Topic: Adjournment
ADJOURNMENT
S.259 CPC
Absence of Reasonable
Witnesses Cause
Illnesses Completion of Absence of
Investigation Counsel
Accused Newly Counsels has Withdrawal
retaining appointed other of counsel
Counsel Counsel engagement
Postponement and Adjournment
The grounds of adjournment is a matter of discretion of the court and is regulated
in S.259 CPC
The policy of the law is criminal cases should be disposed of with the least delay.
Public interest demands criminal justice should be shift and a guilty punish while
events are still fresh in the mind of witnesses and the public and the innocent
should be absolved as early as it consistent to a fair and impartial trial.
S.259 CPC provides an adjournment can be given:
(a) when witnesses are absent
(b) for any other reasonable cause
The general rule is Magistrate should restraint from granting adjournment unless
they are necessary for the purpose of justice
Under S.259 CPC, it is required that reasons for an adjournment should be clearly
expressed on record
It is not enough that a reasonable cause exist but it should be stated in the order
so that if necessary an Appellate Court should be able to form an opinion as to the
reasonableness – Tan Gee Ah (1972) 1 MLJ 207
Absence of Witnesses
The absent of a witness is one of the main reasons in S.259 CPC and in the case of
Low Yong Peng (1961) 27 MLJ 306; the absence of the prosecution’s witness
having to attend a High Court’s case was held a reasonable cause.
Similar consideration also applies to the absent of witnesses for the defence – Tan
Foo Soon (1967) 2 MLJ 19
Reasonable Cause
S.259 CPC gave a wide discretion for a Magistrate to grant an adjournment for any
reasonable cause.
Reasonable cause is a term of art and each case should be dealt with according to
its own circumstances
A variety of reasons has been advanced on application before an adjournment and
the most common ones are:-
(a) illness
(b) incompletion of witness’s case
(c) matters in connection to defence counsel
Illness
In Chin Ah Chong (1953) 19 MLJ 101; it was stated that, sudden illness of the
prosecution officer was a reasonable ground for an adjournment.
In Mohd Ikram (1962) 18 MLJ 121; counsel for the accused was ill on the date of
the trial. Two days before the trial, counsel has sent a letter together with the
medical certificate to the court by the application was rejected on the ground that
there has been too many postponement.
On appeal, it was stated on circumstances of the case, since there was no record
to indicate on whose request on the postponement was previously made, the
appeal was allowed.
Completion of Witness’s Case
Any consideration in relation to the application for postponement to complete
investigation would depend on the investigation in fact have been completed.
Where investigation was not complete , court should reject, for the simple reason
if the investigation are not complete, the prosecution have no ground to refer the
charge, therefore, it would made the charge groundless.
But where the investigation are in fact completed, but the prosecution requires a
postponement because witnesses are absent and need to be trace, doctor or the
chemist or medical report has yet been serve on the accused or other similar
grounds, which prevent the trial from commencing; the court should grant the
postponement – Karumah (1980) MLJ 102
Absence of Counsel
Adjournment which relates to the absence of counsel would involve the following
issues:-
(a) Accused retain counsel
(b) The adjournment is required by newly appointed counsel
(c) Counsel may have other engagement
(d) Counsel withdraw himself from the case
Retaining of Counsel by the Accused
The accused may seek an adjournment because he has delayed efforts on to the
very day of hearing or that counsel has been retained but his counsel has
discharged himself or been discharge by the accused on the very day of the
hearing.
In Poh Choo Ek (1993) 2 MLJ 131; it was stated that a Magistrate must be firm in
considering an application for an adjournment as it can only be granted on
reasonable grounds.
It is not reasonable for the accused to apply for an adjournment to retained
counsel at the last moment
In Lee Fook Sam (1963) 25 MLJ 371; the accused changed his counsel 3 times and
on the 4th occasion, when requested for an adjournment to 7 counsels, it was
refused. The Court of Appeal held that the request was unreasonable and properly
rejected.
Request on newly appointed Counsel
An application on newly appointed counsel may be originated on the ground that
the counsel has been newly appointed
This would not be a reasonable request, where the accused has ample time to
retain a counsel.
In Thang a/l Kau Haa (1992) 4 CLJ 165; it was said in cases where the accused
had been given sufficient time to seek legal representative and the counsel
accepted a brief at the last minute, they should be prepared to proceed the
hearing or at least not complaint in the event the request for postponement
applied for is refused.
However, the strictness of this rule may be moderated where the request for the
postponement is occasioned by withdrawal at the last minute by the previous
counsel – Allaudin Suratman – (1992) 1 MLJ 415
Where the court stated, though the court should restrict for the application for
postponement, the court also owe a duty to ensure the benefit for counsel to act
on his behalf.
In such instance, a short adjournment would further the interest of justice as
counsel need the most evidence to be properly prepared to safeguard the
accused’s interest.
Request for Counsel for an Adjournment
The general view of the court is that counsel engaged by the accused must be
prepared to discharge their brief on day fixed for trial.
Certain preposition laid down in the case of Mokhtar Abdul Latif (1982) 2 MLJ 81;
in relation to counsel accepting brief on the day of cases fixed on trial:-
(a) the general rule is that the trial date are fixed at the convenience of the
court, on the 1st come 1st serve basis
(b) in the absent of a good and cogent reasons when date are fixed, counsel
should not accept briefs which clashed with trial date of their case
In Sharma Kumari (2000) 6 MLJ 282; it was stated the principle sated in S.259
CPC is that a trial will proceed on the date fixed and if cannot be completed, it
would continue until the case is complete. But this is not automatic for the
discretion of the dispute to the court which should be exercise judicially but once
an order is made, it is to be complied with until it is set aside.
The personal problems of counsel having too many commitments for appearances
in other courts cannot interfere with the court’s schedule.
If so, all trial can be postpone indefinitely by the simple by a simple device of
every accused appointing the same counsel where there is no principle that a
lower court must vacant a hearing date just because a counsel have to appear in
the superior court.
Having to appear in another court is not a reasonable cause for a leave; it is for
the counsel to decide on his own which court he prefers to appear.
Withdrawal of Counsel
There may be instances where on refusal of the court for an adjournment, counsel
has discharged himself.
This occurred in Tan Teow Swee (1955) 21 MLJ 56; where at the end of the
prosecution’s case, the charge was amended, counsel then applied for an
adjournment for the hearing for 12 days. The application was refused though the
court was prepared for a short adjournment. Counsel then discharged himself and
on appeal, one of the grounds was that the accused should be given an opportunity
to obtain another counsel.
It was however held, on the strength of the evidence of the case, the presence of
counsel for the defence at that stage could have made a little different and the
accused cannot be prejudiced.
