Chapter 17 - Appeal

Question 1

APPEAL

Overview

Answer 1

1) General issues on appeal
2) Appeal to High Court
3) Revision to High Court
4) Appeal to CA
5) Appeal to FC

Question 2

GENERAL ISSUES ON APPEAL

Overview

Answer 2

1) Effect of guilty plea
2) Appeal from Magistrate
3) Meaning & scope of decision within S.3
4) Adducing fresh evidence on appeal
5) Principles on appellate intervention
6) Effect of death of party to an appeal
7) Principles on order of re-trial
8) Principles on alteration of charges

Question 3

ISSUES ON APPEAL

Effect of guilty plea

Answer 3

1) The law:
- S.305
2) Scope:
- An accused who has pleaded guilty has rights to appeal only as to sentence.
3) May revision instead - Mohd Dalhar bin Redzwan v PP:
- Once appeal is lodged, it was however open to HC to intervene by exercising its revisionary power & set aside a conviction.

Question 4

ISSUES ON APPEAL

Appeal from Magistrate

Answer 4

1) The law:
- S.306
2) Scope:
- Requires sanction by PP.

Question 5

MEANING & SCOPE OF DECISION

Overview

Answer 5

1) General
2) Decision of coroner
3) Order to enter defence
4) Order to enter defence on a lesser charge

Question 6

MEANING & SCOPE OF DECISION

General

Answer 6

1) The law:
- S.3
2) DSAI v PP:

• “decisions” includes judgment, sentence and order;
• BUT does NOT include any ruling made in the course of trial or hearing any matter which does NOT FINALLY DISPOSE OF THE RIGHTS OF THE PARTIES.

Question 7

MEANING & SCOPE OF DECISION

Decision of coroner

Answer 7

AG of Malaysia v Mohd Kassim Mohd Hamid (HC, 2020)

• An appeal against a decision of the Coroner granting leave to initiate committal proceedings is a competent and not a premature appeal.

Question 8

MEANING & SCOPE OF DECISION

Order to enter defence

Answer 8

Saad bin Abas v PP (CA):

• The order of the High Court to enter their defence has no finality in its intent.
• So it is not appealable.

Question 9

MEANING & SCOPE OF DECISION

Order to enter defence on a lesser charge

Answer 9

1) PP v Letchumanan Suppiah (FC, 2009):

• Accused acquitted after prima facie & prosecution appealed to CA.
  CA orders accused to enter defence for a lesser charge of possession.
• Prosecution can appeal against this decision since the decision means that accused has been acquitted of the trafficking charge so it is a final decision within S.3.
• Accused cannot appeal against the decision because since order to enter defence cannot be appealed against.
• He can appeal if he is convicted on the charge after court has ordered him to enter defence.

2) cf. Mohamad Ali & Ors (CA, 2018):
- the decision of the learned trial judge in reducing the charge from the offence of murder under s. 302 of the Penal Code to one of culpable homicide under s. 304(a) of the same Code and in calling the respondents to enter their defence on the amended charge is not a decision within the meaning of s. 3 of the CJA and is not appealable.

Question 10

ADDUCING FRESH EVIDENCE ON APPEAL

Overview

Answer 10

1) The law & scope
2) Factors for consideration
3) Procedures
4) Compliance with procedures

Question 11

ADDUCING FRESH EVIDENCE ON APPEAL

The law & scope

Answer 11

1) The law:
- S.317
2) Scope - Rapidin Kamal v PP (2005):

• The hurdle under S.317 is the first hurdle.
• The next consideration is in the case of R v Parks.

Question 12

ADDUCING FRESH EVIDENCE ON APPEAL

Factors for consideration

Answer 12

R v Parks:

• not available at trial.
• relevant to the issue;
• credible evidence although need not be inconvertible, i.e. being well capable of belief; and
• the court will after considering that evidence, go on to consider whether there has been a reasonable doubt in the minds of the jury of the evidence had been at trial.

Followed in Malaysian cases:

• Che Din bin Ahmad v Public Prosecutor;
• Lau Foo Sun v Government of Malaysia.

Question 13

ADDUCING FRESH EVIDENCE ON APPEAL

Procedures

Answer 13

Rapidin Kamal v PP:

• Parties may apply to court to admit fresh evidence via notice of motion.
• Order to admit or to not admit fresh evidence may be appealed against.

Question 14

ADDUCING FRESH EVIDENCE ON APPEAL

Compliance with procedures

Answer 14

Dol bin Lassin v PP:

• proper procedure must be adhered in admitting such evidence.
• i.e. SC criticised the manner which the appellate judge allowed additional evidence to be given by way of a demonstration of a chemist who is neither sworn or affirmed, nor there was an opportunity to cross-examine.

Question 15

PRINCIPLES ON APPELLATE INTERVENTION

Overview

Answer 15

1) Principles on appellate interference
2) Serious misappreciation of facts
3) Interference of sentence
4) Interference of finding of fact
5) Interference of conviction

Question 16

PRINCIPLES ON APPELLATE INTERVENTION

Principles on appellate interference

Answer 16

1) Sheo Swarup v King Emperor:
- Before appellate courts interfere with the finding of facts, it must keep in mind on:

• the views of trial Judge as to the credibility of witness.
• presumption of innocence in favour of the accused;
• the right of the accused to the benefit of doubt.
• being cautious in interfering with the finding of the Judge who has the advantage of seeing the witnesses.

2) Lim Kheak Teong v PP:

• an appellate court that comes to a different conclusion by examining the printed evidence should not do so;
• unless it is satisfied that advantage of the trial Judge of having seen the witness could not be sufficient to explain the trial Judge’s conclusion.

3) Mohamad bin Abdullah v PP (CA, 2012):

• Criminal appeals are not being heard by way of re-hearing;
• Appellate court is confined to a consideration of whether the learned judge had erred in his decision on any finding of law or facts.
• Appellate court can only intervene if the learned judge had so erred as to warrant an intervention.

Question 17

PRINCIPLES ON APPELLATE INTERVENTION

Serious misappreciation of facts

Answer 17

PP v Teoh Meng Kee (CA, 2014):

• a serious misappreciation of the facts by itself can lead to an appellate intervention.

Question 18

PRINCIPLES ON APPELLATE INTERVENTION

Interference of sentence

Answer 18

PP v Loo Choon Fatt:

• Appellate court will not normally alter the sentence unless;
• it is satisfied that the sentence passed by the lower court is;
• manifestly inadequate or excessive; or
• it is illegal; or
• it is not a proper sentence having regard to all the facts disclosed; or
• the court has clearly erred in applying the correct principles in the assessment of sentence.

Question 19

PRINCIPLES ON APPELLATE INTERVENTION

Interference of finding of fact

Answer 19

1) PP v Mohd Radzi Abu Bakar:

• Function of the appellate court is NOT to make its own finding of facts;
• Appellate court is fettered because it lacks the audio-visual advantage.

2) Amri Ibrahim & Anor v PP (FC, 2017):

• It is trite law that the view of the trial judge as to the credibility of a witness must be given proper weight and consideration.
• An appellate court should be slow in disturbing such finding of fact arrived at by a trial judge, who had the advantage of seeing and hearing the witness, unless there were substantial and compelling reasons for disagreeing.

Question 20

PRINCIPLES ON APPELLATE INTERVENTION

Interference of conviction

Answer 20

1) Mohammad Rafi v PP (CA, 2015):

• In a criminal appeal, the appellate court’s duty is to consider whether the conviction of the appellant is right.
• It is not whether the decision of the trial judge is wrong but whether the conviction is safe.

2) Noor Azman Abidin v PP (CA, 2014):

• The test for whether a conviction is unsafe or unsatisfactory is a subjective one.
• Each member of the Court of Appeal asks himself - ‘Have I a reasonable doubt, or perhaps even a lurking doubt, that this conviction may be unsafe or unsatisfactory?’
• If he has, then he should be for allowing the appeal; if not, his vote should go against the appellant .
• The issue whether it is safe or unsafe to convict is within the exclusive and subjective jurisdiction of the first appellate court;
• It is not amenable to apex intervention unless it can be demonstrated that the first instant appeal court could not have achieved the said decision, and there is overwhelming evidence to support the conviction beyond reasonable.

Question 21

EFFECT OF DEATH OF A PARTY TO AN APPEAL

The law, scope & application

Answer 21

1) The law:
- S.320
2) General principles - R v Jefferies:

• whenever a party to proceedings dies, the proceedings must abate;
  unless his personal representative has a personal interest in the subject matter &

2) Exception - Karpal Singh v PP:
- appeal allowed to be substituted with deceased’s widow as a substitute.

Question 22

ORDER OF RE-TRIAL

Overview

Answer 22

1) When can be ordered
2) Factors for consideration
3) Continuance of a previous trial or not
4) Right of prosecution during re-trial
5) Re-trial for order to enter defence

Question 23

ORDER OF RE-TRIAL

When can be ordered

Answer 23

1) Nullity - R v Heyes:
- Where a trial is a nullity, court has the power to order a re-trial.
2) Conviction reversed - Ariffin bin Cassim v PP:
- Where an appellate court reverse a conviction, it should either acquit the accused or order a re-trial by a competent court.

Question 24

ORDER OF RE-TRIAL

Factors for consideration

Answer 24

1) Salehuddin bin Yahya v PP:

• the length of time of accused has spent in prison;
• the cost & expense would be incurred when ordering a new trial;
• the prejudice to the accused;
  the quality of evidence available.

2) Irawadi bin Mohammed v PP (CA, 2012):
- the interest that is to be served by the power to order a retrial must be in the interests of the public.

Question 25

ORDER OF RE-TRIAL

Continuance of a previous trial or not

Answer 25

1) Ooi Lean Chai v PP:

• The retrial cannot be treated as a continuation of the first vitiated trial;
• Whatever was done during the earlier trial towards proving the essential ingredients of the accused must be ignored as non-existent & of no effect.

2) Irawadi bin Mohammed v PP (CA, 2012):

• A fresh trial means that everything would have to start afresh.
• All evidence are required to be tendered afresh to be decided upon by a new trial judge.

Question 26

ORDER OF RE-TRIAL

Right of prosecution during re-trial

Answer 26

Lee Weng Sang v PP:

• An order of retrial will result in trial de novo;
  PP has the right to amend, alter, reduce or enhance the charges or even to offer no evidence in proceedings.

Question 27

ORDER OF RE-TRIAL

Re-trial for order to enter defence

Answer 27

Muhammad Kin Eezaz Abdullah v PP:

• When PP is appealing against the finding of trial court that there is no prima facie, appellate court may order a re-trial;
• in such a situation, a re-trial could also mean a continuation of the original trial; i.e. for the defence to be called.

Question 28

ALTERATION OF CHARGES

Overview

Answer 28

1) Meaning of alter
2) Exercise of power
3) The test

Question 29

ALTERATION OF CHARGES

Meaning of alter

Answer 29

Ng Ee v PP:

• Alter means substitution of a conviction under a different provision of the law;
• Substitute the right section with the wrong section;
• Power to alter must be exercised with a great caution.

Question 30

ALTERATION OF CHARGES

Exercise of power

Answer 30

Sivalingam Chelliah v PP:

• Must be exercised subject to S.165 & 166 CPC under limited circumstances and with great caution and it must be done so as not to prejudice the case of an accused.

Question 31

ALTERATION OF CHARGES

The test order alteration

Answer 31

Ng Ee v PP:

• The test in Lew Cheok Hin must be satisfied:
• i.e. Facts are available from the start.
• Charge could have been framed and tried concurrently under S.166.
• Evidence must have been presented in such a way that raise all the same issues of fact as would have been raised in the unframed charge been framed and tried.