11.2.2020. Trial was to continue on 11 & 12.6.2020 but again postponed due to Covid – 19 pandemic resulting in Conditional Movement Control Order. After which, trial of the case was to continue on 13 & 14.7.2020. [5] Since the accused was charged in court on 27.9.2018, the trial shall commence not later than ninety days from that date. This is provided for in section 172B (4) CPC. But the first date of trial was fixed way after the ninety days on 23 & 24.4.2019. Although the trial did not commence according to the time period specified, it does not invalidate the charge or prosecution against the accused or could form as basis for post-trial procedures. (See section 172B (5) CPC). However, the sessions court is expected to follow the time period specified so as to accord a fair and speedy trial to the accused person. This is not done. [6] After a period of two years, on 13.7.2020, the Deputy Public Prosecutor (DPP) conducting prosecution of the case had informed the SCJ the following: Tiada saksi pendakwaan hadir pada hari ini. Sapina kepada saksi tidak dipohon oleh IO yang sudah bertukar. Tiada tindakan diambil. Pendakwaan akur tiada saksi hadir, pohon satu tarikh akhir jika diizinkan. 5 From her submission, it is apparent that the DPP did not intend not to prosecute the accused further on the charge, pursuant to section 254(2) CPC. If she had intimated so to the court, section 254(3) CPC would have been invoked by SCJ, who then would have either ordered a discharge not amounting to an acquittal (DNAA) or discharge amounting to an acquittal (DAA), in favor of the accused. The application by the DPP is for a final postponement of the trial, presumably anchored on section 259 CPC, albeit not specifically stating so. However, her application indicates that she is fully aware that the case had been postponed numerous times. [7] Reacting to the application by DPP, defence counsel (DC) representing accused, had instead applied for an order of DAA, which left the SCJ in a quandary. Basis for application by DC was section 173(g) CPC, which allows the court to discharge an accused, if the charge against him is groundless. According to Mohamed Azmi J (as he then was), in the case of PP v Mohamed Said (1984) 1 MLJ 50, “groundless” means “destitute of foundation, authority or support; having no real cause or reason; unfounded”. His Lordship had said that to his mind, merely because the prosecution has failed to exercise due diligence in tracing certain material witnesses does not render the charge groundless. Hence, 6 this court is of the view that section 173(g) CPC is inapplicable. There is no material before the court to demonstrate that the charge preferred against accused is groundless. To the contrary, the charges against him are for offences known under the law and it is well-founded, since trial of the case had proceeded with testimony of four prosecution witnesses. [8] Against that backdrop, the SCJ is left only with two alternatives, to either allow a postponement of trial pursuant to section 259 CPC or to acquit the accused person, as prayed for by the DC. However, an order of acquittal has to be in conformity with section 173 (f) (i) CPC, when case for the prosecution is concluded and the court shall consider whether the prosecution has made out a prima facie case against the accused. Sequentially, if the court finds that the prosecution has not made out a prima facie case against the accused, the court shall record an order of acquittal pursuant to section 173 (f) (ii) CPC. Hence, the earliest stage at which the court can acquit an accused person is after hearing all the evidence for the prosecution (See the case of Kuppusamy v PP (1948) MLJ 25); Chu Chee Peng v PP (1973) 2 MLJ 35). But the situation in the present case is that the DPP chose not to conclude case for the 7 prosecution but had instead requested for a final postponement of trial. Can the court acquit the accused person? [9] The SCJ decided to discharge the accused and not to acquit him of the charges. Thus an order of DNAA is made against accused. The DC was dissatisfied with the order made and had pursued with an appeal against the said order pursuant to section 307(1) CPC. It was later withdrawn. Rightly so, since an order of DNAA is not final and conclusive, finally disposing of rights of parties pursuant to section 3 of the Courts of Judicature Act 1964 (Act 91; CJA). It was so decided by the Court of Appeal in the case of Tan Chow Cheang v PP (2018) 5 MLJ 411, rendering an order of DNAA not an appealable order. Basis being, the prosecution, once ready to proceed with case against accused, would be able to recharge accused for the same offence and his trial shall be reinstated and continued as if there had been no such order given. This is made possible by section 254A CPC. Grounds for the order of DNAA and analysis [10] Since an appeal had been lodged, the SCJ prepared and provided his grounds of judgment (GOJ), he reasoned out the basis for the order of DNAA as following: 8 … Perintah Mahkamah melepaskan tanpa dibebaskan (DNAA) mempunyai definisi bahawa OKT dilepaskan daripada pertuduhan di mana OKT boleh dituduh semula dengan pertuduhan yang sama pada masa akan datang apabila pihak Pendakwaan boleh memutuskan berbuat sedemikian atas sebab-sebab tertentu. Dalam kedua-dua kes ini pihak Pendakwaan tidak memohon kepada Mahkamah untuk perintah OKT dilepaskan tanpa dibebaskan (DNAA), sebaliknya Mahkamah membuat keputusan setelah kedua-dua pihak berhujah sama ada OKT dilepaskan dan dibebaskan (acquitted and discharged) atau dilepaskan tanpa dibebaskan (DNAA) setelah pihak Pendakwaan gagal meneruskan perbicaraan pada tarikh tersebut setelah tiada seorang pun saksi Pendakwaan yang hadir … [11] It would seem, albeit reference to section 173(g) and 259 CPC, the SCJ did not consider those statutory legal provisions when discharging the accused of the charges. His utmost consideration was that the discharge is only proper as the accused could be recharged if the prosecution is ready and chooses to proceed with case against him. Section 254A CPC was referred to. That provision, which is fairly new to the CPC, allows for reinstatement of charge against accused, after being discharged of the same, thus continuing the case from where it ceased before an order of discharge was made. The provision is made to cater to the volume of cases, wherein accused persons were granted DNAA for a myriad of reasons, including situation like in the present case wherein 9 prosecution is not ready to proceed with case against accused as its witnesses are not available in court to testify on its behalf. Thus to save the work done, vide prosecution of the accused in court, the law allows for such an avenue, in order to save time and expense, so that trial of the case is reinstated. [12] The pivotal issue arising thereon is did the SCJ consider fully the circumstances of the case, especially when the charges against accused had been pending since year 2018. Further, he had also been remanded in custody pending trial for two years. The SCJ ought to be mindful of the fact that a similar situation may recur, if the prosecution reinstates the trial of the accused person pursuant to section 254A CPC. It is fortified by the fact that since the order of DNAA on 13.7.2020, the accused had not been recharged. The DPP having conduct of the case, when applying for postponement of trial on 13.7.2020, was unable to satisfy the court that the case would be proceeded with, once postponement was obtained and within a reasonable time. She chose not to be forceful in her application, but rather feeble when she merely informed the court “Pendakwaan akur tiada saksi hadir, pohon satu tarikh akhir jika diizinkan.” She did not implore the court, on attempts made or having made to locate the prosecution witnesses soonest and continue with the case of 10 prosecution, to avoid further delay. No material was placed before the court as to whereabouts of the witnesses and why they were absent for trial. There is no semblance of regret shown as to the delay in procuring the said witnesses albeit the fact that trial of the case was underway since 2018. This case had been partly heard by an earlier SCJ, and to be continued by her successor. She could have utilized section 261 CPC to her advantage by having to recall prosecution witnesses whom had testified, if it has to be so in order to secure a final postponement. All that is required is a forceful submission with a cogent basis. She could have related to the disadvantage faced by the succeeding SCJ of not having the means of assessing demeanor of witnesses who had testified and that there is always an avenue to recall witnesses or a trial de novo. (See the case of PP v Mohd Jon (1993) 1 MLJ 133). Moreover, no good cause was shown to court for postponement of case, considering the stark fact that there were a series of postponement granted. The DPP ought to have informed the court of reasons for absence of prosecution witnesses for the trial as it had not been for the first time. The reasons would be material considering the status of the accused person who had been remanded in custody pending trial. Likewise, the SCJ should have requested for the reasons as expected under section 259 CPC before considering to either 11 discharge or acquit the accused person of the charges. All these factors cumulatively demonstrate dilatoriness on the part of prosecution to proceed with case fairly and speedily. Findings and Conclusion [13] At this juncture, what comes to my mind is the case of Koh Teck Chai v PP (1968) 1 MLJ 166 at page 167, which cannot be missed in its application. In that case, His Lordship Ong Hock Sim J, had decided the following – This power enabling the discharge of an accused person without acquitting him is a power which should be exercised sparingly and grudgingly and only where the court is satisfied for good cause shown that the public interest insistently demands that it be used. Our courts have consistently adopted the line that unless some very good ground is shown it would not be right to leave an individual for an indefinite period with a charge hanging over him. … If the prosecution are not ready to proceed with their case after reasonable adjournments have been granted, (as in the present case) an accused person should not be allowed to suffer from the dilatoriness of the prosecution by being left with a charge hanging over his head indefinitely (likewise in the present case). [14] In view of the foregoing, I have decided that there has been an improper exercise of discretion by the SCJ to have only discharged 12 the accused person and not to acquit him of the charges. By doing so he has misdirected himself on the law and facts of the case. The improper exercise of discretion ensues because, the SCJ had erred when he did not consider a serious issue that the accused person was in fact remanded in custody pending trial; the numerous times postponement of the case had been granted and yet the witnesses for the prosecution did not turn up in court to testify; no cogent reasons were given for their absence in court; the case was at the prosecution stage being still far away from closure before an order is made at end of the case of prosecution. The foremost consideration by the SCJ has to be, once the case is set down for trial, it has to proceed unhindered. Although postponement is inevitable, but it has to be with good reasons shown to the court. Once a trial date is set, be it fresh or part-heard hearing, it has to proceed speedily in view of section 172B (4) CPC as well as the guiding time line set to have criminal cases completed within a year from inception of trial. An expectation of a speedy criminal trial also syncs with section 173 (c) CPC, which expressly provides that once an accused person claims trial to a charge, the trial court shall proceed to take all such evidence as may be produced in support of the prosecution speedily. In the present case scenario, the accused had claimed trial to the charges levelled against him since the year 13 2018, but the prosecution had been tardy in prosecuting him speedily. Instead a series of postponements were requested on the same ground that witnesses for the prosecution are not present in court to testify, but for how long? [15] Premised on section 173 (c) CPC, it is apparent that prosecution is unable to produce all evidence available to support its case against the accused person, for the court to proceed with the trial. Section 173 (c) CPC has to be read harmoniously with section 172B (4) CPC. Both provisions pertain to the criminal trial process. It would be the legitimate expectation of the accused person to have his case fairly and speedily disposed of. What matters most is the fact that the charges have been hanging over the accused for a long period of time. It does not matter if the accused person had been released on bail pending trial or remanded in custody pending trial (as in the present case). What matters most is the fact that charges levelled against the accused had been hanging over his head and to be tried speedily. In the present case, it is apparent on the face of record that the prosecution is unable to produce all evidence in support of its case to the court against the accused as its witnesses chose to be absent without any good reasons. On that plank, the trial court ought to have taken the position that prosecution could not proceed 14 with the case unhindered and the charges are hanging over the head of the accused person for an inordinate period of time, since the date of charge on 27.9.2018. [16] Ensuing from the above, the order of DNAA made, in terms of section 323 CPC is both incorrect and illegal under the law and improper too according to the facts and circumstance of case. The overwhelming consideration shall be public interest, demanding for the accused to be prosecuted fairly and speedily. That has not been adhered to at all material times, when the trial of the case was underway. [17] In this regard, the speech by our Chief Justice when she was making her opening remarks on 29.3.2021 at an Induction Programme at the Palace of Justice, to welcome newly appointed judicial commissioners is referred. Her Ladyship had remarked by saying that in conducting criminal cases, the words of the then Chief Justice of Canada, the Right Honourable Beverly McLachin is brought to attention, who had said: “There is an obvious tension between the rights that are essential to a fair criminal trial, and the expectation that may sometimes arise on the part of the complainants. And the criminal law must navigate this tension. But it can only do so effectively if all sides have realistic expectations about what the criminal process can and cannot do. Complainants and witnesses need to 15 understand what is required of them in a trial and what they can realistically expect from it. No one has a right to a particular verdict, but only to a fair trial on the evidence” (emphasis is mine) Reference to fair trial includes a speedy trial unhindered without unnecessary and unjustified postponement. That is the realistic expectation of all the parties to this criminal proceeding which includes the court, prosecution and accused. Postponements granted in this case throughout by the SCJ had prejudiced the accused person as he had been remanded in custody since 19.7.2018. With the multitude postponements, at the request by prosecution, his liberty has been further curtailed. The sole ground being that witnesses are unavailable in order to proceed with the case. They seem to be absent. The prosecution did not pay heed to their due presence in court for trial on dates fixed by court beforehand. The case had then sauntered into the pandemic, whereby court hearings with physical presence of all parties came to a halt. But when the court was ready to proceed, the DPP had repeatedly applied to have the case postponed by merely informing the court that witnesses are not available as subpoena was not applied for, to have them directed to attend court. The record too does not show if the said subpoena had been served on the witnesses or otherwise. To reiterate, this demonstrates the 16 lukewarm position taken by prosecution to have the case against accused speedily prosecuted. It is fortified by the fact that even on 13.7.2020, when the DPP sought postponement, she had stated pendakwaan akur tiada saksi hadir, pohon satu tarikh akhir jika diizinkan (emphasis is mine). Hence, if the court is not with prosecution to allow the postponement, the prosecution is willing to subject itself to any order made by the court. Logically, the order could either be a DNAA or even DAA. This too implies that the prosecution is not ready to adduce all evidence in support of its case against the accused pursuant to section 173 (c) CPC. The case had dragged on for more than two years and still unresolved but pending at the prosecution stage. It was for that reason, such an instance is described as dilatoriness in the case of Koh Teck Chai, alluded to above. [18] It is apparent from the record, that the prosecution is not ready to proceed with case against accused, from its inception until the order of DNAA was handed down. As such, it ought to have gracefully withdrawn the charges against him and request for a DNAA at once instead of leaving it to the court to decide. But since the decision was left to the court, public interest demands for the court being the bastion and last port of call of justice, to be vigilant in safeguarding 17 interest of the accused, against whom the charges has been pending for a very long time, and remanded in custody pending trial of the case. The court is not subject to the dictates of the prosecution, once it has taken cognizance of the offence committed by the accused pursuant to section 128(1)(d) CPC, when he was brought to court to be charged, on completion of remand period pending investigation against him. The court would then take full charge and control of the criminal proceeding. It is bestowed with jurisdiction to grant the necessary and appropriate order so as to ensure justice is served, materially so to the accused person, since he had been remanded in custody pending trial. At this juncture, it is prudent to refer and quote dictum of His Lordship Mohd Azmi FCJ (as he then was), forming part of the majority judgment of Supreme Court in the case of Dato Yap Peng v PP (1987) 2 MLJ 216 at page 323, where His Lordship decided that: “… the normal legal position was that once the court had taken cognizance of the offence and was seized with jurisdiction to try the case, the institution of the proceedings by the Public Prosecutor was complete, because not only had the Public Prosecutor successfully invited the court to take action, but also it was the scheme of the Criminal Procedure Code that trial follows cognizance and cognizance would be preceded by investigation. Criminal proceedings are in fact not instituted until the 18 court has taken cognizance of the offence or offences under one or other of the clauses of subsection (1) of section 128 C.P.C., a host of judicial powers will flow to enable the court to proceed to trial and determine the dispute between the parties in accordance with law. In general, the court taking cognizance of the offence, is the dividing line between the sphere and domain of the executive and the judiciary, for cognizance by the court signals the submission of the executive to the jurisdiction of the court and marks the completion of the exercise of executive power to “institute” the criminal proceedings. From then on, the whole conduct of the proceedings should be within the exclusive judicial power of the court until its conclusion …” [19] In the upshot, since the trial court chose not to grant an order of DAA to the accused, this court in its exercise of revisionary jurisdiction corrects the miscarriage of justice which had prejudiced the accused person and had caused him undeserved hardship. In the case of Liaw Kwai Wah & Anor v PP (1987) 2 MLJ 69, the Supreme Court discussed at length the powers of revision exercisable by the High Court. On the object of revision, it quoted the Indian case of Emperor v Nasrullah & Ors AIR (1928) All. 287 which says that the object of revisionary powers is: To confer upon criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness 19 of treatment, which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand, in some undeserved hardship to individuals. In this case too, the accused has been subjected to inordinate delay in prosecuting him which tantamount to a vexatious prosecution. (See the case of Ramanathan Chettiar v Subrahmanya Ayyar ILR 47 (Mad) 722). Flowing from that, the order of DNAA by the SCJ is now set aside and substituted with an order of discharge amounting to an acquittal (DAA) pursuant to section 325(1) CPC. In accordance with the facts and circumstances of the case which had militated against the accused, the order of DAA is thus correct, legal, proper and justified. The accused is hereby acquitted and discharged of the charges against him. Accused acquitted and discharged. Dated 14 June 2021. Sgd. Muniandy Kannyappan Judicial Commissioner High Court, Taiping 20 Dato’ Naran Singh of Tetuan Naran Singh & Co., counsel for accused/applicant. DPP Azrul Faidz Abdul Razak for respondent.