APPEALS TO HIGH COURT

INTRODUCTION
1. The aggrieved party (prosecution or defence) may appeal or seek the revisionary power
to the higher court if he is not satisfied with the decision of the trial court.

2. The appeals may be made from the decision of

 Subordinate Court to the High Court
 High Court to the Court of Appeal
 Court of Appeal to the Federal Court

3. Two-tier system of appeal:

 From Subordinate Court to High Court to Court of Appeal
 From High Court to Court of Appeal to Federal Court
 From Subordinate Court to High Court to Federal Court (on constitutional
matters)

REQUIREMENTS IN APPEAL TO HIGH COURT

Section 26 of Court of Judicature Act 1964 provides that the High Court shall hear appeals from
the Subordinate Courts.

Section 304 of the Criminal Procedure Code (CPC) states that no appeals shall lie from
judgement, sentence or order for any offence punishable with only a fine not exceeding RM25.

Section 305 of the CPC states that when an accused has pleaded guilty and has been convicted
by a subordinate court, there shall be no appeal except as to the extent or legality of the sentence.

- In Public Prosecutor v Azizan Salleh & Other Cases [1983], the accused in these three
cases pleaded guilty and were fined by the learned Magistrate. The Deputy Public
Prosecutor appealed against sentence in each case but the learned Magistrate rejected all
the three notices of appeal as the notices did not comply with s. 305 of the Criminal
Procedure Code which states that when an accused person has pleaded guilty and been
convicted by a Magistrate on such plea there shall be no appeal except as to the extent or
legality of the sentence. The learned Magistrate was of the view that the notice of appeal
in each case was not properly filed because it did not specify whether the appeal was as
to the extent of the sentence or whether it was as to the legality of the sentence.

- However, in Lee Yu Fah & Ors v PP [1937], the court held that the appeal against the
conviction was allowed because there was a doubt whether the accused understood the
nature and consequences of his guilty plea.
APPEAL AGAINST ACQUITTAL
Section 306 of the CPC states that when an accused person has been acquitted by a Magistrate,
there shall be no appeal except by, or with the sanction in writing of, the Public Prosecutor.

PROCEDURE FOR APPEAL

Section 307(1) of the CPC states that any person who is dissatisfied with any judgement,
sentence, or order in a criminal case or matter may appeal to the High Court within 14 days from
the time of the judgment, sentence or order being passed or made, with the clerk of the
Magistrate’s Court a notice of appeal in triplicate addressed to the High Court and by paying at
the same time the prescribed appeal fee.

“Any person”
- In PP v Rudguard [1939], the court held that the term “any person” includes the
prosecution as well as the accused.

- In Public Finance Bhd v PP [1989] the court held that the word “person” must be a
party to the criminal case or matter.

“Judgement, sentence or order”

i. Orders which may be appealable

- The court in Haris Fathillah Mohd Ibrahim lwn Pendakwa Raya [2015] referred to
the case of Maleb Su v Public Prosecutor & Another Case [1984] where the court held
that the ejusdem generis rule applies to the word “order” which is preceded by the words
“judgment” and “sentence” The order must therefore be a final order in the sense that it is
final in effect as in the case of a judgment or a sentence. The test for determining the
finality of an order is to see whether the judgment or order finally disposes of the rights
of the parties. The order which finally disposes of the rights of the parties should be
distinguished from a purely procedural ruling.

- In Public Prosecutor v Raymond Chia Kim Chwee & Anor & Another Case [1985],
the court held that the order to issue summons under Section 51 of the CPC is procedural.
Hence, it is not appealable.

ii. Orders which are not appealable

- In PP v Hoo Chang Chwen [1962], the court held that the order of the Magistrate on the
admissibility of statement was a procedural ruling and is not appealable.
 - In PP v RK Menon [1978], the court held that a breach of procedural rule was not
appealable.

*Prior to the enactment of Child Act 2001, the prosecution was not allowed to appeal any
decision from Juvenile Court. However, Section 95 of the Child Act 2001 states that the
prosecution may appeal to the High Court against any finding or order of the Court of Children.

PROCEDURE OF AN APPEAL TO HIGH COURT

Filing Notice of Appeal (NOA)->Preparation of Notes of Evidence and ground of judgement-

>Filing petition of appeal->Transmission of appeal record->Procedure at hearing and
admissibility of fresh evidence->Decision->Judgement

1. When to file NOA?

- Section 307(1) of the CPC states that the NOA should be filled within 14 days from the
time of the judgment, sentence or order being passed or made with the clerk of the
subordinate court and by paying at the same time the prescribed appeal fee.

2. Extension of time if it is over 14 days?

- Section 310 of the CPC states that application may be made to the High Court to extend
the time to file notice of appeal with justifiable reasons.

- In Veerasingam v PP [1958], the court held that the High Court has discretion under
Section 310 of the CPC to grant extension of time “in order that substantial justice may
be done”. This case was referred in the case of PP v Mohd Shukri Che Yaacob [2020].

- In PP v Tan Teng Gak [1962], the court allowed extension due to postal delay.

- In Anuar Bin Othman v PP [1990], the notice of application was delayed 18 months but
the High Court accepted on the ground that the appellant was unaware of the procedure
as he was only a hawker liaison officer.

- In PP v Mohd Shukri Che Yaacob [2020], the court held that the delay, 5 days out of
time and without leave of this court, on the part of the public prosecutor was fatal as the
nature of the NOA was a fax copy which is not considered as a proper filing of the NOA
and hence, it could only mean that there was no appeal by the public prosecutor against
the decision of the learned Sessions Court Judge.

3. Form and Content of NOA?

Section 307(1) of the CPC states that the NOA must be in triplicates and addressed to the
High Court and the prescribed appeal fee must be paid by the appellant.
 Section 307(2) of the CPC states that the NOA shall contain the address for service upon the
appellant or his advocate.

- In Toh Yew Sing & Ors v PP [1980], the court held that the NOA and petition of appeal
must be signed by the appellant only and not his advocate. Non-compliance of such
requirements would render the appeal nugatory.

- However, in Jayasankaran v PP [1983], the court held that the NOA and petition of
appeal may be signed by the appellant or his advocate as the subsections do not specify
that the appellant must personally sign the NOA and petition of appeal.

4. Service of NOA
Section 307(3) of the CPC states that when a notice of appeal has been lodged, the Court
appealed from shall make a signed copy of the grounds of decision in the case and serve it to
the appellant or his advocate by leaving the said copy at the address mentioned in the notice
of appeal or by posting it by registered post addressed to the appellant at the said address.

5. Whether NOA may be filed or served by use of fax? (DUNNO)

- In PP v Jawan ak Empaling & Anor [1996], the court held that a faxed copy of the
petition of appeal is acceptable as Section 307 of the CPC does not specify that the
original document must be sent.

- In PP v Mohd Shukri Che Yaacob [2020], the court held that the nature of the NOA
was a fax copy which is not considered as a proper filing of the NOA and hence, it could
only mean that there was no appeal by the public prosecutor against the decision of the
learned Sessions Court Judge.

STAY OF EXECUTION PENDING APPEAL

6. Stay of execution pending appeal?
- Section 311 of the CPC states that except for whipping, no appeal shall operate as a stay
of execution unless the Court below may stay execution on any judgment, order,
conviction or sentence pending appeal, if it thinks fit and on payment of reasonable sum
as security.

- Stay of execution pending appeal is a matter of discretion of the court and there must be
special circumstances for the court to grant a stay of execution.

- The court in PP v Dato' Sri Mohd Najib Hj Abd Razak [2020] referred to the case of
KWK (A Child) v PP [2003] where the court stated the factors that may constitute
special circumstances to justify the grant of a stay of execution after conviction are (a)
 the gravity or otherwise of the offence; (b) the length of the term of imprisonment; in
comparison with the length of time which is likely to take for the appeal to be heard; (c)
whether there are difficult points of law involved; (d) whether the accused is a first
offender or has previous convictions; (e) whether the accused would become involved
again in another offence whilst at liberty; (f) whether the security imposed will ensure the
attendance of the appellant before the Appellate Court. However, this list is not
exhaustive. The court also stated that no single factor enumerated earlier can have a
determinative effect on the decision to be made. It is the cumulative effect of all the
factors that matters.

PREPARATION OF NOTES OF EVIDENCE AND GROUND OF JUDGEMENT

Section 307(3) of the CPC states that when a notice of appeal has been lodged, the Court
appealed from shall make a signed copy of the grounds of decision in the case and serve it to the
appellant or his advocate by leaving the said copy at the address mentioned in the notice of
appeal or by posting it by registered post addressed to the appellant at the said address.

The appellant needs notes of evidence and grounds of decision to prepare the petition of appeal.

In Balasingham v Public Prosecutor [1959], it was held that the ground of decision must
convey a reasoned judgement based on the facts and law and not merely a conclusion.

In Augustine v PP [1964] the court held that the Magistrate had a duty to state the findings of
fact unless the case was straightforward and contained all the facts which established the
ingredients of the offence.

Who will prepare NOE & GOJ? • The Court appealed from.

• The CPC does not specify the time limit for the preparation of NOE & GOJ.

• Based on Voon Chin Fatt v PP [1948] and TN Nathan v PP [1978], it can be noted that the
Magistrate is expected to prepare NOE & GOJ with convenient speed. Although no time limit is
laid down by the law for giving the grounds of decision, it is the responsibility of judges and
magistrates to see that no undue delay occurs. In these 2 cases, the conviction was set aside as
there were a delay of 2 years in producing the grounds of decision which occasioned a failure of
justice.

• In Azman Jamhuri v PP [2001], it was held that the Chief Judge had in 1994 issued to all
Magistrates and judges a directive that GOJ must be given within 6 weeks of ruling. A delay in
supplying the grounds of decision can prejudice an appellant.

NOTES OF EVIDENCE
In PP v Tan Tho Kim & Ors [1978], it was held that the accused-appellant is entitled to request
for and be supplied with the notes of evidence even though the notes had already be given during
trial.

• When the notes of evidence recorded by the magistrate are ready, the court appealed from will
give a notice to the appellant that can be had free of charge.

TRANSMISSION OF APPEAL RECORD

Section 308 of CPC states that when the appellant has complied with Section 307 of the CPC, the
court appealed from shall transmit an appeal record consisting if 1. Record of proceedings; 2.
Grounds of decisions; 3. Notice of appeal; and 4. Petition of appeal to the High Court, PP and
appellant’s advocate.

- In Jaafar Abu & Anor v. PP [1988], the applicants with another person were charged
and convicted were sentenced to 3 months imprisonment and 1 month imprisonment
respectively. They appealed against the sentence. There was no written judgment by the
learned President of the Sessions Court as he had left the service. The High Court on
appeal dismissed the appeal and affirmed the conviction and sentence.

- However, in Azman Jamhuri v PP [2001], the accused appealed against conviction and
sentence by the Sessions Court judge on two charges of possession of cannabis. The
appeal record, however, did not contain a copy of the grounds as required under s 308
CPC. The court held that it does not really matter whether the case is under appeal or in
revision; it calls for the same consideration. Hence, the court dealt with the present case
in revision since there are no grounds of decision and s 308 had not been complied with
and in exercising the powers of revision, the convictions and sentences were set aside.

- Similarly, in Rodiah bte Sitam v PP [2009], there was no ground of decision. Therefore,
the court, in exercising the powers of revision, set aside the convictions and sentences.

- In Mohamad Zubir Mustafa v PP [2009], the court held that since there was no proper
appeal in the absence of the grounds of decision contrary to s 308 CPC, the court dealt
with this appeal by way of revision.

- In Mohd Shabri Hassan v PP [2016], the court held that Section 308 CPC imposes a
statutory obligation to the subordinate courts to transmit to the High Court the grounds of
decision. However, the court was supplied only with the notes of proceedings and the
notice of appeal. Thus, there was a clear non-compliance of the statutory procedural
requirements under S.307 and S.308 CPC. The Court is of the view that to proceed with
 the case as an appeal pursuant to S.307 and S.308 CPC would be improper. Thus, the
present appeal was heard by way of a revision.

FILING PETITION OF APPEAL

Section 307(4) of CPC states that the appellant shall lodge a petition of appeal in triplicate
addressed to the High Court with the clerk of the Magistrate’s Court within 14 days after the
copy of the grounds of decision has been served.

Section 307(5) of the CPC states that if the appellant within the period for lodging his NOA has
applied for a copy of the NOE, he shall lodge his petition of appeal as provided in subsection (4):
(a) within the period provided by such subsection; or
(b) within a period of fourteen days from the date when a notice is left at his address for service
specified in subsection (2) that a copy of the notes of evidence can be had free of charge,
whichever period shall be the longer

• It should be noted that, this procedure is applicable if the appellant had requested NOE.
• If not, the petition must be filed 14 days after GOJ has been served on the appellant.
• Extension of time shall be made to the High Ct not other Ct: Johnny Lim Chin Teik v PP

FORM AND CONTENT OF PETITION OF APPEAL (POA)

Section 307(6) of the CPC states that every petition of appeal shall state shortly the substance of
the judgment appealed against and shall contain definite particulars of the points of law or of fact
in regard to which the Court appealed from is alleged to have erred.

- Must be in Form 51 in the Second Schedule of CPC.

Section 307(9) of the CPC states that if the POA is not lodge within the time limit, the appeal is
deemed to be withdrawn but court has discretion to allow extension of time under Section 310 of
the CPC to do justice.

In Veerasingam v PP [1958], the court allowed and grant extension of time in order that
substantial justice may be done by looking at all relevant material and considering the
circumstances of the original trial.

In Innocent v PP [1971], the court granted extension of time because the ground of descison
was sent to the wife instead of appellant.

WHETHER A FAX COPY OF THE PETITION OF APPEAL IS ALLOWED? (DUNNO)

- In PP v Jawan ak Empaling & Anor [1996], the court held that a faxed copy of the
petition of appeal is acceptable as Section 307 of the CPC does not specify that the
original document must be sent.
 - In PP v Mohd Shukri Che Yaacob [2020], the court held that the nature of the NOA
was a fax copy which is not considered as a proper filing of the NOA and hence, it could
only mean that there was no appeal by the public prosecutor against the decision of the
learned Sessions Court Judge.

PROCEDURE AT HEARING AND ADMISSIBILITY OF FRESH EVIDENCE

Section 313(1) of the CPC states that in the hearing for appeal, the appellant shall be the first to
be heard in support of the appeal. Then, the respondent shall be heard against it and the appellant
shall be entitled to reply. The judge may then either at once give his judgment in open court or
reserve his judgment for another date. (all parties present)

Section 313(2) of the CPC states that if the appellant does not appear to support his appeal, the
Court may consider his appeal and may make such order thereon as it thinks fit or the Court may
refuse to consider the appeal. (the appellant is absent)

- In Rahim bin Usoff v PP [1985], the court refused to consider the appeal of the 3rd
appellant as he was absent for the 3rd time after 2 postponements.

- In Hardial Singh v Faridah bt Haron [1988], the court held that the appellant must give
good reasons to reinstate appeal which has been dismissed for High Court to exercise its
inherent jurisdiction in the interest of jsutice.

Section 314 of the CPC is for the absence of respondent.

Section 314(1) of the CPC states that if the Court is not satisfied that the notice of appeal has
been served on respondent, then the Court shall not make any order in the matter of the appeal
adverse to or to the prejudice of the respondent, but shall adjourn the hearing of the appeal to a
future day for his appearance, and shall issue the requisite notice to him for service through the
Registrar.

Section 314(2) of the CPC states that if the service of the NOP cannot be affected on the
respondent, the Court shall proceed to hear the appeal in his absence.

• How about if appeal against acquittal?

Section 316(a) of the CPC states that the judge may reverse the order of acquittal and direct that
1. Further inquiry be made; 2. The accused be re-tried; or 3. Fine the accused guilty and sentence
him according to law.
In Pendakwa Raya v Isa Johnit & Lain-Lain [1994], the acquittal of the accused was
substituted with conviction and sentenced was then passed according to law.

In Sheo Swarup v King Emperor AIR 1934 PC 227, the court held that in reviewing order of
acquittal, the appellate High Court should consider 1. A view of the trial judge as to the
credibility of the witnesses; 2. The presumption of innocence in favour of the accused; 3. The
right of accused to the benefit of any doubt; and 4. The slowness of the appellate court in
disturbing a finding of fact arrived at by the judge who had the advantage of seeing the witness.
DIMISSAL OF APPEAL/ DESSION
Section 316 of the CPC states that the judge may dismiss the appeal if there is insufficient
ground to interfere.

ADMISSIBILITY OF FRESH EVIDENCE AT HEARING

Section 317(1) CPC states that a judge may take additional evidence or direct a Magistrate to
take such evidence if he thinks it is necessary.

Section 317(2) of the CPC states that when additional evidence is taken by a Magistrate, he shall
certify that evidence to the High Court who shall then, as soon as may be, proceed to dispose of
the appeal.

Section 317(3) of the CPC states that unless the Judge otherwise directs, the accused or his
advocate shall be present when the additional evidence is taken.

Section 317(4) of the CPC states that the taking of evidence under this section shall be deemed to
be an inquiry.

In Mohamed Jamal v PP [1961], the court quoted 4 conditions laid down in case R v Parks
[1961] by Lord Parker which is 1. The evidence that is sought to call must be evidence which
was not available at the trial; 2. It must be evidence relevant to the issues; 3. It must be evidence
which is credible evidence in the sense that it is well capable of belief; and 4. The court will after
considering that evidence go on to consider whether there might have been a reasonable doubt in
the mind of the jury as to the guilt of the appellant if the evidence had been given together with
the other evidence at the trial.

JUDGEMENT
Section 318 of the CPC states that at the end of the hearing for the appeal, the Judge shall deliver
judgement in open court at once or some future day.

DEATH OF PARTIES TO APPEAL

Section 320 of the CPC states that every appeal under section 306 (against acquittal) shall abate
on the death of the accused, and every other appeal (except an appeal against a sentence of fine)
shall abate on the death of the appellant.

- In Karpal Singh Ram Singh v PP & Anor Appeal [2017], the court allowed the appeals
to be proceeded by the widow of YB Karpal as substitute.

- In Ealumalai Mottayan lwn Pendakwa Raya [2017], in referring to Section 320 of the
CPC held that there was no merit and justification in substituting the death of the
accused. The court further held that the substitution was allow in Karpal Singh Ram
Singh v PP & Anor Appeal [2017] as the case was regarding the sentence imposed on
the accused.