Mfr Comtech Resources Sdn. Bhd v Pendakwa Raya (M-07-53-06/2024)

This is not an appeal before the Court; rather, it is a hearing of a Notice of Motion (Encl. 1) filed by the appellant which was registered under a Criminal Appeal No. M-07-53-06/2024 (“Appeal 53” / “NU2”).

Encl. 1 relates to a Criminal Appeal No. M-09-65-02/2019 (“Appeal 65”) which involved the same parties before this Court. In Appeal 65, the parties had by consent entered into a Consent Order dated 22.11.2023 (“the Consent Order”) before Justices Hadhariah Binti Syed Ismail JCA (as she then was), Azman Bin Abdullah JCA and Azmi Bin Ariffin JCA. The terms of the Consent Order are reproduced as below:

The Appeal 65 stemmed from a Criminal Appeal No. MA-42(Ors)-1- 01/2018 from the High Court of Melaka. The appellant, who was one of the Third Parties at the High Court, was not satisfied with the decision of the High Court. The appellant filed an appeal to the Court of Appeal via Appeal 65. The Appeal 65 was then resolved through the Consent Order.

Sometime in June 2024, the appellant was not satisfied with the manner in which prayers (c) and (d) in the Consent Order was carried out by Bank Negara Malaysia (“BNM”). As such, the appellant filed Encl. (in this Appeal 53) seeking the following orders as below:

On 10.2.2025, this Court considered the submissions, oral and written, by the parties’ respective counsels, and in a unanimous decision decided to dismiss Encl. 1 with no order as to costs. The reasons for the decision are explained as below.

Encl. 1 (Appeal 53) is heard together with two other Notices of Motion, namely Encl. 55 (NU1) and Encl. 71 (NU3), filed respectively in two separate appeals as shown below: Criminal Appeal No: Perayu Responden Encl / NU M-05-349-08/2019 (“Appeal 349”) Sakinah Binti Mustapha & 29 Yang Lain Pendakwa Raya Encl. 55 / NU1 M-09-62-02/2019 (“Appeal 62”) Yen Kim Pok & 140 Yang Lain Pendakwa Raya Encl. 71 / NU3

The two Motions (Encl. 55 and Encl. 71) in the above appeals seek similar prayers. The prayers sought in Encl 55 and Encl. 71 respectively are reproduced as below: Encl. 55 (Appeal 349 / NU1)

The respective parties in both Appeals 349 and 62 had also entered into a consent order at the Court of Appeal in their respective appeals when the appeals were heard together with the Appeal 65 on 22.11.2023. The wordings of the two consent orders are similar to the Consent Order in Appeal 65, except for the parties’ name and the agreed percentage of the parties’ respective claims. Hence, three consent orders of a similar nature were recorded before the same panel of Justices at the Court of Appeal on 22.11.2023.

The respective appellants in the Appeals 349 and 62 were also not satisfied with the manner in which BNM had carried out the calculation for the entitlement of the respective appellants in their respective consent orders. As such, the respective appellants in the Appeals 349 and 62 filed their respective Notice of Motion (Encl. 55 and Encl. 71 respectively) at the Court of Appeal. Hence, Encl. 1 (Appeal 53 – NU2), Encl. 55 (Appeal 349 – NU1) and Encl. 71 (Appeal 62 – NU3) were all heard together before this Court on 10.2.2025.

The appellants in Encl. 55 (in Appeal 349 – NU1) and Encl. 71 (in Appeal 62 – NU3) are seeking to amend (mengubah) and to invalidate (dibatalkan) item (d) in the respective consent orders which stated “Jumlah Tuntutan juga akan ditolak dengan jumlah bayaran yang telah diperolehi oleh Perayu-Perayu dan pengiraan ini akan dibuat oleh pihak Bank Negara Malaysia.” The main complaint is that the appellants are not satisfied and do not agree with BNM’s calculation in coming to its decisions on the amounts to be refunded to the appellants in the respective consent orders. The appellants aver that the amounts decided by BNM to be refunded to the appellants do not correspond with the amounts of their respective claims in item (a) in the respective consent orders.

In similar vein, Encl. 1 (in Appeal 53 – NU2) is seeking for this Court to determine the validity of the calculation of the repayment by the respondent to one Mohd. Fadhli Bin Rashid and to assess the amount of the repayment by the respondent to the appellant for a sum amounting to RM2,300,164.00 as agreed in the Consent Order, or in the alternative, the repayment amount to be assessed by the Deputy Registrar of the Court of Appeal. The appellant is asking this Court to scrutinize the Page 7 of 12 methodology of calculation adopted by the respondent (through the BNM) to compute the repayment amounts to Mohd. Fadhli or the appellant based on the Consent Order, or is asking the Court, in the alternative, to alter the terms of the Consent Order to allow the Deputy Registrar of the Court of Appeal to reassess the repayment amounts which the appellant was entitled to in the Consent Order.

This Court dismissed all three Motions on 10.2.2025. However, the reasons in this judgment are mainly confined to the dismissal of Encl. (Appeal 53).

In the first place, this Court frowns upon the competency of Encl. (in the Appeal 53) that was registered as a criminal application (permohonan jenayah - kod “07”) by the Registry of the Court of Appeal.

The appellate criminal jurisdiction of the Court of Appeal is found in s. 50 of the CJA which states that “the Court of Appeal shall have jurisdiction to hear and determine any appeal against any decision made by the High Court – (a) in the exercise of its original jurisdiction; and (b) in the exercising of its appellate or revisionary jurisdiction in respect of any criminal matter decided by the Sessions Court.”

Encl. 1 is not an appeal against a decision of the High Court in exercising of its original jurisdiction or its appellate or revisionary jurisdiction.

Encl. 1 is also not an application to seek leave for a review of a decision of the Court of Appeal vis-à-vis invoking this Court to exercise its inherent jurisdiction under s. 87 of the Courts of Judicature Act 1964 (“CJA”) to review its own decision when the Court is sitting as the apex court for the appeal (see Harchanran Singh a/l Piara Singh v PP [2011] 6 MLJ 145, FC).

Encl. 1 (in the Appeal 53) is in substance a Motion to move this Court to determine the validity of the calculation of the repayment (“menentukan kesahihan pengiraan bagi pembayaran”) and to assess the amount payable (“jumlah taksiran bayaran yang perlu dibayar”), and in the alternative, to order the matter to be heard before the Deputy Registrar of the Court of Appeal to reassess the amount payable.

In essence, Encl. 1 is seeking, first, to move this Court to exercise a power which it does not possess while exercising its criminal appellate jurisdiction, and secondly, Encl. 1 is a criminal application before this Court which is manifestly incompetent in law and is manifestly erroneous in proceeding.

A Motion can be made before the Court of Appeal (in criminal appellant jurisdiction) provided that there is a pending appeal in the process. Rule 69(1) of the Rules of the Court of Appeal 1994 (CoA-Rules) reads as follows: “(1) All applications to the Court in pending appeals shall be made by filing the Notice of Motion and every affidavit intended to be used in support thereof….”

Insofar as the appellant’s complaint is concerned, it is in relation to the Consent Order (dated 22.11.2023) in the Appeal 65 in which the matter had been resolved and there is no pending appeal. Hence, on both counts, vis-à-vis the filing of a fresh proceeding by way of Motion and the Appeal 65 being no longer pending as it had ended with the recording of the Consent Order, Appeal 53 could not be a competent criminal application. Further, Encl. 1 (the Motion) could not invoke any power or inherent jurisdiction of this Court to grant the orders sought in the prayers in Encl. 1. For this reason alone, Encl.1 ought to be dismissed in limine.

In contrast, for Encl. 55 (in Appeal 349 – NU1) and Encl. 71 (in Appeal 62 – NU3), both Motions were filed under the main appeal proceeding, not a fresh proceeding, unlike the one in Encl. 1 (in Appeal 53) which was filed in reference to another proceeding, to wit the proceeding in the Appeal 65. Clearly, Encl.1 is an incompetent criminal application proceeding before this Court.

For completeness, with regard to the grounds for Encl. 1, the appellant is, in substance and in effect, seeking for this Court to grant an order to re-calculate the amount payable by the respondent to the appellant as well as to re-examine the method used for the calculation. The appellant could not agree with the method used and those considerations that had been taken into account by BNM in coming to its decision for the calculation of the amount payable. Hence, in effect, the appellant is seeking to alter or amend the contents of the Consent Order.

It is trite law that parties could not seek to alter or amend a consent order recorded by the court unless the alteration or amendment is made by the consent of both parties (see Abdul Razak Sheikh Mahmood & Page 10 of 12 Ors v Amanah Raya Bhd & Ors And Anor Appeal [2018] 5 CLJ 125, CA). In the event any one party to the consent order later could not agree with the terms of the consent order or could not agree with the manner in which the terms of the consent order are to be carried out, the parties must resolve the dispute(s) or difference(s) amicably. The parties could then apply to the court to alter or amend the terms of the consent order provided that all parties agree to do so.

In the present case, the appellant filed its Motion to ask this Court to re-look into the terms in the Consent Order through an application disguised as a fresh Motion (in the form of a criminal application) to alter or amend the terms of the Consent Order. The respondent objected to the appellant’s Motion and could not agree with the appellant’s prayers in the Motion. As such, the Motion is a backdoor application to unilaterally alter or amend the terms of the Consent Order. This Court finds the Motion to be inherently wrong in law.

This Court is of the considered view that the appellant could not come to the Court of Appeal by way of a Motion to vary the terms in the Consent Order. If the appellant was not satisfied with the terms of the Consent Order and could not resolve the dispute(s) or difference(s) in carrying out the terms of the consent Order with the respondent, then the only option available to the appellant is to seek a review of the decision of the Court of Appeal in recording the Consent Order and at the same seek an order to set aside the Consent Order.

Based on the above findings and analysis, the appellant’s Motion ought to be dismissed either on the ground of failing to comply with the Page 11 of 12 adjectival law or on the ground of unsustainability on the substantive law aspect, or both.

For the above reasons, this Court, in a unanimous decision, dismissed Encl. 1 of the Appeal 53. This Court also dismissed Encl. (in the Appeal 349 – NU1) and Encl. 71 (in the Appeal 62 – NU3) on the ground that the Motions are unsustainable based on the substantive law aspect, to wit the appellants could not amend or alter a consent order unilaterally. -sgd- (CHOO KAH SING) JUDGE COURT OF APPEAL, MALAYSIA Date: 28.5.2025 Page 12 of 12 Counsel(s) for the appellant: Nik Mohd Radhia B. Nik Abd Ghani (Che Abdul Haris B Abdul Malik with him) Tetuan Alda Shukri Khairi & Associates Counsel(s) for the respondent: Norzilati Izhani Zainal @ Zainol (DPP) (Steve Chin Yun Cheong (DPP) with her) The Attorney General Chambers