10/6/22, 11:04 AM Case:[1981] 1 LNS1 163

[1981] 1 LNS1 163  

[1982] 1 MLJ 282

JUMARI BIN MOHAMED v. PUBLIC PROSECUTOR

ORIGINAL CRIMINAL JURISDICTION, KUALA LUMPUR
MOHAMED AZMI;   J
FEDERAL TERRITORY CRIMINAL APPLICATION NO 15 OF 1980
14 MARCH 1981

CRIMINAL LAW
Solicitors: Karpal Singh & Co.

Case(s) referred to:

Veerasingam v Public Prosecutor [1958] MLJ 76
A Dickinson v Public Prosecutor [1955] MLJ 191
Wong Swee Chin v Public Prosecutor [1977] 2 MLJ 194 FC
R v Nagalingam [1935] MLJ xxix
R v Moona Mohamad Hussain Maricar [1936] MLJ 36

Counsel:
Karpal Singh (C Kandiah with him) for the applicant.
Suriyadi bin Halim Omar (Nik Abdul Rahman bin Nik Mat with him) (Deputy Public Prosecutor) for the
respondent.

Mohamed Azmi J
This is an application by Notice of Motion under section 310 of the Criminal Procedure Code for extension of
time to file Petition of Appeal out of time.
The application, which is opposed by the Public Prosecutor, first came up for argument on November 17,
1980. It was then adjourned to a date to be fixed by Senior Assistant Registrar, to enable the applicant's
solicitor, Mr. Karpal Singh, to file a further affidavit in support of the application. When the case came up for
final disposal on March 22, 1981, the application was dismissed. The applicant has now appealed against the
said decision.
Section 310 of the Criminal Procedure Code provides:

"A judge may, on the application of any person desirous of appealing who may be debarred from
so doing upon the ground of his not having observed some formality or some requirement of this
Code, permit an appeal upon such terms and with such directions to the Magistrate and to the
parties as such judge shall consider desirable, in order that substantial justice may be done in the
matter."

The powers, principles and procedure governing the grant of an extension of time to lodge a Petition of
Appeal and the permitting of amendments to a Petition of Appeal, came up for determination by the Court of
Appeal (the forerunner of the Federal Court) in Veerasingam v Public Prosecutor [1958] MLJ 76. At page 79,
Thomson C.J. has this to say:

"The only fetter which section 310 places upon the exercise of the discretion which it gives to the
judge is that it shall be exercised 'in order that substantial justice may be done'. Clearly, to
exercise his discretion properly the judge must apply his mind to all the relevant material. He must
consider the circumstances of the original trial. He must consider the original Petition of Appeal.
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10/6/22, 11:04 AM Case:[1981] 1 LNS1 163

And he must consider the circumstances which are now urged upon him to induce him to allow
any departure from or addition to the original Petition of Appeal. He must consider his own
powers as to such matters as the granting of adjournment and the requiring of Notice to be given.
And then he must exercise his discretion as he sees fit in order that substantial justice may be
done in the matter. It may be that he may find it helpful to look at what has been done in some
other case by some other judge but if he does, he must be careful to look at what that other judge
has done merely as an illustration and not as laying down any judicial precedent? ."

Pausing here for a moment, it is interesting to note that although Veerasingam case has overruled the two
prerequisites for the exercise of the court's discretion under section 310 laid down by Bellamy J. in A
Dickinson v Public Prosecutor [1955] MLJ 191, it would appear from the judgment of Thomson C.J. at page
79, left column paras. G to I, that had the two conditions, viz. that, firstly, circumstances exist which justify an
extension of time and, secondly, that the applicant has a reasonable prospect of success on the appeal, been
stated in the alternative and not cumulatively, the Court of Appeal might have been prepared to accept
Bellamy J.'s ruling "as a tolerably accurate piece of inductive reasoning based upon a number of cases in
which the English Court of Criminal Appeal has granted or refused similar indulgence to appellants". I note,
however, that the facts in both Dickinson case and Veerasingam case involved an application by the appellant
to amend the Petition of Appeal out of time by adding further grounds of appeal. Be that as it may, I think the
decision in Veerasingam case applies not only to an application for extension of time for amending Petition of
Appeal but also to an application for extension of time for filing Petition of Appeal under section 307(iv) of the
Criminal Procedure Code. Having regard to the provision of subsection (iv) read with subsection (ix) of section
307, there appears to be no reason why a distinction in principle should be made between them when
considering an application for extension of time under section 310. The learned Deputy Public Prosecutor has
referred to the case of Wong Swee Chin v Public Prosecutor [1977] 2 MLJ 194 FC where the Federal Court
took the view that for an application for extension of time to succeed, there had to be strong grounds or
substantial reasons. But, in that case, the court was dealing with an application for extension of time to file
Notice of Appeal. We are here dealing with a Petition of Appeal, and under subsection (ix) of section 307 of
the Criminal Procedure Code, there is a proviso which states that, "? nothing herein contained shall be
deemed to limit or restrict the powers conferred upon a judge by section 310". It is significant that such
proviso is absent in subsection (i) of section 307 which deals with Notice of Appeal. Be that as it may, it is
clear law that the discretion conferred on a judge by section 310 applies to all applications for extension of
time pertaining to criminal appeals to the High Court and they include an application to file Notice of Appeal
out of time. But where the application is for extension of time to file Petition of Appeal or to amend such
Petition by adding further grounds of appeal, then the principle enunciated in Veerasingam v. Public
Prosecutor (ante) should apply.
Now, what are the circumstances of this case to enable the court to exercise its discretion "in order that
substantial justice may be done"? The first affidavit in support of the application is defective in that it did not
contain all the relevant circumstances of the original trial. This defect has been rectified by the second affidavit
sworn by Mr. Karpal Singh on January 7, 1981. Briefly, the facts of this case are as follows. The applicant was
found guilty and convicted by the Kuala Lumpur Sessions Court of two charges of corruption under the
Prevention of Corruption Act, 1961. He was sentenced to eighteen months' imprisonment on each charge ?
the sentences to run concurrently. On May 12, 1980, i.e. within the prescribed period under section 307(i) of
the Criminal Procedure Code, he filed Notice of Appeal against conviction and sentence. On October 3, 1980,
the appeal records which, according to the learned Deputy Public Prosecutor, consist of 23 pages of notes of
evidence and 5 pages of grounds of judgment were served on the applicant's solicitor at the Kuala Lumpur
Branch of Mr. Karpal Singh's Firm. Under section 307(iv), Petition of Appeal ought to have been filed by
October 13, 1980; otherwise the appeal shall be deemed to have been withdrawn under section 307(ix). This
was not done because of the following reasons: ?

(1) October 4 and 5 were Saturday and Sunday respectively.

(2) October 6, Mr. Karpal Singh was engaged at the sitting of the Penang Legislative Assembly.
(3) October 9, on which date Mr. Karpal Singh had intended to go to Kuala Lumpur, he was taken
ill.
(4) October 13, i.e. the last date for filing, Mr. Karpal Singh attended his Kuala Lumpur Branch
and after perusing the notes of evidence and grounds of judgment, he found he needed time to
study them more closely to enable him to put up the Petition of Appeal.
(5) Mr. Karpal Singh was not counsel for the applicant at the trial and so he was unable to study
the appeal record closely on October 13.

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10/6/22, 11:04 AM Case:[1981] 1 LNS1 163

Having considered all the circumstances of the case, I find the reasons put forward are too flimsy and
frivolous for me to exercise my discretion under section 310 of the Criminal Procedure Code in favour of the
applicant. As solicitor engaged in the prosecution of the appeal, it is the duty of Mr. Karpal Singh to be diligent
once the record of appeal had been served on Friday, October 3, 1980. No reasonable explanation is given
why October 4 and 5 (though a Saturday and Sunday respectively) should not be used for perusing the
appeal record and preparing the Petition of Appeal, particularly when Mr. Karpal Singh fully knew that he had
to attend the Penang State Legislative Assembly meeting on October 6. The two affidavits do not disclose the
duration of the Legislative Assembly meeting and it would appear that Mr. Karpal Singh was quite free on
October 7 and 8. With full knowledge that the Petition of Appeal had to be filed by October 13, there is no
conceivable reason why he chose to wait and attend to its preparation only on the 9th, particularly when he
knew that on that date he had to appear in Kuala Lumpur High Court in respect of Originating Motion No. 107
of 1978 and, as such, in all probabilities, he would not have enough time to deal with the criminal appeal.
There is no evidence to show for how long Mr. Karpal Singh was ill on the 9th. The two affidavits in support
merely show that, firstly, Mr. Karpal Singh was busy and as he is entitled to do, he chose to give priority to his
duty as an Assemblyman in preference to his duty as a solicitor and counsel for the applicant, and, secondly,
he wanted to relax on Saturday and Sunday knowing that the period for filing Petition of Appeal had started to
run. In fact, no Petition of Appeal had been prepared when this application came up for hearing for the first
time on November 17, 1980, i.e. more than a month after the last date for filing the petition. Nor was it ready
on March 2, 1981 when the application was disposed of. Further, there is nothing on record to show that the
applicant's conviction is wrongful. In the circumstances, I am of the view that no substantial justice would be
done if the extension of time were allowed in this particular case. For the purpose of doing substantial justice,
the court must bear in mind that justice must be done not only to the convicted person but also to society at
large on whose behalf the Public Prosecutor acts. As stated by Thomson C.J. in Veerasingam case at page
78: "It is just as imperative that a rightful conviction should be successfully defended as it is that a wrongful
one should be successfully attacked".
Further, as was held by Thomson C.J. in Veerasingam case (ante), the court is entitled to look at what other
judges have done as an illustration. Thus, in R v Nagalingam [1935] MLJ xxix, the grounds alleged were that
counsel for the appellant, as in the present case, had been engaged elsewhere and that the length of the
record involved considerable time in transcribing it. The court (Huggard C.J., Burton and Mills JJ.) ruled that
neither of these grounds was sufficient and the application to amend Petition of Appeal was refused.
Nagalingam's case was followed by Terrell J. in Rex v Moona Mohamed Hussain Maricar [1936] MLJ 36. In
my view, an extension of time to file Petition of Appeal or to amend such petition out of time should not be
granted as a matter of course.
Having regard to all the circumstances of this particular case and in exercise of the discretion conferred by
section 310 of the Criminal Procedure Code, I dismiss this application.
[1982] 1 MLJ 282

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