LEANG WIN SON v Pendakwa Raya (JA-43-37-10/2025)

(ii) and (iii) thereof. The object of revisionary powers of the High Court is to confer upon the High Court a kind of "paternal or supervisory jurisdiction" in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower Court should be interfered with in the interest of justice".

The Applicant was charged with an offence under section 14(a) of the Sexual Offences Against Children Act 2017 (SOAC) in the Criminal Sessions Court Johor Bahru. Upon conviction, the charge prescribes a punishment of S/N fdui/hzr3Eu8HOjrdxEfsw imprisonment for a term not exceeding twenty years and shall also be liable to whipping.

The learned Sessions Judge had rejected the bail application made pursuant to section 388 of the Criminal Procedure Code (CPC) on the grounds that the Applicant had three other cases pending trial. As such, the Court considered public interest over the interests of the Accused in rejecting the Bail application. Revision Jurisdiction The High Court's jurisdiction over revision is clearly stated in the Courts of Judicature Act 1964 and the Criminal Procedure Code (CPC). see s.32 Court of Judicature Act 1964. The power of revision should be used judiciously and must remain a discretionary power exercised for the purpose of correcting miscarriages of justice arising from lower court decisions. S. 325 Criminal Procedure Code (CPC) Powers of judge on revision

A Judge may, in any case the record of the proceedings of which has been called for by himself or which otherwise comes to his knowledge, in his discretion, exercise any of the powers conferred by sections 311, 315, 316 and 317 of this Code. S/N fdui/hzr3Eu8HOjrdxEfsw In exercising its discretion to hear this revision, the court was guided by the applicable legal principles as outlined by Jenkins CJ in the case of R v. Lachiram ILR 28 Bom 533 that: ... this controlling power of the Court is a discretionary power and it must be exercised with regard to all the circumstances of each particular case, anxious attention being given to the said circumstances, which vary greatly.. Further, in the case of Re Soo Leot [1955] CLJU 127; [1956] MLJ 54, Buhagiar J followed the principles stated by Jenkins CJ in R v. Lachiramsupra, who decided that: "that the powers of the High Court in revision are exercisable at the discretion of the Court and that discretion is untrammelled and free, so as to be fairly exercised according to the exigencies of each case". The court also referred to S.325(1) CPC, where the phrase 'may' empowers the Judge to exercise discretion in exercising the power of revision. Based on this provision, the power to conduct revision is entirely at the judge's discretion. The scope of revision is to ensure that orders and sentences decided by the lower courts are correct, valid, appropriate and that the proceedings conducted were orderly. See the Court of Appeal case of PP v. Audrey Keong Mei Cheng [1997] 4 CLJ

S/N fdui/hzr3Eu8HOjrdxEfsw The purpose of revision is also to correct or prevent a miscarriage of justice that may arise from errors in judgment by the lower courts. In exercising its revision jurisdiction, the High Court Judge may request the production of the records of the proceedings in the subordinate Court, as provided for in the CPC. Justice will be achieved when the High Court, in its supervisory role, calls for the records of the lower courts to ensure no errors occurred, as a result of which the accused was subjected to an unjustified decision or judgment. S.323 Power to call for records of subordinate court

A Judge may call for and examine the record of any proceeding before any subordinate Criminal Court for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of that subordinate Court. In considering this review application, this Court had the opportunity to peruse notes of proceedings, records of all charges and also audio-video recordings of the RVT from the SC to understand the background of the case and appreciate the proceedings that had transpired at the SC. Presence of Counsel for Revision Proceedings The court has also exercised its discretion to invite both the S/N fdui/hzr3Eu8HOjrdxEfsw Applicant’s counsel and the Deputy Public Prosecutor to attend and provide brief arguments for the Applicant's review application, even though this is not a right enshrined under the Courts of Judicature Act 1964, as follows: S. 36 Court of Judicature Act 1964 Subject to any written law for the time being in force no party shall have any right to be heard before the High Court when exercising its powers of revision and supervision: Provided that no final order shall be made to the prejudice of any person unless the person has had an opportunity of being so heard. The court's discretion to allow parties to be present and present arguments is consistent with the provisions of s.326 of the Criminal Procedure Code regarding permission for parties to be present.

Permission for parties to appear No party has any right to be heard, either personally or by advocate, before a Judge when exercising his powers of revision: Provided that the Judge may, if he thinks fit, when exercising such powers hear any party, either personally or by advocate, and that nothing in this section shall be deemed to affect subsection 325(2). The Court invited parties to appear and argue in accordance with the provisions that give such permission so that justice is achieved without affecting the rights of any party, especially the Applicant, in the Court reaching a decision in this revision application. S/N fdui/hzr3Eu8HOjrdxEfsw 7 325(2) No order under this section shall be made to the prejudice of the accused unless he has had on opportunity of being heard, either personally or by advocate, in his own defence. Section 326 of CPC has to be read together with section 325(2) CPC as both provisions elaborate section 36 of the Courts Judiciary Act 1964 which provides that no party has the right to be heard before the High Court when the High Court exercises its powers of revision, provided that no final order can be made to the detriment of any party unless the party has been given an opportunity to be heard. Therefore, in the case of revision, it will be prudent for the High Court to allow both parties to appear. In this context, the concept of audi alteram partem is pivotal, where it means that no rights of a person can be affected without being given the opportunity to be heard. The Respondent’s Application To File An Affidavit The learned DPP had sought leave of this court to file an affidavit by the Investigating Officer to oppose the revision application. This application could be treated as an application to adduce fresh or additional evidence. The learned DPP had referred to the Court’s discretion in doing so and cited s.325 CPC read together with s.317 as grounds for the application. It is settled law that the exercise of a discretion must be in accordance with established judicial guidelines. In the case of adducing additional evidence, the guidelines were spelt out S/N fdui/hzr3Eu8HOjrdxEfsw in Ladd v. Marshal [1954] 3 All ER 745 in the form of three conditions. In elaboration of the conditions, Lord Parker CJ said in R v. Parks [1961] 3 All ER 633 at p. 634: Those principles can be summarized in this way. First, the evidence that it is sought to call must be evidence which was not available at the trial. Secondly, and this goes without saying, it must be evidence relevant to the issues. Thirdly, it must be evidence which is credible evidence in the sense that it is well capable of belief; it is not for this court to decide whether it is to be believed or not, but it must be evidence which is capable of belief. Fourthly, the court will after considering that evidence go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial. The statement of the law in R v. Parks [1961] 3 All ER 633 has been adopted and applied in local cases such as Mohamed bin Jamal v. PP [1964] 1 MLJ 254 and Che Din bin Ahmad v. PP [1976] 1 MLJ 289. The conditions for admitting additional evidence on appeal are cumulative rather than alternative, and it is the responsibility of the appellant to demonstrate that all have been satisfied. The court will only allow such evidence in the most exceptional circumstances. As Syed Agil Barakbah J (as he then was) said in Che Din Ahmad v. PP [1975] [1976] 1 MLJ 289 at pp. 289-290: Now, s. 317 of the criminal procedure code gives a discretion to the judge in hearing any appeal to allow S/N fdui/hzr3Eu8HOjrdxEfsw additional evidence if he thinks such is necessary. In considering such application the appellate court has always adopted the attitude that it is only in the most exceptional circumstances, and subject to what may be described as exceptional conditions, that the court is ever willing to listen to additional evidence (Mohamed bin Jamal v. Public Prosecutor [1964] CLJU 235; [1964] 1 LNS 235; [1964] 1 MLJ 354, 255 per Thomson LP, quoting Hallet J in the case of R v. Jordan [1956] 40 Cr App R 152, 154). It is clear, therefore, that not only the circumstances must be most exceptional but the subject which is proposed to be adduced by further evidence is subject to exceptional condition. It becomes necessary only if a failure of justice would result if such additional evidence was not taken and allowed when additional facts have come to light since the date of trial. The matter is left entirely to the discretion of the court. S.317 is the power given exclusively to a Judge under Part VII

Whether there was or was not reasonable ground for believing the accused guilty of the offence;

The nature and gravity of the offence charged;

The severity and degree of punishment that might follow; S/N fdui/hzr3Eu8HOjrdxEfsw

The danger of the accused absconding if released on bail;

His character, means and standing;

The danger of the offence being continued or repeated;

The danger of the witnesses being tampered with;

Opportunity to the accused to prepare the defence; and

The long period of detention of the accused and probability of further period of delay. However, it was held in the case of Che Su Daud v Public Prosecutor [1978] 2 MLJ 162) that the above nine (9) points in which a Court may take into consideration when granting or refusing bail (as listed by Callow J in Wee Swee Siang (supra)) do not appear to form an exhaustive list and there may be many other points too. Thus, in the case of Yusof Mohammed v Public Prosecutor [1995] 3 MLJ 66, Malik Ishak J (as he then was) added that the larger interest of the public and the country as a whole to the list of factors to be considered in deciding on an application for bail. It is the net result of all the considerations for and against the accused which must ultimately decide the matter Charges Against the Applicant Apart from the impugned charge for which bail was refused, the Applicant was also charged for the following offences and was offered bail:- a) s.15(a) of the SOAC S/N fdui/hzr3Eu8HOjrdxEfsw - a global sum of RM30,000-00 was imposed as bail together with 5 other alternative charges for possession of child sexual abuse materials under SOAC. For the 5 charges the Applicant had pleaded guilty on alternatives charges under s.10 on 11-07-2025 and was fined a total sum of RM23,500-00; b) s. 346 Penal Code c) s. 363 Penal Code - for both charges a global sum of RM20,000-00 was imposed as bail. It is to be noted that all the above charges were framed in August 2024 for offences which took place in July 2024 whereas for this case under revision the charge was framed in the month of September 2025 for an offence which allegedly took place in the same month. Analysis In considering the revision application, this Court had closely considered the following facts:- a) All the charges against the Applicant involved offences against children and child sexual abuse materials; b) The Applicant had pleaded guilty to 5 charges for the possession of child sexual abuse materials; c) The charge under revision was allegedly committed while being under bail for the other charges; d) The charge under revision was allegedly committed while the earlier three charges were being partly heard, all of which involved child victim; S/N fdui/hzr3Eu8HOjrdxEfsw e) The charges under Penal Code was for alleged kidnapping and confining a child who was removed from Iskandar Puteri, Johor to Hulu Selangor; f) The charge under revision was allegedly committed in September 2025, merely 2 months after the Applicant had pleaded guilty and was fined for possession of child sexual abuse materials on 11-07-2025; In considering the Applicant’s revision application, this Court is guided by the reference made by Callow J in Public Prosecutor v Wee Swee Siang (supra). Among the considerations are:- a) Whether there was or was not reasonable ground for believing that the accused was guilty of the offence; b) The nature and gravity of the offence charged; c) The nature and gravity of the offence charged which involves sexual offence against a young and vulnerable child; d) The severity and degree of punishment that might follow; e) The danger of the offence being continued or repeated. From the facts gathered, it is axiomatic and this Court has taken cognisance that the Applicant displays a pattern of conduct and propensity towards committing offences against children. What is more startling is that the alleged offence under revision was allegedly committed merely 2 months after the Applicant pleaded guilty to 5 charges of possession of child sexual abuse materials and while being under bail for three other charges, one of which is under s. 15(a)(ii) of SOAC. S/N fdui/hzr3Eu8HOjrdxEfsw This court is mindful that an accused person is presumed innocent until he is proven guilty and it would be unfair and undesirable to deprive his personal liberty until the prosecution has successfully proven his guilt as per the charge proffered against him. In exercising its discretion, the Court must also adhere to the fundamental principle of bail, which is to ensure the presence of the Accused in Court during the trial. In the case of PP v Wee Swee Siang [1948] MLJ 114, the Court stated: ''The primary consideration is to ensure the presence of the accused to stand his trial and bail should not be refused lightly. A man is innocent until found guilty and failing strong grounds he should be granted bail” Having said that, the Court finds that releasing the Applicant on bail would be against public interest in order to protect vulnerable children against the alleged sexual tendencies of the Applicant. The guilty plea of the accused for five charges for possession of child sexual abuse materials and removing and confining a child at a distance of about 380 kilometers away from home would be primary considerations to gauge the Applicant’s tendencies in rejecting bail. This Court would have taken a different approach if the charge under revision was for some other offences which has no similarity to his previous charges. As quoted in Public Prosecutor v. Dato' Seri Anwar bin Ibrahim from Bail: Law and Practice by MR Mallick 2nd Edn says at p. 193, the presumption of innocent until proven guilty is not compromised simply by bail not being granted: S/N fdui/hzr3Eu8HOjrdxEfsw “But the fact that the accused is presumed to be innocent till the guilt is proved against him beyond all reasonable doubt is not a relevant consideration for grant of bail. Pre-trial detention in itself is not an evil, nor opposed to the basic presumption of innocence” Let us be reminded by the words of YAA Azahar Mohamed CJ (Malaya) in Letitia Bosman v. PP & Other Appeals [2020] 8 CLJ 147 FC that: “The right to a fair trial is a constitutional guaranteed right. When the principle is applied to a criminal case, what it means is that an accused has a constitutional guaranteed right to receive a fair trial within a reasonable time by an impartial tribunal. However, the right to a fair trial as enshrined in cl. (1) of art. 5, is not absolute and is subject to qualifications which lies in the phrase 'save in accordance with law'. Therefore, the constitutional rights as guaranteed under cl. (1) of art. 5 can be taken away in accordance with law” Conclusion The reason advanced by the applicant in requesting for bail is very much personal in nature. After examining the notes, documents and recordings of the proceedings in Court as well as the long list of established authorities, this Court is of the considered opinion that the Applicant does not qualify for the bail sought under the category of non-bailable offences. S/N fdui/hzr3Eu8HOjrdxEfsw Hence, this Court finds that the rejection of bail for the accused by the learned SCJ was correct based on established principles and proper in law. Therefore, there is no reason for this Court to intervene by invoking its revisional jurisdiction under the Criminal Procedure Code. Accordingly, for the foregoing reasons, the Applicant’s revision application is hereby dismissed. Dated 15-10-2025 Abdul Fareed bin Abdul Gafoor Judicial Commissioner High Court 3 (Criminal) Johor Bahru Nur Zafirah Bte Norizan bersama Suhaila Shafiuddin, Counsel for the Applicant. TPR Manushri a/p Stephen Suthakar, Counsel for the Respondent. S/N fdui/hzr3Eu8HOjrdxEfsw S/N fdui/hzr3Eu8HOjrdxEfsw