Chapter 17.2 - Appeal to Court of Appeal

Question 1

APPEAL TO COURT OF APPEAL

Overview

Answer 1

1) Jurisdiction to hear appeal
2) Appealable decisions
3) Stay of execution
4) Procedures for appeal

Question 2

APPEAL TO COURT OF APPEAL

Jurisdiction to hear appeal

Answer 2

1) The law:
- Art. 1212 (1B)
- S.50 CJA:
2) Scope:

• Final decision within S.3.
• decision made by HC in the exercise of its original jurisdiction;
• decision of HC in the exercise of its appellate or revisionary jurisdiction in respect of criminal matter decided by Sessions Court.
• decision of HC in the exercise of its appellate or revisionary jurisdiction in respect of criminal matter decided by Magistrate’s court, provided that leave from CA is obtained & appeal shall lie in questions of law only.

Question 3

APPEAL TO COURT OF APPEAL

Appealable & non-appealable decisions

Answer 3

1) Decisions - S.50(1)

• HC’s decision in original jurisdiction;
• HC’s decision in revisionary or appellate jurisdiction for matters originated in SC;
• HC’s decision in revisionary or appellate jurisdiction for matters originated in MC, provided LEAVE OF CA is obtained & appeal is only on QUESTIONS OF LAW.

2) Questions - S.50(2) CJA:

• general: question of fact/law/mixed.
• exception: matters from MC - only question of law.

3) Mixture of facts & merits of case law - Tay Swee Teck v PP (CA, 2018):
- mixture of facts or merits of the case and law was obviously not in accordance with s. 50(2) of the CJA & thus not appealable.
4) Application for leave - S.50(2A) CJA:
- within 14 days after the date of HC’s decision.

Question 4

APPEAL TO COURT OF APPEAL

Stay of execution

Answer 4

1) Arrest in certain cases - S.56A:
- CA may issue warrant to commit the accused to prison or admit him on bail.
2) Stay of execution - S.57 CJA:

• may be granted in accordance with well-established judicial principles & based on the facts and circumstances of each case.
• The grant of a stay is only an exception to the general rule;
• special or exceptional circumstances must be shown to exist before the discretion can be exercised in favour of a convicted applicant.

Question 5

PROCEDURES FOR APPEAL

Overview

Answer 5

1) Pre-requisites
2) Procedural requirements
3) Procedures at hearing
4) Possible outcomes of appeal

Question 6

PRE-REQUISITES FOR APPEAL

Matter originated in Magistrate court

Answer 6

1) The law - S.50(1) CJA:

• HC’s decision in revisionary or appellate jurisdiction for matters originated in MC, provided LEAVE OF CA is obtained & appeal is only on QUESTIONS OF LAW.
• i.e. leave of CA + question of law only.

2) Mixture of facts & merits of case law - Tay Swee Teck v PP (CA, 2018):
- mixture of facts or merits of the case and law was obviously not in accordance with s. 50(2) of the CJA & thus not appealable.
3) Application for leave - S.50(2A) CJA:
- within 14 days after the date of HC’s decision.

Question 7

PROCEDURAL REQUIREMENTS FOR APPEAL TO COURT OF APPEAL

Overview

Answer 7

1) Notice of appeal
2) Grounds of decision & record of proceedings
3) Petition of appeal
4) Appeal record

Question 8

PROCEDURAL REQUIREMENTS FOR APPEAL TO COURT OF APPEAL

Notice of appeal

Answer 8

1) The law:
- S.51 CJA: must be filed within 14 days after date of decision.
2) Contents of Notice:

• substance of judgment of appeal against;
• address for service of notice;
• signed by appellant & advocate, PP or SG.

3) Sent to Registrar CA - r.58 RCA:
- A copy of the Notice of Appeal shall be sent by the appellant to the Registrar of the Court of Appeal.
4) Fax transmission - PP v Mohd Hussein Mohd Kassim (2018):

• There was no provision nor was there any room for interpretation that a fax transmission could be considered as filing of the notice of appeal.
• therefore, fax transmission to file notice of appeal is not a valid mode of filing.

5) Fax transmission appeal to HC - Jawan Ak Empaling:
- filing of the petition of appeal via facsimile was accepted since it does not provide under the section that only the original copy of the petition of appeal ought to be lodged.

Question 9

PROCEDURAL REQUIREMENTS FOR APPEAL TO COURT OF APPEAL

Grounds of decision & record of proceedings

Answer 9

1) The law:

• S.52 CJA: written judgment shall form the record of proceedings.
• Registrar shall cause to be served on the appellant a notice that a copy of the record is available & can be applied to have it on the payment of fee except for PP.

2) Effect of delay - Tan Hun Wah v PP:

• HC judge must do so with reasonable speed.
  i. e. delay of 3 years has prejudiced the accused.

Question 10

PROCEDURAL REQUIREMENTS FOR APPEAL TO COURT OF APPEAL

Petition of appeal

Answer 10

1) The law - S.53 CJA:

• within 10 days after service of notice of availability of record of proceedings;
• to the Registrar of HC, but see rules below.

2) r.65 RCA:
- petition of appeal is filed with Registrar of CA which then will extend a copy to HC.
3) Extension of time:

• the law: S.56 CJA
• i.e. CA has the discretion to extend time upon application by of the appealing party.

4) Exercise of discretion - Exercise of discretion: PP v Ismail bin Abd Wahab:

• draws a distinction between the treatment for the delay for notice of appeal and the petition of appeal.
• courts are more liberal in condoning (i.e. accepting) application to file out of time the petition of appeal and not notice of appeal.
• the Courts are more stringent in ensuring the adherence to the 14-day rule in relation to notice of appeal in comparison to a petition of appeal.

5) Exercise of discretion - PP v Azman Abdul Ghani:

• Discretion must be exercised on such terms as he may consider desirable in order that substantial justice may be done in the matter;
• The court would not attempt any definition of what is substantial justice, but it is suggested that substantial justice is done when a rightful conviction is upheld and a wrongful one is quashed.
• To exercise his discretion properly, the judge must apply his mind to all the relevant material.

Question 11

PROCEDURAL REQUIREMENTS FOR APPEAL TO COURT OF APPEAL

Appeal record

Answer 11

1) Transmission of appeal record - S.55 CJA:
- Registrar of the HC shall transmit 4 copies of record of proceedings, together with notice of appeal & petition of appeal.

Question 12

PROCEDURES AT HEARING

Overview

Answer 12

1) The law & scope
2) Quorum of judges
3) Adducing fresh evidence
4) Judgment of appeal

Question 13

PROCEDURES AT HEARING

The law & scope

Answer 13

1) The law:
- S.60(1) CJA
2) Scope:

• hear appellant & respondent;
• hear appellant & respondent in reply.

Question 14

PROCEDURES AT HEARING

Quorum of judges

Answer 14

1) The law:
- S.38(1) CJA: 3 judges or more, uneven numbers.
2) Effect on authoritative value of the judgment - Dalip Bhalwan Singh v PP:

• whatever the number is, it does not affect the authority of the judgment;
• i.e. it does not mean that a case heard by larger quorum is more authoritative than one heard before three judges.

Question 15

PROCEDURES AT HEARING

Adducing fresh evidence

Answer 15

1) The law - S.61(1) CJA:

• may admit additional evidence if it thinks necessary;
• either by itself or direct it to be taken by trial court.
• parties shall be present when additional evidence is taken.

2) Conditions - 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 16

PROCEDURES AT HEARING

Judgment of appeal

Answer 16

S.62 CJA:

• may be delivered on the same day or future day;
• only one judgment unless directed by President.

Question 17

POSSIBLE OUTCOMES OF APPEAL

Overview

Answer 17

1) The law & scope
2) Example of miscarriage of justice
3) Application

Question 18

POSSIBLE OUTCOMES OF APPEAL

The law & scope

Answer 18

1) The law:
- S.60(1)
2) Scope:

• confirm, reverse or vary HC order;
• order for retrial.

3) Dismissal of appeal although point is in favour of appellant - Proviso S.60(1) CJA:

• Appeal may still be dismissed although point raised in the appeal is in the favour of the appellant.
• This is so if it considers no substantial miscarriage of justice has occurred.

Question 19

POSSIBLE OUTCOMES OF APPEAL

Example of miscarriage of justice

Answer 19

1) Example of miscarriage of justice - PP v Juraimi Hussin:

• It would result in a substantial miscarriage of justice if it resulted in a decision different from that which would have been given had the evidence not been admitted.
• i.e. if the appellant is shown to be innocent, or if the court is of the opinion there exists such doubt as to his guilt that the verdict of guilty should not be allowed to stand.

2) Example of miscarriage of justice - Goo Loo Seng v PP:

• It will constitute miscarriage of justice if the trial judge did not view the whole evidence objectively and from all angles;
• with the result that the appellant had lost the chance which was fairly open to him of being acquitted.

Question 20

POSSIBLE OUTCOMES OF APPEAL

Application of S.60(1)

Answer 20

1) PP v Juraimi Hussin:

• OTF, since the trial judge’s non-compliance with the rule in Yaacob’s case did not in any event occasion any miscarriage of justice to any of the accused persons;
• appeal was resolved in favour of the prosecution (Respondent) & the death sentence is upheld.

2) Mohd Jamail Abdul Ghani v. PP:

• the alleged misdirection on the part of the trial judge that he has erred in stating the defence was belatedly disclosed at the defence stage.
• CA held that even if there was a misdirection by the learned trial judge at the conclusion of the defence case, the proviso to s. 60(1) of the CJA should be applied as there was no miscarriage of justice and the conviction of the accused was safe.