Anwar Ibrahim Sodomy II – The Recorded Truth 06 JULAI 2011

Mahkamah Rayuan
Di hadapan YA Dato’ Hasan Bin Lah, H.M.R
YA Dato’ Hj Abdul Malik Bin Haji Ishak, H.M.R
YA Dato’ Haji Ahmad Bin Maarop, H.M.R

Pihak-pihak:
PP:    NH, WCK, NB, NAA, MM
PB:    KS, Ram Karpal
AI tidak hadir

[9.46 a.m.]

Rayuan Jenayah: W05-162-6-2011

NH:    Sebelum rakan saya memulakan rayuan, pihak kami telah memfailkan notis memaklumkan kami ada bantahan awal untuk dihujahkan sekiranya diizinkan.  YA, kami telah menyediakan hujahan bertulis untuk bantahan awal yang telah dikemukakan kepada mahkamah dan juga ikatan autoriti berkaitan bantahan awal.

YA Dato’ Hasan : Teruskan.

NH:    Mohon izin untuk berhujah di dalam Bahasa Inggeris, YA.

The appeal today is against the decision of the trial judge not to recuse himself from hearing the criminal proceedings against the Appellant.

Our preliminary objection as mentioned in our notice earlier to the Appellant and this honorable court is that the ruling of the trial judge not to recuse himself is not appealable. The trial judge’s ruling is clearly not within the purview of the definition of ‘decision’ in Section 3 of the Court of Judicature Act 1964.

YA, just to inform the honorable court this is the third application to recuse the trial judge by the Appellant and this honorable court on appeal pertaining to the second application has decided that the judge ruling not to recuse himself is not appealable as it is not within the purview of the definition of ‘decision’ as provided by Section 3 of the Court of Judicature Act 1964. It is reported in Dato’ Seri Anwar Ibrahim v PP [2011] 2 CLJ 845.

Our reason for this objection is stated at page 10 of our written submission. If I may refer YA to page 10 at paragraph 16. As mentioned here, the ruling of the learned trial judge, in refusing to acquiesce to the Appellant’s third application for recusal is clearly not within the purview of the definition of ‘decision’ in Section 3 of Court of Judicature Act 1964.

The said ruling was made in the course of a trial, i.e. at the close of the prosecution case. It must be emphasized YA, that the said ruling had not finally disposed the rights of the Appellant.

YA, the rights of the Appellant to appeal against the decision of the high court are governed by Section 50 of the Court of Judicature Act 1964 which provides that:

50. Jurisdiction to hear and determine criminal appeals

(1) Subject to any rules regulating the proceedings of the Court of Appeal in respect of criminal appeals, the Court of Appeal shall have jurisdiction to hear and determine any appeal against any decision made by the High Court—
(a) in the exercise of its original jurisdiction; and
(b) in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by the Sessions Court.

(2) An appeal shall lie to the Court of Appeal, with the leave of the Court of Appeal, against any decision of the High Court in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by a Magistrates’ Court but such appeal shall be confined to only questions of law which have arisen in the course of the appeal or revision and the determination of which by the High Court has affected the event of the appeal or revision.

(2A) …

(3) …

(4) …

The word ‘decision’ as appeared in Section 50 of the Court of Judicature Act is defined in Section 3 of the same Act:

“decision” means judgment, sentence or order, but does not include any ruling made in the course of a trial or hearing of any cause or matter which does nit finally dispose of the rights of the parties.

YA, as we stated here, in the explanatory notes when the word ‘decision’ in Section 3 of the Court of Judicature Act was amended, the reasons for the amendment were stated as follows:

“Pada masa ini, semasa mendengar kes, jika mahkamah membuat keputusan tentang kebolehterimaan apa-apa keterangan atau dokumen, pihak yang tidak berpuas hati boleh memfailkan rayuan. Jika rayuan sedemikian difailkan, mahkamah terpaksa memberhentikan pendengaran kes itu sementara menanti keputusan rayuan itu oleh mahkamah atasan. Ini menyebabkan pendengaran itu lambat selesai, lebih-lebih lagi apabila rayuan difailkan terhadap tiap-tiap keputusan yang dibuat oleh mahkamah bicara. Pindaan ini mencadangkan untuk membantu mempercepat pendengaran kes di mahkamah bicara.”

In Dato’ Seri Anwar Ibrahim v PP [199] 1 MLJ 321 at tab 11 of our bundle, the Court of Appeal when deliberating on the ambit of the word ‘decision’ in Section 3 of the Court of Judicature Act opined at page 335 that:

“A decision made pending the trial of the charges against the appellant is not, in our considered opinion, a decision (ruling) that had the effect of finally determining the rights of the appellant. It is only the outcome of the trial that would have the effect of finally disposing of his rights. A decision on bail (by the court of first instance), whether the grant or refusal of it, will not finally determine the rights of the appellant in the outcome of his trial. That being so, the order of the High Court in refusing to admit the appellant to bail is not appealable to the Court of Appeal.”

Similarly in Saad Bin Abas & Anor v Public Prosecutor [1999] 1 MLJ 129, the application of Section 50(2) of the Court of Judicature Act was explained by the Court of Appeal at page 138 as follows:

“So, for the purpose of s 50(2), this court has to first ascertain whether the ‘decision’ of the High Court in ordering the applicants before us to enter on their defence was a ruling that had the effect of finally disposing of their rights. Certainly not, and it would only happen after a decision had been made at the close of the defence.”

And in our case it is at the close of the prosecution case.

YA, in Regina v Collins [1970] 1 QB 710 at tab 12, the coa of England, pursuant to a motion filed with regards to the decision of the court below in refusing to order further particulars of a count in an indictment held that:

“…the court had no jurisdiction to hear the application; that the Court of Appeal (criminal division), having the same powers as its predecessor, the Court of Criminal Appeal, which was created by the Criminal Appeal Act 1907, had no statutory jurisdiction to hear an interlocutory appeal; that since the court was created by statute, it had no powers beyond those conferred on it by Parliament. Accordingly, there was no inherent jurisdiction to hear interlocutory appeals.”

The above case did not define ‘interlocutory’ nor ‘interlocutory appeal’. However, in Black’s Law Dictionary (Eight Edition), the word ‘interlocutory’, (when referring to an order, judgment, appeal etc.) is defined as ‘interim or temporary, not constituting a final resolution of the whole controversy.’

On the other hand, the phrase ‘interlocutory appeal’ is defined in Black’s Law Dictionary (eight Edition) as ‘an appeal that occurs before the trial court’s final ruling on the entire case.”

It cannot be gainsaid that the appeal filed by the Appellant herein is actually an interlocutory appeal as it was ‘an appeal that occurs before the trial court’s final ruling on the entire case.’ Such being the case, the definition of the word ‘decision’ in section 3 of the Court of Judicature Act would clearly preclude the Appellant from pursuing with this appeal.

If I may refer YA to tab 11 of our bundle where J NH Chan at page 330 had further explained at paragraph D,

“The real distinction is between (for want of a better word) what is called final judgments and orders and interlocutory judgments and orders. In general, a judgment or order which determines the principal matter in question is termed ‘final’: see 26 Halsbury’s Laws of England, para 505 at p 238. Actually, the use of the term ‘final’ is tautological as all judgments and orders are final. The term (final) is used for the purpose of distinguishing between judgments and orders and ‘interlocutory’ judgments and orders. The difference is that judgments and orders which are not termed ‘interlocutory’ judgments and orders are appealable under the new meaning of the word ‘decision’ as defined in s 3 by the 1998 amendment. In other words, judgments and orders which determine the principal matter in question are termed ‘final’ judgments and orders, and they are appealable. But, those judgments and orders which give no final decision on the matters in dispute (which are termed ‘interlocutory’ judgments and orders) are now no longer appealable.”

YA, in fact, this Honorable Court when deliberating on an appeal filed by the same Appellant pursuant to his second application for recusal in Dato’ Seri Anwar Ibrahim v PP [2011] 2 CLJ 845 at tab 7 of our bundle. May I refer first to the head notes in paragraph E at page 845,

“The accused had during the course of the trial filed an application to recuse the learned trial judge on the grounds that the trial judge had intimidated the accused’s learned counsel with contempt proceedings. The trial judge dismissed the recusal application. The accused filed this appeal against the said decision. The learned Deputy Public Prosecutor raised a preliminary objection on the ground that the ruling of the trial judge was not within the purview of ‘decision’ in s. 3 read with s. 50(1) of the Courts of Judicature Act 1964 (‘the Act’), as it was made in the course of a trial and did not finally dispose of the accused’s rights under the charge.”

Then it was decided by this honorable Court, If I may refer to paragraph 16 of page 851,

“[16] The intention as manifested in s. 3, read with s. 50(1)(a) and the Explanatory Statement, is clear and unambiguous ie, to bar the filing of an appeal against a ruling made by a trial court and also to help expedite the hearing of cases in trial courts. In other words, while the law allows appeals against a judgment, sentence or order, it expressly excludes all appeals against all rulings made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties. Put simply, the intention of Parliament in enacting s. 3 and s. 50(1)(a) is to exclude interlocutory appeals in criminal causes or matters.”

YA, then at paragraph 17,

“[17] As the definition of ‘decision’ in s. 3 is clear and unambiguous, it is the duty of the court to give effect to it. This Court has no powers beyond those conferred by Parliament. Accordingly, there is no jurisdiction to hear an interlocutory appeal i.e. Interim appeal against a ruling which does not constitute a final resolution to the whole controversy, or “an appeal that occurs before the trial court’s final ruling on the entire case” (see Black’s Law Dictionary, 8th edn, and Regina v Collins, supra). Justice demands that cases should move without unnecessary interruption to their final conclusion. The right of a party who is aggrieved by a ruling, after all, is not being compromised, as the party can always raise the issue during the substantive appeal, if any, which may be filed after the trial process is brought to its conclusion.”

YA, we go straight to paragraph 19,

“[19] In the instant appeal, the ruling of the learned trial judge in dismissing the accused’s second recusal application was made in the course of the trial which does not finally dispose of the rights of the accused and is therefore not a decision within the ambit of s. 3 read with s. 50(1)(a). It is only the outcome of the trial that would have the effect of finally disposing of his rights.”

It goes on further at paragraph 20,

“[20] The underlying reason behind the amendment to the definition of ‘decision’ in s. 3, introduced by Amendment Act A1031 of 1998 with effect from 31 July 1998, is to stop parties from filing appeal after appeal on rulings made by the trial court in the course of a trial, thereby stifling a trial before the trial court: See Dato’ Seri Anwar Ibrahim v. PP [2010] 9 CLJ 625 FC.”

And the conclusion at paragraph 21,

“Conclusion

[21] On the foregoing grounds, we unanimously sustained thepreliminary objection and dismissed this appeal in limine.”

At page 862 of the same case, J Abdul Malik Ishak stated in paragraph 56,

“[56] The ruling by the learned trial judge is interlocutory in nature and made in the course of the trial and it is not final. And since the ruling of the learned trial judge is not appealable, this court has no jurisdiction to hear the appeal.”

YA, This   Honorable  Court  in  Dato’  Seri  Anwar  Ibrahim v Public  Prosecutor  (Court of  Appeal. Criminal Appeal No. W-05-178-2010 – Unreported), tab 9 of our bundle which was an earlier appeal filed  by the Appellant against the ruling of the learned trial Judge in refusing to allow the defence to inspect the section 112 statement of the complainant, had held that:

“(1)    We are of the view that the ruling of the learned trial Judge was made in the course of a trial where the rights of the Appellant has not been fully disposed off. Therefore the ruling in refusing to allow the statements of the complainant recorded under section 112 Criminal Procedure Code, to be produced for inspection by the Appellant is not within what is envisaged by the definition of “decision” as provided for by section 3 of Courts of Judicature Act 1964.

(2)    Our jurisdiction to hear and determine the appeal is governed by section 50 of Courts of Judicature Act 1964. We have no jurisdiction to hear an appeal which is not against a decision made by the High Court.”

Further at paragraph 31 of our written submission, The Court of Appeal in the above case then proceeded to examine the term “decision” as defined in section 3 of the CJA, the explanatory statement accompanying the amendment to the term “decision” and the relevant authorities illustrating the said term.

Having done do, the Court of Appeal held that:

“(4)    It cannot be gainsaid that the appeal filed by the Appellant herein is really an interlocutory appeal as it is an appeal that occurs before the trial’s court final ruling on the entire case.

(5)    Therefore we have no jurisdiction to hear and determine this appeal.”

The Federal Court had also recently dealt with the same issue in Dato’ Seri Anwar Ibrahim v Public Prosecutor [2010] 6 MLJ 585, tab 8 of our bundle in paragraph 24,

“[24]    The underlying reason behind the amendment to the definition of ‘decision’ in s 3 of the CJA, introduced by Amendment Act A1031 of 1998, which came into effect on 31 July 1998 is to stop parties from stalling a trial before the trial court by filing appeal after appeal on rulings made by the trial court in the course of a trial. This is what the amendment seeks to achieve as evident from the explanatory statement to the Bill which reads:

2 Clause 2 seeks to amend section 3 of Act 91.

At the moment, in the course of hearing a case, if the court decides on the admissibility of any evidence or document, the dissatisfied party may file an appeal. If such appeal is filed, the court has to stop the trial pending the decision of the appeal by the superior court. This cause a long delay in the completion of the hearing, especially when an appeal is filed against every ruling made by the trial court. The amendment is proposed in order to help expedite the hearing of cases in trial courts.”

And the conclusion of the above case is,

“CONCLUSION

[26] For the above reasons, we agree with the Court of Appeal that the ruling of the trial court in this case is not a ‘decision’ as defined in s 3 of the CJA and hence it is not appealable. In the light of our decision, it is therefore not necessary for us to consider grounds 3 and 4 of the petition.”

Applying the principles as enunciated by both the Federal Court in the above case and also the latest decision of the Court of Appeal in Dato’ Seri Anwar Ibrahim v PP [2011] 2 CLJ 845, it is rather obvious that the ruling of the learned trial Judge is refusing to acquiesce to the demand of the defence for him to be recused, is definitely a non-appealable ruling.

On this preliminary issue alone, we respectfully urge this Honorable Court to dismiss the Appellant’s appeal for want of jurisdiction.

YA Dato’ Hasan: Sebelum itu, perayu memang tidak hadir ya, En.Karpal?

KS:    He is here.

YA Dato’ Hasan: Kenapa tak datang depan?

DSAI: []

YA Dato’ Hasan: Okay, proceed.

KS:     My learned friend starts off by saying that this is the third attempt by the Appellant to recuse the learned trial judge. The number of attempts is not an issue, my lord. An accused has the right to exhaust any remedy he has. The number of attempts does not count.

What we have here is the interpretation of the word ‘decision’ in Section 3 or rather the amendment of Section 3 of the Court of Judicature Act. That of course is [] would be Section 50 of the Court of Judicature Act with the right of appeal of an accused person.

I take your Lordship straight away to what is at hand. We refer to our submission.

The respondent has given notice of preliminary objection that pursuant to Section 50 and the definition of ‘decision’ in section 3 of the Court of Judicature Act 1964 and having regard to the decision of this Court in Dato’ Seri Anwar Ibrahim v PP [2011] 2 CLJ 845 [Tab 1] and in which J Abdul Malik had the occasion to say to the court the issue having arisen in the course of the trial and having been decided, that decision is not a final order and, therefore, it could not be appealed to the Court of Appeal.

My Lord, Malik J had occasioned to say this to Honorable Court; and the issue having arisen in the course of the trial and having been decided, that decision is not a final order and therefore, it could not be appealed to the Court of Appeal.

The order of the trial judge dated 6th June 2011 is against his refusal to recuse himself for further proceeding with the trial in disqualifying himself so to do.

What has to be noted is that the Federal Court has had occasion to consider the issue relating to final order in Dato’ Seri Anwar Ibrahim v Public Prosecutor [2010] 9 CLJ 625 [TAB 2]. However, the Federal Court there was dealing, not with an order of recusal, but with a ruling relating to the recording of a statement under Section 112 of the Criminal Procedure Code.

It is to be noted that this issue relating to recusal of a judge arose in this court in Dato’ Seri Anwar Ibrahim v Public Prosecutor [2011] 2 CLJ 845.

It was a unanimous decision of the Court of Appeal that the intention as manifested in the definition of decision in section 3 of the Act, read with the Section 50(1)(a) of the Act and the Explanatory Statement, was clear and unambiguous i.e. to bar the filing of an appeal against a ruling made by a trial court and also expedite the hearing of cases in trial courts. The intention of Parliament in enacting Section 3 of the Act, read with section 50(1)(a), was to exclude interlocutory appeals in criminal caused or matters.

The Court of Appeal went on further to hold as the definition of ‘decision’ in section 3 of the Act is clear and unambiguous; it is the duty of the court to give effect to it. The court has no powers beyond those conferred by Parliament. Accordingly, there was no jurisdiction to hear an interlocutory appeal i.e. interim appeal against a ruling which does not constitute a final resolution of the whole controversy or an appeal that occurs before the trial court’s final ruling on the entire case.

The Court of Appeal went on further to hold the ruling of the learned trial judge in dismissing the accused’s recusal application was made in the course of the trial which did not finally disposed the right of the accused and was therefore not a decision within the ambit of Section 3 read with Section 50(1)(a) of the Act. It was only the outcome of the trial that would have the effect of finally disposing his rights with Abdul Malik Ishak JCA, while concurring, held the ruling by the learned trial judge was interlocutory in nature and made in the course of the trial and was not final. Since the ruling of the trial judge was not appealable, the court has no jurisdiction to hear the appeal. Hence the appeal should be dismissed for want of jurisdiction.

It is submitted with respect that the abovementioned rulings by the Court of Appeal are erroneous. The Court of Appeal is not bound by its own decisions.

In Dalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1 [TAB 3], the Federal Court at page 14 stated,
‘In Malaysia, the Federal Court and it forerunner, i.e. the Supreme Court after all appeals to the Privy Council were abolished, has never refused to depart from its own decision when it appeared right to do so’.

However, at the same page preceding the above passage appears the following caveat,
‘Experience in the United Kingdom has shown that the power ‘to depart from a previous decision when it appear right to so’ has been used very sparingly’.

In Tunde Apatira & Ors v Public Prosecutor [2011] 1 MLJ 259 [TAB 4] at pages 263-264, in delivering the judgment of the Federal Court, Gopal Sri Ram JCA (as he then was) had occasion to say,

‘With respect, we are unable to accept the learned deputy’s invitation to depart from Muhammed bin Hassan for three reasons. In the first place, Muhammed bin Hassan is a very recent decision of this court. It is bad policy for us as the apex court to leave the law in a state of uncertainty by departing from our recent decisions. Members of the public must be allowed to arrange their affairs so that they keep well within the framework of the law. They can hardly do this if the judiciary keeps changing its stance upon the same issue between brief intervals. The point assumes greater importance in the field of criminal law where a breach may result in the deprivation of life or liberty or in the imposition of other serious penalties. Of course, if a decision were plainly wrong, it would cause as much injustice if we were to leave it unreversed merely on the ground that it was recently decided. In a case as the present this court will normally follow the approach adopted by the apex courts of other Commonwealth jurisdictions as exemplified by such decisions as R v Shivpuri [1986] 2 All ER 334’.

In R v Shivpuri [1986] 2 ALL ER 334 [TAB 5] at page 345 the House of Lords stated,

‘Firstly, I am undeterred by the consideration that the decision in Anderton v Ryan was so recent, the 1966 Practice Statement is an effective abandonment of our pretention to infallibility. If a serious embodied in a decision of the House has distorted the law, the sooner it is corrected the better. Secondly, I cannot see how, in the very nature of the case, anyone could have acted in reliance in the law as propounded in Anderton Ryan in the belief that he was acting innocently and now find that, after all, he is to be held to have committed a criminal offence. Thirdly, to hold the House bound to follow Anderton v Ryan because it cannot be distinguished and to allow the appeal in the case would, it seems to me, be tantamount to a declaration that the 1981 Act left the law of criminal attempts unchanged following the decision in v Smith [1973] 3 ALL ER 1109, [1975] AC 476. Finally, if contrary to my present view, there is a valid ground on which it would be proper to distinguish cases similar to that considered in Anderton v Ryan, my present opinion on that point would not foreclose the option of making such a distinction in some future case.’

The propositions which can be distilled from the abovementioned authorities are as follows:

[1] the Federal Court has never refused to depart form its own previous decision when it appeared right to do so;
[2] Experience in the United Kingdom has shown that the power to depart from a previous decision when it appears right to do so has been used very sparingly;
[3] if a decision were plainly wring it would cause as much injustice if the court were to leave it unreserved; and
[4] if a serious error embodied in a decision of a court has distorted the law, the sooner it is corrected the better.

It is submitted, this principles equally apply to the Court of Appeal.

It is accepted that an appeal is merely a continuation of proceedings by way of rehearing [see Balasingham v Public Prosecutor [1959] 1 MLJ 193 [TAB 6]; See also Adzhaar Ahmad v Public Prosecutor [1996] 4 MLJ 85 [TAB 7]] in which Alauddin J (as he then was) had occasion also to say “that an appeal is merely a continuation of proceedings by way of rehearing”.

If this is the position in law, and it has to be, then this court should carefully consider whether if it had, in the first instance sat, and had come to the conclusion that the learned trial judge ought to have been recused, then that would have been the end of the matter. The trial would have had to be, as a consequence, commenced de novo. This would have meant that the order made would have been final and not an interlocutory or interim one.

Under these circumstances, this court should have the jurisdiction to hear the appeal. The position is as simple as that.

It is respectfully prayed therefore, that this court has the jurisdiction to hear the appeal and consider the merits of it.

Then again, this court should consider if a sanction or consent to prosecute is fundamentally defective in that they are unsigned, and an application is made for a ruling on that and if the court rules against that, would that mean it would not be a final order but had to be raised only on appeal on the reasoning that the trial should be expedited as this was the intention of Parliament in bringing about the amendment to the word decision in Section 3. Such a position would be untenable and would be against public interest in that public expense would be involved in proceeding with a hopeless trial. That could not have been the intention of the Parliament.

We say at this circumstances My Lord, the decision made by this court regarding the same matter should be reviewed, and we pray that this appeal should be proceed with the merits. Much obliged.

YA Dato’ Hasan: Yes, Dato’ Nordin?

NH:    Only on one matter, My Lord. Regarding one of the case cited in the written submission,     this is what we have to say, YA. We should not be part with the decision of this Honourable Court on the same issue because based on the principle cited, we submit that there is no serious error, the decision is the correct decision and also the other principle which say that this court to reverse decision must be used sparingly and not []. So we submit that we should not be part with the decision based on the reasoning and based on what the law had provide.

YA Dato’ Hasan: Kami akan bagi keputusan setelah naik semula nanti. Court tangguh selama setengah jam.
[10.24 a.m.] Stand down.

[11.02 a.m.]
YA Dato’ Hasan: Ini merupakan keputusan kami, yang merupakan keputusan sebulat suara. Ini adalah permohonan perayu terhadap hakim perbicaraan, di mana hakim perbicaraan telah menolak permohonan tersebut. Perayu antara lainnya telah memohon untuk hakim perbicaraan menarik diri daripada mendengar perbicaraan atas sebab berat sebelah. Kami perlu menentukan samaada keputusan yang dibuat pada 6 Jun 2011 oleh hakim perbicaraan boleh dirayu ataupun tidak. Dalam kata lain, sama ada keputusan tersebut termasuk di dalam seksyen 3 Akta Mahkamah Kehakiman. Permohonan yang dibuat oleh perayu untuk hakim perbicaraan menarik diri daripada mendengar kes tersebut berdasarkan alasan-alasan lain dan hakim perbicaraan telah menolak permohonan tersebut. Semasa rayuan perbicaraan di Mahkamah ini, isu yang sama dibuat iaitu samaada keputusan mahkamah tersebut boleh dirayu.

Kami telah menimbang hujah daripada kedua-dua belah pihak mengenai perkara ini dan kami berpendapat kami tiada sebarang sebab untuk kami tidak bersetuju dengan keputusan yang dibuat oleh Mahkamah Tinggi, mengenai isu yang sama. Dengan itu, kami memutuskan bahawa, keputusan yang diputuskan oleh Hakim perbicaraan pada 6 Jun 2011 bukanlah keputusan sebagai ditakrifkan di bawah Seksyen 3 CJA, bukanlah keputusan yang ‘finally disposed the right of the accused’.

Dengan alasan tersebut, kami membenarkan bantahan awal yang dibuat oleh pihak pendakwaraya, dan seterusnya menolak rayuan ini. Dan alasan penghakiman bertulis akan disediakan kemudian.

NH:    Much obliged, YA.

KS:    YA, we have instruction from our client to apply for stay of proceeding pending the outcome of the appeal to Federal Court. We would like to use the case of Rowstead in which it will apply to this court also. We read para 3 of this case at page 122 [read].

NH:    We submit My Lord that this case of Rowstead System is not applicable in our case, because the issues of Section 2 is never argued in this case and Section 3 is with regard to the jurisdiction in which this Honorable Court [] to appeal. Obviously this court has no jurisdiction, and cannot grant bail just merely because of Rowstead. That is our submission YA.

KS:    The principle of this case [] declare [] a just sitting in own cause. In any event the Federal Court allow the appeal, and if your Lordship [], []

Let me say once again that your Lordship ought to seriously consider our application. We will file the appeal as soon as possible, maybe tomorrow itself.

YA Dato’ Hasan:    Kami sebulat suara menolak permohonan untuk stay oleh perayu, dan alasan penghakiman akan kami berikan kemudian.

[11.13 a.m.] Appeal dismissed.