Chapter 17.3 - Appeal to Federal Court

Question 1

APPEAL TO FEDERAL COURT

Overview

Answer 1

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

Question 2

APPEAL TO FEDERAL COURT

Jurisdiction to hear appeal

Answer 2

S.87(1) CJA:

• any decision by CA in its appellate jurisdiction;
• any decisions by HC in its appellate jurisdiction.

Question 3

APPEAL TO FEDERAL COURT

Appealable decisions

Answer 3

1) Decisions - S.87(1) CJA:

• any decision by CA in its appellate jurisdiction;
• any decisions by HC in its appellate jurisdiction.

2) Questions - S.87(3) CJA:

• question of fact;
• question of law;
• mixed question of fact & law.

Question 4

APPEAL TO FEDERAL COURT

Stay of execution

Answer 4

1) Arrest in certain cases - S.88 CJA:
- FC may issue warrant to commit the accused to prison or admit him on bail.
2) Stay of execution - S.89 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

POSSIBLE OUTCOME OF APPEAL

Overview

Answer 5

1) The law & scope

2) Application of S.92(1)

Question 6

PROCEDURAL REQUIREMENTS

Overview

Answer 6

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

Question 7

PROCEDURAL REQUIREMENTS

Notice of appeal

Answer 7

1) The law:
- S.87(2) CJA: signed by PP & appellant.
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 8

PROCEDURAL REQUIREMENTS

Grounds of decision & record of proceedings

Answer 8

• r.91: CA to forward grounds to FC.

- s.93: copies of grounds to be served on both parties by CA.

Question 9

PROCEDURAL REQUIREMENTS

Petition of appeal

Answer 9

r. 95:

- within 10 days after service.

Question 10

PROCEDURES AT HEARING

Adducing fresh evidence

Answer 10

1) The law - S.93(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) Meaning of necessary - Juma’at bin Samad v. Public Prosecutor:
“necessary or expedient in the interests of justice”.

3) 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.

3) Recent application -

Question 11

PROCEDURES AT HEARING

Judgment of appeal

Answer 11

S.94 CJA:

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

Question 12

POSSIBLE OUTCOME OF APPEAL

Example of miscarriage of justice

Answer 12

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 13

INHERENT JURISDICTION OF FEDERAL COURT

Overview

Answer 13

1) The law & scope
2) Test to invoke
3) Example of application

Question 14

INHERENT JURISDICTION OF FEDERAL COURT

The law & scope

Answer 14

1) The law - r.137 RFC:
- nothing in the Rules shall be deemed to limit or affect the inherent powers of the Court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.
2) Scope of power - DSAI v PP (2010) 7 CLJ 397:

• r.137 RFC allows FC to hear any application or to make any order to prevent injustice or an abuse of the court’s process.
• r.137 RFC cannot be construed as conferring upon the Federal Court a statutory jurisdiction or a new jurisdiction to hear any application to review its own decision.

3) Rationale behind the power - Dato’ See Teow Chuan & Ors v. Ooi Woon Chee & Ors And Another Appeal:

• Inherent power of the court to review its decision as declared in r. 137 is a necessary power which is inbuilt or intrinsic in the court, as the court of justice & is necessary for the proper and complete administration of justice.
• It is derived from the inherent jurisdiction of the court which is to do justice and to prevent any abuse of process.
• It springs not from legislation but from the nature and constitution of the court as a dispenser of justice.
• It can only be taken away by express provision in any written law.
• The rationale behind this inherent power is to safeguard the integrity of earlier litigation process and the correction of injustice.

Question 15

INHERENT JURISDICTION OF FEDERAL COURT

Test & grounds to invoke inherent jurisdiction

Answer 15

1) Test - Kerajaan Malaysia v. Semantan Estates:
- To exercise its inherent power under r. 137 to review its own decision, the Court must be satisfied that it is a case that falls within the limited grounds and very exceptional circumstances.
2) Grounds to invoke - Asean Security Papermills Sdn Bhd v Mitsui Sumimoto, inter alia:

• coram failure;
• infringement of statutory law.

Question 16

INHERENT JURISDICTION OF FEDERAL COURT

Recent application

FC, 2019

Answer 16

Fong Kong Meng & Anor v PP:

• applicants made an application under r. 137 to review and set aside the conviction and sentence under s. 304(a) PC handed down by an earlier panel of the Federal Court;
• Alternatively, the applicants are seeking for the case to be reheard before the Federal Court.

Held:

• The only issue to be determined in meeting the threshold to invoke r.137 was: Has the earlier panel’s decision in convicting and sentencing the applicants under s. 304(a), after having found that a case under s. 300(d) had not been made out, contrary to any law so as to render it an illegal decision requiring the court to exercise its power of review under r. 137?
• the applicants’ contention to their highest, that is, the earlier panel had wrongly applied the facts to the law, does not meet threshold to order a review under r. 137.
• When there is a challenge on a decision premised on its merits whether on facts or law or where there is a divergent of opinions arising from application of a set of facts to a provision of law, FC court would not exercise its power of revision.