Fong Kong Meng v Public Prosecutor (05(RJ)-4-11/2018(B))

TEOH CHING YEN ...APPLICANTS AND PUBLIC PROSECUTOR ...RESPONDENT CORAM DAVID WONG DAK WAH, CJSS ALIZATUL KHAIR BINTI OSMAN KHAIRUDDIN, FCJ MOHD ZAWAWI BIN SALLEH, FCJ ABANG ISKANDAR BIN ABANG HASHIM, FCJ NALLINI PATHMANATHAN, FCJ JUDGMENT OF THE COURT

The Applicants made this application under rule 137 of the Rules of the Federal Court 1995 ("Rule 137") to review and set aside the conviction and sentence under section 304 (a) of the Penal Code ("Code") handed down by an earlier panel of the Federal Court on 4th April 2018 ("Earlier Panel"). Alternatively, the Applicants are seeking for the case to be reheard before the Federal Court.

The Applicants' premise is that the Earlier Panel had caused a miscarriage of justice when they set aside the conviction and sentence under section 302 of the Code and substituted it with a conviction and sentence under section 304(a) of the Code instead of under section 304(b) of the same.

We heard the appeal on 16 May 2019 and reserved judgment. We have carefully reconsidered submissions of respective counsel and we now deliver our decision and grounds.

The salient facts are these. The Applicants were jointly charged for murder under section 302 of the Code before the High Court at Shah Alam for the murder of their maid through long period of abuse, neglect and starvation. They were both convicted and sentenced to death by the High Court.

The Applicants subsequently appealed to the Court of Appeal against the conviction which was heard and dismissed by the Court of Appeal. The Court of Appeal maintained both the conviction for murder and the death sentence.

Aggrieved by the Court of Appeal's decision, the Applicants appealed to the Federal Court. On 4th April 2018 the Earlier Panel set aside the conviction under section 302 of the Code and substituted it with a conviction under section 304 (a) of the Code. The Applicants were then sentenced to twenty years (20) imprisonment.

This takes us to the present Notice of Motion (the Application) for the review of the said decision made by the Earlier Panel that was heard by us on $ 1 6^{th} $ May 2019.

The contention as we understand it is this. The Applicants were charged under section 302 of the Code read together with section 34 of the same. In proving its case, the prosecution had relied on section 300(d) which reads as follows: "Except in the cases hereinafter excepted, culpable homicide is murder:

if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid."

That reliance was made clear in the opening statement of the prosecution and the learned High Court Judge had also treated the case in similar manner as can be seen in the following paragraph: "To rely on section 300(d) of the Penal Code, it is incumbent upon the prosecution to prove the following elements- 1) The victim ie Isti Komariyah had died (element 1). 2) The death of Isti Komariyah is the result of the actions of Accused 1 and 2 in not-

providing food to the deceased; and

providing medical treatment to the deceased. (element 2); and 3) The actions were done without excuse (element 3)."

In regard to element 3, the learned Judge said this: "From the injuries suffered by the deceased and also her physic from 49 kilogram to 25 kilogram and the fact that no medical attention was given which should have been done by a reasonable person especially the two Accused, Accused 1 as an employer and Accused 2 as the wife of an employer can be summed up as having the intention to just let whatever happened. The photographs P5 (5-14) show the deceased had external injuries which the Autopsy Report stated as totalling 39. The Report further stated that multiple blunt impacts is one of the causes of the death. The external injuries in the deceased is consistent with being beaten and SP13, the son of both Accused stated in evidence that "sometimes they beat her with a balloon stick, I see my mum was beaten her with the yellow balloon stick." If both the Accused had acted as reasonable employer and wife of an employer, with all the marks of the body they should have provided her medical attention."

The analysis of the facts by the learned High Court Judge was accepted by the Court of Appeal.

The Earlier Panel, however, took a different view of the factual matrix and found that a case under section 300 (d) of the Code had not been made out against the Applicants. However, the Earlier Panel found the Applicants guilty of culpable homicide and sentenced both of them under section 304 (a) of the code. This lies, as submitted by learned counsel, the crucial and fatal mistake committed by the Earlier Panel which had caused an injustice to the Applicants.

The mistake was this. When the Earlier Panel found that section 300(d) was not proved, the Applicants cannot be found guilty of culpable homicide under section 304(a) which speaks of intention and not "knowledge" as required in section 300(d). The correct provision under which the Applicants should be found guilty of was simply section 304 (b) which also speaks of "knowledge" as is provided for in section 300 (d). And since the whole foundation of the prosecution's case and the rationale of both the High Court and Court of Appeal were premised on "knowledge" pursuant to section 300(d), the Earlier Panel in reducing the charge against the Applicants can only consider a substitution of conviction and sentence under section 304(b) and not section 304(a).

Learned counsel referred us to this Court's decision in the appeal of Soh Chew Thong & Anor v. Pendakwa Raya (grounds not available) in which the facts, according to learned counsel, are similar with the present case. In that case, the prosecution had relied on section 300 (d) of the Code as was done here, but when the Federal Court decided to reduce the charge, they substituted the conviction and sentence under section 302 with section 304 (b) of the Code. Premised on that decision, learned counsel submits that the Applicants must be treated equally as required under the law (Article 5 and 8 of the Federal Constitution) and the Applicants' conviction and sentence must therefore be substituted with a conviction and sentence section 304 (b) of the Code.

In view of the above, learned counsel submitted that we should exercise our power of review under Rule 137 to correct this apparent injustice. Reliance is made on the case of Dato' See Teow Chuan & Ors v Ooi Woon Chee & Ors [2013] 4 CLJ 901 where the Federal Court held as follows: [10] Following the above authorities, we are of the considered view that the inherent power of the court to review its decision as declared in r.137 is a necessary power which is inbuilt or intrinsic in the court, as the court of justice. This power may be equated to the powers of the courts to dismiss an action for want of prosecution or to the power of court to strike out any pleading or indorsement of any writ in the action under the Rules of Court 2012. This inherent power is derived from the inherent jurisdiction of the court which is to do justice and to prevent any abuse of process. This power springs not from legislation but from the nature and constitution of the court as a dispenser of justice. And this inherent power can only be taken away by express provision in any written law. [11] The inherent power may be described as the power which is necessary for the proper and complete administration of justice and such power is resident in all courts of superior jurisdiction and essential to their existence. (See P Ramanatha Aiyar, The Law Lexicon, 2nd edn, reprint 2010). The rationale behind this inherent power is to safeguard the integrity of earlier litigation process and the correction of injustice."

Learned counsel also refers to the Indian case of Rupa Ashok Hurra v Ashok Hurra (2002) 4 Supreme Court Cases 388 where the Court said:

The concern of this Court rendering justice in a cause is not less important than the principle of finality of its Judgment. We are faced with competing principles - ensuring certainty and finality of a Judgment of the Court of last resort and dispensing justice on reconsideration of a Judgment on the ground that it is vitiated being in violation of the principle of natural justice or giving scope for apprehension of bias due to a Judge who participated in the decision-making process not disclosing his links with a party to the case, or on account of abuse of the process of the Court. such a Judgment, far from ensuring finality, will always remain under the cloud of uncertainty. Almighty alone is the dispenser of absolute justice - a concept which is not dispute but a few. We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final Judgment to set right miscarriage of justice complained of. In such a case it would only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question, we are persuaded that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of justice as though it is essentially in the public interest that a final Judgment of the final Court in the country should not be open to declining to reconsider the Judgment would be oppressive to judicial conscience and would cause perpetuation of irremediable injustice."

In determining this application, the primary question we ask ourselves is simply this. Has the Earlier Panel's decision in convicting and sentencing the Applicants under section 304(a), after having found that a case under section 300(d) had not been made out, contrary to any law so as to render it an illegal decision requiring the Court to exercise its power of review under Rule 137?

Our starting point of deliberation is to look at the jurisdiction or power of this Court in an appeal. The relevant provision of law is section 86 of the Courts of Judicature Act 1964(CJA) which reads: "Save as this Act provided, in the exercise of its appellate jurisdiction, the Federal Court shall have the same jurisdiction, may exercise the same powers and may make any order as are had and may be exercised or made by the Court of Appeal or by the High Court."

Section 86 of the Court of Judicature is quite clear in that in criminal appeals, we possess the same powers as the High Court and Court of Appeal. What that simply means is that, we are duty bound (as in all criminal appeals) to evaluate the facts in its totality and then make a determination as to whether the conviction is safe. If we find that the conviction is unsafe, we are then duty bound to make a determination whether the evaluated facts justify a conviction under another provision of the Code, to wit, another criminal offence.

Though there are no written grounds by the Earlier Panel, there is little doubt as to what the Earlier Panel did. Upon finding that section 300(d) had not been proved, the Earlier Panel, as intimated by us earlier, then embarked on a process of reevaluation of the facts and made a determination on which relevant provision under the Code were the Applicants guilty of, upon the application of the fresh finding of facts.

It cannot be disputed that in a circumstance where someone had been unlawfully killed, sections 299 and 300 of the Code come into play. And consequently, when a Court finds that a section 300 offence (murder) has not been made out, section 299 (culpable homicide) offences come into play (unless on the facts neither offence has been made out in which case there will be an outright acquitted) for the Court to determine, based on the facts found, under which limb of section 299 do the acts and omissions fall under. Section 299 consists of three limbs: i. With the intention of causing death; ii. With the intention of causing bodily injury as is likely to cause death; or iii. With knowledge that he is likely by such act to cause death.

That was what the Earlier Panel did. They evaluated the evidence again as they are empowered to do so under section 86 of the CJA, in order to find guilt either under limb 1 or 2 or 3 of section 299. If it is an offence under limb 1 or 2, then it would draw punishment under section 304 (a) of the Code. If it is a limb 3 offence, then it would draw punishment under section 304(b) of the Code. For clarity, we reproduce section 304 below: "Punishment for culpable homicide not amounting to murder 304. Whoever commits culpable homicide not amounting to murder shall be punished-

with imprisonment for a term which may extend thirty years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or

with imprisonment for a term which may extend to ten years or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

Not only was the Earlier Panel fully entitled to reevaluate the evidence afresh, it must adopt this approach for the simple reason that the ingredients set out in section 299 and section 300 of the Code vary in degree. One results in culpable homicide while the other is culpable homicide amounting to murder. Different considerations apply to each offence. The Court's mind must then focus on the totality of the evidence to determine which limb in section 299 could the accused be found guilty of. Whatever discussions relating to the ingredients of section 300(d) in the High Court and Court of Appeal are no longer of relevance in the process of determining guilt under section 299 of the Code for culpable homicide. Here, the Earlier Panel eventually found that a section 304(a) conviction is an appropriate sentence.

In our minds, what the Earlier Panel did was perfectly in order and this Court is entitled to do so in all criminal appeals brought before this Court.

Even if one takes the Applicants' contention to their highest, that is, the Earlier Panel had wrongly applied the facts to the law, that does not meet threshold to order a review under Rule 137. The law is clear. When there is a challenge on a decision premised on its merits whether on facts or law or where there is a divergent of opinions arising from application of a set of facts to a provision of law, this Court would not exercise its power of revision. For this Court to exercise its power to review, it can only be done under limited circumstances and they are listed in the recent Judgment of this Court in Kerajaan Malaysia v Semantan Estates (1952) Sdn Bhd [2019] 2 MLJ 609, as per the followings: "[51] To exercise its inherent power under r 137 to review its own decision, the Court must be satisfied that it is a case that falls within the limited grounds and very exceptional circumstances. In Dato' See Teow Chuan & Ors v Ooi Woon Chee & Ors and other applications [2013] 4 MLJ 351; [2013] 4 CLJ 901, Arifin Zakaria CJ adopting the relevant passage in Abdul Hamid CJ's judgment in Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia Bhd) [2008] MLJU 251, said: [15] ... this inherent jurisdiction must be exercised with circumspection in order to prevent any abuse of the same. We could not express this better than by adopting the words of Abdul Hamid CJ in Asean Securities which reads: [4] In an application for a review by this court of its own decision, the court must be satisfied that it is a case that falls within the limited grounds and very exceptional circumstance in which a review may be made. Only if it does, that the court reviews its own earlier judgment. Under no circumstances should the court position itself as if it were hearing an appeal and decide the case as such. In other words, it is not for the court to consider whether this court had earlier, in the same case, interpreted or applied the law correctly or not. That too is a matter of opinion. An occasion that I can think of where this court may review its own judgment in the same case on question of law is where the court had applied a statutory provision that has been repealed. I do not think that review power should be exercised even where the earlier panel had followed certain judgments and not the others or had overlooked the others. Not even where the earlier panel had disagreed with the court's earlier judgments. If a party is dissatisfied with a judgment of this court that does not follow the court's own earlier judgments, the matter may be taken upon another appeal in a similar case. That is what is usually called 'revisiting'. Certainly, it should not be taken up in the same case by way of review. That had been the practice of this court all these years and it should remain so. Otherwise, there will be no end to litigation. A review may lead to another review and a further review. This court has so many times warned against such attempts. (See: Lye Thai Sang & Anor v Faber Merlin (M) Sdn Bhd Ors [1986] 1 MLJ 166; Adorna Properties Sdn Bhd v Kobchai Sosothikul [2006] 1 MLJ 417; Allied Capital Sdn Bhd v Mohd Latiff Bin Shah Mohd & Another Application [2005] 3 MLJ 1, in particular the dissenting judgment of Abdul Hamid Mohamad FCJ; Tai Chai Yu v The Chief Registrar of the Federal Court [1998] 2 MLJ 474; Chan Yock Cher v Chan Teong Peng [2005] 1 MLJ 101; [2005] 4 CLJ 29; and Chu Tak Fai v Public Prosecutor [2007] 1 MLJ 201.) [5] Coming back to r 137 of the RFC 1995, I have dealt at length on the effect of the rule in Abdul bin Ghaffar Md Amin v Ibrahim Yusoff & Anor [2008] 3 MLJ 771 and in Sia Cheng Soon & Anor v Tengku Ismail bin Tengku Ibrahim [2008] 3 MLJ 753. In the former case I concluded: In other words, rule 137 cannot be construed as to confer any new jurisdiction to the existing jurisdiction of the Federal Court as spelt out under the Federal Constitution, the Courts of Judicature Act and other statutes. [6] However, I accept that, in very limited and exceptional cases, this court does have the inherent jurisdiction to review its own decision. I must stress again that this jurisdiction is very limited in its scope and must not be abused ... In short, in no circumstances whatsoever, this jurisdiction should be used as an avenue of further appeal. (Emphasis added.) [52] In Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd [2008] MLJU 1090, Zaki Tun Azmi PCA (later CJ) said: [39] There is no doubt that this court has that authority to allow this application. Whether it does so, depends on the circumstances of each case. This court has on many previous occasions decided that it has the right to order a review of its own decision to prevent injustice or an abuse of the process of the court. It has that very wide discretion. However, that wide discretion will not be used liberally but only sparingly, in exceptional cases and on a case to case basis where a significant injustice had probably occurred and there was no alternative effective remedy. The court must exercise strong control over such application. It must be satisfied that it is within exceptional category. Rule 137 cannot be construed as conferring unlimited power to review its earlier decision for whatever purpose. The court must not be too eager to invoke the rule. [40] Some of the circumstances in which this discretion should be exercised or not, are as follows:

that there was a lack of quorum e.g. the court was not duly constituted as two of the three presiding judges had retired (Chia Yan Tek & Anor v Ng Swee Kiat & Anor [2001] 4 MLJ 1);

the applicant had been denied the right to have his appeal heard on merits by the appellate court (Megat Najmuddin bin Dato Seri (Dr) Megat Khas v Bank Bumiputra (M) Bhd [2002] 1 MLJ 385);

where the decision had been obtained by fraud or suppression of material evidence (MGG Pillai v Tan Sri Dato' Vincent Tan Chee Yioun [2002] 2 MLJ 673);

where the court making the decision was not properly constituted, was illegal or was lacking jurisdiction, but the lack of jurisdiction is not confined to the standing of the quorum that rendered the impugned decision (Allied Capital Sdn Bhd v Mohd Latiff bin Shah Mohd and another application [2005] 3 MLJ 1);

clear infringement of the law (Adorna Properties Sdn Bhd v

it does not apply where the findings of this court is questioned, whether in law or on the facts (since these are matters of opinion which this court may disagree with its earlier panel) (Chan Yock Cher @ Chan Yock Kher v Chan Teong Peng [2005] 1 MLJ 101);

where an applicant under r 137 has not been heard by this court and yet through no fault of his, an order was inadvertently made as if he had been heard (Raja Prithwi Chand v Sukhraj Rai [AIR] 1941);

where bias had been established (Taylor & Anor v Lawrence & Anor [2002] 2 All ER 353);

where it is demonstrated that the integrity of its earlier decision had been critically undermined eg where the process had been corrupted and a wrong result might have been arrived at (Re Uddin [2005] 3 All ER 550);

where the Federal Court allows an appeal which should have been consequentially dismissed because it accepted the concurrent findings of the High Court and Court of Appeal (Joceline Tan Poh Choo & Ors v V Muthusamy [2007] 6 MLJ 485).”

The case of Soh Chew Thong & Anor v PP (supra) was relied on heavily by the learned counsel for the Applicants. We do not have the benefit of the grounds but it must be remembered that every decision of the Courts depends substantially on the peculiarity of each case as the facts would invariably be different and subject to different inferences leading to different opinions of the Courts. Even if the facts are the same, this Court is entitled to make a fresh finding of fact in a guilt finding process. Further, this Court is not bound by its own earlier decision especially when the appeal relates to finding of facts.

The Applicants had been sentenced to 20 years imprisonment instead of a death sentence. Taking into consideration of the cruel treatment by one human being to another which eventually led to an untimely and tragic death of the latter, any reasonable tribunal would find the aforesaid imposed sentence to be appropriate as it reflected squarely on the seriousness of the offence. Both Applicants had the benefit of three Court hearings and legal representations hence one cannot say in fairness that there has been a miscarriage of justice.

In sum, there was no error on the part of the Earlier Panel. Rather, the error lies on the part of the Applicants who saw the nexus as between section 304 Code and section 300 Code, when in fact, the true nexus only exists between section 304 Code and section 299 Code. The language employed by the drafters in section 299 Code cannot be clearer in terms of stipulating which offence it has been legislated to provide punishments for. To our minds, as alluded to in the preceding paragraphs above, section 304 Code has nothing to do with section 300 Code. It has everything to do with section 299 Code.

Accordingly, we dismiss the motion to review by the Applicants. Dated: 20 June 2019 (DAVID WONG DAK WAH) Chief Judge of Sabah & Sarawak For the Applicants: Gopal Sri Ram, Hisyam Teh Poh Teik & Guok Ngek Seong For the Respondent: Roslan Mat Nor & Tetralina binti Ahmad Fauzi Notice: This copy of the Court's Reasons for Judgment is subject to formal revision.