ABU BAKAR BIN JA'AFAR v Pendakwa Raya (JA-44-57-10/2024)

A Magistrate holding an inquiry under this Chapter shall have all the powers which he would have in holding an inquiry into an offence.

A Magistrate holding an inquiry under this Chapter if he considers it expedient that the body of the deceased person would be examined by a Medical Officer in order to discover the cause of death may, whether a post-mortem examination has been made under section 311 or not, issue his order to a Medical Officer to make a post-mortem examination of the body, and may for that purpose order the body to be exhumed.” S/N qiTPwIF8bUm0W7lcupsryg [22]

In addition to the powers conferred on the High Court by this or any other written law, the High Court shall have general supervisory and revisionary over all subordinate courts, and may in particular, but without prejudice to the generality of the foregoing provision, if it appears desirable in the interests of justice, either of its own motion or at the instance of any party or person interested, at any stage in any matter or proceeding, whether civil or criminal, in any subordinate court, call for the record thereof, and may remove the same into the High Court or may give to the subordinate court such directions as to further conduct of the same as justice may require. S/N qiTPwIF8bUm0W7lcupsryg

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.” [25] In short, this power excluding proceeding and matters that has not begins yet. The phrase 'at any stage in any matter or proceeding, whether civil or criminal, in any subordinate court' clearly referring to an ongoing proceeding that has taken place at any stage in the subordinate Court. Because of that, it is the opinion of this Court that this supervisory and revisionary power confers under the section is limited to that proceedings and matters that has been initiated, not otherwise. [26] Coming back to the matter in this Court, upon perusal of the party’s submissions, this Court found that there is no record of an ongoing matter or proceeding in relation with the case took place in any of the subordinate Courts. Therefore, the Applicant's application is indeed without merit and does not falls within the frame of s. 35(1) of CJA, specifically. [27] Now, as a backup when s. 35 of CJA fails, Counsel for the Applicant try to influence the Court to exhaust it power under the purview of inherent jurisdiction. Here lies the nagging question of, “does the High Court have 'inherent jurisdiction' in enforcing 'supervisory and revisionary' powers over the subordinate Court?” Referring to Anuar bin Ghazali v Public Prosecutor [2021] 9 MLJ 409 (HC), discussed elaborately ‘inherent jurisdiction’ – S/N qiTPwIF8bUm0W7lcupsryg [39] The Supreme Court in Karpal Singh & Anor v Public Prosecutor [1991] 2 MLJ 544; [1991] 1 CLJ Rep 183 had opined that the High Court is vested with the inherent power to strike out proceedings that are an abuse of process. The then Supreme Court through the judgment of Abdul Hamid Omar LP (as he then was) at p 549 (MLJ); p 192 (CLJ) of the report had stated in the following terms: Our considered opinion is that the English doctrine of inherent jurisdiction is hardly applicable in subordinate courts but the High Court may invoke such prerogative powers in rare instances where it is right to do justice to the accused … In matters like criminal law of a purely domestic nature, our view is that the court will only exercise inherent powers where there is miscarriage of justice. The courts must be careful that the decision is not in conflict with the intention of the Legislature as indicated in statutory powers … (Emphasis added.) …. [26] Although we accept the forgoing principles stated above as the correct statement of the law, we must caution ourselves that the inherent powers of the court must be exercised in exceptional circumstances to prevent undue oppression and abuse of the process of the court. It should also be noted that the inherent jurisdiction of the court springs not from legislation but from the nature and constitution of the court as a dispenser of justice! (see: Dato’ See Teow Chuan & Ors v Ooi Woon Chee & Ors And Another Appeal [2013] 4 MLJ 35; [2013] 4 CLJ 901). As such we may hasten to add that the inherent jurisdiction of the court is therefore not as wide as it seems to be. Much depends on the facts and circumstances and clearly the court cannot exercise its inherent jurisdiction in respect of any matter covered by specific provisions of the law or if its exercise would infringe any specific provisions of the law... … S/N qiTPwIF8bUm0W7lcupsryg [43] Bearing in mind that the inherent power/jurisdiction of the courts is not as wide as it seems to be, as stated by the Federal Court in Ahmad Zubair @ Ahmad Zubir bin Hj Murshid v Public Prosecutor and that it is to be used sparingly, as stated by the Indian Supreme Court in Arun Shankar Shukla v State of Uttar Pradesh & Ors as well as the unfettered discretion of the Attorney General in preferring charges in criminal proceedings, this court will now consider whether there is failure on the part of the respondent to comply with s 154 of the CPC warranting the court to exercise its inherent jurisdiction to strike out or stay in limine the trial against the applicant in the magistrate court. [28] In light of above, with great power comes great responsibility. Affirmed by the above case, this inherent jurisdiction of the High Court does contain vast power, but of limits application. Because of it, the Court has to be vigilant on how to use this power. This Court opined that the 'supervisory and revisionary' power over the subordinate Courts stated in section 35 of CJA, is subjected to that provisions of s. 25 of the same Act. Looking back at the posed question earlier, to answer it, this Court has to invite both parties to digest the provision of s. 25 of CJA themselves : “ 25. Power of the High Court

Without prejudice to the generality of Article 121 of the Constitution, the High Court shall in the exercise of its jurisdiction have all the powers which were vested in it immediately prior to Malaysia Day and such other powers as may be vested in it by any written law in force within its local jurisdiction.

Without prejudice to the generality of subsection (1), the High Court shall have the additional powers set out in the Schedule: S/N qiTPwIF8bUm0W7lcupsryg Provided that all such powers shall be exercised in accordance with any written law or rules of court relating to the same.” [29] Adding to it, let’s also looks at the additional powers mentioned in the section as listed under the Schedule are as follows: “SCHEDULE [Subsection 25(2)] ADDITIONAL POWERS OF HIGH COURT

Prerogative writs Power to issue to any person or authority directions, orders or writs, including writs of the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any others, for the enforcement of the rights conferred by Part II of the Constitution, or any of them, or for any purpose. …………” [30] The Schedule has laid down what are additional powers of High Court as an enabler in exercising its inherent jurisdiction while carrying out 'supervisory and revisionary' action over subordinate Courts. But, none of it comes near to what the Applicant intents. [31] This Court views that the most suitable application should the Applicant takes under Paragraph 1 of the schedule is for him to file a ‘writ of mandamus’ against the relevant authorities. The writ, serve as an order from the Court would speed up or open an investigation towards the death of his son based on the autopsy report alone. This Court has a chance to glimpse and read the S/N qiTPwIF8bUm0W7lcupsryg findings of forensic medical experts. The report clearly states that there are suspicious signs on the body of the deceased indicating involvement of a third party. [32] Further, this Court also find that this application is inaccurate and misdirected. This additional power too are not without a hitch or stand alone. Referring to the decision of Tan Sri Eric Chia Hock v Public Prosecutor (No.1), [2007] 2 MLJ 101 (FC) (per Richard Malanjum CJ (Sabah & Sarawak), on page 113 is as follows: “Even if the foregoing approach is deemed too simplistic a view to take, it still does not justify equating wholly the revisionary power of the High Court to its supervisory power as ordinarily understood. To do so would be ignoring the stark differences in the two judicial functions of the High Court. No doubt the end result of each may be quite similar in that both are intended to correct or rectify any error commited by an inferior tribunal, an adjudicating body or a subordinate court. But similarity ends there. Although s 35 of the CJA refers to supervisory jurisdiction of the High Court together with its revisionary jurisdiction, the exercise of supervisory power is generally in relation to the additional powers of the High Court given under s 25 of the CJA to issue what is commonly known as the prerogative writs such as certiorari, mandamus and prohibition. It entails the commencement of a proceeding in the High Court itself unlike an exercise of revisionary power where it is preceded with an exsisting proceeding in the subordinate court. This matter under consideration is a good illustration. There is therefore merit of the contention by the learned deputy when he highlighted the fact that the High Court judge was only exercising his revisionary power on an interlocutory issue in relation to a case which is still pending in the sessions court.” S/N qiTPwIF8bUm0W7lcupsryg [33] For that reason, the Court could not and shall not apply its inherent jurisdiction / power to satisfy the Applicant’s application. Therefore, the Counsel’s sweet words of persuasion in his submission should fail. PROVISIONS IN CRIMINAL PROSEDURE CODE (CPC) Power of Public Prosecutor – provided under s. 339 CPC [34] For clearer understanding, let’s look at the content of s. 339 of CPC: “339. Power of Public Prosecutor to require inquiry to be held

The Public Prosecutor may at any time direct a Magistrate to hold an inquiry under this Chapter into the cause of, and the circumstances connected with, any death such as is referred to in sections 329 and 334, and the Magistrate to whom such direction is given shall then proceed to hold an inquiry and shall record his finding as to cause of death and also as to any of the circumstances connected with it with regard to which the Public Prosecutor may have directed him to make inquiry.” [35] Rooting its power from s. 339 of CPC, a Public Prosecutor has the authority to direct the Magistrate to conduct an inquiry towards the death of a person. Upon direction, the Magistrate shall carry out an inquiry and record the findings of the same. This is the prerogative of a Public Prosecutor. [36] However, bear in mind that this section ceased to work against the matter where the death took place while in the custody of the Police or other authorities, namely the lock-up or the prison. In the event where there is death of a prisoner in lock-up or prison, the case S/N qiTPwIF8bUm0W7lcupsryg must be referred immediately to the nearest Magistrate. The Magistrate then shall carry out an inquiry into the death of the person. As affirmed by the Counsel in his submission in the case of Ganga Gowri A/P Raja Sundaram in Tab 12 and Muniamah A/P Raman in Tab 15, the Applicant's Bundle of Authority. [37] The relevant provision referred to should be that of s. 334 of CPC as follows: “334. Induiry into cause of death of a person in custody of Police or in any asylum. When any person dies while in the custody of the police or in a psychiatric hospital or prison, the officer who had the custody of that person or was in charge of that psychiatric hospital or prison, as the case may be, shall immediately give intimation of such death to the nearest Majistrate, and the Majistrate or some other Majistrate shall, in the case of a death in the custody of the police, and in other cases may, if he thinks expedient, hold an inquiry into the cause of death.” [38] Apart from that, s. 335, s. 336, s. 337 and s. 338 of CPC, only comes into application once Public Prosecutor has issued a direction leading the Magistrate to hold an inquiry against the death regardless the cause. Again, this shows that, the proceeding has to be initiated by the Public Prosecutor. [39] Yet, the Counsel for the Applicant has different takes on the matter. To support his conviction, he has submitted to the Court several authorities where his application of the same nature has been admitted and rendered valid. The Court has read all submitted authorities and came to one conclusion, in all of the cited authorities, the proceedings have already been initiated in the S/N qiTPwIF8bUm0W7lcupsryg lower Courts, and without much deliberations, the Counsel’s application was allowed in the High Court without any objection raised by the Deputy Public Prosecutor. [40] Now, comparing the cited authorities and the application in this Court today, there are glaring anomaly. As pointed out earlier there is no an ongoing proceeding of this case in any of the lower Courts, as opposed to the cited authorities. Therefore, this Court of the opinion that authorities cited are little or of no value to be considered in this case. Besides, this Court also found that these authorities are of High Court of the same standing as this Court. Hence, it is as a matter of discretions whether to follow or abandon it as it does not bind this Court. [41] Additionally, the authorities cited by the Counsel were nowhere reported in any of the law journals and the facts of the case were informed by the Counsel himself for he is the Counsel in charge of all applications. This Court would like to invite both parties to peruse one of decided case by Federal Court Tetuan Wan Shahrizal, Hari & Co v Public Prosecutor [2023] 4 MLJ 1 : [11] With due respect to the learned judge, none of the grounds constitute valid reasons for allowing the claim. The Court of Appeal was absolutely correct in reversing the decision. First of all, the learned judge was wrong in holding in para 37 that he was bound by stare decisis to follow the decision of the Court of Appeal in Md Sukri bin Shahudin lain-lain lwn Pendakwa Raya Criminal Appeal No W-09–432–11 of 2016 (unreported) (‘Md Sukri’), which allowed the claims by several law firms, among them the law firms of Messrs Isharidah Chong & Menon, Messrs Stanley Agustine & Co and Messrs Haresh Mahadevan & Co for their legal fees to be paid from the seized properties. As confirmed by the S/N qiTPwIF8bUm0W7lcupsryg learned judge himself, no written grounds were delivered by the Court of Appeal in that case. [12] Without the benefit of the written grounds, there was no way that the learned judge could have known of the actual reason or reasons why the Court of Appeal decided the way it did in that case. In any case, it was wrong for him to have engaged in guesswork on the basis for the unwritten decision, which undoubtedly had weighed heavily in his mind in deciding whether or not to allow the appellant’s claim. [13] What binds the lower courts under the stare decisis doctrine is the ratio decidendi of the case and not mere similarity in the facts or in the law, or in the arguments of counsel, nor the obiter dicta of the case. [14] A lower court relying on an earlier unwritten decision of an appellate court must not assume that by affirming the decision of the lower court, the appellate court must have affirmed every finding of fact and law that the lower court had decided in favour of the winning party. Experience will tell that it is not uncommon for an appellate court to affirm or reverse the decisions of the lower courts on grounds other than those relied on by the lower courts. [15] Nor must the court, in the absence of the written grounds, accept the argument that the appellate court in the earlier case decided the way it did because it accepted counsel’s argument, even where the earlier case involved the same counsel. Such acceptance of counsel’s argument must be reflected in the written grounds of judgment. The role of counsel is to assist and the court to decide. [16] Ratio decidendi is Latin for ‘the rationale for the decision’. The term refers to a key judicial point or chain of reasoning in a case that drives the final judgment. It is ‘the principle or rule of law on which a court’s decision is founded’ (Black’s Law Dictionary (11th Ed)) or ‘the principle that the case establishes’ (Barron’s Law Dictionary (2nd Ed)). [17] Obviously therefore, a decision that is delivered without the written S/N qiTPwIF8bUm0W7lcupsryg grounds does not establish any principle or rule of law on which the decision is founded. The decision is therefore devoid of any ratio decidendi (rationale for the decision). It has no value as precedent. There may be instances where the court, either in its original or appellate jurisdiction, delivers a reasoned oral decision ex tempore but in that situation, the reasons must be reduced into writing in order for the decision to have any binding effect on the lower courts. [42] It is safe to say that this Court is not bound by the doctrine of stare decisis. [43] Coming back to the application in this Court, during her submissions, the Deputy Public Prosecutor as the Respondent in this case requested for the Court to give them some time to carry out their duties as provided by law before any order passed. The Respondent pleads for them to check the validity of the letters sent that somehow did not reach the office of the Johor State Legal Advisor specifically. A few days ago, as they have become aware of this matter, steps and actions have been directed to the relevant persons. Considerable amounts of time should be given awaiting feedbacks on the matter before further instructions issued. [47] By relying on the fundamental rule of the land, Article 145(3) of the Federal Constitution, this Court has to agree with the Respondent. As mention before, application of s. 339 CPC is the prerogative of Public Prosecutor. By virtue of s. 376(3) CPC, Respondent is the alter ago of the Public Prosecutor. [48] There are humongous amount of sympathy for the deceased, but, as representative of justice for the public, this Court must carry its duties 'judiciously' in making judgments and decisions on the Applicant's application. This court cannot arbitrarily use 'inherent S/N qiTPwIF8bUm0W7lcupsryg jurisdiction' while exercising 'supervisory and revisionary' powers without considering the procedural rules that governed the public order, otherwise it will be chaos. DECISION [49] In conclusion, this Court view that this application has no merit and it fails to trigger the Court to exercise its 'supervisory and revisionary' powers under s. 35 of CJA for an order of an inquest to be held in the subordinate Court. [50] The application is dismissed. Dated : 7th January 2025 ~SIGNED~ (SURIYATI HASIMAH BINTI MOHD HASHIM) Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Johor Bahru S/N qiTPwIF8bUm0W7lcupsryg COUNSEL : Applicant’s Counsel: Tetuan Saibullah M.V.Nathan & Co Peguambela & Peguamcara M2-A-21, Jalan Pandan Indah 4/3A, Pandan Indah, 55100 Kuala Lumpur. On Behalf of the Respondent : Puan Chan Lee Lee Deputy of Public Prosecutor Negeri Johor Darul Takzim. S/N qiTPwIF8bUm0W7lcupsryg