Empowered to set things right

Last year the Court of Appeal, in the absence of a cross-appeal by the prosecution, used its power in the Courts of Judicature Act 1964 to double the sentence of a man who wanted to lessen his jail term for assault. This month, a larger panel delivered a landmark judgment that endorsed the same power to High Court judges under the Criminal Procedure Code. CHELSEA L.Y. NG takes a closer look at these provisions and their effect on the court system. 

IT WAS Rosli Supardi’s final avenue to appeal against the six-year-jail term and three whippings sentence meted out by a Sessions Court more than three years ago.  

The former dispatch clerk with a company in Damansara hoped to lower the sentence that he got for slitting the throat of a female colleague whom he had failed to rape earlier in 1994 when he was 23. The woman is seven years his senior.  

The path looked quite safe for him to proceed on that Monday morning in March last year, as the Public Prosecutor did not cross-appeal to have the sentence enhanced. He thought he had nothing to lose.  

He might not have realised it but the Court of Appeal has the power to review evidence before a trial court, and act on the evidence, if the end result does not cause a “miscarriage of justice” to anyone.  

Gopal Sri Ram:'There is no essentialdifference between the proviso and Section422.They mean the same thing.'

This, it can do despite the absence of a cross-appeal.  

The proviso of Section 60 of the Courts of Judicature Act 1964 allows this. 

Another statute containing an almost identical provision is the Criminal Procedure Code. Section 422 of the code allows the High Court to review cases from lower courts with no “failure of justice” caused.  

What could be the impact of these two decisions? It could be drawn not only from Rosli’s disappointed face, but also from the horror in the eyes of several other criminal appellants who were waiting in line to appeal that day.  

The fear was apparent. The person immediately after, had asked that his appeal be postponed to a later date as he had wanted to engage a counsel to argue his case for him.  

“Is he making this application after he heard the judgment of the other case?” Justice Gopal Sri Ram, who chaired the panel last year, quipped.  

To Chief Justice Tan Sri Ahmad Fairuz Sheikh Abdul Halim and his panel of judges in the landmark case of PP v Ishak Shaari, PP v Mohd Amin Abdullah @ R. Kanaperan and PP v Lim Nyew @ Lim Ket Yew, handed down on Aug 18, the confirmation of the High Court’s power in Section 422 of the CPC had a significant function.  

It is to “further the ends of justice” and to get rid of endless technicalities created to frustrate the speed of the administration of justice.  

This is seen as a positive judgment to people from both sides of the scales of justice, especially after they have to endure years of splitting views on whether the High Court is empowered to correct the misdirection committed by the lower courts.  

Now that all convictions and sentences passed by the lower courts can be secured as long as there is sufficient evidence and the error does not cause a failure of justice, many cases need not be tried afresh – a lengthy process disliked by almost anyone involved in the trial.  

That says a lot for the court as far as keeping backlogs at bay is concerned.  

The judges in the landmark case itself used Section 60 of the Courts of Judicature Act to look into the facts of the case of retired school teacher, Lim Nyew, and found that there was overwhelming evidence to support his conviction despite the occurrence of misdirection on standard of proof.  

They quashed an order for his retrial made by the High Court on April 13, 2000, and restored his conviction, instead of sending the appeal back to the High Court judge for Section 422 to be invoked because the judge had already retired.  

Lim, 60, was fined RM20,000 and jailed a day by a Sessions court on June 10, 1994, for misappropriating 300,000 units of Idris Hydraulic (M) Bhd shares worth RM869,780.05 belonging to someone else.  

His case was out of the court’s register, the same day the landmark judgment was handed down, after he paid the fine.  

This is a clear sign that the courts can now use the powers to weed out unnecessary and delaying procedures from the legal system and alleviate the omnipresent problem of case backlog.  

Ahmad Fairuz, when asked about this, did not rule out the possibility.  

However, lawyer Manmohan Kang, who represented Rosli in the appeal last year, had said that allowing an appellate judge to enhance the sentence of a convicted person in the absence of a cross-appeal by the public prosecutor would set a bad policy.  

Karpal Singh:'You can say that it,in a way,will help to clear unnecessary backlog ofappeals in the Court of Appeal.'

He likened the move to allowing an automatic cross-appeal on the part of the prosecution.  

He had said that the Sessions judge had ruled that the defence had failed to raise a reasonable doubt when the prosecution’s case did not meet the beyond a reasonable doubt test standard.  

He had argued then that the Sessions judge had used the wrong standard of proof while the High Court judge, in dismissing Rosli’s appeal against the Sessions Court decision, had relied on the wrong statute when reviewing whether there was a miscarriage of justice in the case.  

Instead of using Section 422 of the Criminal Procedure Code, he said, the judge had relied on a proviso in Section 60 of the Courts of Judicature Act.  

To this, Justice Gopal Sri Ram who enhanced Rosli’s jail term said in his judgment: “The proviso to Section 60 is exclusive to this court and the Federal Court. As far as High Courts are concerned, they must act within the confines of Section 422.  

“But there is no essential difference between the proviso and Section 422. They mean the same thing. So, the erroneous invocation, though an error, has produced no substantial miscarriage of justice.  

“For these reasons, we find no merit in the submissions,” he said before ordering Rosli to serve his enhanced jail term from the date of his arrest on Sept 30, 1994.  

Justice Sri Ram’s words were definitely in sync with that of the larger panel that delivered the landmark decision.  

Justice Mohd Noor Ahmad, who wrote the judgment, said: “The object is to ensure that an accused gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice.”  

He added that mere procedural mistakes with no substantial prejudice to an accused should not be used to render a trial void.  

Lawyer Karpal Singh, while saying that an automatic-cross-appeal policy in all criminal appeals was not a step in the correct direction, described the landmark judgment as “a neutral judgment.”  

“The court has in this judgment sort of standardised the power of the High Court and the Court of Appeal.  

“You can say that it, in a way, will help to clear unnecessary backlog of appeals in the Court of Appeal in that cases that used to be sent to Court of Appeal for Section 60 to be invoked, can now be cured by High Courts using Section 422,” said Karpal Singh, who acted for the three appellants in the landmark case.  

As for judges in the High Courts the judgment would serve as a licence for them to carry out “open heart surgery” on the appeals before them to determine the root cause of the complaints, instead of throwing cases out on small technicalities.  

After careful diagnosis of the facts before them, High Court judges can then right the wrongs or in cases where the wrong had caused a miscarriage of justice, order a retrial to proceed before another judicial officer.  

So, those few appellants who got cold feet after Rosli’s sentence was enhanced last year should not have felt so if they knew that their case was strong. After all, the courts are only trying to give each case its merit.  

Justice Mohd Noor, in his latest judgment, said the court was only trying to “swing away from technicality” to administer justice fairly to the accused, State and society.

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