Appeal

Intro
• An appeal is always to the Superior ct. (HC, COA & FC)

• When a superior ct hears an appeal, it is in fact exercising its

appellate jurisdiction.

• There is no general right of appeal. Appellate jurisdiction is

solely a creation of statute. It extends only as far as the
words of the statute require.

• No appeal from a sub ct lies to a superior court unless

there is a statutory provision allowing such a right to appeal.

DSAI [1999] 1 MLJ 321

• In a criminal appeal the parties are the Appellant & the
Respondent.

• Appellant: Any person who is dissatisfied with any

judgment, sentence or order made by the subordinate court
in a criminal case or matter to which he is a party.

• Respondent: The opposite or adverse party who responds to

the appeal.

• Only party to the proceeding may appeal

• A person who has not been a party to the case in the first
place clearly has no right of appeal.
• However see exception like s.404, 405 CPC on forfeiture
of bond wherein the appellant may be the bailor/surety
who is technically not a party to the case between the
prosecution and the accused but may appeal.
• Khor Ewe Suan [1964] MLJ 220 at 221
• Public Finance Bhd [1989] 2 MLJ 448.

• There must be a criminal case or matter to start with.

Ang Gin Lee [1991] 1 MLJ 495

An order made by a Magistrate under s.6 of the Drug
Dependent (Treatment and Rehabilitation) Act 1983 is not
appealable as it is not an order pronounced in a criminal
case.
• The appellate jurisdiction of a superior court is provided for
in the Courts of Judicature Act 1964 (CJA - Act 91) &
FC

(i) Appeal to FC

• S.86 & 87 CJA: Jurisdiction of the FC to hear and

determine criminal appeals in respect of
- any criminal matter decided by the HC in its original
jurisdiction

• On the process and procedure of a criminal appeal to the FC

S.88 - 95 CJA
Rules of the Federal Court 1995.
(ii) Appeal to COA
• Jurisdiction of the COA to hear & determine criminal
appeals against any decision made by the HC (original
jurisdiction) - S.50 CJA
• Appeal against the decision of the HC (when exercising its
appellate jurisdiction) to the COA must be with leave
from the COA.

• The process of obtaining leave is in fact a filter process by

the COA to allow only certain decision made by the HC to be
appealed and decided by the COA. S.50(2) & (2A) CJA.

• On the process and procedure of a criminal appeal to the

COA: S.51 - 63 CJA
Rules of the Court of Appeal 1994.
• An application for leave shall be confined only to a
question of law .

• However, if the PP appeals, there is no

requirement for leave of the COA. PP can do
so automatically by filing a Notice of Appeal (NOA)
to the COA.
(iii) Appeal to HC
• Jurisdiction of the HC to hear and determine
criminal appeals in respect of any criminal matter
decided by sub cts. (exercising original
jurisdiction) - S.26 CJA

• On the process & procedure for criminal appeals to

the HC. Chap XXX Part VII - s.303A to 322.
• No right fo appeal under s.6 Drug Dependent
(Treatment & Rehabilitation) Act 1963 – but
can apply for revision

• S.304: No appeal if the offence involved

punishable with fine only not exceeding RM25

• S.305: If A had PG and convicted – can only

appeal vs sentence

• S.306: Appeal vs acquittal – by PP or with PP’s

sanction
• S.311: Appeal does not automatically
stay an execution

• S.315: Appeal vs acquittal – A can be

arrested

• S.320: If A died
• STAY OF EXECUTION
• Pursuant to section 311 CPC, no appeal shall operate as a
stay of execution except in the case of a sentence of
whipping and death.
• However the trial judge or the appellate judge may allow
a stay of execution on any judgment, order, conviction or
sentence pending appeal subject to terms and conditions.
• Such a condition is bail pending appeal.
• Since it is not automatic, the applicant has to show
special or exceptional circumstances that would justify
the grant of stay of execution. See the case of Ralph v R
(1972-1974) SLR 322; Sharma Kumari Om Prakash v PP
[2000] 6 MLJ 847.
• See also section 57 and 89 CJA.
• An appeal shall lie against a judgment, sentence/order.
S.307
S. 3 CJA use the word ‘decision’.

• What is a judgment, sentence or order?

• It 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.

• Therefore a judgment, sentence or order shall be final which

finally disposes of the rights of the parties.

• The judgment, sentence or order may have been made by a Sub

C (including C for Children) or HC exercising original
jurisdiction.
• A decision is final once it is taken to its
conclusion, which ultimately results in:
(i) A conviction of the accused;
(ii)An acquittal of the accused;
(iii)A sentence which entails a form of a
punishment such as imprisonment or
fine;
(iv)An order which finally disposes of the
rights of parties.
TYPE OF APPEAL
1) An appeal from a conviction

• The basis inter alia being:

(i) Error of law – trial judge erred when applying the correct
principle of law to the facts thus making an erroneous finding
of law.
(ii) Error of fact – trial judge erred when making a finding of
fact which is inconsistent or unsupported by the weight of
evidence in the case.
• The above is also referred to as misdirection or a non-
direction on the law, facts or evidence adduced.
• s.307 (1), (6) CPC;
• S.53 (2), 87 (3) CJA.
• An example is the case of DP Vijandran v
PP [1999] 1 MLJ 385
• the COA decided not to interfere with the
concurrent findings of fact made by the SC &
HC save in very rare cases:
- When it can be shown that the course of
events affirmed by the trial judge could not
have occurred;
- Trial judge had failed to critically assess and
analyze the prosecution’s evidence
2) An appeal from an order of acquittal.

the appellate court has to be mindful of the following:

• Proper weight and consideration must be given to the
views of the trial judge on the credibility of witnesses.
• The presumption of innocence in favor of the
accused.
• Right of the accused to the benefit of the doubt.
• Slowness of the appellate court to disturb the finding
of fact of the trial judge as he was in a better position
to appreciate the audible evidence of witnesses.
3) An appeal as to sentence.

• The prosecution may appeal as to inadequacy of sentence passed by

the court and an accused may appeal on excessive severity of the
sentence passed by the court.

• The basis being:

- Sentence is grossly inadequate.
- Sentence is manifestly excessive.
- Sentence is not according to law.
• S.307 (1), (6) CPC;
• S.53 (2), 87 (3) CJA.
• s.305 CPC.
• Take note that the High Court may exercise its revisionary
jurisdiction if at the hearing of the appeal, defense argued that the
conviction is illegal.
• Mohd Dalhar b Redzuan v Datuk Bandar, DBKL [1995] 1 MLJ 645.
• As litigation proceeds, various applications may be made to
the judge. Some are referred to as interlocutory
applications.

• Other applications are made in a formal manner and

others orally.

• The judge has to decide on the application made and this

results in orders and procedural rulings. To what extent
can these orders and procedural rulings be appealed
against?

• A ruling made in the course of a trial or hearing would not

be appealable if it does not dispose of the rights of the
parties.
• Sometimes the ruling may be referred to as an order,
but is not defined in the legislation.

• The issue of what orders and procedural rulings are,

came up for deliberation in the case of Datuk Seri
Tiong King Sing v. Datuk Sri Ong Tee Kiat in
the HC
• Journalist Joseph Sipalan was called to testify in a
claim for defamation.
• However, the application was dismissed by the judge
on the basis that there was discretion not to order the
journalist to disclose the sources.
• An order to reflect the decision was filed and extracted.
• Tiong appealed to the COA.
• During the appeal the question was raised as to
whether the decision of the learned HC judge in
dismissing the application, made in the course of
the trial, was appealable.

• It was argued for Tiong that the appeal concerned

an order made on a substantive application filed by
Tiong vs Sipalan to compel disclosure.

• It was submitted that the appeal was not against a

ruling made in the course of the trial, considering
that when the learned HC judge decided that the
witness need not disclose “his sources”, the judge
made an order on a substantive application.
• However, the COA did not agree and held that the decision of the
learned HC forming the subject matter of the appeal was in effect
and in substance a ruling made in the course of the trial, and not an
order or a judgment as stated in s.67(1).

• In so deciding, the COA recognised that the aspect of the procedural

ruling is more clearly stated in the context of appeals in criminal
matters. S.50 of the act read as follows:
“Subject to any rules regulating the proceedings of the COA in respect
of criminal appeals, the COA shall have jurisdiction to hear and
determine any appeal against any decision made by the HC...”

• And the word “decision” is defined to mean “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” (in the Court of Judicature Act 1964).
• The Court of Appeal went on to say that “if appeals are permitted against rulings
made in the midst of a trial, this will affect a fair and expeditious disposal of court
proceedings due to the likelihood for untimely and academic appeals as well as
possible stays of proceedings pending such appeals.”

• “By staying the proceedings pending the disposal of the appeal, the final decision
of the court on the action will also be held up. The application within which such a
ruling is made would continue to remain alive despite the ruling, and the outcome
of the final decision on the action would not depend on merely such a ruling.”

• “Indeed, an incorrect ruling may not even have a material effect upon the outcome
of the action in question.

• “In this regard, it is important to note that a litigant aggrieved with such a ruling
may even end up succeeding in the action. In any event, in the context of the
present case, if the plaintiff is dissatisfied with the final outcome of his action
against the 4th defendant, he may still raise the ruling of the learned High Court
judge as part of his grounds of appeal.”
• The Court of Appeal also referred to the decision
made in Syarikat Tingan Lumber Sdn Bhd v.
Takang Timber Sdn Bhd where the Court of Appeal
had also dismissed an appeal against a ruling of the
Registrar on an issue with regards to the
admissibility of certain documents.

• With this decision of the Court of Appeal, which has

been now upheld by the Federal Court, there is
clearer guidance on the difference or the line to be
drawn between orders and procedural rulings, even
though the latter may be called orders.
• So what about an order by the court to grant or refuse bail?
• Is it a decision within section 3 CJA?

• The granting or refusal of bail is not a ‘decision’ within the meaning of s. 3

CJA because such a decision (ruling) is not final as it does not have the
effect of finally determining the rights of the parties.

• This is so because an accused who has been refused bail may make
another fresh application for bail provided there is a material change in
circumstances. Likewise the prosecution may apply for revocation of bail
granted to an accused if there are material and cogent evidence to support
the revocation.
DSAI [1999] 1 MLJ 321.

• Then why have a provision in the form of section 394 CPC?

• Bear in mind that it only applies to the order of bail made by the
subordinate court which is appealable to the High Court.
s.389 CPC; s.388 (5) CPC.
• Saad Abbas [1999] 1 MLJ 129 (CA).
The court has to first ascertain whether the ‘decision’
of the High Court in ordering the appellants to
enter on their defense was a ruling that had the
effect of finally disposing of their rights.

• Certainly not as the accused has not been convicted

or acquitted. Until then the accused has to wait,
which would happen only after a decision is made
at the close of the defense case.
• Analyze the following situations:

• A decision made by the prosecution to call or not to call a witness? Is that

ruling which is made in the course of a trial has the effect of ‘finally
disposing of the rights of the parties’?

• A decision by the prosecution to call or not to call a witness is an exercise

of prosecutorial discretion which cannot bring an end to the whole case.

• What about an order to issue a summons or order to produce under

section 51 CPC? Is it final in its effect and therefore appealable? Does it
finally dispose of the rights of the parties?
• Raymond Chia Kim Chwee & Anor (1985) 2 MLJ 436. Consider if you
agree with this decision, as the applicant may make a fresh application
pursuant to section 51 in the course of the trial and if till the end of the
whole case, the trial court had refused the summons or order to produce,
the aggrieved party depending on the outcome of the whole case can raise
the refusal by the court as a ground of appeal in its petition of appeal.
• Always be mindful that the final disposal of rights relates to
the final outcome of the whole case.

• Procedural ruling is not appealable. A party may not appeal

in the midst of a trial as it waylays the trial process.

• Hoo Chan Chwen (1962) MLJ 284;

• Mohamed bin Musa v PP (No. 2) [1972] 1 MLJ 61;
• Marzuki bin Mokhtar v PP [1981] 2 MLJ 155.

• Thus if a party is dissatisfied with a procedural ruling, it may

take it up to the High Court by way of criminal revision.
• Tang Kee Chie v PP [1987] 1 MLJ 430;
• Mohd. Amin bin Abdullah v PP [1995] 1 MLJ 612.
Procedure:
APPEALS TO THE HIGH COURT

• S.307
PROCEDURAL STEPS IN A CRIMINAL APPEAL

(i) To lodge a Notice of Appeal within 14 days after

the final judgment, sentence or order (decision) of the
court exercising original jurisdiction.
• S.307 (1) CPC; S.51 (1) CJA.

Kentucky Fried Chicken v Lembaga Bandaran PJ [1976]

2 MLJ 145 – for on computation of time period to
appeal.

• S.56 CJA 1964 & s.310 CPC give some discretion to the
Court to condone delay in order that substantial justice
may be done in the matter.
• The above two sections are applicable to notice of
appeal as well as petition of appeal.

• From decided cases courts are liberal in condoning

application to file out of time the petition of appeal and
not notice of appeal.

Veerasingham [1958] MLJ 76

Muhamad Asri bin Bakar [1996] 1 LNS 496

• S.307 of CPC relating to filing of notice of appeal must be

read with s.51 CJA 1964.

• And the strict requirements of s.51 CJA 1964 must be

complied with to sustain the appeal.
• There is no room to say a fax copy of
notice of appeal will suffice to satisfy
the requirement of s.51.
(ii) Receipt of Grounds of Decision
within 8 weeks from the day of decision
(it is not a rule of law but a rule of
practice directed by way of a Practice
Direction).
• S. 307 (3) CPC; S.52 CJA.
(iii) Petition of Appeal within 14
days after receipt of grounds of decision
or judgment or from the date of receipt of
Notes of Evidence, whichever is later
• S.53 CJA
• S.307 (4) CPC;.
• S.307 (5) CPC.
(iv) Appeal record

(v) Hearing of the Appeal.

The process is clearly spelt out in s.313
(1) CPC.
• Presence of parties (Appellant &
Respondent).
(vi) Decision on appeal.
• S.316 CPC
• Pursuant to s.316 (b) CPC, after hearing an appeal from a conviction
- the appellate court may reverse the finding of guilt and
- sentence and acquit or discharge the accused or
- order the accused to be retried.

• An example of a case where retrial was ordered by HC is Awaluddin b Suratman [1992]

1 MLJ 416.

• There may be a substitution of the conviction from the original charge to a conviction on
an amended charge.

• This takes place only if the conviction on the amended charge is supported by the evidence
adduced in court and not something new which the accused is not in a position to refute as
the trial of the case has ceased.
• Ng Ee (1941) MLJ 180;
• Banta Singh v PP (1941) MLJ 154;
• Lew Cheok Hin v PP (1956) MLJ 131;
• Sivalingam v PP [1982] 2 MLJ 172;
• Gurdit Singh [1983] 1 MLJ 204.

• Pursuant to s.316 (c) CPC, if an appeal is from any other final order made by the court of
original jurisdiction, the appellate court may alter or reverse the order made.