to give evidence' and not 'elects to give evidence on oath'. The former
is much wider than the latter and must (ex necessitae rei) include the making
of an unsworn statement from the dock. Accordingly, the fact that the
appellant elected to make an unsworn statement from the dock did not
exclude the operation of section 257(1).”
Further, we referred to the case of Mohd Nazri Bin Omar & Ors. v. PP
where the appellants were charged for an offence of drugs trafficking.
The 3rd Appellant gave a statement from the dock where the learned judge
rejected his defence. It was held:
“We found that the learned trial Judge had made an error in not giving any
consideration to the 3rd Appellant’s defence. The unsworn testimony by the
3rd Appellant should have been given due consideration and not dismissed
outright because it did not constitute evidence even though in the final
analysis it may not have merits. The defence by the 3rd Appellant must be
considered before a finding of guilt can be made.”
My lady,
In this present case, the appellant was unrepresented as the counsel assigned

ASLOW GLUP4094
3rd
Issue
to him was not present in court. The appellant chose to make an unsworn
statement from the dock, which statement was summarily rejected by the
court as being a bare denial.
We believe that the Session Court judge had failed to act according the
provision of section 257(1) the Criminal Procedure Code (CPC) thereby
seriously prejudicing the appellant. This is because the provision under
section 257(1) allowing the accused ‘elect to give evidence’ and not ‘elect to
give evidence on oath’.
Besides that, it is the duty of court to inform the undefended accused
regarding his right to give evidence on his own behalf and the evidence he
elect to give. Thus statement made by appellant shall be considered as
evidence.
My lady,
If there is no further question, my co-counsel will proceed with the 3rd and 4th
My Lady, I will now proceed to the third issue on whether the sessions court
had misdirected itself by acting on similar fact evidence to add three
further charges.
My Lady, there are three points that I would like to address here. The first one
is the amendment of charges was made at the close of prosecution case
without leave of court, second one is the similar fact evidence should not
have been admitted, and the third one is accused was charged with four
offences of the same kind it was in violation of Section 164(1) of CPC.
For the first point, regarding amendment of charges that was made at the
close of prosecution case without leave of court. Indeed, the Court has
discretionary power to amend the charges at any time before judgment is
pronounce as stated under Section 158(1) of CPC. Also, like has been
mentioned in the case of Azahan bin Aminallah v PP, the leave of court is
required for any amendment of charges. We can also see the case of PP v
Azman bin Ismail and another trial where the Court refused to grant leave
for amendment of charges against the accused since the amendment was made
at the end of prosecution case without sufficient materials to justify the

ASLOW GLUP4094
additional of charges.
My Lady, in the instant case, prosecution added three additional charges
without leave of court at the closed of prosecution stage. Therefore, like has
been mentioned in the case of PP v Azman bin Ismail, there is high injustice
on the part of the accuse where the leave was not granted but still, prosecution
proceeded with the amendment of charges.
For the second point, similar fact evidence should not have been admitted.
Section 14 and 15 of Evidence Act 1950 basically mentioned about
admissibility of similar fact evidence. In the case of Makin v Attorney
General of New South Wales, it has been held that generally, similar fact
evidence should not be admissible. However, it can be admissible if the
intention from previous act was in relation with the current fact. Also, the
court in admitting similar fact evidence should consider the probative value in
the case. If the probative force was stronger than prejudicial effect, then the
similar fact evidence ought to be accepted. This has been followed in the case
of Azahan Bin Mohd Aminallah v Public Prosecutor where it was held that
similar fact evidence would only be admitted if its probative force was so
strong that it overrode any prejudicial effect.
However in the present case, accused came to court prepared to face a single
charge, but the prosecution without leave of court adduced highly prejudicial
similar fact evidence. The trice practice for court is to intervened at once and
asks prosecuting officer to justify his course. This is necessary because
accused is layman and unrepresented. So here, similar fact evidence ought not
to be admitted because prejudicial effect is higher than probative value.
For the third point, accused was charged with four offences of the same
fact and it was in violation of Section 164(1) of CPC. Like has been
mentioned earlier by my co-counsel, when a person is accused of more
offences than one of the same kind committed within the space of twelve
months from the first to the last of such offences, whether in respect of the
same person or not, he may be charged with and tried at one trial for any
number of them not exceeding three. In Azahan Mohd Aminallah v PP, the
accused was charged with four separate acts of rape over a period of five
years, in clear contravention of Section 164(1). It is not mere irregularities but
an incurable illegality which render the trial a nullity. Therefore, in this
instant case, the appellant who was tried for four offences of the same kind
committed within the space of 12 months is a clear contravention of Section
164(1) of CPC and the trial should be a nullity.

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My lady,
If you have no inquiries on the third issue, I shall now proceed to the last
issue.
Much obliged.
4th
Issue
My Lady, the last issue in this case is whether the session court had erred
in refusing the appellant’s request for an adjournment from the purpose
of enabling him to obtain legal representation.
The power of court in granting adjournment was stated under Section 291(1)
of CPC. This provision gives discretionary power to court to adjourn the trial
by considering reasonable cause.
My Lady, the phrase ‘reasonable cause’ in this provision was interpreted by
Raja Azlan Shah in the case of Tan Foo Su v PP that no definite ruling can be
laid down. Each case must be dealt with according to its own peculiar
circumstances. It was also held in this case that based on Section 259(1), the
court has discretionary power in granting adjournment, however, it must be
exercised judicially, not arbitrarily and also, every latitude must be given to
an accused person to defend his case, more so when the accused person is not
represented.
Reference can also be made in the case of Azahan bin Aminallah v PP where
the COA mentioned that in considering the seriousness of the nature of the
charged framed against accused, the adjournment should have been granted in
order for accuse to have benefit of legal representation.
Therefore as for the present case, the fact that the appellant was unrepresented
at the trial and the case had been adjourned only once before to enable him to
engage counsel, considering the serious nature of the charge framed against
him, we do not see what injury the justice system would have suffered if the
sessions court had granted his request.
In addition to that, reference can also be made to Section 159 of CPC where
it states that in cases of alteration to the charges, the court shall ask whether
accused is ready to be tried on the added charge. If accused declares that he is
not ready, the court shall consider reasons, and should not proceed with the
trial if it is prejudiced to the accused.
Therefore My lady, in regard of amendment of charges, the court should

ASLOW GLUP4094
consider whether it would prejudice the accused if the proceeding started
immediately without adjournment. We are in the opinion that adjournment
should have been granted to the accused that was unrepresented to have
benefit of legal representation. Accused, a layman, is facing three added
charges against him, therefore it would be in the best interest of justice to give
him time to prepare and get legal aid. This is because, even though granting of
adjournment is upon discretion of the court, however, it must be exercised
judicially, not arbitrarily.
Much obliged.
Then proceed to rebuttal after submission by respondent.

CONTOH MOOTING OLEH PELAJAR TAHUN AKHIR DI UUM

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