Chapter 17.1 - Appeal & Revision to High Court Flashcards
(33 cards)
APPEAL TO HIGH COURT
Overview
1) Creation of right to appeal
2) Jurisdiction to hear appeal
3) Non-appealable decisions
4) Non-appealable decision except with PP sanction
5) Procedures for appeal
APPEAL TO HIGH COURT
Creation of right to appeal
PP v DSAI:
- No appeal from a court shall lie to any other court;
- Unless there is a statutory provision which gives a right to appeal.
APPEAL TO HIGH COURT
Jurisdiction to hear appeal
S.26 CJA:
- To hear appeal from sub-courts within the territorial jurisdiction of the HC.
APPEAL TO HIGH COURT
Non-appealable decisions
1) S.304:
- No appeal against fine less than RM25.
2) S.305:
- No appeal against conviction if the accused pleads guilty, except as to EXTENT OR LEGALITY of sentence.
APPEAL TO HIGH COURT
Non-appealable decision except with PP sanction
S.306:
- Appeal against acquittal by Magistrate can only be lodged with written sanction by PP.
PROCEDURES FOR APPEAL
Overview
1) Pre-requisites
2) Procedural requirements
3) Procedures at hearing
4) Possible outcomes of appeal
PRE-REQUISITES FOR APPEAL
Overview
1) Any person
2) Judgment, sentence or order
3) In a criminal case or matter
PRE-REQUISITES FOR APPEAL
Any person
R v WBE Rudguard:
- ‘any person’ refers to a person who is a party to the criminal proceeding in the trial court, i.e. the accused & PP.
- PP comes under the description of ‘any person’ in S.307.
PRE-REQUISITES FOR APPEAL
Judgment, sentence or order
1) Must be final - test to determine - Ang Gin Lee v PP:
- The order must first of all be a final order.
- The test: whether the judgment or order finally disposes of the rights of the parties.
2) Rulings & interlocutory orders - Maleb bin Su v PP:
- all procedural rulings made in the course of the trial are not appealable.
- Ref. PP v DSAI - example:
- Ruling of trial judge on a particular witness is not appealable;
- Decision of refusing granting of bail is not appealable.
3) Meaning of order - Sia Kim Yoke v PP:
- An ‘order’ under S.307 is opposed to judgment;
- Normally made in summary proceedings on petition or summons;
- May be enforced in the same manner as a judgment;
- Affects parties to the proceedings personally or on their property; and
- It is final in that it finally disposes of the rights of the parties.
- Example: order or summons to produce under S.51.
PRE-REQUISITES FOR APPEAL
In a criminal case or matter
1) Anand v Home Secretary:
- the cause or matter which if carried to its conclusion might result in conviction of the person charged; and
- in a sentence of some punishment such as imprisonment or fine.
2) Re Clifford & O’Sullivan:
- it must involve the consideration of some charge of crime, i.e. an offence against the public law.
- the charge must be preferred before some court or judicial tribunal having or claiming jurisdiction to impose punishment for the offence.
PROCEDURAL REQUIREMENTS TO APPEAL TO HIGH COURT
Overview
1) Notice of appeal
2) Form of notice of appeal
3) Grounds of decision
4) Petition of appeal
5) Notes of evidence
6) Appeal record
PROCEDURAL REQUIREMENTS TO APPEAL TO HIGH COURT
Notice of appeal
THE TIME TO LODGE
1) The law - S.307(1):
- must be lodged within 14 days.
2) Multiple offences - R Vijaya Raj:
- 14 days will run from the acquittal (or conviction) of that one particular charge;
- Not the trial of remaining charge.
EXTENSION OF TIME
1) The law:
- S.310
2) Exercise of discretion - PP v Sundravelu:
- the court has a discretion whether or not to allow the application;
- emphasis should be given on the phrase ‘in order that substantial justice may be done in the matter’.
3) Exercise of discretion - Sam Yew Choy v PP:
- courts are reluctant to exercise its power to grant an enlargement of time under S.310;
- unless there are compelling reasons to do so;
- and default of counsel can only be excused when it is absolutely certain that the applicant is completely free to blame.
PROCEDURAL REQUIREMENTS TO APPEAL TO HIGH COURT
Form of notice of appeal
1) The law:
- S.307(1)
- S.307(2)
2) Must be signed - Jayansankaran v PP:
- both notice and petition of appeal may be validly signed by the appellant’s advocate on his behalf;
- qui facit per alium facit per se;
- i.e. he who does an act through another in law is deemed to do it himself.
PROCEDURAL REQUIREMENTS TO APPEAL TO HIGH COURT
Grounds of decision
1) The law:
- S.307(3)
2) Speedy preparation is required - Voon Chin Fatt v PP:
- Magistrate is expected to prepare the grounds with all convenient speed;
- Undue delay will cause a failure of justice and prejudiced to the accused, resulting in conviction being quashed.
3) Preparation of grounds of decision - Sia Kim Yoke v PP:
- Magistrate could not be excused from preparing the grounds of decision;
- OTF, it is held that the issue of plea of autrefois convict is substantive in nature and appealable, therefore grounds of decision must be prepared.
PROCEDURAL REQUIREMENTS TO APPEAL TO HIGH COURT
Petition of appeal
1) The law:
- S.307(4)
2) PP v Jawan Ak Empaling:
- time to file a petition of appeal under S.307(4) starts to run from the receipt of the grounds of the decision by the appellant.
3) Via facsimile - 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.
4) Contents of petition - PP v Jitweer Singh Ojagar Singh (FC, 2014):
- must particularise the points of law or of fact which the court appealed from is alleged to have erred.
- However, that is not to say that the court is therefore powerless to permit a point of law or of fact, which is not in the petition of appeal, to be raised.
- FC this overruled Yan Wing Lee v. PP and the cases that followed it, which purported to lay down an inflexible rule that it is mandatory that grounds not itemised in the petition of appeal must be disregarded without any discretion to admit it.
PROCEDURAL REQUIREMENTS TO APPEAL TO HIGH COURT
Notes of evidence
1) The law:
- S.307(5)
2) Entitlement of notes of evidence - PP v Tan Tho Kim:
- appellant was entitled to request for and to be supplied with notes of evidence upon filing the notice of appeal although it has been supplied during the course of the trial.
PROCEDURAL REQUIREMENTS TO APPEAL TO HIGH COURT
Appeal record
1) The law:
- S.308
2) Scope:
- upon compliance with all requirements under S.307, the court appeal from shall transmit the appeal record signed by PP & appellant to High Court;
- together with grounds of decision + notice + petition of appeal.
PROCEDURES AT HEARING
All parties present
S.313(1)
PROCEDURES AT HEARING
Absence of appellant
1) The law:
- S.313(2)
2) Scope of discretionary power - Hayati bte Aizan v PP:
- the court may consider the appeal as provided by the proviso only if it fixes any terms, for example, by requiring an attendance of the appellant at an adjourned date.
3) Power to strike-out appeal - Rahim bin Usoff v PP:
- the court is empowered to strike out an appeal where the appellant fails to appear on the date fixed for hearing;
- this drastic step will not ordinarily be taken without giving an opportunity for the appellant to prosecute the appeal.
- i.e. only when the appellant fails to appear for three times, court will exercise the power to strike-out the appeal.
4) Re-instatement of appeal - Hardial Singh v Faridah bte Haron & Ors:
- there is no express provision to allow reinstatement of appeal upon being struck-out;
- court may invoke its inherent jurisdiction to allow such reinstatement.
- i.e. when the appellant is absent because he is not given notice on the date of hearing, the appeal should be restored in the interests of justice.
PROCEDURES AT HEARING
Absence of respondent
1) The law:
- S.314
2) Proceed to hear - PP v Goh Thor Kiah:
- ‘shall’ is mandatory only if the respondent is the prosecutor.
- where the absent respondent is an accused person who is acquitted;
and the service of notice of appeal could not be effected after various efforts; - Court may dismiss the appeal.
- i.e. hearing the appeal in the absence of acquitted person will be equal to punishing a person without giving him the opportunity to be heard.
PROCEDURES AT HEARING
Arrest of respondent in certain cases
1) The law:
- S.315
PROCEDURES AT HEARING
Arrest of respondent in certain cases
1) The law:
- S.315
2) Scope:
- GR: grant bail to secure attendance;
- Exception: commit him to prison.
POSSIBLE OUTCOMES OF APPEAL
The law & scope
1) The law:
- S.316
2) Scope:
-
POSSIBLE OUTCOMES OF APPEAL
Appeal by PP against an order of acquittal
1) The law:
- S.316(a)
2) Reverse the order of acquittal - Paramasivam & Ors v PP:
- if the facts so warrant & the acquittal was based on wrong grounds.
2) Consequential order after reversing an order of acquittal:
- Direct that further inquiry be made; or
- Direct that accused be retried; or
- Direct that the accused be committed for trial; or
- Find the accused guilty & pass sentence on him according to law.
- Find the accused guilty for different charge & pass sentence according to law.
