Criminal Procedure II – Appeal and Revision

- When an aggrieved party is not satisfied with the decision of the court , he may either
appeal to a higher court or seek revision by the High Court.
- The law which governs criminal appeal is Criminal Procedure Code and Court of
Judicature Act 196
- It must be noted that no appeal from a subordinate court lies to a superior court unless
there is a statutory provision allowing such a right to appeal. There is no general right of
appeal.
- In Dato Seri Anwar Ibrahim v PP [1999] 1 MLJ 321, it was held that a decision made
by a court in its original jurisdiction is deemed final unless it is provided under statute to
be appealable.
- Appeal may be made from:-
Subordinate Court > High Court > Court of Appeal
High Court > Court of Appeal > Federal Court
- The grounds that an aggrieved party would file an appeal would be that either against the
sentence or the conviction.
- Appeal against sentence would be that the sentence passed by the trial judge was
inadequate(prosecution) or excessive (accused)
- Appeal against conviction would be that the conviction by the trial judge was wrong in
law or in facts [eg. Miss interpreted the laws (error of law), failed to consider certain
facts(error of facts ]
- In DP Vijandran v PP [1999] 1 MLJ 385, court explained that as a general rule the
appellate court will not interfere with the decisions and findings of the trial court unless
the circumstances show that:-
o the course of events affirmed by the trial judge could not have occurred;
o the trial judge had failed to critically assess and analyse the prosecution’s
evidence.
- However, if the accused had pleaded guilty to the charge, he no longer has the right to
appeal against the conviction but only against the sentence for being to excessive. (s. 305
CPC)
- Timeline:- Mitigating factors
Aggravating factors

CREU Plea UNCP Facts Remand Finding of Conviction Sentence Appeal

Guilty Admitted Guilt

CREU Plea PTC Trial Finding of Conviction Sentence Appeal

Trial (if any) Guilt

- Appeal may not only be initiated by parties but also the High Court to revise the decision
of the lower court at its own motion, this is known as revision (S. 323 CPC)
Rights and requirements to appeal

- S. 26 CJA 1964 provides that High Court has the jurisdiction to hear appeal from
subordinate courts within its jurisdiction.
- S. 304 CPC provides that no appeal is available for a sentence of fine not exceeding RM
25.
- S. 305 CPC provides that when an accused person has pleaded guilty and convicted by a
Magistrate on such plea, there shall be no appeal except as to the extent or legality of the
sentence. (eg. Whether the sentence was right in law or not and that whether it was too
heavy)
- In PP v Azizan bin Salleh [1985] 2 MLJ 116, it was held that an appeal against sentence
before court should state whether it relates to the extent or legality of the sentence for the
purpose of clarity.
- In PP v Muhammad Kasyfullah Kassim [2017] 1 CLJ 63, court explained that when an
accused has pleaded guilty, there shall be no appeal available except if it is concerning
the extent or legality of the sentence.
- In Vo Thanh Tay & Ors v Malaysian Maritime Enforcement Agency [2020] MLJU
1761 *, it was held that in this case the appellants in their notice of appeal had clearly
stated that they are appealing against both the sentence imposed by Sessions Court.
Following PP v Azizan bin Salleh, the failure on the part of the appellants in current
appeal to specifically state the extent or legality of the sentence imposed by trial judge
does not make the Notice of Appeal invalid. Court agreed to appellant’s contention that
under s. 307 CPC, there is no requirement for the exact orders or sentence to be specified
in the Notice of Appeal. This section merely requires a person who is dissatisfied with the
judgment, sentence or order made by a Magistrate Court in which he is a party to the
proceeding may appeal before the High Court upon such dissatisfaction of his on the
grounds that the Magistrate had erred in law or facts or that the sentence passed was
inadequate or excessive.
- Accused may only appeal against conviction only if he does not understand the nature
and consequences of guilty plea. (UNCP)
- In Lee Yu Fah v PP [1937] MLJ 179, it was held that an appeal against conviction is
only allowed when there arose a doubt as to whether the accused understood the nature
and consequences of his plea of guilty.
- In Mohd Dalhar bin Redzwan v Datuk Bandar, DBKL [1995] 1 MLJ 645 **, although a
High Court has no jurisdiction to hear an appeal against conviction upon the accused’s
plea of guilty, it can somehow exercise its revisionary power to quash the conviction
which is illegal. (eg. when no UNCP in PG)
- In Mohd Asri bin Ahmad v DPP [2005] 7 MLJ 253 **, court explained that under s. 305
CPC, a person who has been convicted upon his own plea of guilty can only appeal
against the extent and legality of the sentence against him, but he is not prevented from
contending that such conviction made against him was illegal. If he is to do so, he can
apply to the High Court for revision.
- S. 306 CPC provides that when an accused person has been acquitted by a Magistrate
there shall be no appeal except by, or with the sanction in writing of, the Public
Prosecutor.
- In PP v Joehari Abdullah & Anor [1996] 5 MLJ 324, court explained that an appeal
under s. 306 can be made under two situations. Firstly, the PP can appeal against the
 acquittal. When the appeal against acquittal is lodged by the PP himself, no sanction in
writing of the PP is required. Secondly, if the appeal against acquittal is by any other
person, then he is only conferred the right to appeal only when there is a sanction in
writing of the PP.
- In Pejabat Tenaga Kerja Kuching v Number One Indah Sdn Bhd [2013] 8 MLJ 293,
court explained that the power conferred under s. 306 is not limited to the Public
Prosecutor alone but also a Deputy Public Prosecutor. It has been clearly stated under s.
376(3) CPC that DPP is to be deputise by the PP unless when it comes to certain powers
which need to be exercise by the PP personally.
- S. 307(1) CPC provides that other than cases falling under ss. 304, 305 and 306, any
person who is dissatisfied with dissatisfied with any judgment, sentence or order made by
a Magistrate s Court in which he is a party in the proceeding, he may make an appeal
before High Court against such judgment, sentence or order in respect of any error in law
or in fact or on the ground of the sentence was excessive or inadequate by filling a Notice
of Appeal to the clerk of Magistrate Court in triplicate addressed to the High Court
together with payment of prescribed appeal fee within fourteen(14) days from the time of
judgment.
- In PP v Rudguard [1939] MLJ Rep 46, it was held that ‘any person’ in s. 307 would
include the Public Prosecutor.
- In Ang Gin Lee v PP [1991] 1 MLJ 498, court referred to Maleb bin Su & Anor v PP and
emphasized that the order of a court which one intends to appeal against must be one that
is a final one. The test to determine the finality is to see whether it finally disposes of the
right of the parties.
- In PP v Raymond Chia & Anor [1985] 2 MLJ 436, court explained that the wordings in
s. 307 CPC shows that the word “order” comes after “judgment” and “sentence”. Hence
the order here must be a final order as in that it is final as in its effect as in the case of a
judgment or a sentence. The test to determine whether an order is final will be whether
the order has finally disposed the rights of the parties.
- See also Vo Thanh Tay & Ors v Malaysian Maritime Enforcement Agency [2020]
MLJU 1761 above.
Procedures of appeal to High Court

File Notice of Appeal + Apply for stay of execution + Apply Bail

Prepare Notes of Evidence + Grounds of Decision (of trial court)

File petition of appeal

Transmission of appeal record to High Court + Setting down for hearing

Procedure at hearing + Admissibility of fresh evidence (if there is any)

Decision on appeal

Judgment + Other matters

1. Filling of Notice of Appeal and Application for stay of execution

- S. 307(1) CPC provides that other than cases falling under ss. 304, 305 and 306, any
person who is dissatisfied with dissatisfied with any judgment, sentence or order made by
a Magistrate s Court in which he is a party in the proceeding, he may make an appeal
before High Court against such judgment, sentence or order in respect of any error in law
or in fact or on the ground of the sentence was excessive or inadequate by filling a Notice
of Appeal to the clerk of Magistrate Court in triplicate addressed to the High Court
together with payment of prescribed appeal fee within fourteen(14) days from the time of
judgment.
- In Kentucky Fried Chicken (M) Sdn Bhd v Lembaga Bandaran Petaling Jaya [1976] 2
MLJ 145, it was held that by looking at s. 54 Interpretation Act 1976, the 14 days period
in s.307 CPC excludes the day of happening of the event.
- In Veerasingam v PP [1958] MLJ 76, it was held that High Court has the discretion to
grant extension of time for filling of notice of appeal if it is for the purpose to ensure
substantial justice is to be done.
- In Anuar bin Othman v PP [1991] 3 MLJ 382, the reasons of delay for filling his NOA
here was because the appellant was ignorant of the appeal procedures as he had financial
 difficulties in hiring a representative counsel. Court accepted his filing petition even
though the filling was out of time.
- In PP v Azizan bin Salleh [1985] 2 MLJ 116, it was held that an appeal against sentence
before court should state whether it relates to the extent or legality of the sentence for the
purpose of clarity.
- In PP v Jawan ak Empaling & Anor [1996] 2 CLJ 328 **, court explained that
wordings of s. 307 CPC does not specify that the original document is to be sent. A notice
of appeal many also be filed or served via facsimile transmission.
- S. 311 CPC provides that no appeal is to operate as a stay of execution except in the
case of a sentence of whipping. However, the court below or a Judge may stay execution
if it thinks just and on payment of reasonable sum as security. (s. 57 CJA 1964 provides
the same)
- While appeal pending, the defence counsel is to apply for stay of execution (penangguhan
pelaksanaan hukuman) before the court because it is impossible for the accused to stay in
custody and get punished. At the same time defence is also to apply or offer to pay bail,
known as bail pending appeal (see midterm chapter)
- In Re Kwan Wah Yip & Anor (1954) 20 MLJ 146, it was held that a stay of execution
will not and shall not be grated unless it can be shown that there are special reasons for
doing so. The discretion herein is solely on the judge. Merely by filling a notice of appeal
is nowhere a sufficient reason.
- In Sharma Kumari a/p Om Prakash v PP [2000] 6 MLJ 847 *, a stay of execution in
the state of pending appeal is not automatic. The applicant must apply for it and he has a
duty to show special or exceptional circumstances that will justify his application for a
grant of stay.
- In Dato Seri Anwar Ibrahim v PP [2004] 1 CLJ 592 **, Federal Court laid down few
factors to consider in whether to grant stay of execution:-
o The gravity of the offence
o The length of the term of imprisonment in comparison with the length of time
likely to take for appeal
o Whether there are difficulties in points of laws in issue
o Whether accused is a first offender or has previous conviction
o Whether accused will be involved again in another offence while he is free
 o Whether the security imposed will ensure his attendance before the court during
appeal
- Re Kwan Wah Yip & Anor (1954) 20 MLJ 146 *, court considers that it falls under a
ground of special circumstances when there was an obvious error or defect on the face
of the record of proceedings during trial.
- In KWK (A Child) v PP [2003] 4 CLJ 51, court held that when there is issue as to
whether the trial was held by a court which has the proper jurisdiction under the law
was indeed a special circumstance to grant a stay of execution pending appeal.
- In PP v Dato’ Sri Mohd Najib bin Hj Abd Razak [2020] 11 MLJ 808 **, it was held that
by looking at s. 311 CPC and s. 57 CJA 1964, it was clear that no appeal is to operate as a
stay of execution. But the court may exercise its discretionary power to grant a stay of
execution based on well-established judicial principles by looking at the facts and
circumstances of each cases, where this is consider as an exception to the general rule. As
such, some special or exceptional circumstances must be proven to have exist before
court can exercise its discretion to grant a stay. In this case, the court finds the existence
of special and extenuating circumstances and hence a stay of execution for both fine
and imprisonment were granted pending appeal.
- In a very recent yet to be reported case of Tan Sri Mohd Isa bin Abdul Samad (Malay
Mail, 3rd February 2021) , a former Chairman of FELDA who was charged and
convicted for the offence of corruption was also granted a stay of execution by the High
Court pending his appeal. His counsel put forward the argument that the current case is
similar to PP v Dato’ Sri Mohd Najib bin Hj Abd Razak [2020] 11 MLJ 808 where there
are existence of special circumstances and hence shall be treated in the same way. In
addition he also contended that putting his client in the jail during this pandemic season
will expose him to the risk of covid-19 infection.
- In Stay of Execution Pending Appeal [1999] 1 MLJ I by Dr. Wong Kim Fatt, it was
explained that Malaysian courts apply two approaches in exercising judicial discretion on
whether to grant a stay of execution or not, where besides the special circumstances
approach, they also apply the nugatory approach. The later approach implies that the
purpose of a stay pending appeal is not to render an appeal, if successful, nugatory, which
simply means that a successful appeal should not be rendered futile. Nugatory approach
was first adopted by our court of appeal in the case of See Teow Guan & Ors v Kian Joo
Holdings Sdn Bhd & Ors [1995] 3 MLJ 598. In this case it was held that upon balancing
all the relevant factors, this court comes to the conclusion that an appeal would be
 rendered nugatory without the grant of a stay or other interim preservation order, then it
should normally direct a stay or grant other appropriate interim relief that has the effect of
maintaining the status quo.
(in simple words, if you don’t grant stay and punish that fella, then he later success in
appeal, it is pointless and useless (nugatory) already because you already punish that fella
half way; as I would say we only use this approach when the facts shows that we have
strong grounds of appeal)
2. Preparing Notes of Evidence and Grounds of Decision
- The appellant needs the notes of evidence and the grounds of decisions to prepare the
petition of appeal. Thus, the court appealed from must prepare the notes of evidence and
the grounds of decision.
- The CPC however is silent on the time of preparation.
- In TN Nathan v PP [1978] 1 MLJ 134, it was held that it is of expectation of a
Magistrate to prepare notes of evidence and grounds of decision with convenient speed.
In this case, there was a delay for two years in delivering of the grounds of decision. As
such, accused’s conviction were quashed as there was failure of justice as such delay
was deemed to have prejudiced the accused
- S. 307(5) CPC provides that when the notes of evidence recorded by the trial Magistrate
are available, the court appealed from will give a notice to the appellant that it can be had
free of charge.
- In PP v Tan Tho Kim & Ors [1978] 2 MLJ 65, court explained that when an accused
who wishes to appeal had filed a notice of appeal, he is entitled to be supplied with notes
of evidence although the notes had been given to him during trial stage.
- In PP v Dato’ Sri Mohd Najib bin Hj Abd Razak [2020] 11 MLJ 808, court explained
that it is the Court Registry’s duty under the CPC to provide notes of proceeding only
when there is an appeal after the end of the trial.
- The Court appealed from(trial court) shall make signed copy of ground of decision and
serve it to the address in notice of appeal or by registered post without unreasonable
delay.
- In Balasingham v PP [1959] MLJ 193, grounds of decision given by the trial court shall
be explained with a reasonable judgment based on facts and laws and not merely a
conclusion of the judge’s own opinion.
- In Augustine v PP [1964] MLJ 7, it was held that it is the duty of the Magistrate to state
his findings unless the case itself is already a straight forward one containing all the facts
establishing the ingredients of the offence charged.
- In Rodiah bt Sitam v PP [2009] 7 AMR 728 *, it was held that an appeal is not a proper
one when there was not any grounds of decision being delivered during trial as required
under s. 308 CPC. As such this case shall be proceeded by way of revision instead.
- In Azman Jamhuri v PP [2001] 1 CLJ 539 *, the court emphasized that the Chief Judge
has made it compulsory for all Magistrates and judges via Practice Direction in 1994 that
grounds of decision must be delivered within six weeks of a ruling. A delay in such will
be deemed prejudicial against the accused seeking for an appeal.
3. Filing petition of appeal
- ss. 307(4), (5) CPC provides that an appellant is to lodge with the clerk of the Magistrate
or Sessions Court the copies of the petition of appeal addressed to the High Court within
fourteen(14) days after notice had been given to the appellant that the notes of evidence
are available or a signed copy of the grounds of decision has been served on the appellant
or his representative counsel.
- This procedure is applicable only when the appellant has requested for the notes of
evidence. But if the appellant has yet to apply such, then the petition must be filed after
fourteen(14) days after a copy of the grounds of decision has been served on appellant.
- In PP v Jawan Empaling [1996] 2 CLJ 328, court held that a petition of appeal may be
filed via facsimile as s. 307 did not specify that it must be an original copy being filed.
- S. 307(6) CPC provides that every petition of appeal shall state in summary the substance
of the judgment appealed against and the grounds of appeal on point of law or facts or
both. (petition of appeal is to be filed using Form 51)
- In PP v Chin Chan Leong & Anor [2009] 8 MLJ 231, it was held that High Court may
exercise its discretionary powers under s. 310 CPC to allow amendment on the petition
of appeal if requirements in s. 307(6) not satisfied.
- S. 307(9) CPC provides that if a petition of appeal is not lodged within time given, it will
be deemed that such appeal has been withdrawn or order if any stay of execution has been
granted, but the court still has discretion to allow extension.
- In Innocent v PP [1971] 1 MLJ 294, here the High Court allowed extension of time to
file the petition of appeal as there was a miscommunication that caused the copy of
grounds of decision to be sent to the wife instead of the appellant who was in prison.
- In Jumari bin Mohamed v PP [1982] 1 MLJ 282, court dismissed the appellant’s
application requesting for extension of time to file petition of appeal as it was found that
there was inadvertence on the part of the representative counsel.
- S. 307(10) CPC provides that in case there was failure on the appellant in adhering to
certain formalities or rules of provisions in filing of petition of appeal, the court may
exercise its discretion to vary certain terms as well as to allow appeal provided that the
interest of substantial justice was not deprived.
- In Veerasingam v PP [1958] MLJ 76, here the appellant applied for extension of time to
amend his petition of appeal. It was held that High Court has discretion to grant extension
of time to ensure substantial justice is done.
- In Ishak bin Hj Shaari v PP [1997] 5 MLJ 28, in this case there was change of
representative counsels and due miscommunications the grounds of decision were sent to
the former representative counsels, which resulted in a delay in filing of petition of
appeal. Court herein allowed extension of time.
- In PP v Chin Chan Leong & Anor [2009] 8 MLJ 231, it was held that High Court may
exercise its discretionary powers under s. 310 CPC to allow amendment on the petition of
appeal if requirements in s. 307(6) not satisfied.
- In PP v Ismail bin Abd Wahab [2014] 1 MLJ 541**, the appellant(prosecution) relied on
s. 310 stating that court has discretion to condone delay in filing of notice of appeal.
Court held that such discretion should not be sparingly exercised when it relates to notice
of appeal by the public prosecutor as opposed to the accused and the discretion to
condone delay in respect of petition of appeal must be readily given, unless it will result
in miscarriage of justice.
4. Transmission of appeal to High Court and setting down for hearing
- S. 308 CPC provides that once appellant has complied with s. 307, the court from which
the matter is appealed from shall transmit appeal records to the High Court , the
prosecution and the representative counsel of the appellant signed copy of the records of
proceedings (provided under s. 176), ground of decision, copy of notice of appeal and
petition of appeal.
- These constitutes the appeal record.
- In Mohd Zubir Mustafa v PP [2009] 10 CLJ 281*, in this case the appellant compiled
the appeal record and transmitted to the High Court but left out the grounds of judgment.
It was held that there was no proper appeal due to the absence of grounds of decision
and the High Court as such will proceed the matter by way of revision.
- S. 312(1) CPC provides that if the judge accepts the appeal, he shall hand over the
documents mentioned in s. 308 to the Registrar who shall then provide a number to the
appeal and enters it to the list of appeal to be heard, followed by giving notice to the
parties as to such.
- S. 312(2) CPC provides that the Registrar shall give notice to the parties in pertaining to
the date of hearing of the appeal as soon as the date has been fixed.
- S. 312(3) CPC provides that a judge may also at his own motion or upon application of
party of the appeal move forward or postpone the hearing of appeal provided that the
parties are being notified if such is to be done.
- In PP v Chew Kuok Leh [1998] 2 JCr 418 *, in this case there was failure of the lower
court to serve appeal record on the accused’s counsel. It was submitted by the counsel
that this amounts to breach of natural justice and had deprived accused’s opportunity to
prepare his case as well as his legal right to contest in the appeal. High Court as such
ordered the hearing of appeal to be adjourned pending the service of notice of appeal by
the Registrar of the lower court to the counsel.
5. Procedure at hearing and admissibility of fresh evidence (if any)
- S. 313(1) CPC provides that when the appeal comes on for hearing the appellant shall be
first heard in support of the appeal, then shall be heard against it and the appellant shall be
entitled to reply. (all parties are present)
- S. 313(2) CPC provides that if the appellant does not appear to support his appeal, the
Court may consider his appeal and may make such order as it thinks fit. This is provided
that the Court may refuse to consider the appeal or to make any such order in the case of
an appellant who is out of the jurisdiction or who does not appear personally before the
Court in pursuance of a condition upon which he was admitted to bail, except on such
terms as it thinks fit to impose. (appellant is absent)
- In Rahim bin Usoff v PP [1985] 1 MLJ 241, in this case the court refused to consider the
appeal as the appellant has been absent for three times after two postponements.
- In Hardial Singh v Faridah bt Haron [1988] 2 MLJ 465, it was held that the court can
always exercise its inherent jurisdiction to reinstate an appeal, provided that the appellant
must give good reasons in justifying itself for the court to do so.
- In Munawar Ahmad Anees v PP [2009] 2 MLJ 1, I this case the appellant pleaded
guilty in the Sessions Court on the offence charged against him. On appeal to the High
Court, he has failed to be present during the hearing. As such, the court dismissed the
appeal under s. 313(2). On appeal to the Federal Court, the decision of High Court in
 dismissing the appeal was affirmed and it was further held that to allow the hearing of
appeal in this case will render the abuse of court process.
- S. 314(1) CPC provides that if during hearing of appeal, the respondent is absent and the
Court is not satisfied that the notice of appeal was duly served upon him, then the Court
shall not make any order in the matter of the appeal adverse to or to the prejudice of the
respondent. Instead, the Court shall adjourn the hearing of the appeal to a future day for
his appearance, and shall issue the requisite notice to him for service through the
Registrar. (respondent is absent)
- S. 314 (2) CPC provides that if the service of last mentioned notice could not be served
on the respondent, then the Court shall proceed to hear the appeal in his absence.
- In PP v Goh Thor Kiah [1952] MLJ 91**, court was of the view that s.314(2) had
violate the judicial principle of audi alterem partem (the right to be heard) and that this
section only applies when the absent respondent is the prosecution and not the accused
person.
- In PP v Foo Kim Lai [2009] 1 MLJ 211**, in this case, notice of appeal could not be
served to the respondent as he could not be located. The DPP then left it to the court’s
discretion whether to proceed with the appeal pursuant to s. 314(2) CPC. It was explained
that s. 314 CPC provides 2 options, where first, in the event respondent is not present and
the court is not satisfied that the notice of appeal was duly served on the respondent, the
court shall not make any order unfavourable to the respondent. Second, in the event the
service of notice of appeal cannot be affected on the respondent, the court will then
proceed to hear the appeal in the absence of respondent. In this case, the High Court
decides to proceed with the appeal notwithstanding the absence of the respondent. The
court views that to postpone it further to a later date would only give rise to backlog of
cases.
- S. 317(1) CPC provides that in an appeal before a judge, if he thinks necessary for
admission of additional evidence, he may either take such evidence himself or direct it to
be taken by a Magistrate.
- S. 317(2) CPC provides that in the event that additional evidence is taken by a
Magistrate, he shall certify such evidence to the High Court where the later shall then
proceed to dispose the appeal as soon as possible.
- S. 317(3) CPC provides that the accused or his representative counsel shall be present
when the additional evidence is taken, unless the judge orders otherwise.
- S. 317(4) CPC provides that the taking of evidence under this section shall, for the
purposes of Chapter XXV, be deemed to be an inquiry.
- In Rapidin bin Kamal v PP [2006] 1 MLJ 138, it was held that the power to admit
additional evidence under s. 317 is discretionary power of the court which needs to be
exercised sparingly.
- In Ladd v Marshall [1954] 3 All ER 345, English Court of Appeal laid down few
principles and/or conditions that must be fulfilled for the reception of fresh evidence:-
o It must be shown that the evidence could not have been obtained with reasonable
diligence for use during trial
o Such evidence if given, will probably have an important influence on the result of the
case although it need not be decisive
o Such evidence on the surface, must be seem credible, although need not be
incontrovertible
- In Mohamed bin Jamal v PP [1964] MLJ 254 **, Federal Court laid down few
conditions for fresh evidence to be admitted at the hearing of an appeal:
o The evidence that is sought to call must be evidence which was not available at
the trial; (eg. witness missing/not found)
o It must be evidence relevant to the issues;
o It must be credible evidence
o Such that there is good chance of creating reasonable doubt in lower court.
- In Dol bin Lasim v PP [1987] 1 MLJ 116,** in this case the prosecution appealed
against the order of acquittal by the Sessions Court before High Court which allowed
additional evidence to be admitted by calling for a demonstration by a chemist who was
not sworn nor allowed to be cross-examined. Appellant then appeal before the Supreme
Court where the apex court disagreed with the manner of admittance of fresh evidence by
the learned High Court judge. It was further held that a judge cannot simply call for
additional evidence merely for the purpose to satisfy his curiosity or doubt or to
supplement a gap in the prosecution.
6. Decision on appeal
- S. 316 CPC provides that upon hearing of the appeal, if the judge considers that if there
is no sufficient ground for interfering, dismiss the appeal, or may
 (a) in an appeal from an order of acquittal, reverse the order and direct that further inquiry
be made, or that the accused be re-tried as the case may be, or find him guilty and pass
sentence on him according to law;
(b) in an appeal from a conviction or in an appeal as to sentence
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to
be re-tried; or
(ii) alter the finding, maintaining the sentence, or with or without altering the finding
reduce or enhance the sentence or alter the nature of the sentence;
(c) in an appeal from any other order, alter or reverse such order
- In Tan Chow Soo v Ratna Ammal [1969] 2 MLJ 49, it was held that usually as a general
rule the appellate court will not interfere with the findings of the trial court unless there
was an issue as to the credibility of witness.
- In PP v Abang Abdul Rahman [1982] 1 MLJ 346, in cases where the trial judge has
make his findings based on his own inference, the appellate court will have to step in and
interfere. Decisions made must be based on the fact and legal basis and not inference.
- In Hasibullah bin Mohd Ghazali v PP [1993] 3 MLJ 321, it was held that when the
finding of fact by the trial court has failed to consider the voluntariness of witness’s
confession, then the appellate court has no choice but to step in and interfere.
7. Judgment and other matters
- S. 318 CPC provides that at the end of hearing, court will deliver its judgment in an open
court at once or on some future day. As such the parties to involved shall be notified as to
such. (s. 62 CJA 1964 provides the same)
- S. 319(1) CPC provides that in an appeal case decided by the judge, he shall certify his
judgment and his findings on whether the appeal was dismissed or allowed in a
certificate.
- S. 319(2) CPC provides that if the appeal in (1) is allowed, the certificate shall state the
grounds the grounds on which the appeal was allowed or that the decision of Magistrate
court has been varied.
- S. 320 CPC provides that an appeal under s. 306 shall finally abate on the death of the
accused, and every other appeal under this Chapter (except an appeal against a sentence
of fine) shall finally abate on the death of the appellant.
- In Choo Cheng Liew (Representative of the Estate of Sunny Yap, deceased) v PP
[1997] 1 MLJ 345, the accused herein was in the state of pending appeal against the
conviction of corruption against him. His appeal was against both conviction and
 sentence against him of one day imprisonment, fine of RM 4000 and penalty order of RM
500 to the government. Federal Court held that as there is an appeal against sentence
comprising fine, no abatement is applicable here. As such the hearing of appeal was
ordered to be held in High Court.
- S. 322(1) CPC provides that a judge has the discretion to award costs in appeals to be
paid by the accused to the complainant or vice versa but there shall not be any costs
awarded in any proceedings against the order of acquittal.
- S. 322(3) CPC provides that no cost is to be awarded in favour or against the Public
Prosecutor.

Revision

- It must be noted that only the High Court is given the power to exercise revisionary
jurisdiction.
- S. 31 CJA 1964 provides that High Court may exercise its revisionary power in criminal
proceedings as well as matters in the lower courts in accordance to the law in force in
relation to criminal procedure.
- S. 323(1) CPC provides that a judge has the power to call for and examine records of
proceedings before any subordinate criminal courts for the purpose of its satisfaction as
to the correctness, legality or propriety of any finding, sentence or order recorded or
passed, and as to the regularity of any proceedings of that subordinate Court.
- In R v Abu Kassim bin Babu (1940) MLJ 243 *, High Court’s power to call for
examination of records of proceedings may be done upon receiving any applications
from any one, including a third party with no locus standi on the matter as well as
based on its own motion.
- In Re Soo Leot (1956) MLJ 54, it was held that the power conferred to a High Court
judge to call for and examine records of proceedings is one that is exercisable absolutely
at its own discretion.
- In Liaw Kwai Wah & Anor v PP [1987] 2 MLJ 69, it was explained that the High Court
is conferred revisionary power is to confer it a ‘parental duty’, where it can exercise its
paternal or supervisory jurisdiction in order to correct or prevent a miscarriage of justice
over the act of the subordinate courts.
- In Kulasingam v PP[1974] 2 MLJ 26, it was held that the purpose of revision is to confer
a parental duty on the High Court to ensure that miscarriage of justice does occur.
- In Chin Chee Wei & Anor v PP [2020] MLJU 402 *, here the two accused were
charged before Magistrate Court for violating the Movement Control Order Rules jointly
for moving from one place to another without valid purpose provided under the law.
Muniandy Kanyappan JC had exercised its judicial discretion under s. 323 CPC to call for
a revision on sentence passed by the trial Magistrate upon His Lordship’s own motion as
this case had caught his attention through the media.
- S. 325(1) CPC * provides that a Judge may in any case the record of the proceedings of
which has been called for by himself or which otherwise comes to his knowledge, in his
discretion, exercise any of the powers conferred by ss. 311(stay of execution), 315 (arrest
of respondent in certain cases), 316 (decision on appeal) and 317 (order to take further
evidence) of this Code
- S. 327(1) CPC provides that when a case is being revised by a Judge, he shall certify his
decision or order to the lower court as to his findings as well as variations of sentence of
order (if there are any) together with the grounds of variations.
- In Hari Ram Seghal v PP [1981] 1 MLJ 165, court explained that the purpose of having
revision is to correct or prevent miscarriages of justice from error in judgement and
procedure and from neglect or indolence by those in authority.
- In Ramanathan Chettiar v Subrahmanya Ayyar, it was held that the purpose of justice is
well served when the High Court to summons for record of lower court which shows no
offence or that the accused is subjected to vexatious and groundless prosecution.
- In Tan Sri Eric Chia Eng Hock v PP [2007] 1 CLJ 565**, it was explained that a
revision is not a right but merely a procedural facility afforded to a party, while an
appeal is a statutory right conferred on a party. It cannot be said that a proceeding in
revision is a continuation of the original suit, appeal or trial.

Power to Interfere with Finding of Fact during Revision

- In Baljit Singh Sidhu’s Criminal litigation Process: The revisional interference is

justified when the circumstances are as listed below (not exhaustive list)
o The decision is grossly erroneous;
o There is non-compliance with the provisions of the law
o The finding of fact affecting the decision is not based on evidence
o Material evidence of the parties is not considered; and
o Judicial discretion is exercised arbitrarily or perversely
- In Re Pang Poh Pah [1985] 2 MLJ 214, it was held that High Court will interfere
through the exercise of its revisionary powers in a sparring manner when there is gross
injustice.
- In PP v Roslan bin Imun [1999] 3 MLJ 659, it was held that revisionary power is to be
exercised sparingly where the High Court shall only interfere when there appears to be
existence of miscarriage of justice or a sentence without proper reasoning.
- In Wong Chun Khuen v PP [2020] MLJU 2368 **, it was held that injustice is the
basis that justifies the interference of High Court in exercising its revisionary powers. But
to determine what amounts the occurrence of injustice, two questions arises. Firstly,
whether substantial justice has been done or will be done and secondly, whether any order
made by the lower Court should be interfered with in the interest of justice.

Procedure in seeking Revision

- The normal procedure is that the subordinate court informs the High Court of any doubt
in the decision, or either party may apply to the High Court, or in an Appeal, the High
Court judge may itself invoke the revisionary powers.
- In Re A Juvenile [1990] 3 MLJ 117, here the High Court was right to have invoked its
revisionary powers upon receiving a letter which was undated and unsigned.
- In PP v Muhari bin Mohd Jani [1996] 3 MLJ 116 *, the court gave example of few
ways to seek for the High Court to exercise its revisionary power. It may be invoked
through newspapers reports of cases, letters by any person, requests by subordinate courts
or formal applications
- In PP v Hing Chen Loong [2000] 6 MLJ 161, in this case, the High Court judge
exercised his revisionary powers even though there was n o application made by
prosecution or the accused. His Lordship invoked such power to satisfy itself as on the
correctness, legality and appropriateness of the sentence passed.
- In PP v Kamal Hisham bin Jaafar [2015] MLJU 1209, it was held that the power of
High Court to exercise its revisionary jurisdiction is actually wider than the scope in its
power on appeal. The Court in the instant case has acted on its own motion to call and
examine the record of proceedings before the Sessions Court in granting bail to the
 respondent. Both parties in the proceedings agree that the powers of the High Court in
revision are exercisable at the discretion of the Court.

Matters Not Arising from the Record of Proceeding

- In Hari Ram Seghal v PP [1981] 1 MLJ 165 **, here the accused wishes to appeal
against his conviction. But there were no notes of evidence and grounds of decision
delivered. As such, he sought the revisionary powers of the High Court which later
invoked its revisionary powers and quashed the conviction. On appeal by the
prosecution, the Federal Court held that when the record of the proceedings were not
available, the High Court could not exercise its revisionary power to acquit and discharge
an accused without ordering a retrial.
- In Jaafar bin Abu v PP [1988] 2 MLJ 363, it was held that when the record of
proceedings (only notes of evidence without grounds of decision) is before the appellate
court, it may choose to exercise its powers of revision.

For Matters Appealable

- In Mohd Dalhar bin Redzwan v Datuk Bandar DBKL [1995] 1 MLJ 645 **, court
explained that if the decision of the subordinate court can be appealed but is not being
appealed, then the revisionary powers of the High Court should not be resorted unless
in very exceptional cases and for a very good reasons.
- In Mohammad, bin Hassan v PP [1998] 5 MLJ 65 **, it was held that the wordings of s.
305 CPC shows that a person who has been convicted upon his own plea of guilt cannot
appeal against the conviction but only on the sentence as to its extent or legality. Once
such appeal has been lodged, the accused appellant is not estopped from contending that
such conviction is illegal and applying for the court for a revision to set aside the
conviction. Hence, a court hearing appeal can also exercise its revisionary powers.

Whether Parties should appear when High Court invoked revisionary powers

- S. 36 CJA 1964 provides that no party has right to appear before High Court provided no
final order shall be made to prejudice of any person unless he has opportunity to be heard.
- S.326 CPC (to be read with s.325 (2)) provides that no party has right to appear before
High Court unless allowed so. (to be read with s. 325(2) CPC)
- S.325(2) CPC provides that any order made must not prejudice against accused unless
accused is given opportunity to be heard either by himself or via his counsel.
- In Roslan bin Haji Yahya v PP [1985] 2 MLJ 218, here the High Court applied s. 326
when invoking its revisionary powers and allowed the accused and DPP to appear and
address the court.
- In PP v Mohamed Tarmizi [1985] 1 MLJ 219, here the High Court invoked its
revisionary powers to discharge and acquit the accused but the prosecution was not given
an opportunity to be heard. On appeal, Federal Court held that “any person” in S.36 CJA
would include the prosecution. Thus, the learned judge was wrong in not allowing the
prosecution to be heard.
In Mukhtar bin Abdul Rahman v Public Prosecutor [2009] 2 MLJ 13, here there was an
application for revision made by the accused as to dismissal of refusal application. The
court herein under s. 326 CPC gave permission to the defence and the prosecution to
address the court on this matter.