Chan Kok Poh Stay TT 001

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Chan kok poh-stay (tt) +@001
Constitutional Law I (Universiti Malaya)
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20/04/2022 10:59:39
MALAYSIA
IN THE HIGH COURT OF MALAYA SITTING AT MUAR IN THE
STATE OF JOHORE
CRIMINAL APPLICATION NO.: JB-44-13-10/2021
In the matters of Public Prosecutor

v Chan Kok Poh
(Application for Revision No.: JB-
43-1-07/2021)
AND
In the matters of Public Prosecutor

v Chan Kok Poh
(Criminal Trial No.: JD-62JSK-02-
03/2019)
BETWEEN
CHAN KOK POH … APPLICANT
AND
PUBLIC PROSECUTOR … RESPONDENT
CORAM:
AWG ARMADAJAYA BIN AWG MAHMUD
JUDICIAL COMMISSIONER

GROUNDS OF JUDGMENT

S/N YYeJChIrj0O/kmFvjxhHfw
**Note : Serial number will be used to verify the originality of this document via eFILING portal 1

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INTRODUCTION
[1] This is an application for a stay of proceedings of the trial in the

Sessions Court, by the Defence, pending the hearing of the Appeal
before the Court of Appeal, against the decision of this Court
(Reference No. JB-43-1-07/2021) in allowing the Public
Prosecutor’s application for revision of the Sessions Court Order.
[2] The application is made vide a Notice of Motion (Enclosure 1). The
prayers sought for are as follows:
i. That the ongoing trial before the Sessions Court in the case
no. JD-62JSK-02-03/2019 be stayed pending the disposal of
the Appeal by the Accused / Applicant before the Court of
Appeal against the decision of this Court, whereby the Court
allowed the application for revision by the Public Prosecutor,
against the ruling of the Learned Sessions Court Judge in
allowing the recalling of 3 prosecution witnesses, on the basis
of a facebook posting, after the Sessions Court has ordered
the accused person to enter his defence.
ii. Other reliefs or orders as the Court deems fit and just.
[3] The reasons for this application are as follows:
i. The accused’s appeal before the Court of Appeal would be

rendered nugatory if the trial before the Sessions Court for the
case no. JD-62JSK-02-03/2019 is not stayed.

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ii. There are special circumstances that justify the stay of the
proceedings of the trial no. JD-62JSK-02-03/2019.
iii. The applicant / accused averred that since the prosecution

was given the stay of proceedings when they applied for a
revision of the Sessions Court Order to recall of the 3
prosecution witnesses, he has the equal right to demand a
stay of the proceedings when he filed an appeal against the
Order of the High Court before the Court of Appeal.
[4] The Notice of Motion is supported by an affidavit-in-support affirmed

by the accused / applicant. The Cause Papers are as follows:
i. Notice of Motion (Enclosure 1).

ii. Affidavit-in-support affirmed by the applicant (Enclosure 2).
iii. Certificate of Urgency (Enclosure 3).
iv. Affidavit-in-opposition (Enclosure 4).
BACKGROUND FACTS
[5] The applicant / accused was charged at the instance of the Public
Prosecutor on 3 counts of offence under section 14(a) Sexual
Offences Against Children 2017 and one of the 3 Charges read as
follows:
That you, on 5 January 2019, at about 1000hours, at Ci Guang Ting

Temple, Jalan Genuang, in the District of Segamat, in the State of
Johore, committed sexual assault on one male child by the name
of (victim) who was aged 16 years and 11 months and you thereby
committed an offence under section 14(a) Sexual Offences Against

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Children 2017 which may be punished under the same provision of

the Act.
[6] The Charges are similar because they differ only on the time, dates
and persons involved.
[7] The applicant / accused pleaded not guilty and was tried by the
Sessions Court in Segamat. At the end of the prosecution’s case, 7
June 2020, the Learned Sessions Court Judge found that the
Prosecution succeeded in proving a prima facie case against the
applicant / accused on all 3 Charges and ordered him to enter his
defence on all 3 Charges.
[8] On 28 March 2021 the applicant / accused made an application to

have copies of the statements of the witnesses PW3, PW6 and
PW9. These statements were recorded by the police pursuant to
section 112 Criminal Procedure Code. The basis of the application
was that the applicant / accused found out that there is a Facebook
(“FB”) posting where purported statements given by prosecution
witnesses to the police were published.
[9] The FB account was under the name of one “Fahrim Mohamad”, an
unascertained person. The application was strongly opposed by the
Prosecution because the statements of witnesses were never
extended to the Defence and the purported witnesses’ statements
were obtained from an unknown FB account.
[10] On 25 April 2021 the Sessions Court dismissed the applicant /

accused’s application but allowed the 3 prosecution witnesses to be
recalled to give evidence in respect of the purported witness
statements.

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[11] The Sessions Court further ordered that before the 3 witnesses are
recalled to give evidence, the applicant / accused must testify first.
The Sessions Court then fixed 18 July 2021 for the recalling of the
3 prosecution witnesses and directed the Prosecution to serve the
subpoenas for the purpose.
[12] The Public Prosecutor vide a letter dated 18 July 2021 made an
application for a revision of the Sessions Court Order to recall the 3
prosecution witnesses.
[13] Upon receiving the Public Prosecutor’s letter and after deliberating
on the issue, I decided to exercise the powers of the High Court
pursuant to section 323 Criminal Procedure Code for the purpose of
calling for the records of the Sessions Court with a view to ascertain
the propriety or legality or correctness of the Sessions Court Order
and further to the powers conferred by section 326 of the Code, I
decided to invite and hear all parties on the application.
[14] After hearing all parties, I found that the ruling by the Learned
Sessions Court Judge that the 3 prosecution witnesses who were
already called and cross-examined, are now required to be recalled,
does not fulfil either the legal requisites under section 173 or section
425 Criminal Procedure Code.
[15] I therefore set aside the ruling of the Learned Sessions Court Judge
that ordered the recall of the 3 prosecution witnesses namely PW3,
PW6 and PW9.
[16] The Defence then filed a Notice of Appeal with the Court of Appeal
on 3 October 2021 and in the meantime moved this Notice of Motion

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to stay all proceedings in respect of the trial before the Sessions

Court Judge.
THE ISSUES IN THIS APPLICATION
i. Whether the stay of proceedings is a right of the applicant /

accused because the prosecution was granted a stay of
proceedings when the prosecution applied for the revision of
the Order of the Sessions Court which ordered the 3
prosecution witnesses (PW3, PW6 and PW9) to be recalled.
ii. Whether a Notice of Appeal filed in the Court of Appeal

automatically mandated a stay of proceedings of the trial in
the Sessions Court.
iii. Whether the nugatory principle is applicable on the facts and

circumstances of this case.
iv. Whether there are any special circumstances on the facts and
circumstances of the case.
v. Whether the Notice of Appeal is competent.
I shall deal with the issues accordingly.
i. Whether the stay of proceedings is a right of the applicant /

accused because the prosecution was granted a stay of
proceedings when the prosecution applied for the revision of
the Order of the Sessions Court which ordered the 3
prosecution witnesses (PW3, PW6 and PW9) to be recalled.

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ii. Whether a Notice of Appeal filed in the Court of Appeal

automatically mandated a stay of proceedings of the trial in the
Sessions Court.
iii. Whether the nugatory principle is applicable on the facts and

circumstances of this case.
iv. Whether there are any special circumstances on the facts and
circumstances of the case.
I shall deal with these 4 issues together.
[17] It has been submitted by the Learned Counsel for the Applicant /
Accused and was also averred in Enclosure 2 at paragraph 8
whereby the Applicant / Accused which states (English Translation)
“Lastly, I wish to say that when the prosecution made an
application for revision of the decision of Puan Rasidah, the
Order for the stay of proceedings was given by the Court in the
interest of justice. Hence I believe that when I choose to use
my right of appeal by filing an appeal with the Court of Appeal,
the Order for a stay of the proceedings should also be given to
me so my legal rights may not be prejudiced”.
[18] The Merriam-Webster’s Unabridged Dictionary defines “stay of

execution” as “an order that temporarily stops an execution”.
[19] The Black’s Law Dictionary (© 2016 A Legal Dictionary) defines

“the stay of execution” as “the hold that is put on the carryout
of an order or judgment of a court”.

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[20] In Latin, it is known as “Cesset Executio” meaning “let the

execution be stayed”.
[21] The provisions for an application for stay of execution are found in
S. 44, s. 57(1) and s. 73 Courts of Judicature Act 1964.
[22] To analyse this allegation let us take a look at the provisions of the
law.
[23] As matter of law, a stay of proceedings will not be granted simply

because there is an appeal to the Court of Appeal. This is stipulated
in Section 73 Courts of Judicature Act 1964.
73. Appeal not to operate as stay of execution
An appeal shall not operate as a stay of execution or of

proceedings under the decision appealed from unless the court
below or the Court of Appeal so orders and no intermediate act or
proceeding shall be invalidated except so far as the Court of Appeal may
direct.
[24] Rule 13 of the Rules of the Court of Appeal 1994 also provides that:
13. Stay of proceedings on appeal.
An appeal shall not operate as a stay of execution or of

proceedings under the decision appealed from unless the High
Court or the Court so orders and no intermediate act or proceeding
shall be invalidated except so far as the Court may direct.
[25] The same sentiments have been expressed in the following cases:

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(a) CHE WAN DEVELOPMENT SDN BHD v. CO-OPERATIVE

CENTRAL BANK BHD [1989] 2 CLJ 584; [1989] 1 CLJ (Rep)
366 HC;
(b) WU SHU CHEN (SOLE EXECUTRIX OF THE ESTATE OF
GOH KENG HOW, DECEASED) v. RAJA ZAINAL ABIDIN
BIN RAJA HUSSIN & ANOR [1996] 2 CLJ 353 HC;
(c) ALL PERSONS IN OCCUPATION OF THE HOUSE AND
THE WOODEN STORES ERECTED ON A PORTION OF
LAND HOLD UNDER GRANT NO. 26977 FOR LOT 4271 IN
THE TOWNSHIP OF JOHOR BAHRU, JOHOR v. PUNCA
KLASIK SDN BHD [1998] 5 CLJ 49;
(d) WALTER A/L PATHROSE GOMEZ & ORS v. SENTUL
RAYA SDN BHD [2005] 7 CLJ 385; and
(e) CHASE PERDANA BHD v. MD AFENDI BIN HAMDAN
[2006] 5 CLJ 563 HC.
[26] The Court has an unqualified discretion to grant a stay of execution.

However, the Court will only grant stay if there are special
circumstances. It is trite law that in civil litigation, the Court will not
deprive a successful party of the fruits of his litigation. In criminal
litigation, there must be special circumstances or nugatory effect
(which is often called “the nugatory principle”) before a stay is
granted.
[27] The filing of a notice of appeal shall not operate as a stay of

execution, but the Court may, on application, and on sufficient cause
being shown, stay the execution on such terms as it may think fit. O.
56 R. 1 (4) Rules of Court 2012; s. 73 COURT OF JUDICATURE
ACT 1964.

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[28] The procedure for a stay application may be done either by the stay
of execution be applied for orally if it is applied immediately after the
decision or order has been made by the Judge or the Court. In such
an event, no formal written application and no supporting affidavit
need be filed.
[29] However, if the Magistrate / Judge does not wish to entertain an oral
application for stay, then he may indicate or direct that the
unsuccessful party should make a formal written application vide a
Notice of Application which is supported by affidavit. Such
application for stay should be made as early as possible and the
Cause Papers must be served on the adversary party.
[30] The law relating to the granting of a stay of proceedings is settled.

The court must exercise its discretion as to what is the fairest mode,
after taking into consideration all the relevant matters, which exist
between the parties. Put differently, the court may exercise its
discretion whenever it is just and reasonable to do so, so as to
ensure that justice is done to both the parties. It is entirely an
exercise of discretion, pure and simple. These principles of law are
reflected in Halsbury’s Laws of England, 4th edition, reissue, vol.
37 at p. 290 at para. 926:
In general a stay of proceedings arises under an order of the court

which puts a stop or 'stay' on the further conduct of the
proceedings in that court at the stage which they have then
reached, so that the parties are precluded thereafter from taking
any further step in the proceedings. The object of the order is to
avoid the trial or hearing of the claim taking place, where the court
thinks it is just and convenient to make the order, to prevent undue
prejudice being occasioned to the opposite party or to prevent the
abuse of process. The order is made generally in the exercise of

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the court's discretionary jurisdiction, and by way of summary

process, that is without a trial on the substantive merits of the case,
and, at any rate in the exercise of its inherent jurisdiction, an order
for the stay of proceedings is made very sparingly and only in
exceptional circumstances.
(see MCAT GEN SDN BHD v. CELCOM (M) BHD (NO 2) [2007] 10
CLJ 375).
[31] In BOARD OF GOVERNORS OF SEKOLAH MENENGAH ST.

GABRIEL v. RANJIT SINGH [1969] 1 LNS 16; [1970] MLJ 38 where
his Lordship, Justice Raja Azlan Shah (as His Majesty then was)
aptly said at p. 39 of the report:
I hold the view that a stay of proceedings is a matter of discretion

and the court must exercise its discretion as to what is the fairest
mode, upon taking all matters into consideration of trying the
several disputes which exist between the parties. In one case one
consideration may have more sway, more cogency, and more effect
than that same consideration, perhaps, may have in another.
Putting it in another way, the court must exercise its discretion
whenever it is just and reasonable to do so.
[32] His Lordship, Justice Zakaria Yatim, in BANK BUMIPUTRA

MALAYSIA BERHAD & ANOR. v. LORRAIN ESME OSMAN,
BANK BUMIPUTRA MALAYSIA BERHAD & ANOR. v. LORRAIN
ESME OSMAN & ORS [1987] 1 CLJ 572 said the same thing in
these salient words:
The law on this point has developed in England over the years. I
shall start with the case of ST. PIERRE v. SOUTH AMERICAN
STORES (GATH & CHAVES) LTD. [1936] 1 K.B. 382. In that case the
Court decided that a mere balance of convenience was not a

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sufficient ground for depriving a plaintiff of the advantages of

prosecuting his action in an English Court. The Court laid down two
requirements to be satisfied in order to justify a stay. Firstly, the
defendant must satisfy the Court that the continuance of the action
would work an injustice because it would be oppressive or
vexatious to him or would be an abuse of the process of the Court.
Secondly, the stay must not cause injustice to the plaintiff. The
burden of proving both requirements was on the defendant.
[33] His Lordship, Justice Abdul Malik, in analysing the law, said this,
“Even if the merits of the appeal were to be considered as was

considered by his Lordship, Justice Brown, in SERANGOON GARDEN
ESTATE LTD. v. ANG KENG [1953] 1 LNS 98; [1953] 19 MLJ 116, the
plaintiff’s appeal to the Court of Appeal, so submitted the
defendant, has no good prospects of success. It was a case of
transferring the S4 suit to the S6 court and the S4 suit to be heard
after the S6 suit has been heard. It was as simple as that. It looks
like the D4 suit would be heard next month (June 2007) as was said
by the plaintiff. And if that is really true, then the trial of the S6 suit
would surely be heard after the D4 suit. No one knows the outcome
of the trial of the D4 suit. It is to be heard by another judge. It is
because of the “potential disaster of inconsistent verdicts” (to
borrow the words of Justice Lai Kew Chai, in BARING FUTURES
(SINGAPORE) PTE LTD (IN LIQUIDATION) v. DELOITTE & TOUCHE
(A FIRM) & ANOR [1997] 3 SLR 312) or the fear of “two inconsistent
judgments” (to borrow the words of his Lordship, Chief Justice (Malaya)
Raja Azlan Shah (as His Majesty then was) in CENTRAL SECURITIES
(HOLDINGS) BHD. v. HARON BIN MOHAMED ZAID [1979] 2 MLJ 244,
251) that I made those orders as I did in the first judgment. I wonder why
the defendant in the D4 suit did not apply to transfer the D4 suit to this
court! It would certainly save time and costs.”
(see MCAT GEN SDN BHD v. CELCOM (M) BHD (NO 2) [2007] 10
CLJ 375).

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[34] Further his Lordship, said -
“At the outset, I must categorically say that the plaintiff has failed
to disclose a single fact or issue that would amount to a special
circumstance. In fact, the plaintiff’s affidavits failed to make any
reference to the existence of any special circumstances. The
plaintiff’s application for a stay was premised on two
considerations, namely: (a) pending an appeal to the Court of
Appeal against my decision; and (b) pending the full and final
determination of the trial of the D4 suit.
With respect, these two considerations cannot constitute special

circumstances unless the plaintiff can show that my decision dated
11 December 2006 as reflected in the first judgment had caused an
injustice in that it was oppressive or vexatious to the plaintiff or
that it would amount to an abuse of the process of the court.
Additionally, the plaintiff must establish that the stay of the present
proceedings would not cause an injustice to the defendant”
[35] In MCPHAIL v. PERSONS, NAMES UNKNOWN [1973] 1 Ch 447,

at 460, Lord Denning MR said that in the case of a mortgagee who
seeks possession of a dwelling house, that -
The Court has power by statute (Administration of Justice Act 1970,

s. 36(2)) to suspend the order. This goes to show that, apart from
statute, the Court would have no such power.
[36] His Lordship, Justice NH Chan said in CHE WAN DEVELOPMENT

SDN. BHD. v. CO-OPERATIVE CENTRAL BANK BHD. [1989] 1
CLJ Rep 366 -
It seems to me to be plain that the Court has no general inherent

jurisdiction to grant a stay of execution beyond the jurisdiction

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given by certain statutes (such as s. 36(2) of the English

Administration of Justice Act 1970 and, in this country, such as s.
73 of the Courts of Judicature Act 1964 ) or by the Rules of the High
Court (such as O. 47, r. 1 ).No authority can be produced showing
that such a jurisdiction exists outside the power conferred by rules
of Court or by statute. The Court, therefore, has no inherent
jurisdiction (because no power has been conferred under rules of
Court or by statute) to stay or suspend the execution of the
judgment or order for possession of land against a trespasser; see
McPhail v. Persons, names unknown, supra.
[37] Section 73 Courts of Judicature Act 1964 is similar to the provisions

of the English RSC, O. 59, r. 13(1). See also Halsbury’s Laws of
England, 4th Edition., Vol. 17 [1976], p. 272, para. 454 which reads:
Except so far as the Court below or the Court of appeal may

otherwise direct, an appeal does not operate as a stay of execution
or of proceedings under the decision of the Court below, and no
intermediate act or proceeding is invalidated by an appeal.
[38] This is what Halsbury’s Laws of England says on the effect of the
English O. 59, r. 13(1); 4th Edition., Vol. 17 [1976], at p. 272, para.
455:
The Court has an absolute and unfettered discretion as to the

granting of refusing of a stay, and as to the terms upon which it will
grant it, and will, as a rule, only grant a stay if there are special
circumstances, which must be deposed to an affidavit unless the
application is made at the hearing.
[39] And the position is this country is as stated by his Lordship, Justice
Hashim Yeop Sani (as he then was) in SYARIKAT BERPAKAT v.
LIM KAI KOK [1983] 1 MLJ 406, at 407:

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The law on the granting of an order for stay of execution has been
examined a number of times in the Courts of this country. It is trite
law that the Court has an absolute and unfettered discretion to
grant or refuse an application for stay. As a rule the Court will
however only grant stay if there are special circumstances and
which circumstances must be deposed in the affidavit supporting
the application. The governing principle in all cases where the
Court is asked to exercise its discretion is clearly expressed by
Brown J in SERANGOON GARDEN ESTATE LTD. V. ANG KENG
[1953] 1 LNS 98 and the principle is this: the Court will not deprive
a successful party of the fruits of his litigation until an appeal is
determined, unless the unsuccessful party can show special
circumstances to justify it.
[40] The principle enunciated here goes back to many years ago as can
be seen in MONK v. BARTRAM [1891] 1 QB 346. In that case stay
had been refused by the trial Judge and in the Court of Appeal it
was held that where a stay of execution has been refused by the
Trial Court an application made in a Court of Appeal for a stay
pending appeal must be supported by special circumstances and
allegations that there has been misdirection or that the verdict or
judgment was against the weight of evidence, or that there was no
evidence to support the verdict or judgment are not special
circumstances. Lord Esher MR in the Court of Appeal when refusing
the application for stay said:
We have made inquiries, and find that the practice in the Divisional
Court has been similar to that as to appeals in this Court in cases
of trials before a Judge without a jury. It has never been the practice
in either case to stay execution after the Judge at the trial has
refused to grant it, unless special circumstances are shown to
exist.

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[41] The Court of Appeal in MING ANN HOLDINGS SDN BHD v.

DANAHARTA URUS SDN BHD [2002] 3 CLJ 380 held that, “The
approach taken by most judges appears to be that a successful
litigant should not be deprived of the fruits of a judgment
obtained in his favour, unless there are special circumstances
(or special grounds) that justify a stay of execution to be
granted. The weight of authorities consider that special
circumstances must be special, not ordinary, common or usual
circumstances and that go to the execution of the judgment
and not to the validity or correctness of the judgment (or merits
of the appeal). The most important factor for consideration in
granting a stay appears to be whether the appeal, if successful,
is rendered nugatory. It does not matter whether the nugatory
factor is considered under the head of “special
circumstances”, so long as it is considered.”
[42] In KOSMA PALM OIL MILL SDN BHD & ORS v. KOPERASI
SERBAUSAHA MAKMUR BHD [2004] 1 CLJ 239; [2004] 1 MLJ
257, the Federal Court said this,
It is therefore clear beyond doubt that there are many factors that
may constitute special circumstances and the fact that an appeal
would be rendered nugatory if stay was refused is the most
common one. It is an example of special circumstances. In other
words special circumstances is the genus of which nugatoriness
is a species. If it has been shown that an appeal would be rendered
nugatory if stay was refused what it means is that a special
circumstance has been established. Thus they cannot be treated
as separate heads and one cannot be an alternative to the other.
Neither can one be accepted or rejected in favour of the other as

they are inter-related.

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...
The onus is on the applicants to demonstrate the existence of

special circumstances to justify the grant of a stay of execution.
The reasons must relate to the enforcement of the judgment. They
must be deposed in the affidavit filed in support of the application.
[43] In KOSMA PALM OIL MILL SDN BHD & ORS v. KOPERASI
SERBAUSAHA MAKMUR BHD [2003] 4 CLJ 1 where the Federal
Court made the following observations:
(a) The merit of a party’s case in a stay application was not a

relevant matter for consideration.
(b) The onus was on the applicant to demonstrate the existence

of special circumstances to justify the grant of a stay of
execution and the reasons must relate to the enforcement of
the Judgement of the appeal.
(c) There were many factors that might constitute special

circumstances and the fact that an appeal would be rendered
nugatory if the stay were refused was the most common
example of special circumstances. Any attempt to restrict the
grant of a stay of execution to nugatoriness was wrong and
would severely restrict the grounds on which the applicant
might rely.
(d) As the applicants had not put forward reasons that related to
the enforcement of judgment of the appeal but instead had
focused on the problems that the applicants would encounter

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if the motion were not successful, they failed to raise special

circumstances which warrant a stay of execution.
[44] The Concept of “Special Circumstances” have been defined in

LEONG POH SHEE v. NG KAT CHONG [1965] 1 LNS 212; [1966]
1 MLJ 86 by Justice Raja Azlan Shah (as His Majesty then was), as
“special under the circumstances as distinguished from
ordinary circumstances, it must be something exceptional in
character something that exceeds or excels in some way that
which is usual or commons”.
[45] The Court of Appeal in SUGUMAR BALAKRISHNAN v.

PENGARAH IMIGRESEN NEGERI SABAH & ANOR [1998] 3 CLJ
85; [1998] 3 MLJ 289 held that an Order for Stay is not an injunction.
In the context of O. 53 R. 1(5), an Order of Stay has the effect of
temporarily suspending the effect of a public law decision pending
the outcome of certiorari or prohibition proceedings brought to
challenge the validity of the particular decision.
[46] In SILVER CONCEPT SDN BHD v. BRISDALE RASA

DEVELOPMENT SDN BHD (FORMERLY KNOWN AS
EKSPEDISI RIA SDN BHD) [2002] 4 CLJ 27; [2002] 4 MLJ 113, the
Court of Appeal held that the grant by the High Court of a stay
pending appeal is not an admission by the Court that it had erred in
making the order that is the subject matter of the appeal. Neither is
it inconsistent with the decision that is proposed to be appealed.
[47] In ROSENGRENS LTD v. SAFE DEPOSIT CENTRES LTD

(unreported, 19 July 1984, CA, Lexis Nexis) Lord Justice Dillon said:

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The most common special circumstance is, normally no doubt, that

it would be doubtful whether, if the judgment was enforced, the
defendant would get his money back if the appeal subsequently
succeeded. But there are others as, for instance, if there is a
likelihood that the money the subject of the judgment, if paid over,
would go to a foreign jurisdiction where the defendant would have
difficulty recovering it.
[48] In SERANGOON GARDEN ESTATE LTD. v. ANG KENG [1953] 1

LNS 98; [1953] 19 MLJ 116, though only a judgment of the High
Court (Singapore), is perhaps the most quoted case on the subject.
That case is an appeal from the District Court against an order
granting a stay of execution in a case where an “order for
possession” had been made. The subject matter was an illegal pig-
sty. It must be noted that when the application was made, not at the
conclusion of the case but subsequently, no affidavit in support was
filed. This is what his Lordship, Justice Brown says in his judgment:
The learned District Judge had a discretion to grant a stay of

execution. And I should not think it right to interfere with the
exercise of his discretion if I was satisfied that he had exercised it
on correct principles. There is no rule of practice limiting the
exercise of his discretion. But it is a clear principle that the Court
will not deprive a successful party of the fruits of his litigation until
an appeal is determined, unless the unsuccessful party can show
special circumstances to justify it. The only ground, so far as
appears in the written grounds for granting this stay, is that if the
defendant succeeded in his appeal he could not be restored to the
same position as before because the plaintiffs would have removed
his pig-sty. That ground, standing alone, in my opinion cannot be a
sufficient ground on which to grant a stay of execution. It seems to
me that to hold otherwise would be to establish a precedent, and in
effect to lay down a rule of practice, that in all cases where the
defendant cannot be restored to his original position if his appeal

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succeeds, a successful litigant is to be deprived of the fruits of his

litigation until such time as the appeal is determined. Such a
ground might well be an important factor to take into consideration
if there were other grounds. If, for example, another ground had
been that there were merits in the appeal, that fact coupled with the
fact that the defendant, if successful, could not be restored to his
original position might well have afforded special circumstances to
justify the learned District Judge in exercising his discretion to
grant a stay; and I should not have thought it right to interfere.
[49] The following points emerge from that judgment:
(1) granting a stay pending appeal is an exercise of discretion;
(2) there is no rule of practice limiting the exercise of the

discretion;
(3) it is a clear principle that the court will not deprive a successful
party of the fruits of his litigation until the appeal is determined
unless there are special circumstances;
(4) the ground that, if the defendant is successful in his appeal,

he cannot be restored to the same position as before, standing
alone, is not a sufficient ground on which to grant a stay,
however, it is “an important factor” to take into consideration,
if there are other grounds, for example merit of the appeal.
Both grounds, together, may well amount to “special
circumstances.”
[50] In LEONG POH SHEE v. NG KAT CHONG [1965] 1 LNS 212;

[1966] 1 MLJ 86 is a judgment of the High Court where the plaintiff
had obtained a judgment in default of appearance for the land in

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question to be transferred to him. The defendant applied for a stay

of execution. The relevant part of the judgment of his Lordship,
Justice Raja Azlan Shah (as he then was) reads as follows:
Although the court has an unqualified discretion to grant a stay it

has never been the practice to do so unless it is supported by an
affidavit of special circumstances. The law on the point is well
settled. I quote a passage from Halsbury’s Laws of England, 3rd
Edition, Volume 16, paragraph 51 at page 35:
The court has an absolute and unfettered discretion as to the

granting or refusing a stay, and as to the terms upon which
it will grant it, and will, as a rule, only grant it if there are
special circumstances, which must be deposed to on
affidavit unless the application is made at the hearing.
[51] In AJAIB SINGH v. JEFFREY FERNANDEZ [1970] 1 LNS 4; [1971]

1 MLJ 139, his Lordship, Justice Yong referred to a number of
cases, including a Privy Council judgment from India and concluded:
After consulting these and other authorities up to the present day I

am of the opinion that an application for stay of proceedings should
be made promptly, and it must be proved to the satisfaction of the
court that special circumstances exist such as if the stay was not
granted serious or irreparable injury would result to the party
applying.
[52] In RE KONG THAI SAWMILL (MIRI) SDN. BHD.; LING BENG

SUNG v. KONG THAI SAWMILL (MIRI) SDN. BHD. & ORS. (NO.
2) [1974] 1 LNS 205; [1976] 1 MLJ 131 is a judgment of the Federal
Court. In that case the first respondent applied to the then Federal
Court for leave to appeal to the Yang Di Pertuan Agong (Privy
Council) and for a stay of execution. His Lordship, Chief Justice

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(Borneo) Lee Hun Hoe, in his learned judgment referred to a number

of English cases and held that no special circumstances were
shown to support the application for stay of execution and dismissed
the application. This is what the learned Chief Justice (Borneo), inter
alia, said in his judgment:
It is my view that where stay of execution has previously been

refused by this court after a hearing of an appeal lasting over a
week, an application made to the same court for stay pending an
appeal must be supported by special circumstances. Allegations
that there has been misdirections that the verdict of judgement was
against the weight of evidence, or that there was no evidence to
support the verdict or judgment, are not special circumstances on
which the court will grant the application. See MONK V. BARTRAM
[1981] QB 346. Those are matters to be decided in the proper forum.
[53] In MOHAMED MUSTAFA v. KANDASAMY (NO. 2) [1979] 1 LNS

54; [1979] 2 MLJ 126 is a judgment of the Federal Court and it was
an application for leave to appeal to the Yang Di Pertuan Agong and
for a stay of execution. The court granted both applications, the stay
being granted “to maintain status quo”. The judgment of the court
was delivered by his Lordship, Justice Abdul Hamid (as he then
was) and his Lordship, said:
On the question of stay of execution it is I think settled law that the

granting of such a stay is a matter of the court's discretion, and it
is true that the exercise of such discretion must be founded upon
established judicial principles. One of the determining factors that
calls for consideration is whether by not making an order to stay of
the execution it would make the appeal if successful, nugatory in
that it would deprive an appellant of the results of the appeal. How
pertinent that factor would be may vary according to the
circumstances of each particular case.

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[54] In MATANG HOLDINGS BHD. & ORS. v. DATO' LEE SAN

CHOON & ORS. [1985] 1 LNS 42; [1985] 2 MLJ 406, there was an
application for a stay of the order of dissolution of injunction pending
appeal to the higher court. His Lordship, Justice Yusoff Mohamed
(as he then was) referred to LEONG POH SHEE [1965] 1 LNS 212;
[1966] 1 MLJ 86, SERANGOON GARDEN ESTATE LTD. [1953] 1
LNS 98; [1953] 19 MLJ 116 and AJAIB SINGH v. JEFFREY
FERNANDEZ [1970] 1 LNS 4; [1971] 1 MLJ 139, all mentioned
earlier and held:
There are no special grounds in this application except the appeal

pending the merits of which have been discussed above. In my
view, the application should be dismissed.
[55] In the “YIH SHEN”: LAI LAI YIN v. M.V. “YIH SHEN”, OWNERS
OF AND OTHER PERSONS INTERESTED [1985] 1 LNS 121;
[1986] 2 MLJ 65 is a judgment of his Lordship, Justice Mohamed
Dzaiddin (as he then was). That was an application for a stay of
execution of an order for the vessel “YIH SHEN” to be appraised
and sold pendente lite. The grounds were, first, the defendants
intended to appeal against the said order and, secondly, unless
restrained, the vessel, if sold prior to the appeal will render the
appeal, if successful, nugatory. The learned judge (as he then was)
dismissed the application. The learned judge (as he then was), inter
alia, said:
This is a case where the Court has an absolute and unfettered discretion
to grant or refuse the stay. HALSBURY’S LAWS OF ENGLAND, 4th
Edition, Vol. 17, para. 455 states as follows:

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The court has an absolute and unfettered discretion as to the

granting or refusing of a stay, and as to the terms upon which
it will grant it, and will, as a rule, only grant a stay if there are
special circumstances, which must be deposed to on
affidavit unless the application is made at the hearing.
Thus, it is incumbent upon the defendant in this case to show from

the affidavit the special circumstances to enable this court to grant
a stay of execution. Examples of “special circumstances” are many and
are enumerated at the footnote of HALSBURY’S LAWS (supra).
However, the leading authority relied upon by the defendant is WILSON
V. CHURCH (NO. 2) where Cotton LJ laid down the principle at p. 458
“... when a party is appealing, exercising his undoubted right to
appeal, this Court ought to see that the appeal, if successful, is not
nugatory.” This principle was applied in ORION PROPERTY TRUST
LTD. V. DU CANE COURT LTD.; and in the local case of RE KONG
THAI SAWMILL (MIRI) SDN. BHD.
From the affidavit of Mr. Chan and the submission of counsel I cannot
find anything which would amount to being nugatory in the event the
appeal (Supreme Court Civil Appeal No. 173 of 1985) being successful.
I should also add that the fact that the defendants believe they have
a reasonable chance of success in the appeal is no ground for
granting a stay. See: ATKINS v. GREAT WESTERN RAILWAY CO.,
where the English Court of Appeal held that strong grounds of appeal
are not sufficient to grant the application.
[56] In PERWIRA HABIB BANK MALAYSIA BHD. v. SUNNY TRAVEL

& TOUR SDN. BHD. & ORS., quoted in Mallal’s Digest 4th Edition,
vol. 2(2) para; 4254, in a judgment dated 13 August 1988, where
her Ladyship, Justice Siti Norma Yaakob (as she then was) held:

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(1) courts have an inherent jurisdiction to stay proceedings but

only on grounds which are relevant to a stay. It does not
extend to grounds which are properly matters of defence of
law or relief in equity, for these must be raised in the action
itself. Special circumstances must be shown which must
relate to the enforcement of the judgment and not those
which go to its validity or correctness;
[57] In PERWIRA HABIB BANK MALAYSIA BHD. v. SYARIKAT

JOHORE TENGGARA SDN. BHD & ORS [1989] 2 CLJ 470 his
Lordship, Justice Gunn Chit Tuan (as he then was), in setting aside
an order for a stay of execution, held that in hearing commercial
cases, courts should recognise business realities by taking notice of
the commercial purpose of guarantees, the purport, utility and
obvious intent of which are to ensure that creditors would be paid
early by guarantors when the principal debtors are unable or
unwilling to do so.
[58] In CHE WAN DEVELOPMENT SDN. BHD. v. CO-OPERATIVE

CENTRAL BANK BHD (supra) his Lordship, Justice NH Chan (as
he then was) wrote a lengthy judgment, relying mainly on English
cases again applied the “special circumstances” test. In his
judgment, the learned judge, inter alia, says at p. 588 (p. 370) of the
report:
Put shortly, it is this: that the court has a discretion as to the

granting or refusing of a stay of execution pending appeal and that
as a rule it will only grant a stay if there are special circumstances,
which circumstances must be deposed in the affidavit supporting
the application.
[59] On discretion of the court, the learned judge says:


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In this country, the words of s. 73 of the Courts of Judicature Act

1964 are, ‘unless the court... so orders’. Plainly, this gives a
discretion to the court. A judicial discretion, no doubt, which must
be guided by proper rules founded on principle.
[60] On special circumstances, the learned judge, inter alia, says:
It is plain that the validity or correctness of the decision appealed

from are not special circumstances.
[61] At p. 589 (p. 371) of the report:
Merits or strong grounds for an appeal are also not special

circumstances.
[62] At p. 595 (p. 376) of the report:
Again there is no evidence which has been deposed on affidavit

which would enable this court to find that if a stay is granted the
appeal if successful would become nugatory.
[63] In the concluding paragraph of the judgment, at p. 597 (p. 377) of

the report, the learned judge says:
The plaintiff has obtained judgment, and it seems to me impossible

to suggest that on the basis of the orders which I have made, the
plaintiff ought to be deprived of its rights on the judgment the fruits
of which it would have been fully entitled. Therefore, whether the
judgment and the orders which I have made are right or wrong and
that is a matter which may be tested in the Supreme Court I reach
the conclusion that there is nothing in the law and the facts which
I have already mentioned which would make it just or proper for me
to grant a stay of execution.

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[64] Let us also take a look at Section 57 Courts of Judicature Act 1964
which stipulates –
57 Appeal not to operate as stay of execution
(1) Except in the cases mentioned in subsection (3) and section

56A, no appeal shall operate as a stay of execution, but the
High Court or the Court of Appeal may stay execution on any
judgment, order, conviction or sentence pending appeal on such
terms as to security for the payment of any money or the
performance or non-performance of any act or the suffering of any
punishment ordered by or in the judgment, order, conviction or
sentence as to the Court may seem reasonable.
[65] It is clear from Section 57(1) that “...no appeal shall operate as a
stay of execution…”.
[66] The Court of Appeal in KWK (A CHILD) V. PUBLIC PROSECUTOR

[2003] 4 CLJ 51 stated:
“Section 57 of the Courts of Judicature Act 1964 provides that an

appeal shall not operate as a stay of execution though the court
has a discretion to grant a stay. As the grant of a stay is only an
exception to the general rule there must be special or exceptional
circumstances before the discretion can be exercised in favour of
an applicant.”
[67] A stay of proceedings is, in more than one way, akin to the granting
of bail to an accused person in that his detention (remand pending
conclusion of his trial) is stayed or suspended.

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[68] In commenting on proof of special circumstances their Lordships,

Justices Murray, Brooking and Vincent said in RE CLARKSON
[1986] VR 583 at pp. 584-585:
In our view there is no difference between the approach of those

who have spoken in terms of very exceptional circumstances and
those who have referred only to special or exceptional
circumstances. If the principle that special or exceptional
circumstances must be shown to warrant admitting a prisoner to
bail pending appeal is regarded as meaning only that the applicant
bears a burden and must put forward, as justifying the grant of bail,
something that is not present in most or all cases, then the
statement of principle has failed adequately to convey the practice
of the court and the principle on which it acts. It is probably for this
reason that judges have on occasions expressed the requirement
as one of ‘very’ exceptional circumstances. The adverb reflects the
difficulty of persuading the court that the circumstances put
forward as special or exceptional are strong enough to overcome
the powerful considerations of a general character which militate
against the grant of bail pending appeal. So strong are these
considerations that it has been said that extreme caution must be
exercised before bail is granted: R V. GIORDANO [1982] 31 SASR
241; RE MAHER (unreported, Full Court of Queensland, 18 November
1985). Indeed in England the Court of Appeal has gone so far as to
say that the application will succeed only if the court is driven to
the conclusion that justice can only be done by the granting of bail:
R V. WATTON [1978] 68 Cr App R 293, at p. 297. The powerful
considerations, relating principally, but not exclusively, to the
public interest, which will ordinarily induce the court to refuse bail
pending appeal have been examined in recent pronouncements of the
Full Courts of South Australia and Queensland in GIORDANO's Case
and MAHER's Case and by Brennan J in CHAMBERLAIN V. R (NO 1)
[1983] 153 CLR 514; 46 ALR 608, see further the observations of
SUGARMAN J IN R V. SOUTHGATE [1961] 78 WN (NSW) 44, where
his Honour referred to the appellant's guilt as established by the verdict

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of a jury in what must be taken, until the contrary was shown, to have
been a trial properly conducted and without error of law.
[69] The factors that may constitute special circumstances to justify the
grant of a stay of execution after conviction are well settled (see, Re
KWAN WAH YIP & ANOR[1954] 1 LNS 78; [1954] MLJ 146;
GANESAN V. PUBLIC PROSECUTOR[1983] 1 CLJ 300; [1983]
CLJ 567 (REP); [1983] 2 MLJ 369; YUSOF MOHAMED V. PP[1995]
1 LNS 291; [1995] 3 MLJ 66; RALPH V. PUBLIC
PROSECUTOR[1972] 1 LNS 118; [1972] 1 MLJ 242). They can be
enumerated as follows:
(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.
[70] These are considerations in granting bail. A stay of proceedings is

not very far off tangent. The ultimate aim is to maintain status quo.

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[71] In SHARMA KUMARI A/P OAM PRAKASH V. PP [2000] 1 LNS

123; [2000] 6 MLJ 847, it was held that
“...the burden is clearly upon the applicant to show that there are
good grounds why a stay ought to be granted against that court
order. It is not a burden that is lightly discharged by assertions not
backed up or supported by evidence.”
[72] After having studied the authorities, there are a few principles that
may be distilled from them:
a. A stay of execution of any proceeding is NOT of right.
b. A court’s decision is deemed as good in law until and unless

set aside by a higher court.
c. The applicant for stay of proceeding bears the burden of

proving that there are special circumstances or nugatoriness
in the event that a stay is disallowed.
d. The standard required is on the balance of probabilities.
[73] Now that we have dealt with the application for a stay of execution
which is similar in many ways to that of stay of proceedings.
[74] I wish to draw the attention of parties to the fact that when this Court
heard the application for revision by the Learned Deputy Public
Prosecutor, the application of section 35 of the Courts of Judicature
Act 1964 sets in.
35 General supervisory and revisionary jurisdiction of High Court


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(1) ….
(2) Upon the High Court calling for any record as aforesaid all
proceedings in the subordinate court in the matter or
proceeding in question shall be stayed pending further order
of the High Court.
[75] In ASIA PACIFIC HIGHER LEARNING SDN BHD v. MAJLIS

PERUBATAN MALAYSIA & ANOR [2020] 3 CLJ 153,
[40] Reverting to the appeal before us, the starting point for this
court to consider must always be what the Act in particular
those provisions adverted to above actually says. Where
these provisions are not clear, careful scrutiny of the
wording may be necessary in order to glean Parliament’s
intention. However, in this appeal having carefully and
meticulously scrutinised the wording of these provisions, I
can say with utmost confidence that in the context that those
words that I have considered are used in the Act, what
Parliament means to say is overwhelmingly clear and
unequivocal in that the definition of the word ‘decision’
evinces the intention that it applies to both criminal and civils
appeals. I must stress that in coming to this decision the
literal or plain meaning rule of interpretation cannot be
ignored. In fact, the application of this rule of interpretation
to the cold print of these relevant provisions is a reliable and
correct approach that would obviously show the intention to
be a scribed to the word ‘decision’ in s. 3 of the Act.
[76] An ordinary law (which is not a provision of the Federal Constitution

or State Constitution) must be interpreted first by the literal meaning
of that law. Under the literal rule, the words of the statute are given
their natural or ordinary meaning and applied without the Court

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seeking to put a gloss on the words or seek to make sense of the

statute.
[77] In R v. HARRIS [1836] 7 C & P 446 where the defendant bit off his
victim’s nose. The statute made it an offence ‘to stab cut or wound’
the court held that under the literal rule the act of biting did not come
within the meaning of stab cut or wound as these words implied an
instrument had to be used. Therefore the defendant's conviction
was quashed.
[78] Likewise, in WHITELY v. CHAPPEL [1868] LR 4 QB 147, a statute

made it an offence ‘to impersonate any person entitled to vote’. The
defendant used the vote of a dead man. The statute relating to
voting rights required a person to be living in order to be entitled to
vote. It was held that the literal rule was applied and the defendant
was thus acquitted.
[79] In FISHER v. BELL [1961] 1 QB 394, the defendant had a flick knife
displayed in his shop window with a price tag on it. Statute made it
a criminal offence to ‘offer’ such flick knives for sale. His conviction
was quashed as goods on display in shops are not 'offers' in the
technical sense but an invitation to treat. The Court applied the literal
rule of statutory interpretation.
[80] Using the literal rule of interpretation, the sentence “Upon the High
Court calling for any record as aforesaid all proceedings in the
subordinate court in the matter or proceeding in question shall
be stayed pending further order of the High Court” means all of
the following:

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i. When an application for revision of any order or ruling, the

High Court must study the matter at hand.
ii. if it is of the view that it must scrutinised the records of the

subordinate court in question, the High Court must call for the
records.
iii. Once the High Court called for the records of the impugned
ruling or order of the Subordinate Court in question, all the
proceedings in the Subordinate Court where the impugned
ruling or order originates, must be stayed.
[81] In short, the stay of proceedings is NOT by virtue of the Court Order
but by virtue of the application of the law. In other words, in our
instant case, once this Court called for the records of the Sessions
Court with the intention of scrutinising the records with a view of
exercising its revisionary powers, the Sessions Court MUST stay
the proceeding. The Sessions Court no longer has a discretion to
exercise. It must stay the proceedings.
[82] Hence the allegation that the Sessions Court stayed the
proceedings upon application by the Public Prosecutor is clearly
erroneous and certainly not supported by any statutory provision.
Hence the issue of “repaying the kindness” in the context of allowing
the application of stay of proceedings by the accused to do justice
is not only wrong in law but this is not a tit-for-tat issue. It is the
interpretation of the law.
[83] I have perused over Enclosures 1 and 2 and I found nothing in the
averments on why the proceedings in the Sessions Court must be

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stayed pending the disposal of the appeal against the ruling of the
High Court, in the Court of Appeal.
[84] The nearest that I can find is in paragraph 7 Enclosure 2, where it

was averred as follows: (English Translation)
“7. So if I am forced to give evidence on the scheduled trial date

which is 17 October 2021, my appeal at the Court of Appeal
would be rendered nugatory and this is a special
circumstance that justified the Order for stay of the
proceedings by this Honourable Court”
[85] Nothing was stated in what way would way would the appeal be
rendered nugatory or in what way the absence of an Order of Stay
would make a special circumstance that merit a stay of the
proceedings.
[86] At the risk of being repetitive, in KOSMA PALM OIL MILL SDN BHD
& ORS v. KOPERASI SERBAUSAHA MAKMUR BHD [2003] 4
CLJ 1 it has been observed that the onus was on the applicant to
demonstrate the existence of special circumstances to justify the
grant of a stay of execution and the reasons must relate to the
enforcement of the Judgement of the appeal and they must be
deposed in the affidavit filed in support of the application.
[87] Keeping in mind that “Special Circumstances” have been defined as

“special under the circumstances as distinguished from
ordinary circumstances, it must be something exceptional in
character something that exceeds or excels in some way that
which is usual or commons”. (see LEONG POH SHEE v. NG
KAT CHONG [1966] 1 MLJ 86).

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[88] So where or what are the special circumstances is left to dwell in the
mind of the applicant and the Court is left to guess on what is the
nature of the “special circumstances” or in what way would the
appeal be rendered nugatory.
[89] I wish to draw the attention of parties to the provision of section 173
Criminal Procedure Code.
[90] The ruling by the Learned Sessions Court Judge (which was set
aside vide the criminal revision of this Court) was that the 3
prosecution witnesses must be recalled before the Applicant /
Accused is to give evidence.
[91] It has been submitted by the Learned Counsel for the Applicant /
Accused that section 173 Criminal Procedure Code is not
mandatory and need not be followed and the Learned Sessions
Court has the inherent jurisdiction to make the ruling that she did for
the ends of justice.
[92] There are 2 issues here:
a. Whether the Sessions Court has any inherent jurisdiction.
b. Whether section 173 Criminal Procedure Code is mandatory

or directory.
[93] To answer question (a), I cannot do better than to cite the Federal
Court judgment in KARPAL SINGH & ANOR. V. PUBLIC
PROSECUTOR [1991] 1 CLJ Rep 183

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Before we decide this reference, we direct our attention to the implication

of the facts in this case. It is quite obvious to us that whatever be the
deeper reasons behind the delay, certainly the prosecution did not
contribute to such delay. There is no evidence by any stretch of
imagination that the Attorney-General or the prosecution acted in a spirit
of harassment against the accused at all. We also like to say that there
are no circumstances whereby the issues of autrofois acquit or convict
and estoppel arise.
In all the factual and legal circumstances we have already

explained, we are left with no choice but to answer in the negative
to the question posed to us, however badly it is framed. To the
specific question:
whether the Court has a general inherent power to protect its

process from abuse to safeguard an accused person from
oppression or prejudice by striking out frivolous
proceedings,
we answer “No” in the specific circumstances of the facts of the

case under reference. We feel that the question is ambiguous.
Therefore, our answer is not to be construed as limiting the
constitutional function of the Courts. Among other things, it is
questionable what is meant by the term “Court” as inherent powers
are normally exercised by High Court and not Magistrate’s Courts.
The word “Court” is not specified in the question as to which
particular structure the poser refers. Another question is why the
question refers to “striking out” only specifically omitting other
prerogative remedies. It is also not clear at what stage the
applicants expect the Court to exercise its powers. Is it at the
beginning of the case or after all prosecution evidence is adduced
as Peh Swee Chin J indicated when the matter came before him by
way of revision? We do not feel that Court should answer questions
hypothetically and carte blanche. To avoid any doubt in future, we
should clarify that we have not and will not abdicate our

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responsibility to act as a watchdog within constitutional limits to

ensure that any authority do not act ultra vires. Legislature when
creating Codes, can only foresee the most natural and ordinary
events and no rule can regulate for all the time and for all the
circumstances to protect citizens against all modes of
inconvenience and discomfort which are infinite in number. In the
case of obvious abuses or other forms of material defects, it cannot
be said that the High Court does not possess the powers to do right
and to undo wrong in the course of administration. We therefore
feel that in law there is no obstacle for the case against the accused
to be continued in the normal manner. At the same time, under the
particular circumstances obvious from the records, the Attorney
General may, a matter entirely for him alone to decide, consider
exercising his discretion to enter a nolle prosequi in view of the
delay and other circumstances. Insofar as this Court is concerned,
we have no power vested in us to interfere with his discretion.
[94] In short, the subordinate courts of which the Sessions Court is one,
has no inherent jurisdiction.
[95] In KARPAL SINGH (supra) the applicants had been charged in April
1987 with separate offences under the Police Act 1967, the 1st
applicant for having participated in an assembly in a public place
without a licence from the Officer-in-Charge of the Police District and
the 2nd applicant for convening the assembly without a licence. The
hearing was postponed a couple of times and on 19 November 1987
the Court was told that both the applicants had been detained under
the Internal Security Act 1960. Finally, the cases were fixed for
hearing on 18 July 1989. At the hearing the applicants raised a
preliminary objection contending that the proceedings against them
amounted to oppression and prejudice and that the Court had a
general and inherent power to protect its process from abuse and to
strike out the proceedings. The application was rejected by the

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Magistrate and subsequently by the High Court on an application for

revision. The applicants then referred a question of law to the
Supreme Court in the terms as mentioned above. The Supreme
Court said that the sole issue was whether a Magistrate's Court in a
criminal proceedings, has power, inherent or otherwise to strike out
proceedings against an accused person on the grounds of
oppression and/or harassment. The Supreme Court answered in the
negative. The Court dealt with the operation of Article 145(3) of the
Federal Constitution together with s. 376 of the Criminal Procedure
Code on which there have been previous pronouncements and
perhaps we need only recall the words of His Lordship, Lord
President Tun Abdul Hamid Omar, the Lord President as he then
was thus:
The discretion vested in the Attorney-General is unfettered and

cannot be challenged and substituted by that of the Court’s.
[96] His Lordship, Lord President Tun Abdul Hamid Omar in KARPAL
SINGH also dealt at some length with the operation of s. 173 of the
Criminal Procedure Code. This section is prefixed by the sentence:
173. The following procedure shall be observed: (Emphasis is

mine) and then it lays down the procedure as to what a
Magistrate has to do step by step from the moment a person
is brought before him on a charge until the final disposal of
the case. Clearly a Magistrate has no discretion to ramble
beyond the ambit of this section. Every step as laid down
“shall be observed” by him. After the charge is read to the
accused and if he refuses to plead or does not plead or
claims trial, a Magistrate has no power to refuse hearing the
evidence as may be offered by the prosecution to support
the charge. He has no discretion to stay the proceedings but

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to proceed on that day or on a postponed date. He can only

acquit the accused after hearing all the evidence as may be
adduced by the prosecution if he finds no case against the
accused has been made out within the direction of para. (f)
of s. 173 of the Criminal Procedure Code. Paragraph (f)
reads:
(f) If, upon taking all the evidence hereinbefore referred

to, the Court finds that no case against the accused
has been made out which if unrebutted would warrant
his conviction the Court shall record an order of
acquittal.
[97] To let the accused off the hook at any stage prior to the conclusion
of the prosecution case as provided under para. (g) of s. 173 will
only result in a discharge as explained by His Lordship Lord
President Tun Abdul Hamid Omar in KARPAL SINGH (at p. 548)
thus:
The following para. (g) is the crucial one for discussion in this case.
The Court may discharge the accused (not acquit) if the Court
considers the charge to be groundless. The Magistrate will have to
record the reasons for his decision. If he discharges the accused,
there is nothing to prevent the prosecution recharging the accused.
The reason for the discharge may be that the Magistrate finds he
has no jurisdiction or the charge does not disclose any offence
known to the Penal Code or other written law. The only
circumstances under which an accused can be acquitted are those
stated in para. (f) and when the prosecution offers no further
evidence because it feels that the prosecution case has collapsed
prematurely. There is no provision in the Code for striking out
proceedings or acquittal without hearing all evidence the
prosecution has the capacity to offer, even though postponements
are needed.

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[98] To answer the question under reference, the then Lord President
said (at p. 549):
In this reference we are not concerned with other paragraphs of s.

173. Our considered opinion is that the English doctrine of inherent
jurisdiction is hardly applicable in the subordinate Courts but the
High Court may invoke such prerogative powers in rare instances
where it is right to do justice to the accused.
[99] He went on to say:
...The inherent power apparently cannot be invoked to override an

express provision of the law as when there is another remedy
available. Where the legislature has provided a particular mode of
action or has vested an authority with powers to act in a particular
manner and has prescribed the conditions limiting the scope of
such action, the Court cannot act outside powers and conditions.
[100] In DATUK YONG TECK LEE & ORS. v. PUBLIC PROSECUTOR

[1996] 2 CLJ 413, the Court of Appeal while explaining the principles
of law on inherent jurisdiction and the application in KARPAL
SINGH (supra) has this to say,
From the above observation, we think that the Court was ventilating
on the inherent powers of the High Court and not those of a
subordinate Court. Even assuming the Court had in mind to bring
in the parallel of LI WING TAT's case in that the High Court in
Malaysia had the inherent power to direct a subordinate Court to
stay the proceedings of a criminal case thereby to undo a wrong
done against a citizen on the ground of abuse of the Court's
process, it would be injudicious on the part of the High Court to do
so for it would amount to unseating the legislature against its clear
injunctions as laid down in s. 173 of the Criminal Procedure Code.

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Unlike a subordinate Court within the typical English jurisdiction

such as in the LI WING TAT's case, a Magistrate Court in Malaysia
clearly does not have such an inherent power for it has to operate
strictly within the four corners of the Criminal Procedure Code.
[101] In England the position is that Subordinate Courts do not have

inherent jurisdiction and this has been explained in RE O (A MINOR)
(CARE PROCEEDINGS: EDUCATION) [1992] 4 All ER 905, where
it was held that the inferior courts did not have inherent jurisdiction
to order a stay in the absence of a statutory provision.
[102] Keeping in mind, a statute, even more than a contract, must be

construed, ut res magis valeat quam pereat, so that the intentions
of the legislature may not be treated as vain or left to operate in the
air.
[103] To answer the issue raised by the Learned Counsel for the
Applicant, the Sessions Court does NOT have inherent jurisdiction
and it cannot invoke what it does not have.
[104] Now to issue (b) I reproduced section 173 Criminal Procedure Act
173 Procedure in summary trials

The following procedure shall be observed by Magistrates in
summary trials:
(j)(i) If the accused pleads guilty to the charge as amended, the plea
shall be recorded and he may be convicted on it and the Court
shall pass sentence according to law:

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Provided that before a plea of guilty is recorded the Court

shall ascertain that the accused understands the nature
and consequences of his plea and intends to admit,
without qualification, the offence alleged against him.
(ii) If the accused does not plead guilty to the charge as amended,
the accused shall be called upon to enter on his defence.
(iii) When the accused is called upon to enter on his defence, he

may produce his evidence and shall be allowed to recall and
cross-examine any witness present in the Court or its
precincts:
Provided that if the accused elects to be called as a

witness, his evidence shall be taken before that of
other witnesses for the defence:
Provided further that any accused person who

elects to be called as a witness may be cross-
examined on behalf of any other accused person.
[105] There are 2 parts that are of interest to us.
a. The phrase “…The following procedure shall be observed

by Magistrates in summary trials”
b. The phrase “...Provided that if the accused elects to be

called as a witness, his evidence shall be taken before
that of other witnesses for the defence:…”
[106] His Lordship Justice Hashim Yeop Sani (later Chief Justice of
Malaya) in SIVALINGAM v PUBLIC PROSECUTOR [1974] 2 MLJ
27, the issue to be answer was “(4) whether a criminal trial is a

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nullity if witnesses are called to give evidence before accused

had done so in the light of s. 173(j) of the Criminal Procedure
Code.” His Lordship observed
Question (4) follows logically in sequence to questions (1) and (2)

and this question was neither specifically raised as a ground in the
petition of appeal nor argued at all during the hearing of appeal;
this question is therefore not a fit and proper one to be referred
under s. 66 of the Courts of Judicature Act, 1964. At the hearing of
the application Counsel refers to the word "shall" appearing in the
second line of sub-para (j) of s. 173 of the Criminal Procedure Code
and it is his contention that it is mandatory for the accused to give
evidence first in the witness box before any other defence witness
is called to testify. Suffice to say that there is no merit in this
argument as that paragraph merely sets out the procedure for the
accused to state his defence and the requirement does not go
beyond that the Court shall ask the accused to state his defence.
The procedure contended by Counsel for the applicant is neither
supported by sub-para (j) expressly nor by necessary implication.
[107] In the case of PP v. DATUK WIRA SM FAISAL SM NASIMUDDIN

KAMAL [2019] 8 CLJ 827, his Lordship, Justice Collin Sequerah
made this observation
[20] It will be observed that the whole scheme of s. 173 of the CPC
basically lays out the manner in which a summary trial
should proceed commencing with the institution of the
charges until its conclusion.
[108] His Lordship opined that the whole scheme of s. 173 of the CPC
basically lays out the manner in which a summary trial should
proceed.

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[109] In DATO’ SERI ANWAR IBRAHIM v. PP [2011] 2 CLJ 845 the

Court of Appeal observed
[36] It is further submitted that there is no level playing field for

the appellant in the context of art. 8(1) of the Federal
Constitution. It is also submitted that there should not be a
discrimination between the appellant and the prosecution.
[37] The short answer is this. Trials before the High Court are set
out in Chapter XX of the Criminal Procedure Code (Act 593)
(“CPC”). It is applicable throughout the country and the
procedures are statutorily laid out. Chapter XX of the CPC
contains ss. 178, 179, 180, 181, 182, 182A and 183 and these
sections are worded in this way and they are self-
explanatory.
[110] In R V. SMITH (JOAN) [1968] 2 All ER 115 CA, where it was held:
At a trial of a criminal charge the accused, if he gives evidence,

should be called before any of his witnesses, and thus should give
his evidence before he has heard the testimony of his witnesses; it
is also the general rule and practice in criminal eases that
witnesses as to fact on each side should remain out of court until
they are required to give their evidence (see p. 115, letter H, and p.
116, letter C, post).
[111] His Lordship Justice Cusack explained it in that case as follows:
The general rule and practice in criminal cases is that witnesses as

to fact on each side should remain out of court until they are
required to give their evidence. The reason for this is obvious. It is
that if they are permitted to hear the evidence of other witnesses
they may be tempted to trim their own evidence. It is certainly the
general practice in the experience of all the members of this court

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that where an accused person is to give evidence he gives evidence

before other witnesses who may be called on his behalf. There are,
of course, rare exceptions, such as when a formal witness, or a
witness about whom there is no controversy, is interposed before
the accused person with the consent of the court in the special
circumstances then prevailing.
[112] As observed by Justice Cusack that “The general rule and

practice in criminal cases is that witnesses as to fact on each
side should remain out of court until they are required to give
their evidence. The reason for this is obvious. It is that if they
are permitted to hear the evidence of other witnesses they may
be tempted to trim their own evidence”.
[113] This is the issue of evidence tailoring or evidence patching.

Evidence tailoring is when a witness arranged his evidence to fit in
that of another in order that it mask the falsehood with the truth.
[114] In PP v. MOHAMED AZMIN ALI [2000] 7 CLJ 628 it was held that
“An accused person cannot be kept out of the court like other
witnesses. He would have to give evidence first before he hears
the examination and cross-examination of his witnesses.
Otherwise he might be accused of having trimmed his own
evidence to suit the evidence he has heard of his own
witnesses. Indeed, having his evidence heard first helps to
protect his credibility.”
[115] The principles of law that we may distil from the authorities are as
follows:

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a. Section 173 Criminal Procedure Code is a mandatory

provision for all summary trials.
b. Any recalling of witnesses or calling of witnesses by the

Defence can only be done after the accused has given his
evidence.
c. Subordinate Courts do NOT have inherent jurisdiction

because it is a creation of statute and it derives its powers
from statutory law.
d. The Subordinate Court is not empowered to fill in the gap but

may only strictly comply with the statutory provision and
judicial pronouncements of the superior courts.
[116] Having answered the question on the jurisdictional as well as

procedural matters of the Sessions Court, I find nothing in the
affidavit-in-support (Enclosure 2) that there was or will be prejudice
to the defence of the accused / applicant if a stay of the trial is not
granted. The affidavit at best, is a bare and bald assertion that his
defence is prejudiced. Invoking the Sessions Court exercise of
“inherent jurisdiction” is certainly most UNHELPFUL because there
is none to be had in the 1st place.
[117] The only possible reason is to delay the trial. A trial by instalment is
not supported by any statutory provision nor should it be allowed. If
any party wishes to bring interlocutory matter in the midst of a trial
must show that the intention was to do justice and there is no ulterior
motive to bring in the interlocutory matter to stall the trial or
proceedings.

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[118] With the greatest respect to the position taken by the Learned
Counsel for the Accused that there is a nugatory effect if a stay of
proceedings is not allowed, I found that the Applicant /Accused
could not make out a case of either special circumstances or
nugatoriness that would merit a stay of the proceedings.
v. Whether the Notice of Appeal is competent
[119] It was submitted by the Learned Deputy Public Prosecutor that the
Notice of Appeal against the decision of this Court in allowing the
application for revision on the following grounds:
a. The decision is not a final order and hence unappealable.
b. The decision does not finally dispose the rights of the

applicant / accused.
c. It does not fulfil the requirements of section 50 (1) Courts of

Judicature Act 1964.
d. The accused may still make his case during the defence stage
and the chance for an acquittal is open to him by raising a
reasonable doubt.
[120] It was submitted by the Learned Counsel for the Applicant / Accused
that –
a. The accused / applicant is challenging the constitutionality of

the section 17 & 18 Sexual Offences against Children Act
2017.

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b. There are disparities between the purported statements on the

Facebook account and the oral testimonies of PW3, PW6 and
PW9 in Court.
c. The prosecution is blowing hot and cold because during the

application for revision the Learned Deputy ask for a stay of
proceedings. Hence by objecting to the application for stay,
they are approbating and reprobating so they should not be
allowed to do so now.
d. It is the Court’s duty to uphold justice beyond section 173

Criminal Procedure Code.
[121] Let us now examine the provision of section 50 Courts of Judicature

Act 1964
5 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.
[122] The key phrase is “…any appeal against any decision...”.

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[123] The word “decision” has been defined in section 3 of the same Act
as “…“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 not finally dispose of the
rights of the parties;”
[124] The position on the amended s. 3 of the CJA has been clearly set
out in the case of DATO SERI ANWAR IBRAHIM V. PP [2010] 9
CLJ 625 at p. 636 where the court pointed out the underlying
reasons for the amendment to the definition of “decision” in s. 3 of
the CJA which came into effect on 31 July 1998 in the following
manner:
[24] The underlying reason behind the amendment to the

definition of “decision” in s. 3 of the CJA 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. Apart from that, the definition of “decision” by itself is
sufficiently clear and it is the court's duty to give effect to the
same. Justice demands that cases should move without
unnecessary interruption to their final conclusion. That 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

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every ruling made by the trial court. The amendment is

proposed in order to help expedite the hearing of
cases in trial courts.
[25] Quite apart from the explanatory statement to the Bill the
definition of "decision" by itself, to our mind, is sufficiently
clear, and it is the duty of the court to give effect to the same.
Justice demands that cases should move without
unnecessary interruption to their final conclusion. That is
what the amendment seeks to achieve. 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 appeal, if any, to be filed after the trial process is brought
to its conclusion.
[125] In the Federal Court case of AHMAD ZUBAIR @ AHMAD ZUBIR

BIN HJ MURSHID V. PUBLIC PROSECUTOR [2014] 9 CLJ 289;
[2014] 6 MLJ 831, it was held that –
“[33] It can be seen from the above that the issues raised by the
appellant were preliminary issues i.e., basically whether the
charges were defective in substance and form. The High
Court as stated earlier dismissed the appellant's application
to strike out the charges and to have him acquitted and
discharged. Clearly the decision of the High Court was on a
preliminary issue which did not finally dispose of the rights
of the parties. It is thus not appealable. (see: DATO' SERI
ANWAR IBRAHIM V. PP [1999] 1 CLJ 537; [1999] 1 MLJ 321;
DATO' SERI ANWAR IBRAHIM V. PP [2010] 9 CLJ 625; [2010]
6 MLJ 586; DATO' SERI ANWAR IBRAHIM V. PP [2011] 2 CLJ
845; PP V. DATO SERI ANWAR IBRAHIM [2014] 5 CLJ 805).
[34] We are of the view that the appeal by the appellant to the Court
of Appeal and later to this court on a preliminary issue whether

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the charges against the appellant in the Sessions Court were

defective in form and substance was clearly an abuse of the court
process. This is especially so when the appellant concurrently
has made similar application before the Sessions Court to have
the charges preferred against him to be struck out. And that the
application before the Sessions Court was dismissed. This has
raised another issue of whether the appellant after making an
application to strike out the charges before the Sessions Court
can now, as he did, apply the same to the High Court relying on
the case of KARPAL SINGH & ANOR V. PP (supra) as the
authority for such a proposition. It is our judgment that it cannot
be done as KARPAL SINGH & ANOR V. PP (supra) can no longer
be the authority for such proposition.
[35] In this respect we wish to point out that at the time KARPAL
SINGH & ANOR V. PP (supra) was decided, preliminary issues
were still appealable to the higher courts as they were deemed as
“decision” made by the court. At that material time under s. 3 of
the CJA the term decision was defined as follows:
‘decision’ means judgment, sentence or order.
[36] However the CJA was amended in year 1998. Section 50 of the
CJA sets out the jurisdiction of the Court of Appeal to hear and
determine criminal appeals as follows:
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:

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(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 Magistrate’s
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.
And the term “decision” as employed in s. 50(1) of the CJA is defined in

the amended s. 3 of the CJA in this manner:
3. In this Act, unless the context otherwise requires:
‘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 not
finally dispose of the rights of the parties). (emphasis
added)
[37] The position on the newly amended s. 3 of the CJA has been
clearly set out in the decision of this court in the case of DATO
SERI ANWAR IBRAHIM V. PP [2010] 9 CLJ 625 at p. 636 where
the court pointed out the underlying reasons for the amendment
to the definition of “decision” in s. 3 of the CJA which came into
effect on 31 July 1998 in the following manner:

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[24] The underlying reason behind the amendment to the

definition of “decision” in s. 3 of the CJA 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. Apart from that, the
definition of “decision” by itself is sufficiently clear
and it is the court's duty to give effect to the same.
Justice demands that cases should move without
unnecessary interruption to their final conclusion.
That 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.
[25] Quite apart from the explanatory statement to the Bill

the definition of “decision” by itself, to our mind, is
sufficiently clear, and it is the duty of the court to give
effect to the same. Justice demands that cases should
move without unnecessary interruption to their final
conclusion. That is what the amendment seeks to
achieve. 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 appeal, if any, to

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be filed after the trial process is brought to its

conclusion.
[38] From the above explanation given by this court in the case
of DATO SERI ANWAR IBRAHIM V. PP (supra) it is obvious
that Parliament is not oblivious to appeals which tend to stall
proceedings and delay speedy disposal of cases. The new
definition of the word decision in the amended s. 3 of the CJA
which we have laid emphasis to in the preceding paragraph
does not include a judgment, order or ruling which does not
finally dispose of the rights of the parties on the matters in
dispute. With the amended s. 3 of the CJA, appeals filed
based on technical rulings which are interlocutory in nature
are now things of the past. Such appeals are incompetent to
be laid before the appellate court as it is clearly precluded by
law.
[39] In this instant case the appellant had applied before the High
Court to quash the charges and order an acquittal against
him. The application was dismissed. The appellant had also
applied before the Sessions Court for the charges to be
quashed and prayed that a discharge not amounting to
acquittal to be ordered against him. The application was also
dismissed. The way we perceive it, the orders of the courts
below would connote that the matter should proceed for trial
as the charges preferred against the appellant still stand.
Clearly the decision not to strike out the charges before the
commencement of the trial as was done in this instant case
does not amount to disposal of the rights of the parties.
Since the order gives no final decision on the matters in
dispute, it is not a “decision” within the definition under s. 3
of the CJA and therefore is not appealable.”
[126] The Court of Appeal in C VIGNESH KUMAR CHELLAPAH &

ANOR v. PP [2019] 8 CLJ 591 discussed on appealability of a

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matter that arose in the Sessions Court and on an appeal to the High
Court, ruled inter alia,
[6] It is clear from the said definition in s. 3 that there are two
instances when a decision of the High Court is not
appealable. The first is if it is made in the course of a trial and
the second is when the hearing of the cause or matter does
not dispose of the rights of the parties with finality. The clear
intention of the Legislature expressed from the words used
in the aforesaid section is to filter matters that can go up on
appeal. In other words, a cap has been placed by the
Legislature to ensure that appeals filed are not frivolous and
there would not be undue delay in the disposal of trials by
reason of such appeals being filed. Therefore, even though
the order of the court was not made in the course of the trial,
but if it does not dispose of the rights of the parties with
finality, that decision is still unappealable, that is to say,
there is no automatic right of appeal for such a decision
made by the court. To say otherwise would run afoul of the
clear intention of the Legislature as expressed in the said s.
3, which as we had stressed earlier, is to filter matters which
can be further taken up on appeal before us.
[127] It is my considered view that the decision made by this Court in

Criminal Revision no. JB-43-1-07/2021 was not final and hence
unappealable but I will leave that to parties to argue it out in the
Court of Appeal.
CONCLUSION
[128] I have perused over the Cause Papers, and after having heard
parties, I regret to say that I am unable to accede to the application.

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The Notice of Motion is hereby dismissed and the trial before the
Sessions Court is proceed with the trial until its final conclusion.
Dated this 28th November 2021 at Muar in the State of Johore.
t.t.
AWG ARMADAJAYA BIN AWG MAHMUD
Judicial Commissioner
High Court of Malaya
Muar
Johor Darul Ta’zim
Curia Advisari Vult
Counsels:
For the Applicant : Tuw Min Ric with Ong Kah Wah,
For the Respondent : Mustaqim bin Sukarno with Raudhah binti

Mazman,
Deputy Public Prosecutor
Solicitors:
For the Applicant
Messrs Ong, Ric & Partners

Advocates & Solicitors
C-2-7, Plaza Damas
No. 60, Jalan Sri Hartamas 1
50480 Kuala Lumpur.
[Ref No.: ORP/OKL/0016-20/CKP/Cri]
For the Respondent
Timbalan Pendakwa Raya

Pejabat Timbalan Pendakwaraya
Mezzanine Floor
Muar Trade Centre

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Jalan Petrie
84000 Muar
Johor.
Hearing Date : 23rd November 2021.

Decision Date : 28th November 2021.
LEGISLATURE:
➢ section 14(a), 17, 18 Sexual Offences Against Children 2017
➢ section 112, 173, 323, 425 Criminal Procedure Code
➢ S. 3, 35, 44, 50, s. 57(1) and s. 73 Courts of Judicature Act 1964.
➢ Rule 13 of the Rules of the Court of Appeal 1994
➢ O. 53 R. 1(5), O. 56 R. 1 (4) Rules of Court 2012;
LITERATURE:
➢ Merriam-Webster's Unabridged Dictionary
➢ The Black’s Law Dictionary (© 2016 A Legal Dictionary)
➢ Halsbury’s Laws of England, 4th edition, reissue, vol. 37 at p.
290 at para. 926:
➢ Halsbury’s Laws of England, 4th Edition., Vol. 17 [1976], p. 272
➢ Mallal’s Digest 4th Edition, vol. 2(2) para; 4254
CASES REFERRED TO:

➢ PP v. MOHAMED AZMIN ALI [2000] 7 CLJ 628
➢ AHMAD ZUBAIR @ AHMAD ZUBIR BIN HJ MURSHID V. PUBLIC
PROSECUTOR [2014] 9 CLJ 289; [2014] 6 MLJ 831
➢ DATO' SERI ANWAR IBRAHIM V. PP [1999] 1 CLJ 537; [1999] 1
MLJ 321;
➢ DATO' SERI ANWAR IBRAHIM V. PP [2010] 9 CLJ 625; [2010] 6
MLJ 586;
➢ DATO' SERI ANWAR IBRAHIM V. PP [2011] 2 CLJ 845;
➢ PP V. DATO SERI ANWAR IBRAHIM [2014] 5 CLJ 805
➢ R V. SMITH (JOAN) [1968] 2 All ER 115 CA
➢ KARPAL SINGH & ANOR. V. PUBLIC PROSECUTOR [1991] 1
CLJ Rep 183
➢ C VIGNESH KUMAR CHELLAPAH & ANOR v. PP [2019] 8 CLJ
591
➢ SIVALINGAM v PUBLIC PROSECUTOR [1974] 2 MLJ 27
➢ PP v. DATUK WIRA SM FAISAL SM NASIMUDDIN KAMAL
[2019] 8 CLJ 827
➢ DATO’ SERI ANWAR IBRAHIM v. PP [2011] 2 CLJ 845

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➢ RE O (A MINOR) (CARE PROCEEDINGS: EDUCATION) [1992] 4

All ER 905
➢ DATUK YONG TECK LEE & ORS. v. PUBLIC PROSECUTOR
[1996] 2 CLJ 413
➢ R v. HARRIS [1836] 7 C & P 446
➢ FISHER v. BELL [1961] 1 QB 394
➢ WHITELY v. CHAPPEL [1868] LR 4 QB 147
➢ ASIA PACIFIC HIGHER LEARNING SDN BHD v. MAJLIS
PERUBATAN MALAYSIA & ANOR [2020] 3 CLJ 153
➢ SHARMA KUMARI A/P OAM PRAKASH V. PP [2000] 1 LNS 123;
[2000] 6 MLJ 847
➢ CHAMBERLAIN V. R (NO 1) [1983] 153 CLR 514; 46 ALR 608,
➢ R V. SOUTHGATE [1961] 78 WN (NSW) 44,
➢ Re KWAN WAH YIP & ANOR [1954] 1 LNS 78; [1954] MLJ 146;
➢ GANESAN V. PUBLIC PROSECUTOR [1983] 1 CLJ 300; [1983]
CLJ 567 (REP); [1983] 2 MLJ 369;
➢ YUSOF MOHAMED V. PP [1995] 1 LNS 291; [1995] 3 MLJ 66;
➢ RALPH V. PUBLIC PROSECUTOR [1972] 1 LNS 118; [1972] 1
MLJ 242
➢ R V. WATTON [1978] 68 Cr App R 293
➢ KWK (A CHILD) V. PUBLIC PROSECUTOR [2003] 4 CLJ 51
➢ RE CLARKSON [1986] VR 583
➢ R V. GIORDANO [1982] 31 SASR 241;
➢ RE MAHER (unreported, Full Court of Queensland, 18
November 1985).
➢ MONK v. BARTRAM [1891] 1 QB 346
➢ ROSENGRENS LTD v. SAFE DEPOSIT CENTRES LTD
(unreported, 19 July 1984, CA, Lexis Nexis)
➢ MING ANN HOLDINGS SDN BHD v. DANAHARTA URUS SDN
BHD [2002] 3 CLJ 380
➢ SILVER CONCEPT SDN BHD v. BRISDALE RASA
DEVELOPMENT SDN BHD (FORMERLY KNOWN AS
EKSPEDISI RIA SDN BHD) [2002] 4 CLJ 27; [2002] 4 MLJ 113
➢ MCPHAIL v. PERSONS, NAMES UNKNOWN [1973] 1 Ch 447
➢ SYARIKAT BERPAKAT v. LIM KAI KOK [1983] 1 MLJ 406,
➢ ST. PIERRE v. SOUTH AMERICAN STORES (GATH & CHAVES)
LTD. [1936] 1 K.B. 382
➢ BARING FUTURES (SINGAPORE) PTE LTD (IN LIQUIDATION)
v. DELOITTE & TOUCHE (A FIRM) & ANOR [1997] 3 SLR 312
➢ CENTRAL SECURITIES (HOLDINGS) BHD. v. HARON BIN
MOHAMED ZAID [1979] 2 MLJ 244, 251
➢ SERANGOON GARDEN ESTATE LTD. v. ANG KENG [1953] 1
LNS 98; [1953] 19 MLJ 116
➢ MCAT GEN SDN BHD v. CELCOM (M) BHD (NO 2) [2007] 10 CLJ
375

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➢ BANK BUMIPUTRA MALAYSIA BERHAD & ANOR. v. LORRAIN

ESME OSMAN, BANK BUMIPUTRA MALAYSIA BERHAD &
ANOR. v. LORRAIN ESME OSMAN & ORS [1987] 1 CLJ 572
➢ BOARD OF GOVERNORS OF SEKOLAH MENENGAH ST.
GABRIEL v. RANJIT SINGH [1969] 1 LNS 16; [1970] MLJ 38
➢ CHE WAN DEVELOPMENT SDN BHD v. CO-OPERATIVE
CENTRAL BANK BHD [1989] 2 CLJ 584; [1989] 1 CLJ (Rep) 366
HC;
➢ WU SHU CHEN (SOLE EXECUTRIX OF THE ESTATE OF GOH
KENG HOW, DECEASED) v. RAJA ZAINAL ABIDIN BIN RAJA
HUSSIN & ANOR [1996] 2 CLJ 353 HC;
➢ ALL PERSONS IN OCCUPATION OF THE HOUSE AND THE
WOODEN STORES ERECTED ON A PORTION OF LAND HOLD
UNDER GRANT NO. 26977 FOR LOT 4271 IN THE TOWNSHIP
OF JOHOR BAHRU, JOHOR v. PUNCA KLASIK SDN BHD [1998]
5 CLJ 49;
➢ WALTER A/L PATHROSE GOMEZ & ORS v. SENTUL RAYA SDN
BHD [2005] 7 CLJ 385; and
➢ CHASE PERDANA BHD v. MD AFENDI BIN HAMDAN [2006] 5
CLJ 563 HC.
➢ KOSMA PALM OIL MILL SDN BHD & ORS v. KOPERASI
SERBAUSAHA MAKMUR BHD [2004] 1 CLJ 239; [2004] 1 MLJ
257
➢ KOSMA PALM OIL MILL SDN BHD & ORS v. KOPERASI
SERBAUSAHA MAKMUR BHD [2003] 4 CLJ 1
➢ LEONG POH SHEE v. NG KAT CHONG [1965] 1 LNS 212; [1966]
1 MLJ 86
➢ SUGUMAR BALAKRISHNAN v. PENGARAH IMIGRESEN
NEGERI SABAH & ANOR [1998] 3 CLJ 85; [1998] 3 MLJ 289
➢ LEONG POH SHEE v. NG KAT CHONG [1965] 1 LNS 212; [1966]
1 MLJ 86
➢ AJAIB SINGH v. JEFFREY FERNANDEZ [1970] 1 LNS 4; [1971]
1 MLJ 139
➢ RE KONG THAI SAWMILL (MIRI) SDN. BHD.; LING BENG SUNG
v. KONG THAI SAWMILL (MIRI) SDN. BHD. & ORS. (NO. 2)
[1974] 1 LNS 205; [1976] 1 MLJ 131
➢ MOHAMED MUSTAFA v. KANDASAMY (NO. 2) [1979] 1 LNS 54;
[1979] 2 MLJ 126
➢ MATANG HOLDINGS BHD. & ORS. v. DATO' LEE SAN CHOON
& ORS. [1985] 1 LNS 42; [1985] 2 MLJ 406
➢ “YIH SHEN”: LAI LAI YIN v. M.V. “YIH SHEN”, OWNERS OF AND
OTHER PERSONS INTERESTED [1985] 1 LNS 121; [1986] 2 MLJ
65

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Constitutional Law I (Universiti Malaya)

Studocu is not sponsored or endorsed by any college or university

In the matters of Public Prosecutor

In the matters of Public Prosecutor

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[1] This is an application for a stay of proceedings of the trial in the

[3] The reasons for this application are as follows:

i. The accused’s appeal before the Court of Appeal would be

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iii. The applicant / accused averred that since the prosecution

[4] The Notice of Motion is supported by an affidavit-in-support affirmed

i. Notice of Motion (Enclosure 1).

That you, on 5 January 2019, at about 1000hours, at Ci Guang Ting

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Children 2017 which may be punished under the same provision of

[8] On 28 March 2021 the applicant / accused made an application to

[10] On 25 April 2021 the Sessions Court dismissed the applicant /

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[JB-44-13-10/2021] November 28, 2021

to stay all proceedings in respect of the trial before the Sessions

THE ISSUES IN THIS APPLICATION

i. Whether the stay of proceedings is a right of the applicant /

ii. Whether a Notice of Appeal filed in the Court of Appeal

iii. Whether the nugatory principle is applicable on the facts and

v. Whether the Notice of Appeal is competent.

I shall deal with the issues accordingly.

i. Whether the stay of proceedings is a right of the applicant /

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ii. Whether a Notice of Appeal filed in the Court of Appeal

iii. Whether the nugatory principle is applicable on the facts and

I shall deal with these 4 issues together.

[18] The Merriam-Webster’s Unabridged Dictionary defines “stay of

[19] The Black’s Law Dictionary (© 2016 A Legal Dictionary) defines

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[20] In Latin, it is known as “Cesset Executio” meaning “let the

[23] As matter of law, a stay of proceedings will not be granted simply

73. Appeal not to operate as stay of execution

An appeal shall not operate as a stay of execution or of

13. Stay of proceedings on appeal.

An appeal shall not operate as a stay of execution or of

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(a) CHE WAN DEVELOPMENT SDN BHD v. CO-OPERATIVE

[26] The Court has an unqualified discretion to grant a stay of execution.

[27] The filing of a notice of appeal shall not operate as a stay of

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[30] The law relating to the granting of a stay of proceedings is settled.

In general a stay of proceedings arises under an order of the court

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the court's discretionary jurisdiction, and by way of summary

[31] In BOARD OF GOVERNORS OF SEKOLAH MENENGAH ST.

I hold the view that a stay of proceedings is a matter of discretion