Chan Kok Poh Stay TT 001
Chan Kok Poh Stay TT 001
Chan Kok Poh Stay TT 001
JB-44-13-10/2021
[JB-44-13-10/2021] November 28, 2021Kand. 7
20/04/2022 10:59:39
MALAYSIA
IN THE HIGH COURT OF MALAYA SITTING AT MUAR IN THE
STATE OF JOHORE
CRIMINAL APPLICATION NO.: JB-44-13-10/2021
AND
BETWEEN
CHAN KOK POH … APPLICANT
AND
PUBLIC PROSECUTOR … RESPONDENT
CORAM:
AWG ARMADAJAYA BIN AWG MAHMUD
JUDICIAL COMMISSIONER
GROUNDS OF JUDGMENT
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INTRODUCTION
[2] The application is made vide a Notice of Motion (Enclosure 1). The
prayers sought for are as follows:
i. That the ongoing trial before the Sessions Court in the case
no. JD-62JSK-02-03/2019 be stayed pending the disposal of
the Appeal by the Accused / Applicant before the Court of
Appeal against the decision of this Court, whereby the Court
allowed the application for revision by the Public Prosecutor,
against the ruling of the Learned Sessions Court Judge in
allowing the recalling of 3 prosecution witnesses, on the basis
of a facebook posting, after the Sessions Court has ordered
the accused person to enter his defence.
ii. Other reliefs or orders as the Court deems fit and just.
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ii. There are special circumstances that justify the stay of the
proceedings of the trial no. JD-62JSK-02-03/2019.
BACKGROUND FACTS
[5] The applicant / accused was charged at the instance of the Public
Prosecutor on 3 counts of offence under section 14(a) Sexual
Offences Against Children 2017 and one of the 3 Charges read as
follows:
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[6] The Charges are similar because they differ only on the time, dates
and persons involved.
[7] The applicant / accused pleaded not guilty and was tried by the
Sessions Court in Segamat. At the end of the prosecution’s case, 7
June 2020, the Learned Sessions Court Judge found that the
Prosecution succeeded in proving a prima facie case against the
applicant / accused on all 3 Charges and ordered him to enter his
defence on all 3 Charges.
[9] The FB account was under the name of one “Fahrim Mohamad”, an
unascertained person. The application was strongly opposed by the
Prosecution because the statements of witnesses were never
extended to the Defence and the purported witnesses’ statements
were obtained from an unknown FB account.
[11] The Sessions Court further ordered that before the 3 witnesses are
recalled to give evidence, the applicant / accused must testify first.
The Sessions Court then fixed 18 July 2021 for the recalling of the
3 prosecution witnesses and directed the Prosecution to serve the
subpoenas for the purpose.
[12] The Public Prosecutor vide a letter dated 18 July 2021 made an
application for a revision of the Sessions Court Order to recall the 3
prosecution witnesses.
[13] Upon receiving the Public Prosecutor’s letter and after deliberating
on the issue, I decided to exercise the powers of the High Court
pursuant to section 323 Criminal Procedure Code for the purpose of
calling for the records of the Sessions Court with a view to ascertain
the propriety or legality or correctness of the Sessions Court Order
and further to the powers conferred by section 326 of the Code, I
decided to invite and hear all parties on the application.
[14] After hearing all parties, I found that the ruling by the Learned
Sessions Court Judge that the 3 prosecution witnesses who were
already called and cross-examined, are now required to be recalled,
does not fulfil either the legal requisites under section 173 or section
425 Criminal Procedure Code.
[15] I therefore set aside the ruling of the Learned Sessions Court Judge
that ordered the recall of the 3 prosecution witnesses namely PW3,
PW6 and PW9.
[16] The Defence then filed a Notice of Appeal with the Court of Appeal
on 3 October 2021 and in the meantime moved this Notice of Motion
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iv. Whether there are any special circumstances on the facts and
circumstances of the case.
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iv. Whether there are any special circumstances on the facts and
circumstances of the case.
[17] It has been submitted by the Learned Counsel for the Applicant /
Accused and was also averred in Enclosure 2 at paragraph 8
whereby the Applicant / Accused which states (English Translation)
“Lastly, I wish to say that when the prosecution made an
application for revision of the decision of Puan Rasidah, the
Order for the stay of proceedings was given by the Court in the
interest of justice. Hence I believe that when I choose to use
my right of appeal by filing an appeal with the Court of Appeal,
the Order for a stay of the proceedings should also be given to
me so my legal rights may not be prejudiced”.
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[21] The provisions for an application for stay of execution are found in
S. 44, s. 57(1) and s. 73 Courts of Judicature Act 1964.
[22] To analyse this allegation let us take a look at the provisions of the
law.
[24] Rule 13 of the Rules of the Court of Appeal 1994 also provides that:
[25] The same sentiments have been expressed in the following cases:
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[28] The procedure for a stay application may be done either by the stay
of execution be applied for orally if it is applied immediately after the
decision or order has been made by the Judge or the Court. In such
an event, no formal written application and no supporting affidavit
need be filed.
[29] However, if the Magistrate / Judge does not wish to entertain an oral
application for stay, then he may indicate or direct that the
unsuccessful party should make a formal written application vide a
Notice of Application which is supported by affidavit. Such
application for stay should be made as early as possible and the
Cause Papers must be served on the adversary party.
(see MCAT GEN SDN BHD v. CELCOM (M) BHD (NO 2) [2007] 10
CLJ 375).
The law on this point has developed in England over the years. I
shall start with the case of ST. PIERRE v. SOUTH AMERICAN
STORES (GATH & CHAVES) LTD. [1936] 1 K.B. 382. In that case the
Court decided that a mere balance of convenience was not a
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[33] His Lordship, Justice Abdul Malik, in analysing the law, said this,
(see MCAT GEN SDN BHD v. CELCOM (M) BHD (NO 2) [2007] 10
CLJ 375).
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“At the outset, I must categorically say that the plaintiff has failed
to disclose a single fact or issue that would amount to a special
circumstance. In fact, the plaintiff’s affidavits failed to make any
reference to the existence of any special circumstances. The
plaintiff’s application for a stay was premised on two
considerations, namely: (a) pending an appeal to the Court of
Appeal against my decision; and (b) pending the full and final
determination of the trial of the D4 suit.
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[38] This is what Halsbury’s Laws of England says on the effect of the
English O. 59, r. 13(1); 4th Edition., Vol. 17 [1976], at p. 272, para.
455:
[39] And the position is this country is as stated by his Lordship, Justice
Hashim Yeop Sani (as he then was) in SYARIKAT BERPAKAT v.
LIM KAI KOK [1983] 1 MLJ 406, at 407:
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The law on the granting of an order for stay of execution has been
examined a number of times in the Courts of this country. It is trite
law that the Court has an absolute and unfettered discretion to
grant or refuse an application for stay. As a rule the Court will
however only grant stay if there are special circumstances and
which circumstances must be deposed in the affidavit supporting
the application. The governing principle in all cases where the
Court is asked to exercise its discretion is clearly expressed by
Brown J in SERANGOON GARDEN ESTATE LTD. V. ANG KENG
[1953] 1 LNS 98 and the principle is this: the Court will not deprive
a successful party of the fruits of his litigation until an appeal is
determined, unless the unsuccessful party can show special
circumstances to justify it.
[40] The principle enunciated here goes back to many years ago as can
be seen in MONK v. BARTRAM [1891] 1 QB 346. In that case stay
had been refused by the trial Judge and in the Court of Appeal it
was held that where a stay of execution has been refused by the
Trial Court an application made in a Court of Appeal for a stay
pending appeal must be supported by special circumstances and
allegations that there has been misdirection or that the verdict or
judgment was against the weight of evidence, or that there was no
evidence to support the verdict or judgment are not special
circumstances. Lord Esher MR in the Court of Appeal when refusing
the application for stay said:
We have made inquiries, and find that the practice in the Divisional
Court has been similar to that as to appeals in this Court in cases
of trials before a Judge without a jury. It has never been the practice
in either case to stay execution after the Judge at the trial has
refused to grant it, unless special circumstances are shown to
exist.
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[42] In KOSMA PALM OIL MILL SDN BHD & ORS v. KOPERASI
SERBAUSAHA MAKMUR BHD [2004] 1 CLJ 239; [2004] 1 MLJ
257, the Federal Court said this,
It is therefore clear beyond doubt that there are many factors that
may constitute special circumstances and the fact that an appeal
would be rendered nugatory if stay was refused is the most
common one. It is an example of special circumstances. In other
words special circumstances is the genus of which nugatoriness
is a species. If it has been shown that an appeal would be rendered
nugatory if stay was refused what it means is that a special
circumstance has been established. Thus they cannot be treated
as separate heads and one cannot be an alternative to the other.
...
[43] In KOSMA PALM OIL MILL SDN BHD & ORS v. KOPERASI
SERBAUSAHA MAKMUR BHD [2003] 4 CLJ 1 where the Federal
Court made the following observations:
(d) As the applicants had not put forward reasons that related to
the enforcement of judgment of the appeal but instead had
focused on the problems that the applicants would encounter
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(3) it is a clear principle that the court will not deprive a successful
party of the fruits of his litigation until the appeal is determined
unless there are special circumstances;
[55] In the “YIH SHEN”: LAI LAI YIN v. M.V. “YIH SHEN”, OWNERS
OF AND OTHER PERSONS INTERESTED [1985] 1 LNS 121;
[1986] 2 MLJ 65 is a judgment of his Lordship, Justice Mohamed
Dzaiddin (as he then was). That was an application for a stay of
execution of an order for the vessel “YIH SHEN” to be appraised
and sold pendente lite. The grounds were, first, the defendants
intended to appeal against the said order and, secondly, unless
restrained, the vessel, if sold prior to the appeal will render the
appeal, if successful, nugatory. The learned judge (as he then was)
dismissed the application. The learned judge (as he then was), inter
alia, said:
This is a case where the Court has an absolute and unfettered discretion
to grant or refuse the stay. HALSBURY’S LAWS OF ENGLAND, 4th
Edition, Vol. 17, para. 455 states as follows:
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From the affidavit of Mr. Chan and the submission of counsel I cannot
find anything which would amount to being nugatory in the event the
appeal (Supreme Court Civil Appeal No. 173 of 1985) being successful.
I should also add that the fact that the defendants believe they have
a reasonable chance of success in the appeal is no ground for
granting a stay. See: ATKINS v. GREAT WESTERN RAILWAY CO.,
where the English Court of Appeal held that strong grounds of appeal
are not sufficient to grant the application.
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[64] Let us also take a look at Section 57 Courts of Judicature Act 1964
which stipulates –
[65] It is clear from Section 57(1) that “...no appeal shall operate as a
stay of execution…”.
[67] A stay of proceedings is, in more than one way, akin to the granting
of bail to an accused person in that his detention (remand pending
conclusion of his trial) is stayed or suspended.
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of a jury in what must be taken, until the contrary was shown, to have
been a trial properly conducted and without error of law.
[69] The factors that may constitute special circumstances to justify the
grant of a stay of execution after conviction are well settled (see, Re
KWAN WAH YIP & ANOR[1954] 1 LNS 78; [1954] MLJ 146;
GANESAN V. PUBLIC PROSECUTOR[1983] 1 CLJ 300; [1983]
CLJ 567 (REP); [1983] 2 MLJ 369; YUSOF MOHAMED V. PP[1995]
1 LNS 291; [1995] 3 MLJ 66; RALPH V. PUBLIC
PROSECUTOR[1972] 1 LNS 118; [1972] 1 MLJ 242). They can be
enumerated as follows:
(f) whether the security imposed will ensure the attendance of the
appellant before the Appellate Court.
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“...the burden is clearly upon the applicant to show that there are
good grounds why a stay ought to be granted against that court
order. It is not a burden that is lightly discharged by assertions not
backed up or supported by evidence.”
[72] After having studied the authorities, there are a few principles that
may be distilled from them:
[73] Now that we have dealt with the application for a stay of execution
which is similar in many ways to that of stay of proceedings.
[74] I wish to draw the attention of parties to the fact that when this Court
heard the application for revision by the Learned Deputy Public
Prosecutor, the application of section 35 of the Courts of Judicature
Act 1964 sets in.
(1) ….
(2) Upon the High Court calling for any record as aforesaid all
proceedings in the subordinate court in the matter or
proceeding in question shall be stayed pending further order
of the High Court.
[40] Reverting to the appeal before us, the starting point for this
court to consider must always be what the Act in particular
those provisions adverted to above actually says. Where
these provisions are not clear, careful scrutiny of the
wording may be necessary in order to glean Parliament’s
intention. However, in this appeal having carefully and
meticulously scrutinised the wording of these provisions, I
can say with utmost confidence that in the context that those
words that I have considered are used in the Act, what
Parliament means to say is overwhelmingly clear and
unequivocal in that the definition of the word ‘decision’
evinces the intention that it applies to both criminal and civils
appeals. I must stress that in coming to this decision the
literal or plain meaning rule of interpretation cannot be
ignored. In fact, the application of this rule of interpretation
to the cold print of these relevant provisions is a reliable and
correct approach that would obviously show the intention to
be a scribed to the word ‘decision’ in s. 3 of the Act.
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[77] In R v. HARRIS [1836] 7 C & P 446 where the defendant bit off his
victim’s nose. The statute made it an offence ‘to stab cut or wound’
the court held that under the literal rule the act of biting did not come
within the meaning of stab cut or wound as these words implied an
instrument had to be used. Therefore the defendant's conviction
was quashed.
[79] In FISHER v. BELL [1961] 1 QB 394, the defendant had a flick knife
displayed in his shop window with a price tag on it. Statute made it
a criminal offence to ‘offer’ such flick knives for sale. His conviction
was quashed as goods on display in shops are not 'offers' in the
technical sense but an invitation to treat. The Court applied the literal
rule of statutory interpretation.
[80] Using the literal rule of interpretation, the sentence “Upon the High
Court calling for any record as aforesaid all proceedings in the
subordinate court in the matter or proceeding in question shall
be stayed pending further order of the High Court” means all of
the following:
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iii. Once the High Court called for the records of the impugned
ruling or order of the Subordinate Court in question, all the
proceedings in the Subordinate Court where the impugned
ruling or order originates, must be stayed.
[81] In short, the stay of proceedings is NOT by virtue of the Court Order
but by virtue of the application of the law. In other words, in our
instant case, once this Court called for the records of the Sessions
Court with the intention of scrutinising the records with a view of
exercising its revisionary powers, the Sessions Court MUST stay
the proceeding. The Sessions Court no longer has a discretion to
exercise. It must stay the proceedings.
[82] Hence the allegation that the Sessions Court stayed the
proceedings upon application by the Public Prosecutor is clearly
erroneous and certainly not supported by any statutory provision.
Hence the issue of “repaying the kindness” in the context of allowing
the application of stay of proceedings by the accused to do justice
is not only wrong in law but this is not a tit-for-tat issue. It is the
interpretation of the law.
[83] I have perused over Enclosures 1 and 2 and I found nothing in the
averments on why the proceedings in the Sessions Court must be
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stayed pending the disposal of the appeal against the ruling of the
High Court, in the Court of Appeal.
[85] Nothing was stated in what way would way would the appeal be
rendered nugatory or in what way the absence of an Order of Stay
would make a special circumstance that merit a stay of the
proceedings.
[86] At the risk of being repetitive, in KOSMA PALM OIL MILL SDN BHD
& ORS v. KOPERASI SERBAUSAHA MAKMUR BHD [2003] 4
CLJ 1 it has been observed that the onus was on the applicant to
demonstrate the existence of special circumstances to justify the
grant of a stay of execution and the reasons must relate to the
enforcement of the Judgement of the appeal and they must be
deposed in the affidavit filed in support of the application.
[88] So where or what are the special circumstances is left to dwell in the
mind of the applicant and the Court is left to guess on what is the
nature of the “special circumstances” or in what way would the
appeal be rendered nugatory.
[89] I wish to draw the attention of parties to the provision of section 173
Criminal Procedure Code.
[90] The ruling by the Learned Sessions Court Judge (which was set
aside vide the criminal revision of this Court) was that the 3
prosecution witnesses must be recalled before the Applicant /
Accused is to give evidence.
[91] It has been submitted by the Learned Counsel for the Applicant /
Accused that section 173 Criminal Procedure Code is not
mandatory and need not be followed and the Learned Sessions
Court has the inherent jurisdiction to make the ruling that she did for
the ends of justice.
[93] To answer question (a), I cannot do better than to cite the Federal
Court judgment in KARPAL SINGH & ANOR. V. PUBLIC
PROSECUTOR [1991] 1 CLJ Rep 183
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[94] In short, the subordinate courts of which the Sessions Court is one,
has no inherent jurisdiction.
[95] In KARPAL SINGH (supra) the applicants had been charged in April
1987 with separate offences under the Police Act 1967, the 1st
applicant for having participated in an assembly in a public place
without a licence from the Officer-in-Charge of the Police District and
the 2nd applicant for convening the assembly without a licence. The
hearing was postponed a couple of times and on 19 November 1987
the Court was told that both the applicants had been detained under
the Internal Security Act 1960. Finally, the cases were fixed for
hearing on 18 July 1989. At the hearing the applicants raised a
preliminary objection contending that the proceedings against them
amounted to oppression and prejudice and that the Court had a
general and inherent power to protect its process from abuse and to
strike out the proceedings. The application was rejected by the
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[96] His Lordship, Lord President Tun Abdul Hamid Omar in KARPAL
SINGH also dealt at some length with the operation of s. 173 of the
Criminal Procedure Code. This section is prefixed by the sentence:
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[97] To let the accused off the hook at any stage prior to the conclusion
of the prosecution case as provided under para. (g) of s. 173 will
only result in a discharge as explained by His Lordship Lord
President Tun Abdul Hamid Omar in KARPAL SINGH (at p. 548)
thus:
The following para. (g) is the crucial one for discussion in this case.
The Court may discharge the accused (not acquit) if the Court
considers the charge to be groundless. The Magistrate will have to
record the reasons for his decision. If he discharges the accused,
there is nothing to prevent the prosecution recharging the accused.
The reason for the discharge may be that the Magistrate finds he
has no jurisdiction or the charge does not disclose any offence
known to the Penal Code or other written law. The only
circumstances under which an accused can be acquitted are those
stated in para. (f) and when the prosecution offers no further
evidence because it feels that the prosecution case has collapsed
prematurely. There is no provision in the Code for striking out
proceedings or acquittal without hearing all evidence the
prosecution has the capacity to offer, even though postponements
are needed.
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[98] To answer the question under reference, the then Lord President
said (at p. 549):
From the above observation, we think that the Court was ventilating
on the inherent powers of the High Court and not those of a
subordinate Court. Even assuming the Court had in mind to bring
in the parallel of LI WING TAT's case in that the High Court in
Malaysia had the inherent power to direct a subordinate Court to
stay the proceedings of a criminal case thereby to undo a wrong
done against a citizen on the ground of abuse of the Court's
process, it would be injudicious on the part of the High Court to do
so for it would amount to unseating the legislature against its clear
injunctions as laid down in s. 173 of the Criminal Procedure Code.
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[103] To answer the issue raised by the Learned Counsel for the
Applicant, the Sessions Court does NOT have inherent jurisdiction
and it cannot invoke what it does not have.
[104] Now to issue (b) I reproduced section 173 Criminal Procedure Act
(j)(i) If the accused pleads guilty to the charge as amended, the plea
shall be recorded and he may be convicted on it and the Court
shall pass sentence according to law:
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(ii) If the accused does not plead guilty to the charge as amended,
the accused shall be called upon to enter on his defence.
[106] His Lordship Justice Hashim Yeop Sani (later Chief Justice of
Malaya) in SIVALINGAM v PUBLIC PROSECUTOR [1974] 2 MLJ
27, the issue to be answer was “(4) whether a criminal trial is a
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[20] It will be observed that the whole scheme of s. 173 of the CPC
basically lays out the manner in which a summary trial
should proceed commencing with the institution of the
charges until its conclusion.
[108] His Lordship opined that the whole scheme of s. 173 of the CPC
basically lays out the manner in which a summary trial should
proceed.
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[37] The short answer is this. Trials before the High Court are set
out in Chapter XX of the Criminal Procedure Code (Act 593)
(“CPC”). It is applicable throughout the country and the
procedures are statutorily laid out. Chapter XX of the CPC
contains ss. 178, 179, 180, 181, 182, 182A and 183 and these
sections are worded in this way and they are self-
explanatory.
[110] In R V. SMITH (JOAN) [1968] 2 All ER 115 CA, where it was held:
[114] In PP v. MOHAMED AZMIN ALI [2000] 7 CLJ 628 it was held that
“An accused person cannot be kept out of the court like other
witnesses. He would have to give evidence first before he hears
the examination and cross-examination of his witnesses.
Otherwise he might be accused of having trimmed his own
evidence to suit the evidence he has heard of his own
witnesses. Indeed, having his evidence heard first helps to
protect his credibility.”
[115] The principles of law that we may distil from the authorities are as
follows:
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[117] The only possible reason is to delay the trial. A trial by instalment is
not supported by any statutory provision nor should it be allowed. If
any party wishes to bring interlocutory matter in the midst of a trial
must show that the intention was to do justice and there is no ulterior
motive to bring in the interlocutory matter to stall the trial or
proceedings.
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[118] With the greatest respect to the position taken by the Learned
Counsel for the Accused that there is a nugatory effect if a stay of
proceedings is not allowed, I found that the Applicant /Accused
could not make out a case of either special circumstances or
nugatoriness that would merit a stay of the proceedings.
[119] It was submitted by the Learned Deputy Public Prosecutor that the
Notice of Appeal against the decision of this Court in allowing the
application for revision on the following grounds:
d. The accused may still make his case during the defence stage
and the chance for an acquittal is open to him by raising a
reasonable doubt.
[120] It was submitted by the Learned Counsel for the Applicant / Accused
that –
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[123] The word “decision” has been defined in section 3 of the same Act
as “…“decision” means judgment, sentence or order, but does
not include any ruling made in the course of a trial or hearing
of any cause or matter which does not finally dispose of the
rights of the parties;”
[124] The position on the amended s. 3 of the CJA has been clearly set
out in the case of DATO SERI ANWAR IBRAHIM V. PP [2010] 9
CLJ 625 at p. 636 where the court pointed out the underlying
reasons for the amendment to the definition of “decision” in s. 3 of
the CJA which came into effect on 31 July 1998 in the following
manner:
[25] Quite apart from the explanatory statement to the Bill the
definition of "decision" by itself, to our mind, is sufficiently
clear, and it is the duty of the court to give effect to the same.
Justice demands that cases should move without
unnecessary interruption to their final conclusion. That is
what the amendment seeks to achieve. The right of a party
who is aggrieved by a ruling, after all, is not being
compromised, as the party can always raise the issue during
the appeal, if any, to be filed after the trial process is brought
to its conclusion.
“[33] It can be seen from the above that the issues raised by the
appellant were preliminary issues i.e., basically whether the
charges were defective in substance and form. The High
Court as stated earlier dismissed the appellant's application
to strike out the charges and to have him acquitted and
discharged. Clearly the decision of the High Court was on a
preliminary issue which did not finally dispose of the rights
of the parties. It is thus not appealable. (see: DATO' SERI
ANWAR IBRAHIM V. PP [1999] 1 CLJ 537; [1999] 1 MLJ 321;
DATO' SERI ANWAR IBRAHIM V. PP [2010] 9 CLJ 625; [2010]
6 MLJ 586; DATO' SERI ANWAR IBRAHIM V. PP [2011] 2 CLJ
845; PP V. DATO SERI ANWAR IBRAHIM [2014] 5 CLJ 805).
[34] We are of the view that the appeal by the appellant to the Court
of Appeal and later to this court on a preliminary issue whether
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[35] In this respect we wish to point out that at the time KARPAL
SINGH & ANOR V. PP (supra) was decided, preliminary issues
were still appealable to the higher courts as they were deemed as
“decision” made by the court. At that material time under s. 3 of
the CJA the term decision was defined as follows:
[36] However the CJA was amended in year 1998. Section 50 of the
CJA sets out the jurisdiction of the Court of Appeal to hear and
determine criminal appeals as follows:
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(2) An appeal shall lie to the Court of Appeal, with the leave of
the Court of Appeal, against any decision of the High Court
in the exercise of its appellate or revisionary jurisdiction in
respect of any criminal matter decided by a Magistrate’s
Court but such appeal shall be confined to only questions
of law which have arisen in the course of the appeal or
revision and the determination of which by the High Court
has affected the event of the appeal or revision.
[37] The position on the newly amended s. 3 of the CJA has been
clearly set out in the decision of this court in the case of DATO
SERI ANWAR IBRAHIM V. PP [2010] 9 CLJ 625 at p. 636 where
the court pointed out the underlying reasons for the amendment
to the definition of “decision” in s. 3 of the CJA which came into
effect on 31 July 1998 in the following manner:
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[38] From the above explanation given by this court in the case
of DATO SERI ANWAR IBRAHIM V. PP (supra) it is obvious
that Parliament is not oblivious to appeals which tend to stall
proceedings and delay speedy disposal of cases. The new
definition of the word decision in the amended s. 3 of the CJA
which we have laid emphasis to in the preceding paragraph
does not include a judgment, order or ruling which does not
finally dispose of the rights of the parties on the matters in
dispute. With the amended s. 3 of the CJA, appeals filed
based on technical rulings which are interlocutory in nature
are now things of the past. Such appeals are incompetent to
be laid before the appellate court as it is clearly precluded by
law.
[39] In this instant case the appellant had applied before the High
Court to quash the charges and order an acquittal against
him. The application was dismissed. The appellant had also
applied before the Sessions Court for the charges to be
quashed and prayed that a discharge not amounting to
acquittal to be ordered against him. The application was also
dismissed. The way we perceive it, the orders of the courts
below would connote that the matter should proceed for trial
as the charges preferred against the appellant still stand.
Clearly the decision not to strike out the charges before the
commencement of the trial as was done in this instant case
does not amount to disposal of the rights of the parties.
Since the order gives no final decision on the matters in
dispute, it is not a “decision” within the definition under s. 3
of the CJA and therefore is not appealable.”
matter that arose in the Sessions Court and on an appeal to the High
Court, ruled inter alia,
[6] It is clear from the said definition in s. 3 that there are two
instances when a decision of the High Court is not
appealable. The first is if it is made in the course of a trial and
the second is when the hearing of the cause or matter does
not dispose of the rights of the parties with finality. The clear
intention of the Legislature expressed from the words used
in the aforesaid section is to filter matters that can go up on
appeal. In other words, a cap has been placed by the
Legislature to ensure that appeals filed are not frivolous and
there would not be undue delay in the disposal of trials by
reason of such appeals being filed. Therefore, even though
the order of the court was not made in the course of the trial,
but if it does not dispose of the rights of the parties with
finality, that decision is still unappealable, that is to say,
there is no automatic right of appeal for such a decision
made by the court. To say otherwise would run afoul of the
clear intention of the Legislature as expressed in the said s.
3, which as we had stressed earlier, is to filter matters which
can be further taken up on appeal before us.
CONCLUSION
[128] I have perused over the Cause Papers, and after having heard
parties, I regret to say that I am unable to accede to the application.
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The Notice of Motion is hereby dismissed and the trial before the
Sessions Court is proceed with the trial until its final conclusion.
t.t.
AWG ARMADAJAYA BIN AWG MAHMUD
Judicial Commissioner
High Court of Malaya
Muar
Johor Darul Ta’zim
Counsels:
For the Applicant : Tuw Min Ric with Ong Kah Wah,
Solicitors:
Jalan Petrie
84000 Muar
Johor.
LEGISLATURE:
➢ section 14(a), 17, 18 Sexual Offences Against Children 2017
➢ section 112, 173, 323, 425 Criminal Procedure Code
➢ S. 3, 35, 44, 50, s. 57(1) and s. 73 Courts of Judicature Act 1964.
➢ Rule 13 of the Rules of the Court of Appeal 1994
➢ O. 53 R. 1(5), O. 56 R. 1 (4) Rules of Court 2012;
LITERATURE:
➢ Merriam-Webster's Unabridged Dictionary
➢ The Black’s Law Dictionary (© 2016 A Legal Dictionary)
➢ Halsbury’s Laws of England, 4th edition, reissue, vol. 37 at p.
290 at para. 926:
➢ Halsbury’s Laws of England, 4th Edition., Vol. 17 [1976], p. 272
➢ Mallal’s Digest 4th Edition, vol. 2(2) para; 4254
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