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Anwar Ibrahim Sodomy II – The Recorded Truth – 20 September 2010 September 20, 2010

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Di Dalam Mahkamah Rayuan
Di hadapan : Y.A. Dato’ Ahmad bin Haji Maarop, HMR
Y.A. Dato’ Sulaiman bin Daud, HMR
Y.A. Dato’ Azhar bin Haji Maah, HMR

Pihak-pihak:
PP : Semua hadir, kecuali NB & MHZ
PB : Datuk Param Cumaswaram, KS, SN

Rayuan terhadap keputusan Mahkamah Tinggi di dalam permohonan mengenepikan pertuduhan

[9.27 a.m.]
KS: Pihak-pihak seperti dahulu kecuali MHZ dari pihak pendakwaan.
YA: The appellant are here?
KS: []
YA: Yes?
KS: Before my learned friend proceed. The decision regarding final order is in the case of DSAI v PP, authority no.2 of the supplementary bundle, page 275, under the heading of preliminary objection. What has to be considered is this case is precedent to what happen before your Lordship this morning. I take your Lordship to page 278, para G [read]. What happened here is, the application is made under Section 51A of Criminal Procedure Code. In other word, it is a pre-trial and not post-trial unlike here. We apply for an order to strike out the charge where the Lordship dismisses our application. It was made in the course of the trial. That being the position, this is not an authority for what constitutes ‘in the course of the trial’. In fact it was before the trial. It stands for its own – the trial.
The point I want to make is this, there is a previous Federal Court appeal, i.e. W-05-73-2010 involving the same parties. That was an application in the course of the trial. What we asked is the supply of 112 statement of the complainant in the case, SP1 and the learned judge of the Federal Court here reserved the judgment. And it was an application made in the course of the trial. It is the authorities in this current application. It was in the last month, but I cannot remember the exact date, the same argument is made, on the basis whether it is an order that is appealable or not. Perhaps this is not an authority. Perhaps we should wait for the decision of the Federal Court. Otherwise we will repeat the same argument this morning. We are not delaying it. It is not included in the authority. I think it is wise if we wait for the decision by the Federal Court, if not [] and that will be binding on your Lordship. So we would like your Lordship to differ to the preliminary objection, so then your Lordship will be guided by the perimeter on Section 3 of Courts of Judicature Act 1964.
MY: I believe we should not stay unless the Federal Court delivers their judgment. We have the case of DSAI 1999 where J NH Chan decided that it is not appealable. In fact that is Section 3 of Courts of Judicature Act 1964 is all about. It was amended in 1998. I urged your Lordship to continue the hearing. It won’t take a long time.
KS: The authority my learned friend referred is in the Court of Appeal. We should be guided by the decision of Federal Court. My learned friend have referred it in the Federal Court.
YA: We have decided to hear the preliminary objection.
MY: Our written submission on this issue can be found at page 6-12 of our submission, but if I may I just want to say something out from the submission. I will not read it. Way back in 1985 in the case of Raymond Chia, the CJ then refer to two cases, Hoo Chang Chwen, tab 10 and the case of PP v RK Menon, page 212 . In both cases the court says that the decision of the court is not appeallable because it involves procedural ruling. [Explain Hoo Chang Chwen and RK Menon]. It is only procedural; it is a matter of practice, so it is not appealable.
In 1998, there is an amendment to Section 3 of Courts of Judicature Act 1964. I refer to our bundle, tab 31, annexed explanatory statement, page 3, Fasal 2 [read].  First, it talks about admissibility. It would appear that in Hoo Chang Chwen, the court decided that it is procedural when the defence counsel asked for the supply of the document. Rose CJ ruled that it is not whether the document is being supplied or not. [] The second part is any ruling is not appealable. []
My learned friend in the lower court applies for a stay. And it is procedural and thus not appealable.
YA: The notice of motion it does not state any stay. It is to strike out the charge.
MY: Yes. But it is procedural. []. Any ruling made must be procedural ruling. To support my argument, I refer to the case no.2 of my learned friend bundle of authority, page 447, para B [read]. My Lord, there is this article referred to Halsbury Law of England where it says any ruling is a procedural ruling. Page 409 of the same report, Para E [refer and read].
The Federal Court in Raymond Chia refers to Hoo Chang Chwen and RK Menon. And this court refer to the case of DSAI v PP
YA: Court of Appeal?
MY: Yes. It talk about it is made in the course of the trial and thus not appealable. It refer to all the cases, Hoo Chang Chwen and Saad bin Abas. Section 3 Courts of Judicature Act 1964 is created to prevent any ruling to be appeal. In the case of DSAI, tab 6, holding 3 [read]. My learned friend referred to the latest decision of Federal Court in DSAI case. In that case it was appealable because the application is made before the trial and here the court said that bail is made in the course of the trial and thus not appealable.
I refer to tab 6, page 329,para H, where it discuss the effect of the amendment,  the judge made reference to Halsbury Law of England [refer to ‘interlocutory’ and read].
In the last Federal Court sitting on this matter, of course the prosecution made reference to DSAI and Halsbury Law of England, it refers to civil cases.
I refer to tab 30, page 240 of the literature, the passage that J NH Chan referred to can be found at Para 506 [read]. This passage is produced in his judgment. I refer to page 237 under the heading ‘meaning of “judgment” and “order”’, [read]. That passage that J NH Chan referred to only apply in civil cases. In fact Raymond Chia, CJ refered to the case Mohd Amin. That was a civil case. What about criminal case? I refer to Regina v Collins, tab 8 it was held that the court of England does not have the jurisdiction to hear interlocutory appeal. [Refer and read Black Law’s dictionary definition of “interlocutory” and “interlocutory appeal”].
In short, 1st, the ruling made by the court is a procedural ruling and thus not appealable. No.2, since it was made in the course of the trial, Section 3  of Courts of Judicature Act 1964 apply and it excludes it from the definition of ‘decision’ and thus not appealable. And No.3  rightly or wrongly the case fo DSAI 1999, in Halsbury even if we follow that it does not disposes the right of the parties. Then, the case of Raymond Chia, it does not finally dispose the right of the parties. Lastly, based on Regina v Collins, this court does not have jurisdiction to hear the interlocutory appeal.
I pray for my Lord to dismiss the appeal.
KS: What your Lordship has to consider is the amendment of Section 3 Courts of Judicature Act 1964, the significance and the perimeter of it, the effect of the amendment, the word ‘decision’ of Section 3 Courts of Judicature Act 1964. I refer to the case of DSAI in 1999 [read]. I refer to tab 6 of my learned friend’s bundle, page 329, para G [read and explain]. That is what your Lordship has to put in mind. The effect of the amendment.
My learned friend refer to Hoo Chang Chwen, in fact this was referred to in the latest decision of DSAI, tab 2 of my bundle. What we have there among others are cases referred by my learned friend. The case of Hoo Chang Chwen is decided in 1962, Raymond Chia 1985, RK Menon 1967 . All of these are cases way before the amendment. This is irrelevant to the word ‘decision’ in Section 3 Courts of Judicature Act 1964, the word “does not include any ruling made in the course of the trial”.
In this application, the ruling is made in the course of the trial. No doubt about that. If it finally disposed the right of the parties, then it will be a final order. My learned friend referred to R v Conelly where it says that abuse process of the court is a procedure. We say it is not procedural, but substantive.
I refer to tab 7 of our bundle, para 9 between D and E [refer, read and explain]. [] that is not procedural. [Read] that is not procedural. [Read] We apply for the charge to be strike out for abuse process of the court because it is not being used for bona fide, but for the [] and oppression of DSAI. That was supposed to be the argument for abuse of process. It is not procedural, beyond reasonable doubt.
We go to the definition. We have show at length that the charge should be struck out. And if the charge is struck out wouldn’t it be a final order because it disposed the right of the parties? [] submission of the argument that the charge should be struck out. Just because it is made in the course of the trial my learned friend argued it was an interlocutory order and thus not appealable. If the ruling is made in the course of the trial, it finally disposed the rights of the parties.
In our view, there can be ruling in the course of the trial that disposed the right of the parties. For example, consent is required in prosecution of under the firearm act, sedition act, etc. The situation is this, the trial proceeds and in the course of the trial it was found that the consent is defective, the entire trial is a nullity because there is no proper consent It means that the charge has to be struck out whether it is void for the basis and foundation of it. Surely it could be a final order.
Thus,     any ruling made in the course of the trial constitutes a final order. It is not as simple as my learned friend said- it is made in the course of the trial and thus interlocutory. It is the substance which count, not the label, not interlocutory. If we succeeded, it will be a final     order and my learned friend will come to this court to appeal. Just because we don’t succeed, does that mean we have no right to come here? Your Lordship should step into the shoes of the trial judge. An appeal is a rehearing.
I refer to case of Balasingham v PP, tab 6 of the supplementary bundle [read]. As I said earlier, the law is trite. An appeal is a rehearing. []
Our submission is that, in the case of DSAI, tab 2 of supplementary bundle, page 275, both arguments are made by myself and my learned friend. [] ruling made with regard to caution statement. That would not regard as a final matter. [] it does not become interlocutory.  It depends on the nature of the application. And the nature in our case is if the charge is struck out, it will be a final order. I pray your Lordship to dismiss my learned friend preliminary objection and go to the merits.[]
Why is the prosecution afraid to go into the merits? For the sake of public interest, the merits should be carefully considered. It is about the relationship between a DPP and SP1. It is unprecedented. In fact I’ve told my learned friend for so many times, do not be afraid and running away from the truth.
MY: You are going into the merits.
KS: []. My learned friend is afraid of the truth. And I pray for the preliminary objection to be dismissed.
MY: Short reply. First, the court cannot look at ‘what if’, but ‘what is’. What my learned friend says is, what if we succeed in the Court of Appeal and if []. We need to  look at what is the nature of the application before the court, the nature of the status quo and whose right would be disposed of. I would concede if it is being allowed then your Lordship would dismiss the application and order to continue with cross-examination of the doctor. But we cannot be speculating what if, what if.
Secondly, those cases were decided before the amendment but the amendment is brought to make in line with the cases.
No.3 – abuse of the process. I did not say you cannot appeal anything. It must be made at the end of the trial, it should be a ground for appeal.
No.4, when my learned friend gives example of consent, if you strike out the charge because the consent is defective, we can still charge him again. Surely we will appeal. This is not because we fear or anything else. In Regina v Collins, it is unprecedented. The court says it is a novel point, it has not been done before and therefore it is not allowed.
YA: [] the charge, wouldn’t it be a final order? And if he fails, then it is not a final order?
MY: Yes. In Saad bin Abbas, if defence is called the accused has the right to defence himself if he wants to. In Letchumanan, which is the latest case, that would be a final order because it disposes the right of the parties. The court cannot decide based on ‘what if’. The court must decide on ‘what is’. Because if the case is allowed []. And the court has been consistent all this while since at that point in time when defence is called, your status has not being decided yet, you have the right to say and it is not the end of your right, as opposed to when the court said that there is no case to answer at the close of the prosecution case. []
YA: That’s all?
MY: Yes.
KS: My learned friend said this “if the [] and your Lordship has to decide in the trial judge shoes as in Balasingham case. [] from determining that. It is wrong. Since it is not struck out, and was wrongly decided that it cannot be struck out, then my learned friend says it is a not final order. I don’t think this court should allow this principle. If the charge is struck out, the Prosecution can appeal, but because the charge is not struck out, we cannot     appeal. It is ridiculous. My learned friend said that the application is made in the course of the trial. [] I take your Lordship to the amendment. The purpose has been included in the amendment. Refer Tab 6 of prosecution bundle, page 259, para G [read].
In fact, we pray for your Lordship to carefully consider this appeal, the logic of it, the common sense of it. Your Lordship should have [] what is wrong. Much obliged.
MY: May I just pass a loose copy of Letchumanan.
YA: Do you want to say anything KS?
KS: [] throwing the case at the last does not help my learned friend.
MY: []
YA: I think you have made the point there. We’ll adjourn to 11.15 a.m. for decision.
[10.38 a.m.] Stand down.

[11.24 a.m.]
YA: Upon considering the submission of both parties our decision is unanimous. Our grounds of decision are as followed. In the outset of the hearing the prosecution argued that the ruling made by the High Court is not appealable. The prosecution raised a crucial issue whether we have the jurisdiction to hear the appeal or not.
The applicant filed a notice of motion at the High Court and prays for an order for the charge to be strike out. The High Court made a decision on 16 August 2010, dismissing     the applicant’s application. The applicant appeal before us. Our jurisdiction to hear the appeal is governed by Section 50 of Courts of Judicature Act 1964 [read] The crucial word in the said section is ‘decision’. In Section 3, decision [read Section 3] . We are of the view that the decision made by the High Court dismissing the application is a ruling made in the course of the trial and that ruling does not finally dispose the right of the parties.
We found the ruling based several cases. [Refer and cite the cases].
Thus the order made by the High Court is not a decision made under Section 3 of Courts of Judicature Act 1964 and in such circumstances we have no jurisdiction to hear the appeal.
We unanimously dismiss the appeal.
[11.29 a.m.] Appeal dismissed.

Rayuan Jenayah : W-09-154-2010
Di Dalam Mahkamah Rayuan
Di hadapan : Y.A. Dato’ Ahmad bin Haji Maarop, HMR
Y.A. Dato’ Sulaiman bin Daud, HMR
Y.A. Dato’ Azhar bin Haji Maah, HMRPihak-pihak:
PP    : Semua hadir, kecuali NB & MHZ
PB    : Datuk Param Cumaswaram, KS, SN

Rayuan terhadap keputusan Mahkamah Tinggi di dalam permohonan mengenepikan pertuduhan

[9.27 a.m.]
KS:    Pihak-pihak seperti dahulu kecuali MHZ dari pihak pendakwaan.
YA:     The appellant are here?
KS:     []
YA:     Yes?
KS:     Before my learned friend proceed. The decision regarding final order is in the case of DSAI v PP, authority no.2 of the supplementary bundle, page 275, under the heading of preliminary objection. What has to be considered is this case is precedent to what happen before your Lordship this morning. I take your Lordship to page 278, para G [read]. What happened here is, the application is made under Section 51A of Criminal Procedure Code. In other word, it is a pre-trial and not post-trial unlike here. We apply for an order to strike out the charge where the Lordship dismisses our application. It was made in the course of the trial. That being the position, this is not an authority for what constitutes ‘in the course of the trial’. In fact it was before the trial. It stands for its own – the trial.
The point I want to make is this, there is a previous Federal Court appeal, i.e. W-05-73-2010 involving the same parties. That was an application in the course of the trial. What we asked is the supply of 112 statement of the complainant in the case, SP1 and the learned judge of the Federal Court here reserved the judgment. And it was an application made in the course of the trial. It is the authorities in this current application. It was in the last month, but I cannot remember the exact date, the same argument is made, on the basis whether it is an order that is appealable or not. Perhaps this is not an authority. Perhaps we should wait for the decision of the Federal Court. Otherwise we will repeat the same argument this morning. We are not delaying it. It is not included in the authority. I think it is wise if we wait for the decision by the Federal Court, if not [] and that will be binding on your Lordship. So we would like your Lordship to differ to the preliminary objection, so then your Lordship will be guided by the perimeter on Section 3 of Courts of Judicature Act 1964.
MY:    I believe we should not stay unless the Federal Court delivers their judgment. We have the case of DSAI 1999 where J NH Chan decided that it is not appealable. In fact that is Section 3 of Courts of Judicature Act 1964 is all about. It was amended in 1998. I urged your Lordship to continue the hearing. It won’t take a long time.
KS:     The authority my learned friend referred is in the Court of Appeal. We should be guided by the decision of Federal Court. My learned friend have referred it in the Federal Court.
YA:     We have decided to hear the preliminary objection.
MY:     Our written submission on this issue can be found at page 6-12 of our submission, but if I may I just want to say something out from the submission. I will not read it. Way back in 1985 in the case of Raymond Chia, the CJ then refer to two cases, Hoo Chang Chwen, tab 10 and the case of PP v RK Menon, page 212 . In both cases the court says that the decision of the court is not appeallable because it involves procedural ruling. [Explain Hoo Chang Chwen and RK Menon]. It is only procedural; it is a matter of practice, so it is not appealable.
In 1998, there is an amendment to Section 3 of Courts of Judicature Act 1964. I refer to our bundle, tab 31, annexed explanatory statement, page 3, Fasal 2 [read].  First, it talks about admissibility. It would appear that in Hoo Chang Chwen, the court decided that it is procedural when the defence counsel asked for the supply of the document. Rose CJ ruled that it is not whether the document is being supplied or not. [] The second part is any ruling is not appealable. []
My learned friend in the lower court applies for a stay. And it is procedural and thus not appealable.
YA:     The notice of motion it does not state any stay. It is to strike out the charge.
MY:     Yes. But it is procedural. []. Any ruling made must be procedural ruling. To support my argument, I refer to the case no.2 of my learned friend bundle of authority, page 447, para B [read]. My Lord, there is this article referred to Halsbury Law of England where it says any ruling is a procedural ruling. Page 409 of the same report, Para E [refer and read].
The Federal Court in Raymond Chia refers to Hoo Chang Chwen and RK Menon. And this court refer to the case of DSAI v PP
YA:     Court of Appeal?
MY:     Yes. It talk about it is made in the course of the trial and thus not appealable. It refer to all the cases, Hoo Chang Chwen and Saad bin Abas. Section 3 Courts of Judicature Act 1964 is created to prevent any ruling to be appeal. In the case of DSAI, tab 6, holding 3 [read]. My learned friend referred to the latest decision of Federal Court in DSAI case. In that case it was appealable because the application is made before the trial and here the court said that bail is made in the course of the trial and thus not appealable.
I refer to tab 6, page 329,para H, where it discuss the effect of the amendment,  the judge made reference to Halsbury Law of England [refer to ‘interlocutory’ and read].
In the last Federal Court sitting on this matter, of course the prosecution made reference to DSAI and Halsbury Law of England, it refers to civil cases.
I refer to tab 30, page 240 of the literature, the passage that J NH Chan referred to can be found at Para 506 [read]. This passage is produced in his judgment. I refer to page 237 under the heading ‘meaning of “judgment” and “order”’, [read]. That passage that J NH Chan referred to only apply in civil cases. In fact Raymond Chia, CJ refered to the case Mohd Amin. That was a civil case. What about criminal case? I refer to Regina v Collins, tab 8 it was held that the court of England does not have the jurisdiction to hear interlocutory appeal. [Refer and read Black Law’s dictionary definition of “interlocutory” and “interlocutory appeal”].
In short, 1st, the ruling made by the court is a procedural ruling and thus not appealable. No.2, since it was made in the course of the trial, Section 3  of Courts of Judicature Act 1964 apply and it excludes it from the definition of ‘decision’ and thus not appealable. And No.3  rightly or wrongly the case fo DSAI 1999, in Halsbury even if we follow that it does not disposes the right of the parties. Then, the case of Raymond Chia, it does not finally dispose the right of the parties. Lastly, based on Regina v Collins, this court does not have jurisdiction to hear the interlocutory appeal.
I pray for my Lord to dismiss the appeal.
KS:     What your Lordship has to consider is the amendment of Section 3 Courts of Judicature Act 1964, the significance and the perimeter of it, the effect of the amendment, the word ‘decision’ of Section 3 Courts of Judicature Act 1964. I refer to the case of DSAI in 1999 [read]. I refer to tab 6 of my learned friend’s bundle, page 329, para G [read and explain]. That is what your Lordship has to put in mind. The effect of the amendment.
My learned friend refer to Hoo Chang Chwen, in fact this was referred to in the latest decision of DSAI, tab 2 of my bundle. What we have there among others are cases referred by my learned friend. The case of Hoo Chang Chwen is decided in 1962, Raymond Chia 1985, RK Menon 1967 . All of these are cases way before the amendment. This is irrelevant to the word ‘decision’ in Section 3 Courts of Judicature Act 1964, the word “does not include any ruling made in the course of the trial”.
In this application, the ruling is made in the course of the trial. No doubt about that. If it finally disposed the right of the parties, then it will be a final order. My learned friend referred to R v Conelly where it says that abuse process of the court is a procedure. We say it is not procedural, but substantive.
I refer to tab 7 of our bundle, para 9 between D and E [refer, read and explain]. [] that is not procedural. [Read] that is not procedural. [Read] We apply for the charge to be strike out for abuse process of the court because it is not being used for bona fide, but for the [] and oppression of DSAI. That was supposed to be the argument for abuse of process. It is not procedural, beyond reasonable doubt.
We go to the definition. We have show at length that the charge should be struck out. And if the charge is struck out wouldn’t it be a final order because it disposed the right of the parties? [] submission of the argument that the charge should be struck out. Just because it is made in the course of the trial my learned friend argued it was an interlocutory order and thus not appealable. If the ruling is made in the course of the trial, it finally disposed the rights of the parties.
In our view, there can be ruling in the course of the trial that disposed the right of the parties. For example, consent is required in prosecution of under the firearm act, sedition act, etc. The situation is this, the trial proceeds and in the course of the trial it was found that the consent is defective, the entire trial is a nullity because there is no proper consent It means that the charge has to be struck out whether it is void for the basis and foundation of it. Surely it could be a final order.
Thus, any ruling made in the course of the trial constitutes a final order. It is not as simple as my learned friend said- it is made in the course of the trial and thus interlocutory. It is the substance which count, not the label, not interlocutory. If we succeeded, it will be a final order and my learned friend will come to this court to appeal. Just because we don’t succeed, does that mean we have no right to come here? Your Lordship should step into the shoes of the trial judge. An appeal is a rehearing.
I refer to case of Balasingham v PP, tab 6 of the supplementary bundle [read]. As I said earlier, the law is trite. An appeal is a rehearing. []
Our submission is that, in the case of DSAI, tab 2 of supplementary bundle, page 275, both arguments are made by myself and my learned friend. [] ruling made with regard to caution statement. That would not regard as a final matter. [] it does not become interlocutory.  It depends on the nature of the application. And the nature in our case is if the charge is struck out, it will be a final order. I pray your Lordship to dismiss my learned friend preliminary objection and go to the merits.[]
Why is the prosecution afraid to go into the merits? For the sake of public interest, the merits should be carefully considered. It is about the relationship between a DPP and SP1. It is unprecedented. In fact I’ve told my learned friend for so many times, do not be afraid and running away from the truth.
MY:     You are going into the merits.
KS:     []. My learned friend is afraid of the truth. And I pray for the preliminary objection to be dismissed.
MY:     Short reply. First, the court cannot look at ‘what if’, but ‘what is’. What my learned friend says is, what if we succeed in the Court of Appeal and if []. We need to  look at what is the nature of the application before the court, the nature of the status quo and whose right would be disposed of. I would concede if it is being allowed then your Lordship would dismiss the application and order to continue with cross-examination of the doctor. But we cannot be speculating what if, what if.
Secondly, those cases were decided before the amendment but the amendment is brought to make in line with the cases.
No.3 – abuse of the process. I did not say you cannot appeal anything. It must be made at the end of the trial, it should be a ground for appeal.
No.4, when my learned friend gives example of consent, if you strike out the charge because the consent is defective, we can still charge him again. Surely we will appeal. This is not because we fear or anything else. In Regina v Collins, it is unprecedented. The court says it is a novel point, it has not been done before and therefore it is not allowed.
YA:     [] the charge, wouldn’t it be a final order? And if he fails, then it is not a final order?
MY:     Yes. In Saad bin Abbas, if defence is called the accused has the right to defence himself if he wants to. In Letchumanan, which is the latest case, that would be a final order because it disposes the right of the parties. The court cannot decide based on ‘what if’. The court must decide on ‘what is’. Because if the case is allowed []. And the court has been consistent all this while since at that point in time when defence is called, your status has not being decided yet, you have the right to say and it is not the end of your right, as opposed to when the court said that there is no case to answer at the close of the prosecution case. []
YA:     That’s all?
MY:     Yes.
KS:     My learned friend said this “if the [] and your Lordship has to decide in the trial judge shoes as in Balasingham case. [] from determining that. It is wrong. Since it is not struck out, and was wrongly decided that it cannot be struck out, then my learned friend says it is a not final order. I don’t think this court should allow this principle. If the charge is struck out, the Prosecution can appeal, but because the charge is not struck out, we cannot     appeal. It is ridiculous. My learned friend said that the application is made in the course of the trial. [] I take your Lordship to the amendment. The purpose has been included in the amendment. Refer Tab 6 of prosecution bundle, page 259, para G [read].
In fact, we pray for your Lordship to carefully consider this appeal, the logic of it, the common sense of it. Your Lordship should have [] what is wrong. Much obliged.
MY:     May I just pass a loose copy of Letchumanan.
YA:     Do you want to say anything KS?
KS:     [] throwing the case at the last does not help my learned friend.
MY:    []
YA:     I think you have made the point there. We’ll adjourn to 11.15 a.m. for decision.
[10.38 a.m.] Stand down.

[11.24 a.m.]
YA:     Upon considering the submission of both parties our decision is unanimous. Our grounds of decision are as followed. In the outset of the hearing the prosecution argued that the ruling made by the High Court is not appealable. The prosecution raised a crucial issue whether we have the jurisdiction to hear the appeal or not.
The applicant filed a notice of motion at the High Court and prays for an order for the charge to be strike out. The High Court made a decision on 16 August 2010, dismissing the applicant’s application. The applicant appeal before us. Our jurisdiction to hear the appeal is governed by Section 50 of Courts of Judicature Act 1964 [read] The crucial word in the said section is ‘decision’. In Section 3, decision [read Section 3] . We are of the view that the decision made by the High Court dismissing the application is a ruling made in the course of the trial and that ruling does not finally dispose the right of the parties.
We found the ruling based several cases. [Refer and cite the cases].
Thus the order made by the High Court is not a decision made under Section 3 of Courts of Judicature Act 1964 and in such circumstances we have no jurisdiction to hear the appeal.
We unanimously dismiss the appeal.
[11.29 a.m.] Appeal dismissed.

+++++++++ The Full English Version +++++++++

At the Court of Appeal
Before     :     Y.A. Dato’ Ahmad bin Haji Maarop, HMR

Y.A. Dato’ Sulaiman bin Daud, HMR

Y.A. Dato’ Azhar bin Haji Maah, HMR

Parties :

PP        : All present, except NB & MHZ

Defence    : Datuk Param Cumaswaram, KS, SN

Appeal against the High Court decision of dismissing application to set aside charges

[9.27 a.m.]

KS: Parties as before with the exception of MHZ from PP

YA: The appellant are here?

KS: []

YA: Yes?

KS: Before my learned friend proceed. The decision regarding final order is in the case of DSAI v PP, authority no.2 of the supplementary bundle, page 275, under the heading of preliminary objection. What has to be considered is this case is precedent to what happen before your Lordship this morning. I take your Lordship to page 278, para G [read]. What happened here is, the application is made under Section 51A of Criminal Procedure Code. In other word, it is a pre-trial and not post-trial unlike here. We apply for an order to strike out the charge where the Lordship dismisses our application. It was made in the course of the trial. That being the position, this is not an authority for what constitutes ‘in the course of the trial’. In fact it was before the trial. It stands for its own – the trial.

The point I want to make is this, there is a previous Federal Court appeal, i.e. W-05-73-2010 involving the same parties. That was an application in the course of the trial. What we asked is the supply of 112 statement of the complainant in the case, SP1 and the learned judge of the Federal Court here reserved the judgment. And it was an application made in the course of the trial. It is the authorities in this current application. It was in the last month, but I cannot remember the exact date, the same argument is made, on the basis whether it is an order that is appealable or not. Perhaps this is not an authority. Perhaps we should wait for the decision of the Federal Court. Otherwise we will repeat the same argument this morning. We are not delaying it. It is not included in the authority. I think it is wise if we wait for the decision by the Federal Court, if not [] and that will be binding on your Lordship. So we would like your Lordship to differ to the preliminary objection, so then your Lordship will be guided by the perimeter on Section 3 of Courts of Judicature Act 1964.

MY: I believe we should not stay unless the Federal Court delivers their judgment. We have the case of DSAI 1999 where J NH Chan decided that it is not appealable. In fact that is Section 3 of Courts of Judicature Act 1964 is all about. It was amended in 1998. I urged your Lordship to continue the hearing. It won’t take a long time.

KS: The authority my learned friend referred is in the Court of Appeal. We should be guided by the decision of Federal Court. My learned friend have referred it in the Federal Court.

YA: We have decided to hear the preliminary objection.

MY: Our written submission on this issue can be found at page 6-12 of our submission, but if I may I just want to say something out from the submission. I will not read it. Way back in 1985 in the case of Raymond Chia, the CJ then refer to two cases, Hoo Chang Chwen, tab 10 and the case of PP v RK Menon, page 212 . In both cases the court says that the decision of the court is not appeallable because it involves procedural ruling. [Explain Hoo Chang Chwen and RK Menon]. It is only procedural; it is a matter of practice, so it is not appealable.

In 1998, there is an amendment to Section 3 of Courts of Judicature Act 1964. I refer to our bundle, tab 31, annexed explanatory statement, page 3, Fasal 2 [read].  First, it talks about admissibility. It would appear that in Hoo Chang Chwen, the court decided that it is procedural when the defence counsel asked for the supply of the document. Rose CJ ruled that it is not whether the document is being supplied or not. [] The second part is any ruling is not appealable. []

My learned friend in the lower court applies for a stay. And it is procedural and thus not appealable.

YA: The notice of motion it does not state any stay. It is to strike out the charge.

MY: Yes. But it is procedural. []. Any ruling made must be procedural ruling. To support my argument, I refer to the case no.2 of my learned friend bundle of authority, page 447, para B [read]. My Lord, there is this article referred to Halsbury Law of England where it says any ruling is a procedural ruling. Page 409 of the same report, Para E [refer and read].

The Federal Court in Raymond Chia refers to Hoo Chang Chwen and RK Menon. And this court refer to the case of DSAI v PP

YA: Court of Appeal?

MY: Yes. It talk about it is made in the course of the trial and thus not appealable. It refer to all the cases, Hoo Chang Chwen and Saad bin Abas. Section 3 Courts of Judicature Act 1964 is created to prevent any ruling to be appeal. In the case of DSAI, tab 6, holding 3 [read]. My learned friend referred to the latest decision of Federal Court in DSAI case. In that case it was appealable because the application is made before the trial and here the court said that bail is made in the course of the trial and thus not appealable.

I refer to tab 6, page 329,para H, where it discuss the effect of the amendment, the judge made reference to Halsbury Law of England [refer to ‘interlocutory’ and read].

In the last Federal Court sitting on this matter, of course the prosecution made reference to DSAI and Halsbury Law of England, it refers to civil cases.

I refer to tab 30, page 240 of the literature, the passage that J NH Chan referred to can be found at Para 506 [read]. This passage is produced in his judgment. I refer to page 237 under the heading ‘meaning of “judgment” and “order”’, [read]. That passage that J NH Chan referred to only apply in civil cases. In fact Raymond Chia, CJ refered to the case Mohd Amin. That was a civil case. What about criminal case? I refer to Regina v Collins, tab 8 it was held that the court of England does not have the jurisdiction to hear interlocutory appeal. [Refer and read Black Law’s dictionary definition of “interlocutory” and “interlocutory appeal”].

In short, 1st, the ruling made by the court is a procedural ruling and thus not appealable. No.2, since it was made in the course of the trial, Section 3  of Courts of Judicature Act 1964 apply and it excludes it from the definition of ‘decision’ and thus not appealable. And No.3  rightly or wrongly the case fo DSAI 1999, in Halsbury even if we follow that it does not disposes the right of the parties. Then, the case of Raymond Chia, it does not finally dispose the right of the parties. Lastly, based on Regina v Collins, this court does not have jurisdiction to hear the interlocutory appeal.

I pray for my Lord to dismiss the appeal.

KS: What your Lordship has to consider is the amendment of Section 3 Courts of Judicature Act 1964, the significance and the perimeter of it, the effect of the amendment, the word ‘decision’ of Section 3 Courts of Judicature Act 1964. I refer to the case of DSAI in 1999 [read]. I refer to tab 6 of my learned friend’s bundle, page 329, para G [read and explain]. That is what your Lordship has to put in mind. The effect of the amendment.

My learned friend refer to Hoo Chang Chwen, in fact this was referred to in the latest decision of DSAI, tab 2 of my bundle. What we have there among others are cases referred by my learned friend. The case of Hoo Chang Chwen is decided in 1962, Raymond Chia 1985, RK Menon 1967 . All of these are cases way before the amendment. This is irrelevant to the word ‘decision’ in Section 3 Courts of Judicature Act 1964, the word “does not include any ruling made in the course of the trial”.

In this application, the ruling is made in the course of the trial. No doubt about that. If it finally disposed the right of the parties, then it will be a final order. My learned friend referred to R v Conelly where it says that abuse process of the court is a procedure. We say it is not procedural, but substantive.

I refer to tab 7 of our bundle, para 9 between D and E [refer, read and explain]. [] that is not procedural. [Read] that is not procedural. [Read] We apply for the charge to be strike out for abuse process of the court because it is not being used for bona fide, but for the [] and oppression of DSAI. That was supposed to be the argument for abuse of process. It is not procedural, beyond reasonable doubt.
We go to the definition. We have show at length that the charge should be struck out. And if the charge is struck out wouldn’t it be a final order because it disposed the right of the parties? [] submission of the argument that the charge should be struck out. Just because it is made in the course of the trial my learned friend argued it was an interlocutory order and thus not appealable. If the ruling is made in the course of the trial, it finally disposed the rights of the parties.
In our view, there can be ruling in the course of the trial that disposed the right of the parties. For example, consent is required in prosecution of under the firearm act, sedition act, etc. The situation is this, the trial proceeds and in the course of the trial it was found that the consent is defective, the entire trial is a nullity because there is no proper consent.  It means that the charge has to be struck out whether it is void for the basis and foundation of it. Surely it could be a final order.

Thus, any ruling made in the course of the trial constitutes a final order. It is not as simple as my learned friend said- it is made in the course of the trial and thus interlocutory. It is the substance which count, not the label, not interlocutory. If we succeeded, it will be a final order and my learned friend will come to this court to appeal.  Just because we don’t succeed, does that mean we have no right to come here? Your Lordship should step into the shoes of the trial judge. An appeal is a rehearing.

I refer to case of Balasingham v PP, tab 6 of the supplementary bundle [read]. As I said earlier, the law is trite. An appeal is a rehearing. []

Our submission is that, in the case of DSAI, tab 2 of supplementary bundle, page 275, both arguments are made by myself and my learned friend. [] ruling made with regard to caution statement. That would not regard as a final matter. [] it does not become interlocutory.  It depends on the nature of the application. And the nature in our case is if the charge is struck out, it will be a final order. I pray your Lordship to dismiss my learned friend preliminary objection and go to the merits.[]

Why is the prosecution afraid to go into the merits? For the sake of public interest, the merits should be carefully considered. It is about the relationship between a DPP and SP1. It is unprecedented. In fact I’ve told my learned friend for so many times, do not be afraid and running away from the truth.

MY: You are going into the merits.

KS: []. My learned friend is afraid of the truth. And I pray for the preliminary objection to be dismissed.

MY: Short reply. First, the court cannot look at ‘what if’, but ‘what is’. What my learned friend says is, what if we succeed in the Court of Appeal and if []. We need to  look at what is the nature of the application before the court, the nature of the status quo and whose right would be disposed of. I would concede if it is being allowed then your Lordship would dismiss the application and order to continue with cross-examination of the doctor. But we cannot be speculating what if, what if.

Secondly, those cases were decided before the amendment but the amendment is brought to make in line with the cases.

No.3 – abuse of the process. I did not say you cannot appeal anything. It must be made at the end of the trial, it should be a ground for appeal.

No.4, when my learned friend gives example of consent, if you strike out the charge because the consent is defective, we can still charge him again. Surely we will appeal. This is not because we fear or anything else. In Regina v Collins, it is unprecedented. The court says it is a novel point, it has not been done before and therefore it is not allowed.

YA: [] the charge, wouldn’t it be a final order? And if he fails, then it is not a final order?

MY: Yes. In Saad bin Abbas, if defence is called the accused has the right to defence himself if he wants to. In Letchumanan, which is the latest case, that would be a final order     because it disposes the right of the parties. The court cannot decide based on ‘what if’. The court must decide on ‘what is’. Because if the case is allowed []. And the court has been consistent all this while since at that point in time when defence is called, your status has not being decided yet, you have the right to say and it is not the end of your right, as opposed to when the court said that there is no case to answer at the close of the prosecution case. []

YA: That’s all?

MY: Yes.

KS: My learned friend said this “if the [] and your Lordship has to decide in the trial judge shoes as in Balasingham case. [] from determining that. It is wrong. Since it is not struck     out, and was wrongly decided that it cannot be struck out, then my learned friend says it is a not final order. I don’t think this court should allow this principle. If the charge is struck out, the Prosecution can appeal, but because the charge is not struck out, we cannot appeal. It is ridiculous. My learned friend said that the application is made in the course of the trial. [] I take your Lordship to the amendment. The purpose has been included in the amendment. Refer Tab 6 of prosecution bundle, page 259, para G [read].

In fact, we pray for your Lordship to carefully consider this appeal, the logic of it, the common sense of it. Your Lordship should have [] what is wrong. Much obliged.

MY: May I just pass a loose copy of Letchumanan.

YA: Do you want to say anything KS?

KS: [] throwing the case at the last does not help my learned friend.

MY: []

YA: I think you have made the point there. We’ll adjourn to 11.15 a.m. for decision.

[10.38 a.m.] Stand down.

[11.24 a.m.]

YA: Upon considering the submission of both parties our decision is unanimous. Our grounds of decision are as followed. In the outset of the hearing the prosecution argued that the ruling made by the High Court is not appealable.The prosecution raised a crucial issue whether we have the jurisdiction to hear the appeal or not.

The applicant filed a notice of motion at the High Court and prays for an order for the charge to be strike out. The High Court made a decision on 16 August 2010, dismissing the applicant’s application. The applicant appeal before us. Our jurisdiction to hear the appeal is governed by Section 50 of Courts of Judicature Act 1964 [read] The crucial word in the said section is ‘decision’. In Section 3, decision [read Section 3] . We are of the view that the decision made by the High Court dismissing the application is a ruling made in the course of the trial and that ruling does not finally dispose the right of the parties.

We found the ruling based several cases. [Refer and cite the cases].
Thus the order made by the High Court is not a decision made under Section 3 of Courts of Judicature Act 1964 and in such circumstances we have no jurisdiction to hear the appeal.

We unanimously dismiss the appeal.

[11.29 a.m.] Appeal dismissed.


Comments»

1. Malaya - September 20, 2010

Aiyah, why all these sendiwara if its the answer is already there! Why don’t they just pass the sentence lah and send both the butt seller and the buyer to jail instead of wasting public fund! Anyway soliciting is also an offense same at the China dolls!

2. Azlan - September 21, 2010

Apa nak buat mahkamah bawah kerajaan Malaysia..Kerajaan Malaysia adalah UMNO yg bodoh..Jadi UMNO takut Anwar naik..jadi Saiful yg bodoh laa jadi keldai dia.
Jadi kita lebih ramai orang untuk menyokong Anwar yg bijak dan Semoga beliau sabaq menghadapi ujian ini..Ingat Anwar,Jikalau anda benar maka Allah akan sentiasa menolong orang yang kena zalim seperti depa wat kat Anwar. Jangan bimbang sokongan anak muda seperti saya di Alor Setar kedah

Anonymous - September 21, 2010

Memanglah kalau dah meliwat takut pd kenyataan, tkut pd hukuman drp Allah klu bersumpah,ada lg manusia yg pcaya Nuar.. hish.. hish..

3. Berani kerana benar - September 21, 2010

Kalau dah confirm Anwar liwat biarkan lah di dapatkan statement semua orang supaya para peguamnya boleh hujah di mahkamah nanti, kenapa perlu takut dia dapatkan statement itu? Kalau takut bermaksud ada muslihat!

4. hanim - September 24, 2010

moga Allah membantu sdra Anwar… Saya tetap di pihak saudara!!!!!
Takbir!!!!

5. Mission Impossible - September 25, 2010

Yes Hanim, I am sure he will be freed without being punish for things he didn’t do!

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