TOPIC: SECTION 173(j) of CPC
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Case name: Pendakwa Raya lwn Siti Bainun bt Ahd Razali
Citation: [2023] MLJU 1423
Court: Session Court, Kuala Lumpur
A. FACTS OF THE CASE
On 20.8.2021, Siti Bainun binti Ahd Razali, No. K/P: 921029-14-5382 (“OKT”) has been
charged for neglecting and abusing a child, Bella under section 31(1)(a) of the Child’s Act
2001. Bella is a female child with Down Syndrome who was put under the care of Taman
Sinar Harapan Tuanku Ampuan Najihah, Seremban. The OKT is the founder of Pertubuhan
Kebajikan Rumah Bonda Kuala Lumpur (Rumah Bonda) that serves to provide shelter for
teenagers and women who are pregnant out of wedlock, temporary protection for babies born
out of wedlock and also unfortunate children.
On 14.7.2020, OKT obtained a Temporary Custody Order over Bella until 24.9.2020 by the
Magistrate Court, Kuala Lumpur which further issued an order for Bella to be placed in
OKT’s care until Bella reach the age of 18 years old. In October 2020, OKT has rented a unit
in Irama Wangsa Condominium and brought OKT & other children to live together. However,
around February 2021 until June 2021, Bella suffered abuse from OKT such as splashed with
hot water, beaten, stepped on, forced to eat chili, forced to eat excrement and fined for
standing for a long time and confined in the laundry room of the unit. Bella’s sustained
multiple physical & emotional injuries due to OKT’s action towards Bella.
At the end of the prosecution's case, the prosecution had succeeded in proving a prima facie
case all charges against the OKT. In entering their defence, the defence filed the application
to recall witnesses under section 173 (j) (iii) of the Criminal Procedure Code (“CPC”) which
were the following:
1) Yasmin Nahar binti Mohamed (SP5),
2) ASP Rohani binti Baharom (SP20) and
3) Doktor Salmi binti Muhd Shukor (SP15).
B. ISSUES RELATING TO THE CRIMINAL PROCEDURE CODE
Whether the defence’s application under section 173 (j) (iii) of the CPC should be allowed?
C. ARGUMENTS BY THE PROSECUTION
TOPIC: SECTION 173(j) of CPC
The prosecution has objected to the application by arguing that although section 173(j)(iii) of
the CPC allows the recall of witnesses, but the application must be made on a basis and
requires careful evaluation by the Court.
D. ARGUMENTS BY THE DEFENCE
1. The recall of witnesses under section 173(j)(iii) CPC is the accused's right to a fair
trial.
2. Section 173(j)(iii) of the CPC should be read together with section 138(4) of the CPC
where this section 138 (4) does not outline any prerequisites that need to be met in
recalling prosecution witnesses.
3. The word "shall" has been used in section 173(j)(iii) of the CPC, therefore it shows
that the provision is mandatory on the Court in allowing the recall of witnesses. (PP
vs Mohamed Azmin Ali [2000] 3 MLRH 72 Mohd Jalil bin Abdullah & Anor v.
Public Prosecutor [1996] 5 MLJ 564 and Chin Kek Shen v PP [2013] 7 CLJ 435)
E. DECISION & JUDGEMENT
Decision:
1. The prosecution has succeeded in proving the charges against OKT beyond
reasonable doubt and thus, OKT was found guilty and convicted of the charges with
the following punishment:
a. Imprisonment: A total of 12 years from the date of conviction are ordered to
run concurrently;
b. good behavior bond for five (5) years with a Malaysian citizen surety with a
surety of RM5,000.00, and
c. carry out a community service order for an aggregate of 200 hours which must
be completed within 6 months after the end of the prison sentence.
2. The Court held that the recall of SP5 & SP15 is rejected while SP20 was allowed to
be recalled again as witness.
Judgment:
1. The Court has the responsibility, power and discretion to determine whether the recall
of the named witness amounts to "frivolous or vexatious" elements.
a. Hassan v. PP [1962] 1 LNS 52; [1962] 28 MLJ 323, which followed the
decision in the case of Ong Boon Siang & Ors v. PP [1960] 1 LNS 81; [1961]
MLJ 4, where it was decided that an application under section 173 (j)(iii) of
the Criminal Procedure Code to recall a witness will normally be allowed
unless the recall of the relevant witness is "frivolous or vexatious".
TOPIC: SECTION 173(j) of CPC
b. Based on the case of PP v. Mohamed Azmin Ali [2000] 7 CLJ 628 which
states: "The concern that the calling and recalling of witnesses should not be
used as a device for vexation, delay or otherwise defeat the ends of justice is
reflected in s. 173(l)(i)…”
2. The defence’s request to recall SP5 is "vexatious" or troublesome and also "delay" or
procrastinating the Court's proceedings.
a. The reason to call SP5 again simply to determine the consistency of the
evidence is not strong.
b. SP5 has been in Court giving evidence for 8 days of the trial.
c. The examination of SP5 "was sufficiently comprehensive and completely
executed by both the prosecution and the defence."
d. The defence has been given sufficient time to cross-examine SP5 to raise
issues related to consistency and also credibility issues.
3. The reasons given for recalling SP20 are sound and justified.
a. The reason for recalling ASP Rohaini binti Baharom (SP20) is to cross-
examine the evidence given by SP21 and SP22. Witnesses SP21 and SP22
have given evidence linking themselves to SP20. However, this matter could
not be cross-examined and asked to SP20 because he had given evidence
before SP21 and SP22 were called to give evidence.
4. There was no need to recall SP15 just to get confirmation that his evidence should
corroborate the opinion of other doctors
a. It is clear that the issue of whether SP15's opinion or diagnosis should override
the opinions of other doctors should be decided by this Court based on the
available evidence and related evidence.
b. SP15 has stated that his opinion and answer is based on his expertise as a burn
specialist. SP15 also asserted that the answer was based on his own diagnosis.
SP15 further asserted that he did not want to compare or confirm that his
opinion was the most correct among other doctors.
