High Court gets power to correct lower courts


  • Nation
  • Saturday, 16 Aug 2003

BY CHELSEA L.Y. NG

KUALA LUMPUR: High Court judges can now use their power to correct any technical mistakes by Sessions judges or magistrates without having to order the lower courts to hold a retrial. 

This is a landmark decision by the five-man bench of the Court of Appeal as it has cleared up the confusion created six years ago when there was controversy over the burden of proof required in a criminal trial at the end of the prosecution’s case. 

Chief Justice Ahmad Fairuz Sheikh Abdul Halim presided over the larger than usual bench. 

The panel unanimously ruled in its 33-page judgment that High Court judges could invoke Section 422 of the Criminal Procedure Code (CPC) to correct technical mistakes. 

Federal Court judge Justice Mohd Noor Ahmad, who wrote and delivered the judgment, said all convictions and sentences passed by the lower courts could be secured as long as there was enough supporting evidence and the error did not cause failure of justice. 

”The CPC is a code of procedure designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities.  

“The objective is to ensure that an accused gets a full and fair trial along certain well-established and well-understood lines that are in accord with our notions of natural justice,” he said, adding that mere procedural mistakes with no substantial prejudice to an accused should not be used to render a trial void. 

He said before this judgment, the Court of Appeal had handed down seven judgments relating to the issue since 1998, with five ruling that misdirection on standard of proof was an illegality that could not be saved by Section 422 and two ruling otherwise. 

“The modern trend should be to swing away from technicality and a greater endeavour be made to regard the substance rather than the shadow and to administer justice fairly and impartially as it should be administered; fair to the accused, fair to the State and fair to the society. 

Justice Mohd Noor said the absence of the word “illegality” in Section 422(a) reflected the Parliament’s wisdom in allowing the court the discretion to decide whether any error, omission or irregularity in a case is curable, provided that it has not caused failure of justice. The other judges on the panel were Justices Denis Ong, P.S. Gill and Mohd Ghazali Mohd Yusoff.  

The judgment disposed of three sets of appeals based on the issue of standard of proof used by the lower courts. 

In the case of PP v Ishak Shaari, the judges held that the accused ought to be retried as ordered by the Malacca High Court on June 3, 1997, because the Sessions court judge had misdirected himself on the requirement of corroboration of evidence. 

The Bench also upheld the order for retrial of PP v Mohd Amin Abdullah @ R. Kanaperan as the assessment of witnesses’ credibility had been jeopardised by a magistrate who took over the case from another colleague in the midst of the trial. 

As for the third appeal, the judges quashed an order for retrial made by the High Court on April 13, 2000, and restored the conviction and sentence of Lim Nyew @ Lim Ket Yew as there was overwhelming evidence to support his conviction despite the misdirection on standard of proof.  

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