Criminal appeals and revisions in Malaysia

In this article the processes a case undergoes after determination on the first instance are discussed. There is after determination in the first instance on any criminal matter provision to courts of a higher jurisdiction by way of, firstly, an appeal and secondly, revision.

First we will discuss appeal. A two tier system of appeal is practiced. The first is that subordinate courts appeal in the first instance to the high court and then to the court of appeal. However appeals proceeding from the magistrate to the court of appeal must be with leave of the court of appeal and on a question of law. The second is that trials of the high court proceeds in the first instance to the court of appeal and then to the federal court.

The appeal is commenced by the filing of notice of appeal and after service of the grounds of judgment or the notes of evidence if requested for by the filing of the petition of appeal which shall contain particulars of law and fact as regard to which the trial court is alleged to have erred. Wirasingam [1958] MLJ 76. The procedure encompasses the filing of the notice and of the petition of the appeal. Within 14 days from the date of judgment, in the case of the notice, and in the case of the petition, 14 days after service of the grounds of the decision. There is no prescribed form used for the notice but where notice is against sentence specific reference should be made whether appeal is against extent or legality of the sentence. Specific reference would not only go to clarity but also to bring to notice of the magistrate what he is required to state in his grounds of decision.

While it is accepted that it does not invalidate a notice for it to merely say that appeal is against sentence, a clear form of notice is desirable. It must also be stated in the notice that the appellant is desirous of appealing.

In the case of Sarikei District Council [1997] 5 MLJ 328 the notice omitted the words “desirous of appealing” and stated “take notice that the Sarikei District Council, the complainant in these cases, is dissatisfied with the order of the honorable magistrate En. Awang dated 19 June 1995 dismissing the judges against the accused persons on the grounds that the proceedings against them had been a nullity. The appellant court found that the words “appeals to the high court against the said order” had been omitted after the word “nullity”. It was held the omission was material and that this had rendered the notice defective and bad in law.

The second document is the petition of appeal prescribed in Form 51 of the 2nd schedule of the CPC. Section 307(6) of the Criminal Procedure Code states that a petition must state the substance of the judgment appealed against containing definite particulars points of law or fact in regard to which the court was alleged to have erred.

Where the petition alleges that a conviction is against the weight of evidence, the petition must state in what way the conviction was against the weight. Ong Chee Ho [1933] MLJ 39. Where the allegation that the conviction was unreasonable or could not be supported having regard to the evidence, this must be shown in the petition. Ooi Teck Chien 1971 1 MLJ 51

The prescribed time limit for the filing of the documents are 14 days from the date of judgment with respect to the notice and14 days from service of the grounds of decision or where the notes of evidence have been requested for from the date having been informed the notes are available.

The grounds of decision is essential to the filing of decision because the grounds of appeal would be culled from the grounds of decision and/or the notes of evidence.

The calculation of the 14 days when the last day of the time period falls on a weekly or public holiday was discussed in the case of Kentucky Fried Chicken [1976] 2 MLJ 145 that the date which the sentence is passed is excluded and where the last day falls on a Sunday or weekly holiday, the last date to file would then be Monday, the next working day.

There is need to strictly comply with the prescribed time limit for the filing of the documents of appeal. This strict time limit is moderated by recourse to Section 310 where the order that substantial justice may be done, a judge may permit an appeal which is time barred. Section 310 is only invoked on application. An aid should be sought with all convenience speed. Only in exceptional cases would be rule be relaxed Nagalingam [1935] MLJ 29 and an application for an enlargement of time is not given as a matter of course. Jumari Mohd [1982] 1 MLJ 282

Section 310 is exercised at the court’s discretion. An exercise of this discretion depends on the facts and circumstances of each case. In Wirasingam [1958] MLJ 76 the view was that the applicant must satisfy the court that circumstances exist which justify an extension of time and that the applicant has a reasonable prospect of success on his appeal.

Identical views were expressed in Zulkifli Puasa [1985] 1 MLJ 461 where the court of appeal said “..there are 2 factors to consider on an application for an extension of time:

i) The length of the delay and whether it can be satisfactorily explained.

ii) Whether the out of time application is likely to succeed.

Where the delay is of short duration the court may if it thinks fit, disregard the delay even in the absence of satisfactory reasons but where a substantial amount of time has elapsed, say a month or more, an extension of time will not be granted as a matter of course without a satisfactory explanation. Where the delay is minimal, the court will still not grant an extension of time if the application for which the extension is sought is bound to fail. There must be an arguable case. However, even though the subsequent application may be likely to succeed as for example when a fellow prisoner’s conviction has been quashed, the court will not grant an extension of time as a matter of course. The entire circumstances would be considered.

Next we will discuss revisions. The powers of revision is contained in Sections 323 to 327 of the Criminal Procedure Code and are given to high court judges. Muhari Mohd Jani [1996] 3 MLJ 116 The object of revision is to confer on criminal courts a kind of supervisory jurisdiction to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of precautions or apparent harshness of treatment resulting on one hand in some injury to law and order or on the other some undeserved hardship to some individuals. Liaw Kwai Wah [1987] 2 MLJ 69

The power of revision must be used sparingly and exercised judicially. Sukma Dermawan [1999] 3 CLJ 361. Revision may only be exercised for good reasons and between the limits and spirit of the legislation. There can be no recourse to revision when the matter is appealable and no appeal is lodged. Mohd Dalhar [1995] 1 MLJ 645. The court will not act in revision where the matter is pending appeal. Soon Seng Sia Heng [1974] 2 MLJ 170. The court would not allow efforts to go around provisions which bar appeals by attempting to get cases reviewed unless there are obvious illegalities or miscarriages of justice and revision is not an alternative to an appeal.  Rajendran [2000] 4 MLJ 369

When the court acts in revision, it is not confined to matters raised by the parties alone. Yen Wing Lee [1994] 3 CLJ 453 In appropriate circumstances, the court would go into the deeper aspects of the matter to ensure substantial justice subsist between the accuser and the accused and also between the accused and others who might have suffered. The court is also not precluded from revision when the matter has been brought on appeal as long as it has come to its knowledge or even if the matter at hand did not arise from the record of proceedings.

There are many ways in which a court’s attention may be drawn to cases where the decisions may have to be revised through newspaper reports, through letters from members of the public, aggrieved parties or their relatives, through requests by magistrates or revision of decisions made and through formal applications. Muhari Mohd Jani’s case.

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One Response to Criminal appeals and revisions in Malaysia

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