Civil and Criminal Appeals in Malaysia

Second Edition

Tan Kee Heng LLB (Wolverhampton), CLP

Advocate of the High Court (Sabah and Sarawak)

Sweet & Maxwell Asia Malaysia • Singapore • Kong

2007

Contents

Foreword xni Preface

of Cases xxxi Table of Statutes

PART A

Civil Appeals

1 Appeal the Subordinate Courts to the High Court 3

1.1 Introduction 3 1.1.1 Right of appeal 3 1.1.2 system of appeals 4 1.1.3 Restrictions or conditions on appeal 5 1.1.4 Revisionary and supervisory jurisdiction of me

High Court 8

1.2 Appeal to a judge in chambers from any decision made by a subordinate court other than a decision made after trial 10 1.2.1 The governing provisions 10

"any decision other man a decision made after trial" 11 1.2.3 Provisions of Order 49 r 1 to r of the SCR 1980 are

not applicable 16 1.2.4 Procedural steps of appeal 16

1.3 Appeal against a decision made after trial from a subordinate court to a judge sitting in open court 21 1.3.1 The governing provisions 21 1.32 Procedural steps of appeal 21

1.4 Extension of time 31 1.4.1 Jurisdiction and power of the court to extend time 31

Whether application made to the court appealed from or the High Court 31

1.43 The principles to be observed 32 Application should be made within reasonable time 33

1.43 The procedure and the factors be considered 33

1.5 Notice of 41 1.5.1 Order 55 r 3 of the RHC 1980 41

xvi Contents

1.6 Amendment of a document filed in an appeal 42 1.6.1 Order 55 r 4(1) of the RHC 1980 42

Amendment of Notice Appeal 43 1.6.3 Amendments of other documents 43 1.6.4 Exercise of judicial discretion 44

1.7 Absence of a party at the hearing of an appeal 45 1.7.1 Absence of the appellant 45

Absence of the respondent 45 1.7.3 Reinstatement of appeal or 45

1.8 Admission of fresh evidence 46 1.8.1 The governing provisions 46

Conditions be strictly satisfied 47

1.9 Change of parties by reason of death or bankruptcy etc 48

1.10 Withdrawal of appeal 48

1.11 Civil appeals to by way of 50

1.12 Checklist 51

Chapter 2 Appeal from Certain Decisions of the Registrar of the High Court to the High Court Judge In Chambers 53

Introduction 53 The governing provisions 53 Setting aside the judgment, order or decision of the

High Court judge in chambers 54 Z13 Appeal against a order or decision" of the

registrar 56 Z1.4 Application to restore an appeal 58

Z2 The procedural steps to be followed 59 ZZ1 Notice of Appeal Form 114. 59 ZZ2 Issuance of the Notice of in Form 114 60 Z23 Service of the Notice of Appeal in Form 114 61

23 Appeals in bankruptcy proceedings 63 Z3.1 The governing provisions 63

Order 89(b) the Bankruptcy Rules 1969 64

Z33 Sanction of the Director General of Insolvency as provided in s 38(l)(a) of the Bankruptcy Act 1967 65

Z4 Hearing of the appeal 66 Z4.1 appeal Order 56 RHC is

by way of actual rehearing 66

Contents xvii

2.4.2 The High Court judge in chambers is not fettered by the previous exercise of the registrar's discretion 67

2.4.3 Introduction of fresh evidence 67

2.5 Extension of time 69 2.5.1 Application for extension of time 69 2.5.2 The exercise of the discretion to grant extension of time 69

2.6 Checklist 71

Chapters Appeal from Persons or Body of Persons to the High Court 73

3.1 Introduction 73 3.1.1 The right of appeal 73 3.12 The governing provision 74

3.2 Appeal against any decision of the state director, registrar of titles or land administrator under the National Land Code 76

Section 418 of the National Land Code 76 The High Court no power to extend the time to

appeal 76

3.3 Appeal against decision of the registrar of lands and surveys under the Sarawak Code and appeal against decision of the director of lands and surveys under Sabah Land Ordinance 77

3.4 Employment Act 1955 79

3.5 Small Estates (Distribution) Act 1955 80

3.6 Appeal from certain professional bodies to the High Court 81 3.6.1 Chemists Act 1975 81

Dental Act 1971 81 3.63 Legal Profession Act 1976 81 3.6.4 Licensed Land Surveyors Act 1958 82 3.63 Medical Act 1971 83 3.6.6 Veterinary Surgeons Act 1974 83

3.7 Appeal from to boards 84

Appeal from the Court to the Court of Appeal 85

4.1 Introduction 85 4.1.1 Jurisdiction to hear and determine civil appeals 85

Non-appealable matters 87 4.13 Where there is a dispute as to the requirement of

leave to appeal under s of the Courts of Judicature Act 1964 93

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4.1.4 Instances where leave to appeal not required: Arahan Amalan Mahkamah Rayuan No 2 Tahun 1996 94

4.1.5 Documents shall be in the national language except for Sarawak 95

4.2 Where leave to appeal is required 95 4.2.1 Application for leave to appeal 95

Principles governing an application for leave to appeal 99 4.2.3 Decision of the Appellate Committee 100 4.Z4 Leave to appeal must be obtained first 100 4.2.5 General notes 101

4.3 Procedural steps of appeal 103 4.3.1 Filing of Notice of Appeal 103

Service of Notice of Appeal 104 4.3.3 Filing of Record of Appeal 105 4.3.4 Service of Record of Appeal 114 4.3.5 Summary of submission of the case 114 4.3.6 Bundle of Authorities 115 4.3.7 Amendments 115 4.3.8 Urgent 115 43.9 Notice of and withdrawal of appeal 116 43.10 Change of parties by reason of marriage, or

bankruptcy etc 117

4.4 with the 1994 and extension of time 118 4.4.1 the RCA 1994 118

Extension of time 118

4.5 Court fees: r 56: Second Schedule to 1994 122

4.6 Costs of appeal 122

4.7 Powers of the Court of Appeal 123 4.7.1 Powers and duties as to amendment or otherwise of

the High Court 123 Full discretionary power to receive further evidence 124

4.7.3 The categories of cases in which an appellate court will admit a new point not raised in the court are not closed 128

4.7.4 The Court of Appeal shall be confined the grounds set out in the Memorandum of Appeal 129

4.7.5 Powers of the Court of Appeal under s 69(4) 130 4.7.6 Power to order a new trial 132 4.7.7 Power to vary or reverse the order of the

High Court 135 4.7.8 Inherent powers the Court of Appeal 135

Contents xix

4.8 Judgment of the Court of Appeal 136 4.8.1 Composition of the court and the opinion of the

majority of the judges 136 4.82 Enforcement of the judgment of the Court of Appeal 137 4.8.3 Where the Court of Appeal admitted that it had erred 137

4.9 Checklist 138

Chapter 5 Appeal from the Court of Appeal to the Federal Court 141

5.1 Introduction 141 5.1.1 Jurisdiction to hear and determine civil appeals 141

Conditions of appeal 142 5.1.3 Documents shall be in the national language except for

Sabah and Sarawak 144

5.2 Leave to appeal 145 Leave to appeal must be obtained first 145 Application for leave to appeal 146 order for leave 150 Principles governing application for leave to appeal 150 the practice the Federal Court give explicit

reasons for granting or refusing leave 152 5.Z6 Federal Court is not bound to limit itself to the framed

issues for which leave to appeal was granted 152 5.2.7 Even if leave is granted the Federal Court may still

decline to answer the question 153

5.3 Procedural steps of appeal 154 5.3.1 Filing of Notice of Appeal 154 5.32 Service of Notice of Appeal 155 5.33 Filing of Record of Appeal 156 5.3.4 Service of the Record of Appeal 158 5.3.5 Preparation and filing of the "Core Bundle" 158 5.3.6 Written Submission and Bundle of Authorities 158 5.3.7 Amendments 159 5.3.8 Urgent — 159 5.3.9 Notice of and Withdrawal of Appeal 160 53.10 Change of parties by reason of marriage, death or

bankruptcy etc 161

5.4 with the RFC 1995 and extension of time 161 5.4.1 with the RFC 1995 161

Extension of time 162

55 Court r 86: Second Schedule to the RFC 164

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5.6 Costs of appeal 165

5.7 Powers of the Federal Court 166 5.7.1 Whether the Federal Court may exercise the same

powers and make any order as may be exercised or by the Court of Appeal or the High Court 166

Power to order a new trial 166 5.7.3 Power to vary or reverse the judgment or order

of the Court of Appeal 167 5.7.4 Inherent powers of the Federal Court 168

5.8 Judgment of the Federal Court 171

5.9 Doctrine of judicial precedent 172 5.9.1 The general principle 172 5.92 Each lower tier must accept loyally the decisions of the

Federal Court 173 5.93 Whether the Federal Court is bound by its own

decisions 181

5.10 Checklist 185

Chapter 6 Interference by Appellate Court 189

6.1 Hearing the appeal 189

6.2 Principles upon which an appellate court intervenes 189 6.Z1 Finding of a trial judge on a question of fact. 189 622 Interference with the judge's exercise his

discretion 193 6.Z3 Appeal against concurrent findings of fact 194

Chapter 7 Stay of Execution Pending Appeal 197

7.1 Introduction 197 7.1.1 The general principle 197 7.12 The relevant provisions 198

72 Application for a stay 199 7.Z1 Application be the first instance to the

court appealed from 199 722 Mode of application 200 7.2.3 Jurisdiction of the court appealed from in granting a

stay of execution on a judgment pending an application for leave to appeal to a higher court 201

Contents xxi

7.3 Cases on stay of execution pending appeal 203 7.3.1 The general rule 203 7.32 An applicant must demonstrate the existence of special

circumstances to justify the grant of a stay of execution 204 7.3.3 Matters that might be considered to constitute special

circumstances 205 7.3.4 Grounds mat cannot constitute special circumstances 207

7.4 Interference by the appellate court 209

6

Appeals

Chapter 8 Appeal from Subordinate Courts to High Court 213

8.1 Introduction 213 8.1.1 No general right of appeal 213

the provisions CPC 213

Cases in which no appeal lies: 304 of the CPC 214

8.3 Plea of guilty limits right of appeal: the CPC 215 8.3.1 Right of appeal limited by a valid plea of guilty 215 8.32 Plea of guilty of an accused 216 8.3.3 A Notice of Appeal against sentence only should comply

with s 305 of the CPC 217 8.3.4 Exercise of revisionary powers in a case of an appeal

against the extent or legality of sentence or both 217

8.4 Appeal against acquittal: s 306 of the CPC 218 8.4.1 When the appeal against acquittal is lodged by the

public prosecutor, no sanction in writing of the public prosecutor is required 218

8.42 When the appeal against acquittal is by any other to appeal if there is sanction in writing of the public prosecutor 219

8.5 Procedure for appeal: the CPC 219 8.5.1 "any person ... to which he is a 219 8.52 "a criminal case or matter" 220 8.5.3 "any judgment, sentence or order" 221 8.5.4 steps of appeal 225

8.6 Appeal specially allowed in certain 236 8.6.1 to extend time on

application ~ 236

xxii Contents

8.6.2 Application for extension of time to file Notice of Appeal 237

8.63 Application extension of time to file petition of appeal 237

8.6.4 Amending a petition of appeal by adding further grounds of appeal 238

8.7 Transmission of appeal record: s 308 239

8.8 Hearing of appeal 240 8.8.1 Summary rejection of appeal 240 8.82 Setting down appeals on list s 312 240 8.8.3 Procedure at hearing: s 313 241

8.9 Order to take further evidence: s 317 243 8.9.1 Conditions on which the appellate court should

exercise its discretion to take additional evidence 243 8.92 Application to adduce additional evidence 244 8.9.3 Principles on the application to adduce additional

evidence 245

8.10 Abatement of appeal on the death of the accused or appellant s320 247

8.11 Decision on appeal 247 8.11.1 Whether mere is sufficient ground for interfering 247 8.11.2 Appeal against an order of acquittal: s 316(a) 248 8.11.3 Appeal against an order of conviction or in an appeal

as to sentence: s 316(b) 248 8.11.4 Appeal from any other order 249 8.11.5 Power to reverse trial finding of fact. 249 8.11.6 Principles by which an appellate court deals with a

finding of fact in which the demeanour, reliability and credibility of witnesses are involved 253

8.11.7 Power to alter the finding of the trial court or to substitute a conviction for a different offence 256

8.11.8 Power to interfere with the sentence passed by the trial court 257

8.11.9 Improper admission or rejection of evidence and failure of justice 261

8.11.10 Misdirection in law, irregularity and failure of justice 264 8.11.11 Power to order a retrial 268

8.12 Stay of execution pending appeal against a conviction sentence: s 311 of the CPC 273 8.1Z1 Section 311 only applies to a stay of execution pending

appeal against a conviction sentence 273 8.122 Application in the first instance shall be made to the

trial court 273

Contents xxiii

8.1Z3 Factors to be considered by the court 274 8.12.4 Discretionary power be exercised judicially 275 8.12.5 Merits of the appeal must be considered 276 8.1Z6 Automatic stay on sentence of whipping and sentence of

death 277 8.1Z7 Stay on a sentence of fine 277 8.1Z8 No bail may be imposed 277

8.13 Arrest of respondent pending appeal against an acquittal: s 315 CPC 278 8.13.1 Discretionary power of the High Court 278 8.13.2 Factors to be considered by the court 278

8.14 Appeal to the High Court against bail decision: s 394 of the CPC 279 8.14.1 The relationship between the CPC 279

8.15 Appeal to the Court of Appeal under the against an order of the High Court in respect of a bail decision 280

8.16 Costs might be awarded in respect of appeals to the High Court and revision: 322 of the CPC 281

8.17 Checklist 282

Chapter 9 Revisionary Powers of the High Court 283

9.1 Introduction 283 Revisionary jurisdiction of the High Court in respect of

criminal proceedings 283 9.12 The object of the revisionary powers 284

9.2 When the powers of revision may be exercised 285 92.1 When the case comes to the attention of a High Court

judge 285 9.22 revision class magistrate

exercised his special of punishment conferred by s 87(2) of the 287

9 2 3 The relationship between an appeal and the revisionary powers « 287

9.3 The exercise of discretionary powers 289 9.3.1 The discretion to be exercised judicially 289 9.32 powers rot confined matters

raised by the parties 290

9.4 Powers of the High Court judge on revision 291 9.4.1 Powers conferred by provisions in the CPC 291 9.4.2 to heard powers 291

xxiv Contents

9.4.3 Invocation of s 323 per se amounts to the exercise of the revisionary powers 292

9.4.4 Enhancement of sentence on revision 292 9.4.5 Cannot convert a finding of acquittal into one of

conviction on revision 293

9.5 Appeal against the decision in the exercise of revisionary jurisdiction 293

Chapter 10 Appeal from the High Court to the Court of Appeal 295

10.1 Introduction 295 10.1.1 Jurisdiction to hear and determine criminal appeals 295 10.1.2 Restrictions or conditions on appeal 296 10.13 An accused who been convicted his plea of

guilty in the High Court 297

10.2 Where leave to appeal is required 298 10.Z1 Application to be made within fourteen days after the

date of the decision of the High Court 298 10.Z2 The procedure to be followed in an application for

leave 298

10.3 Procedural steps of appeal 299 103.1 Filing of Notice of Appeal 300 10.3.2 Notice to be forwarded to the registrar of the Court of

Appeal 302 103.3 Record of of Appeal 302 103.4 Filing of Petition of Appeal 303 10.3.5 Copies of the Petition of Appeal to be by the

registrar of the Court of Appeal 306 103.6 Transmission of papers to Court of Appeal 306 10.3.7 Withdrawal of appeal 306

10.4 Appeal of time, formal defects and extension of time 307 10.4.1 Discretion of the Court of Appeal to permit the appeal

upon such terms and such 307 10.42 with the RCA 1994 307 10.43 Application for an extension of time 308

10.5 On appeal against acquittal, accused may be arrested 309

10.6 On appeal against conviction and/or sentence, appeal not to operate as stay of execution 309 10.6.1 not to operate as stay of execution 309 10.6.2 Application shall made in the first instance to the

High Court 310

Contents xxv

10.6.3 Computation of the term of sentence where the stay was granted 311

10.6.4 Automatic stay in the case of a conviction involving sentence of death or corporal punishment where is a pending appeal 311

10.6.5 An instance where the accused was convicted but no sentence of imprisonment was ordered 311

10.7 Summary rejection of appeal 312 10.7.1 Power of the Court of Appeal to reject an appeal

summarily 312 10.7.2 Power to reject an appeal summarily not include

the power to alter, enhance or reduce the sentence, or vary the decision of the High or order a retrial 313

10.8 Hearing of appeal 314 10.8.1 Notice of the and place for the hearing of the

appeal 314 10.8.2 Summary of submission of the case 314 10.8.3 Order of speeches 314 10.8.4 Presentation of case 314

10.9 Order to take additional evidence 316 10.9.1 Power of the Court of Appeal to take further evidence 316

10.10 Powers of the Court of Appeal 316 10.10.1 Statutory powers of the Court of Appeal 316 10.102 Interference by the Court of Appeal 318

10.11 Checklist 319

Chapter 11 Appeal from the Court of Appeal to the Federal Court 321

11.1 Introduction 321 11.1.1 system of appeals 321 11.1.2 Criminal jurisdiction of the Federal Court 321 11.1.3 The original criminal jurisdiction of the High Court 322

112 Procedural steps of appeal 324 Filing of Notice of Appeal 324

11.22 Notice to be forwarded to the registrar 326 Transmission of papers to the Federal Court 326 Filing of Petition of Appeal 327 Withdrawal of 328

11.3 Appeal out of time, formal defects and extension of time 329 Discretion of the Federal Court to permit the appeal upon such terms and with such 329

xxvi Contents

11.3.2 with the RFC 1995 329 11.3.3 Application for an extension of time 330

11.4 On appeal against acquittal, accused may be arrested 331

11.5 On appeal against conviction sentence, appeal not to operate as stay of execution 331 11.5.1 Appeal not to operate as stay of execution 331 11.5.2 Computation of the term of sentence where the stay

was granted 332 11.5.3 Automatic stay in the case of a conviction involving

sentence of death or corporal punishment where there is a pending appeal 332

11.5.4 An instance where the accused was convicted but no sentence of imprisonment was ordered 333

11.6 Summary rejection of appeal 333 11.6.1 Power of the Federal Court to reject an appeal

summarily 333 11.62 Power to reject an appeal summarily does not include

the power to alter, enhance or reduce the or vary the decision of the Court of Appeal, or order a retrial 335

11.7 Hearing of appeal 335 11.7.1 Notice of the time and place for the hearing of the

appeal 335 11.7.2 Summary of submission of the case 335 11.7.3 Order of speeches 336 11.7.4 Presentation of case 336

11.8 Order to take additional evidence 337 11.8.1 Power of the Federal Court to take further evidence 337

11.9 Power of the Federal Court 338 11.9.1 Statutory powers of the Federal Court 338 11.92 Inherent powers of the Federal Court 339 11.9.3 Interference by the Federal Court 340

11.10 Judgment of Federal Court 340

11.11 Checklist 342

Appellate Jurisdiction of the Highest Appellate Court in Other Countries

Appellate Jurisdiction of the Highest Appellate Court in Other Countries 345

Contents xxvii

Sample Documents Civil Appeals

Notice of Application to File and Serve the Notice of Appeal Out of Time 357

2. Notice of Appeal to the High Court 49 r 6 of the SCR 1980) 360 3. Notice of Appeal to the High Court 49 r 2 of the SCR 1980) 362 4. Memorandum of Appeal 364 5. Notice of Application to File and Serve the Record of Appeal

Out of Time 366 6. Record of Appeal 369 7. Summons in Chambers for Leave to Adduce Fresh Evidence 372 8. Notice of 376 9. Notice of Withdrawal of Appeal 378 10. Notice of Appeal to Judge in Chambers

1 the RHC 1980) 379 11. Appeal from Persons Body of Persons to the High Court

55 r 13 of the RHC 1980) 381 1Z Application for Leave to Appeal to the Court of Appeal 383 13. Notice of Appeal to the Court of Appeal 387 14. Memorandum of Appeal to the Court of Appeal 389 15. Record of Appeal 391 16. Notice of 394 17. Notice Withdrawal of Appeal 396 18. Leave to Appeal to the Federal Court 398 19. Notice of Appeal to the Federal Court 404 20. Memorandum of Appeal to the Federal Court 406 21. Record of Appeal to the Federal Court 408 2Z Stay of Execution Pending Appeal ~ 410

Sample Documents for Criminal Appeals

1. Notice of Appeal High Court 417 Z Petition of Appeal to the High Court 419 3. Application for Revision 423 4. Notice of Appeal to the Court of Appeal or Federal Court 424 5. Petition of Appeal to the Court of Appeal or Federal Court 426 6. Notice of Withdrawal of Appeal 428

xxviii Contents

Practice Directions for Appeals

Practice Note No 16 of 1946 (Petition of Appeal) 433 Z Practice Note No 1 of 1962 (Citation of Cases in the Supreme

Court) 434 3. Practice Direction No 2 1985 the Record of

Appeals in Supreme Court Appeals) 435 4. Nota Amalan 2 Tahun 1991 (Perlanjutan Masa untuk

Memfailkan Rekod Rayuan dalam Perkara-Perkara Sivil) 438 5. Nota Amalan 3 Tahun 1991 (Ringkasan Kes

untuk Rayuan di Mahkamah Agung) 443 6. Arahan Amalan No 1 Tahun 1992 (Perintah Termeterai) 445 7. Arahan Amalan No 3 Tahun 1992 (Kronologi Peristiwa Kes

Sivil) 446 8. Arahan Amalan No 1 Tahun 1993 (Rayuan Jenayah) 448 9. No 1 1994 Rekod

Rayuan Berkaitan) 450 10. Arahan Amalan No 1 Tahun 1994 Jenayah Melibatkan

Anggota-Anggota Kerajaan) 451 Arahan Amalan No 1 Tahun 1995 (Pemakaian Amalan di Mahkamah Rayuan) 457

1Z Arahan Amalan 2 Tahun 1995 Rayuan dan Permohonan di Mahkamah Rayuan) 459

13. Arahan Amalan No 1 Tahun 1996 (Perlanjutan Masa untuk Memfailkan Rekod Rayuan dalam Perkara-Perkara Sivil) 461

14. Arahan Amalan No 2 Tahun 1996 (Permohonan Kebenaran untuk Merayu ke Mahkamah Rayuan) 463

15. Tahun 1998 Penghakiman Dekri atau Perintah yang Dirayu ke dalam Rekod Rayuan bagi Rayuan Sivil di Mahkamah Tinggi) 464

16. Pekeliling Pendaftar Bil 1 Tahun 1999 (Penyediaan Alasan Penghakiman bagi Rayuan di dalam Kamar) 465

17. Pekeliling Ketua Pendaftar Bil 1 Tahun 2002 (Alasan .„ 466

18. Arahan Amalan Ketua 2 Tahun 2004 Keutamaan) 468

19. Arahan Amalan Tahun 474

20. Arahan Amalan Bil 2 Tahun 2006 (Pemfailan "Core Bundle" dalam Rayuan Sivil di Mahkamah Persekutuan) 475

Contents xxix

Extracts of Legislation

Subordinate Courts Rules 1980 479 Rules of the High Court 1980 484 Courts of Judicature Act 1964 490 Criminal Procedure Code 535 Rules of the Court of Appeal 1994 545 Rules of the Federal Court 1995 593

List of Filing Fees

List of Filing

Index

Appeals 657 Criminal Appeals 663