Dato' Sri Mohd Najib Bin Hj Abd Razak v Pendakwa Raya (W-05-72-02/2019)

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1 5 DALAM MAHKAMAH RAYUAN MALAYSIA BERSIDANG DI PUTRAJAYA (BIDANG KUASA RAYUAN) RAYUAN JENAYAH NO: W-05-72-02/2019 10 ANTARA 15 DATO’ SRI MOHD NAJIB BIN HJ ABD RAZAK … PERAYU DAN 20 PENDAKWA RAYA … RESPONDEN (Dalam Perkara Mahkamah Tinggi Kuala Lumpur Permohonan Jenayah No: WA-45-(2&3)-07/2018 & 25 WA-45-5-08/2018 Antara Pendakwa Raya 30 Dan Dato’ Sri Mohd Najib bin Hj Abd Razak) 35 KORUM ZABARIAH MOHD YUSOF, HMR 40 RHODZARIAH BUJANG, HMR LAU BEE LAN, HMR 45 2 5 GROUNDS OF DECISION 10 Salient Background Facts [1] This appeal by the Appellant stems from an oral application by the learned Attorney General (‘AG’) as the Public Prosecutor (‘PP’) to 15 withdraw the certificates issued under s.418A of the Criminal Procedure Code (‘the CPC’) and s.60 of the Malaysian Anti-Corruption Act 2009 (‘the MACC Act’) that were previously issued by the PP to transfer to the High Court the charges against the Appellant that had been first filed in the Sessions Court. The learned High Court Judge 20 (‘the HCJ’) allowed the oral application by the AG and exercised his discretion under s.417(2) of the CPC to order the transfer of the charges back to the High Court. [2] The Appellant was charged with 7 criminal charges for offences 25 under the Penal Code, the MACC Act, and the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (‘the AMLAFTA’) which have been registered under 3 different case nos. i.e. WA-45-2-07/2018, WA-45-3-07/2018 and WA-45-5-08/2018. 30 [3] The 7 charges were registered on two different dates: 4 charges for offences under Penal Code and MACC Act were filed on 4/7/2018 and the remainder 3 charges under AMLATFA were filed on 8/8/2018. All the 7 charges were ordered to be jointly tried. The Appellant pleaded not guilty to all the charges. The High Court fixed trial of the 7 35 charges from 12/2/2019 to 29/3/2019. 3 5 [4] On both dates of 4/7/2018 and 8/8/2018, the charges were initially filed at the Sessions Court but the same were immediately transferred on the same respective dates to the High Court pursuant to certificates issued by the PP under s.418A of CPC and s.60 of the MACC Act. 10 [5] On 28/1/2019, another 3 new additional charges under AMLATFA were read out to the Appellant. The Prosecution asked for the 3 new charges to be jointly tried with the existing 7. Counsel for the Appellant asked the Court to allow the defence a few days to consider. 15 The Court allowed the request and fixed 7/2/2019 for hearing of the submission of parties should there be any objection to the proposed joint trial. [6] On 7/2/2019, the learned AG informed the Court that a ruling on 20 the issue of joinder would not be necessary as he was proposing not to proceed on the 3 new charges and asked for the Appellant to be granted a discharge not amounting to an acquittal (‘DNAA’) since the Prosecution would file these charges before the Sessions Court instead. The Appellant did not object. The High Court then ordered the 25 DNAA of the Appellant on the 3 new charges. [7] The learned AG raised another matter which became contentious. The AG wished to withdraw the transfer certificates that had been previously issued under s.418A of the CPC and s.60 of the 30 MACC Act to transfer the 7 charges to the High Court. 4 [8] The withdrawal was stated by the learned AG to be done out of 5 abundance of caution in order to avoid any possible constitutional argument that the transfer effected by the AG under s.418A of the CPC and s.60 of the MACC is a nullity in view of the Federal Court decisions in Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat [2017] 5 CLJ 526 and Indira Gandhi Mutho v. Pengarah 10 Jabatan Agama Islam Perak [2018] 3 CLJ 145. [9] The learned AG informed the Court that upon withdrawal, the cases on the 7 charges would revert to the Sessions Court where they originated. He then drew to the Court’s attention there were 2 options:

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(ii) alternatively, the learned AG suggested that the High Court can act suo moto (on its own initiative) under s.417(2) and it is expedient for the ends of justice under s.417(1)(e) of the CPC to order the transfer of the 7 charges from the Sessions Court back to this High Court. 25 [10] The learned AG highlighted that these procedural steps would be necessary to prevent any unwarranted postponement of the trial especially since that there has been compliance with s.51A of the CPC, 26 witness statements had been supplied to the defence, and 30 subpoenas had all been served on the witnesses in preparation for trial which was to commence on 12/2/2019. 5 [11] At the hearing, the Defence submitted the withdrawal means that 5 the proceedings ceased to exist and there was nothing for this High Court to order to transfer. If the validity of s.418A and s.60 is doubtful, so would the act of withdrawing the certificates. [12] Further, it was contended even the status of the proceedings, 10 including the concluded hearings on the applications for the gag order, the appointment letter of the prosecutor and the request for discovery of documents and the entire proceedings since the transfer to the High Court all of which proceeded in the High Court on the basis of the previous certificates, could now be at risk of being vitiated. 15 [13] The learned lead Counsel pointed out that once withdrawn, the whole process of a mention at the Sessions Court and a fresh registration at the High Court Registry to determine the High Court to try the 7 charges must be followed. The Defence would reserve the 20 right to object should the 7 charges eventually be registered in the same High Court since these should be considered as a new case that would warrant a High Court Judge who would not have adjudicated on the matter previously. 25 Findings of the High Court [14] Summarily, the findings of the learned HCJ based on the decision made on 7/2/2019 and Judgment dated 15/2/2019 (the admissibility of the latter will be addressed later) are - 30

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(2) Prima facie this discretion is unfettered.” 35 10 5 [21] Secondly, we asked ourselves the following - “(3) [W]hether on the facts [of the instant case] there are adequate or sufficient reasons [ for the learned HCJ] to refuse the adjournment.” 10 [22] Thirdly, we remind ourselves that an appellate Court refrains from interfering with the learned HCJ‘s exercise of discretion in regard to the granting of an adjournment - 15 “4. [U]nless it appears that such discretion has been exercised in a way which tended to show that all necessary matters were not taken into consideration or the decision was otherwise arbitrarily made.” ; and 20 [23] Fourthly, the appellate Court is slow to interfere - “5. [B]ut if it appears that the result of the order made below would be to defeat the rights of the parties altogether or that there would be an injustice to one or the other of the parties then the appellate Court has power and 25 indeed a duty to review the exercise of the discretion”. [24] We have perused the Notes of Proceeding held on 7/2/2019 before the learned HCJ (pp.1-19 Nota Keterangan Jld 2). These are 30 our observations -

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(ii) the learned HCJ “in the 2nd Judgment suddenly viewed the matter as an application by the PP to withdraw the Transfer Certificates (para 1, 2nd Judgment @ page 24 RRJ1), when in fact this was not the case. 25 This was not the pronouncement made on 7.2.2019 nor was it part of the sealed Orders.” [26] We find there is no merit in the Appellant’s submissions (i) and (ii) above for these reasons - 30

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(ii) to see a report of the samples taken by the prosecution, (iii) to look for witnesses, (iv) to prepare supporting evidence of his case and (v) he was a foreigner with rudimentary knowledge of the English language. 10 [31] The pertinent case is Ting Sieh Chung v. Hock Peng Realty Sdn Bhd [2016] 7 CLJ 527 (a case common to both parties) where it is crystal clear the Court of Appeal found there was a breach of the audi alteram partem rule when the deputy registrar refused the 15 defendant’s request for a short adjournment for the work permit to be issued to an accountant whom the defendant wished to call to rebut the expert evidence on accounts from the plaintiff’s expert witness. [32] However unlike the 3 cases above, the facts of the case in this 20 appeal before us are different. We find the evidence showed that having heard the parties’ submission coupled with the matters alluded in para 24(a) to (ff) above, the learned HCJ has judiciously exercised his discretion not to allow the adjournment sought by the Appellant albeit not expressly stated. We find on the facts of this appeal the rule 25 of audi alteram partem has been adhered. This is in accordance with the ratio in Ting Sieh Chung (supra) at 533[12] where this Court held - “[12] It is trite that adjournment is a matter of discretion of the learned DR but that discretion must be exercised judiciously. We recognised 30 that not all applications for an adjournment must be granted as a matter of course. An unwarranted application for an adjournment may indeed be an attempt to unjustly delay the course of justice. But 17 sometimes, an adjournment may well be a way to ensure that justice be 5 done for the case as a whole. … In dispensing justice, one must always bear in mind the basic principle of natural justice that is audi alteram partem, …”. (Emphasis added) 10 [33] On the facts of this appeal before us, we conclude that there are adequate reasons for the learned HCJ’s refusal of the adjournment as the reasons for the refusal for the adjournment lie in the very considerations under s.417(1)(e) (reproduced in para 14(f) above) because when the learned HCJ made the order on its own initiative 15 under s.417(2) of the CPC, it is an exercise of discretion to transfer the 3 cases from the Sessions Court to the High Court pursuant to s.417(1)

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(cc) which entails a consideration whether such an order is expedient for the ends of justice under s.417(1)(e). Further, for the reasons explained, there is compliance with the 4th and 5th principles mentioned 20 in Lee Ah Tee (supra) as all necessary matters has been considered; neither is the decision not to adjourn exercised arbitrarily nor has the refusal to adjourn resulted in injustice to the Appellant. Hence we refrain from appellate interference. 25 Impugned 2nd Judgment [34] With respect to the grounds/judgment of 7/2/2019, the Appellant states the learned HCJ did not indicate that it was ‘brief grounds’ or that ‘full grounds will follow’, it was without qualification and that the grounds were complete to the extent it covered the basis for the Orders 30 which were sealed. The Appellant contends that the Impugned 2nd Judgment improves, supplements and adds on the decision of 7/2/2019 by, among others, the inclusion of the HCJ taking the position 18 there was an oral application by the AG to withdraw the certificates 5 which he allowed, HCJ “sets out the full reasons” for his decision and the adding of fresh/new grounds e.g.- “Justifying the transfer to Himself by reference to provisions in 417(1) & (2) CPC, S.25 and Item 12 of the Courts of Judicature Act 1964, S.39B Dangerous Drugs Ordinance, Article 145(3) Federal Constitution, further 10 authorities (Lim Shui Wang [1979] 1 MLJ 65 and Fan Yew Teng [1973] 2 MLJ 1) all of which were never raised during the 7/2/2019 proceedings”. (see para 27 (a) to (j) Appellant’s Written Submission (Withdrawal of s.418A Certificate) without giving the Appellant the opportunity to 15 address. The Appellant cites the following cases of Pacific Forest Industries Sdn Bhd & Anor v. Lin Wen-Chih & Anor [2009] 6 MLJ 293 (FC) at 302 [14] & [16] and 303 [17], Public Prosecutor v. Phee Boon Poh & Ors [2018] 9 MLJ 376 (HC) at 392 [36] & [37], Dato ‘ Tan Chin Woh v. Dato’ Yalumallai @ M Ramalingam s/o v 20 Muthusamy [2016] 5 MLJ 590 (FC) at 601 [21] & [22] and Hoe Cheong Products Co. Ltd. v. Cargill Hong Kong Ltd. [1995] 1 W.L.R.404 at p.409 A-E . [35] All the aforesaid authorities either deal with unpleaded issues 25 or entirely fresh or new issues which would require the parties to be heard before the judge makes a decision. However in the appeal before us, comparing the decision dated 7/2/2019 and the Impugned 2nd Judgment, the learned HCJ did not with respect decide on new or fresh issues as the Appellant contends. We are of the view the 30 issue of ‘the oral application” is untenable for the reasons proffered at paras 25 , 26 and 27 above. 19 [36] The Appellant cites Public Prosecutor v. Heng You Nang 5 [1949] 15 MLJ 285, Ankur Nath Ganguli v. PP[1956 MLJ 206 at 207, Habee Bur Rahman v. PP [1971] 2 MLJ 194 D-F right column and Mrs. Thitapha Charoenchuea lwn Pendakwa Raya [2016] 6 MLJ 549 wherein the Federal Court approved of the principle in Ankur Nath Ganguli and at 562[39] and [40], held the Court is only 10 competent to write a written judgment and cannot supplement earlier grounds with further grounds. Primarily on the facts these cases can be distinguished. [37] In Public Prosecutor v. Heng You Nang (supra), at p.288 left 15 column the Court held that once a judgment in a criminal case has been pronounced and signed it cannot be altered; “If a written judgment is delivered it is perfected as soon as it is delivered and signed; if an oral judgment is delivered it is perfected, in my opinion, as soon as it is pronounced and the effect thereof has been entered 20 in the judge’s note-book and signed.” [38] In Habee Bur Rahman (supra), at 194 D-F right column the Court held – “It is not permissible for a trial court having signed and delivered its 25 grounds of decision to supplement the grounds of decision or to amplify them in any way. It is however not such conduct as can be said to have occasioned a miscarriage of justice or such as can be said to warrant or require or even 30 justify the trial being regarded a nullity and the conviction being quashed. 20 The only effect of it was that the appellate court must consider the 5 original judgment as it stood and exclude any consideration of the parts added”. (Emphasis added) 10 [39] In Ankur Nath Ganguli (supra), the trial judge gave reasons for convicting the appellant and his judgment was taken by his secretary and was reduced to a written form . The Court of Appeal at p.207 left column held “an addition to the [trial Judge’s oral judgment cannot form part of the record, and [ the Court] can have no regard to 15 it”. [40] In Mrs. Thitapha Charoenchuea (supra), there were 3 judgments dated 22/10/2013 and 25/11/2013 and 20/1/2014. The Federal Court at p.552 Held (3) and (4) found the judgments dated 20 22/10/2013 and 25/11/2013 were complete judgments and should not be deemed as simple grounds and the appellant cannot supplement the 2 judgments with the 25/11/2013 additional judgment which was written after the appeal was filed; the Federal Court held the double judgment did not affect the fairness and did not render the proceedings 25 in the appeal void; rather it was a mere irregularity. [41] In the present appeal, we find the learned HCJ merely orally gave a brief decision on 7/2/2019 after hearing the parties. He not give any signed Written Judgment on 7/2/2019 in the manner referred to in 30 the cases at para 36 above; what the learned HCJ signed as “Salinan Diakui Sah” was the Notes of Proceedings of 7/2/2019 and the signature below the said decision is part of the practice of a judicial officer signing or initialing his Notes of Proceedings to show an event 21 has occurred in the proceedings. This can be seen throughout the 5 Notes of Proceedings (pp.5, 13, 19 and 24). Thus the 2nd Impugned Judgment dated 15/2/2019 ought not to be expunged or disregarded and not form part of the record as urged upon us by the Appellant. [42] In the event we err in our decision in that the 2nd Impugned 10 Judgment ought to be disregarded, following Mrs. Thitapha Charoenchuea and Habee Bur Rahman, it is a mere irregularity which does not justify the proceedings being regarded a nullity and the only effect is we must consider the Decision delivered on 7/2/2019 and disregard the Impugned 2nd Judgment. In any event, by way of 15 rehearing this Court is entitled to review and re-evaluate all the evidence available and the Submissions of the parties before us to arrive at our decision in this appeal. Hence there is no merit in the Appellant’s suggestion for this Court to set aside the 2nd Impugned Judgment and to remit the case to another High Court for full 20 arguments. Withdrawal of Transfer Certificates Whether PP is functus officio once transfer certificates issued and 25 acted on. Whether there is an implied power to withdraw [43] The relevant provisions in respect of the PP’s power to transfer is provided in the Federal Constitution in Article 145(3) and Article 145(3A) which merits reproduction (material parts) - 30 “Article 145. (3) The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence … 22 5

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(3A) Federal law may confer on the Attorney General power to determine the courts in which or the venue at which any proceedings which he has power under Clause (3) to institute shall be instituted or to which such proceedings shall be transferred”. 10 (Emphasis added) [44] Statutorily, the relevant provisions in respect of the PP’s power to transfer is provided in s.417, s.418 and s.418A of the CPC. It is to be noted that these provisions are contained in the CPC titled “Chapter 15 XLII Transfer Of Criminal Cases”. The relevant provisions are reproduced - “High Court’s power to transfer cases 20 Section 417. (1) Whenever it is made to appear to the High Court -

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(cc) that any particular criminal case be transferred to and tried before the High Court 40

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(2) The High Court may make an order under subsection (1) either on the report of the lower Court, or on 23 the application of the Public Prosecutor or the accused 5 person, or on its own initiative. Section 418. Application for transfer to be supported by affidavit 418(1). Every application for the exercise of the power conferred by section 417 shall be made by motion which shall, except when the applicant is the 10 Public Prosecutor, be supported by affidavit. Trials by High Court on a certificate by the Public Prosecutor Section 418A. (1) Notwithstanding section 417 and subject to section 15 418B, the Public Prosdecutor may in any particular case triable by a criminal Court subordinate to the High Court issue a certificate specifying the High Court in which the proceedings are to be instituted or transferred and requiring that the accused person be caused to appear or be produced before such High Court.

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(2) The power of the Public Prosecutor under subsection (1) shall be exercised by him personally.

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(3) The certificate of the Public Prosecutor issued under subsection 25

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(1) shall be tendered to the subordinate Court before which the case is triable whereupon the Court shall transfer the case to the High Court specified in the certificate and cause the accused person to appear or be brough before such Court as soon as may be practicable. 30

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(4) When the accused person appears or is brought before the High Court in accordance with subsection (3), the High Court shall fix a date for his trial which shall be held in accordance with the procedure under

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Chapter XX”.

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(Emphasis added) 35 24 [45] In interpreting the abovesaid constitutional and statutory 5 provisions, the Court is required to adopt the purposive approach under s.17A of the Interpretation Acts 1948 and 1957 i.e. “a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not 10 promote that purpose or object”. (Emphasis added) [46] The purpose or object of s.417 (1) of the CPC is to ensure that a transfer order is made by the High Court when an application is made by any of the parties entitled to apply under s.417(2) on the basis of the 15 transfer under s.417(1)(a) to (e) and the types of order that may be made under s.417(1) (aa) to (cc). It is to be noted that the threshold is very low by virtue of the language used in s.417(1) in that “when it appears to the High Court as opposed to “if the Court is satisfied”. 20 [47] In issuing the transfer certificates under s.418 A of the CPC, the learned AG was acting under Article 145(3) and Article 145(3A) of the Federal Constitution. S.418B of the CPC qualifies the cases to which S.418A is applicable as follows: 25 “Cases to which section 418A is applicable

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(ii) s.376(1) CPC – PP shall have control and direction of all criminal proceedings under the CPC.

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(iii) s.254 CPC – PP may discontinue proceedings at any stage of 30 the trial.

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(iv) Article 145( 3A ) of the Federal Constitution. 28 5

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(vi) S.418 A of the CPC and s.60 of the MACC Act are the provisions supported by Article 145(3A) of the Federal Constitution which empower the AG “to determine the courts in which or the venue at which the proceedings which he has power under [Article 145(3)] to institute or to which such proceedings shall be transferred.”. Be that 15 as it may the PP is entitled to take the view that the constitutionality of s.418A of the CPC and s.60 of the MACC Act may still be challenged.

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(vii) The learned HCJ was of the view that the withdrawing of the transfer certificates previously issued would not cause ramifications 20 which the lead Counsel for the accused implied to be serious and setting an unhealthy precedent to the administration of the Courts. His Lordship noted under s.418B of the CPC and s.60(5) of the MACC Act, the certificates of transfer under s.418A and s.60 can only validly be issued by the PP in cases where the accused has not pleaded guilty 25 and where no evidence against the accused has been adduced as compared to s. 417 (4), where there is no limitation for transfer.

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(viii) The trial for the 3 cases (WA-45-2-07/2018, WA-45-3-07/2018 and WA-45-5-08/2018) in respect of the 7 charges have not 30 commenced “with any witness testimony” when the s.418A and s.60 transfer certificates were issued and “neither [has] the trial started when the [PP] now applies to have the same certificates withdrawn”. 29 5

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(ix) The power of the High Court to transfer cases is found in s.417 of the CPC, namely -

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(xi) The learned HCJ likened acting on its initiative to the exercise of revisionary powers of the High Court under the CPC and Courts of Judicature Act 1964 where the High Court may act on its own motion and call for the record of proceedings in the subordinate courts.

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(xii) There is no necessity to call for any record of background of the 25 matter as the High Court was notified of the fact that the 7 charges had been transferred to the same High Court in early August 2018.

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(xiii) The learned HCJ relied on Public Prosecutor v. Lim Shui Wang & Ors at p.66 H-I right column as authority that the High Court 30 may transfer on its own initiative under s.417(2) of the CPC and such exercise of the power to transfer is subject to 2 restrictions. 30 5

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(xiv) The withdrawal of the s.418A and s.60 certificates is only effective prospectively and has no effect on the proceedings on the 7 charges (which have not been withdrawn) since 4/7/2018 before the withdrawal which remain valid. We find the application by the learned HCJ of the doctrine of 10 prospective overruling is justified as this doctrine is recognised and applied by the Supreme Court in the case of Public Prosecutor v. Dato’ Yap Peng. At p.321 B-D of the judgment, after the Court (by majority) declared s.418A to be unconstitutional and void as being an infringement of the provisions of Article 121(1), it applied “the doctrine 15 of prospective overruling so as not to give retrospective effect to the declaration made with the result that all proceedings of convictions or acquittals which had taken place under that section prior to the date of our judgment in this matter would remain undisturbed and not be affected, and the appeal was dismissed on this basis”. 20

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(xv) The learned HCJ stated that the Prosecution had already delivered s.51A documents and certain witness statements to the accused, issued summons to witnesses to attend trial. 25

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(xvi) The learned HCJ held the Appellant has not shown any prejudice or injustice occasioned to him by the transfer order of the High Court acting on its own initiative. There is no error in the learned HCJ‘s findings above as points

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(ii) Ooi Kean Thong & Anor v. PP [2006] 3 MLJ 389 at 396[16] 25 wherein the Federal Court reiterated the same principle. Transfer under s.417 CPC Judge did not act on ‘own initiative’ under s.417 (2) CPC [55] We take note the definition of “on its own initiative” to mean 30 “without being prompted by others” in the Oxford Dictionary of English Third Edition p.1370 which has been similarly adopted by the Supreme 32 Court of Papua New Guinea in State and another v. Transferees and 5 another [2015] PGSC 45 at 517[78] as follows: “[78] The phrase ‘on its own initiative’. What does the phrase really mean? The Concise Oxford English Dictionary (10th edn) Judy Pearsall (ed) defines the word ‘initiative’ as the ability to initiate, the power or opportunity to act before other do, or without being prompted by others. To initiate is 10 therefore to cause a process or action to begin”. (Emphasis added) [56] It is our considered view what the learned AG did was merely highlighting to the learned HCJ the options and left it entirely for him to 15 decide under s.417(2) CPC. It is observed the “on its own initiative” among others also means “To initiate is therefore to cause a process or action to begin” (see State v. Transferees). This is precisely what the learned HCJ did: acting on the own initiative of the High Court (presided by him as the Judge) in the exercise of his discretion under 20 s.417(2), he decided that the 7 charges should continue to be tried by the High Court on the basis that it would be expedient for the ends of justice under s.417(1)(e) after taking into account several considerations( paras 45 to 50 of the Impugned 2nd Judgment) 25 Whether the Judge could exercise power under s.417(2) as there were no proceedings pending at the Sessions Court [57] The Appellant argued that as there were no proceedings pending before the Sessions Court at the time the s.418A/s.60 certificates were withdrawn, the notional Sessions Court to which the 30 matters revert could not have given effect to the order of the learned HCJ under s.417(1)(cc) as it was devoid of jurisdiction to do so, being not cognized of the affected matters. 33 5 [58] The learned HCJ has addressed this issue and we find no error in his judgment as to the effect of the withdrawal of the transfer certificates that - “[F]rom the point of withdrawal (date of this order) is for the 7 charges to revert to the Sessions Court where they had been originally filed and 10 registered. When that happens, the 7 charges cease to be registered with the High Court Registry. [S]ince the background of the matter had been notified to me sitting as a High Court judge in the instant proceeding, upon the withdrawal, and on the 15 own initiative of this Court, I exercised my discretion under Section 417(2) of the CPC on the basis of Section 417(1)(e) to order the transfer of the 7 charges (already reverted to the Sessions Court) back to the same High Court, for the reasons I have stated earlier”. 20 [59] The learned HCJ stated the process of the registration via the routing system is applicable for transfer applications made by the prosecution or the accused under s.417(2). However it is unnecessary for such a formality when the High Court exercises its discretion to act 25 on its own initiative under s.417(2) provided the requirements of s.417 is adhered, particularly the ground for the transfer under s.417(1)(a) to

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(1)(cc) of the CPC. Hence the issue of usurpation of the powers of the Chief Judge of Malaya does not arise. 35 5 Conclusion [62] The learned HCJ has carefully evaluated and judicially appreciated the facts and law in the instant case. We find there are no appealable errors in his decision which warrant any appellate intervention. Unanimously, we accordingly dismissed the appeal and 10 affirmed the decision of the learned HCJ. Dated: 25/3/2019 15 Sgd. Lau Bee Lan Judge of Court of Appeal 20 Putrajaya 25 COUNSEL: Tan Sri Muhammad Shafee Abdullah, Harvinderjit Singh, Sarah Abishegam, Al-Firdaus Shahrul Naing, Wan Aizuddin Wan Mohammed, Rahmat Hazlan, Muhammad Farhan Muhammad Shafee, Nur Syahirah 30 Hanapiah and Zahria Eleena Redza for the Appellant [Messrs Shafee & Co] Tommy Thomas, Hj Sulaiman Abdullah, Manoj Kurup, Donald Joseph 35 Franklin and Izzat Fauzan for the Respondent [Attorney General’s Chambers]