Mohd Noor Aazly Bin Yahya v Pendakwa Raya (JA-43(A)-1-11/2025)

On 31.10.2025 the learned counsel for the Applicant filed a criminal revision application against the decision of the learned Magistrate dated 29.10.2025 granting discharge not amounting to acquittal (DNAA) against the Applicant. The sole ground for the revision was that the Magistrate ought to have granted a Discharge and Acquittal (D&A) order instead of DNAA.

Upon perusing the application, this Court agreed to consider the revision application, given that the High Court has the 2 power and responsibility to ensure that criminal law is properly administered by the lower courts. This has been emphasized by Abdul Hamid CJ (Malaya) in the case of LIAW KWAI WAH & ANOR v. PP [1987] 1 CLJ 35; [1987] CLJ (Rep) 163; [1987] 2 MLJ at page 70. "Duty of High Court - Basically, the duty lies with the High Court to see that the criminal law is properly administered by an inferior court. The Judge's duty is to satisfy 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 such inferior court. Where, for instance, a convicted person has scrupulous objection to invoke the jurisdiction of a High Court, either on a question of legality of conviction or error of law concerning the conviction or sentence, the Judge ought to call for and examine the record with a view to exercising the revisionary power to correct a miscarriage of justice".

In the case of PP v. KULASINGAM [1974] 1 LNS 118; [1974] 2 MLJ 26, Hashim Yeop A Sani J (as the Lordship then was) had spoken about the supervisory powers of the High Court:- "The powers of the High Court in revision are amply provided under s. 325 of the Criminal Procedure Code subject only to sub-ss. (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 3 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 15(1)(a) of the Dangerous Drugs Act 1952 (DDA) at the Criminal Magistrates Court Johor Bahru on 20.01.2022 under case number JA-82D-2-01/2022. The case was set for trial on 25.02.2024.

However, on the day of the trial, the Prosecution informed the Court that no Prosecution witnesses were present for the trial. The court then gave the Applicant a discharge not amounting to an acquittal (DNAA).

Subsequently, on 21.04.2024, the Applicant was re-charged under the same charge before the Criminal Magistrate's Court (2) Johor Bahru with a new case number, JA-82D-17- 04/2024. The case was set for trial on 07.01.2025. However, on the day of the trial, the Deputy Public Prosecutor ('DPP') was on leave. The application for postponement of the trial was rejected by the Court with a DNAA order against the Applicant.

Thereafter, on 07.02.2025, the Applicant was once again charged under the same charges before the Criminal Magistrate's Court (1) Johor Bahru with a new case number, JA-82D-10-02/2025 (case 10). This matter was fixed for trial on 14.07.2025 and 15.07.2025 but the hearing was adjourned as the Magistrate was on medical leave. The trial was then postponed to 22.10.2025 and 23.10.2025. The Prosecution had lined up witnesses for both dates and on 22.10.2025 the first Prosecution witness (PW1) had testified. However, unbeknownst to the Respondent, the trial date of 23.10.2025 was vacated prior to that at the request of the Applicant’s counsel. The application for adjournment and the granting of the same was never brought to the attention of the Prosecution and this was confirmed by the Applicant’s counsel upon query by Court. On 22.10.2025, after obtaining a suitable date from the parties, the learned Magistrate set the adjourned hearing date for 29.10.2025, an interval of 5 working days from the earlier date. However, on the adjourned date of the trial, 29.10.2025, the Prosecution informed the learned Magistrate that no Prosecution witnesses were present at the trial to testify. The Prosecution then requested the learned Magistrate to postpone this case to another date. The Applicant's counsel objected to the application for postponement, citing reasons including, among others, that the Applicant had been charged under the same case three (3) times and that the previous court had ordered a dismissal without acquittal (DNAA). After hearing the arguments from both parties, the learned Magistrate ordered a DNAA.

The Applicant was then immediately charged again under the same offence under section 15(1)(a) of the DDA 1952 with case number JA-82D-48-10/2025 (case 48). After the charges were read, the Applicant pleaded not guilty and requested a trial. The Applicant's counsel raised strong objections among others, the Prosecution had prior knowledge that no Prosecution witnesses were present for the purpose of continuing the trial on 29-10-2025 and that the new charge (case 48) was similar (duplicity) and involved the same facts. Also that the Prosecution already came prepared in advance to re-charge the Applicant if the old case (case 10) given a DNAA and that the Prosecution was mala fide in doing so.

After hearing the parties' oral arguments, the Magistrate made the decision that the trial (case 48) could resume at the stage where case stopped, using her power under s. 254A Criminal Procedure Code ('CPC'). The trial was set for January 5, 21, and 22, 2026. S. 254A reads: 254A Reinstatement of trial after discharge

Subject to subsection (2), where an accused has been given a discharge by the Court and he is recharged for the same offence, his trial shall be reinstated and be continued as if there had been no such order given.

Subsection (1) shall only apply where witnesses have been called to give evidence at the trial before the order for a discharge has been given by the Court [10] This revision application was filed 2 days later on 31.10.2025. REVISION JURISDICTION [11] 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. [12] 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. [13] 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.. [14] 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. [15] 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 702. [16] The revisional jurisdiction exists to correct, and where necessary to avert, any miscarriage of justice arising from errors committed by the subordinate courts. Justice is upheld when the High Court, in exercising its supervisory authority, calls for and scrutinises the records of the lower courts to ensure that no irregularity or misdirection has occurred which might have subjected the accused to an unjust or legally unsustainable decision. THE LAW [17] The power to initiate, conduct, or discontinue any proceedings for an offence rests with the power and discretion of the Public Prosecutor. This is in line with Article 145(3) of the Federal Constitution, read together with s. 376(1) CPC. [18] S.254 CPC provides that the Public Prosecutor may choose not to proceed with the Prosecution, and based on that information, the court may order the accused to be discharged without being acquitted (DNAA); and in certain circumstances, the court also has the discretion to issue an order of discharge and acquittal (D&A) as provided by s. 254(3) CPC. [19] A discharge and acquittal (D&A) may be ordered in the following situations: a) at the close of the Prosecution’s case where no prima facie case is established — section 173(f) CPC; b) at the close of the defence where the court finds the accused not guilty — section 173(m)(i) CPC; and c) where the Public Prosecutor declines to further prosecute pursuant to section 254(3) CPC. [20] In the case of PP v. AMBIKA MA SHANMUGAM [2019] 7 CLJ 518, the Prosecution applied for a DNAA order, but the court issued a D&A order instead under S. 254(3) after the PP informed the court of their intention not to proceed with the trial. [21] In the case of VIGNY ALFRED RAJ VICETOR AMRATHA RAJA v. PP [2022] 8 CLJ 1 the Federal Court had said this: “Section 254 requires the Prosecution to consciously or deliberately invoke the decision not to further prosecute the accused regarding the charge for which the trial has already commenced. It must not be confused with an application for an adjournment” ANALYSIS [22] It is the contention of the Applicant that the learned Magistrate ought to have granted a discharge and acquittal (D&A) order instead of DNAA on 29-10-2025. [23] In considering the revision application, this Court had closely considered the following issues raised by the Applicant in moving this Court for a revision order: - a) Duplicity The charge for case JA-82D-48-10/2025 (case 48) was read to the Applicant after the Court had granted a DNAA for case JA-82D-10-02/2025 (case 10). It was not read to the Applicant during the concurrence of the said case. Therefore, the question of duplicity does not arise. The case of SHEILA SHARON STEVEN KUMAR v. PP [2024] 6 CLJ 171 quoted by the learned counsel for the Applicant need to be distinguished on its facts since in that case the review proceedings were conducted without the knowledge and presence of a lawyer and that was the bone of contention which arose therein. b) Bad Faith The learned counsel for the Applicant also canvassed the argument that the charge JA-82D-48-10/2025 against the Applicant was mala fide and premised upon that the learned Magistrate ought to have granted a D&A order. The Federal Court in Karam Singh v Menteri Hal Ehwal Dalam Negeri [Minister of Home Affairs], Malaysia [1969] 2 MLJ 129, held: “... Mala fide does not mean at all a malicious intention. It normally means that a power is exercised for a collateral or ulterior purpose, i.e., for a purpose other than the one for which it is professed to have been exercised.” It is evidently clear that the factual matrix of this matter does not support the argument of mala fide by the learned counsel for the Applicant and therefore not applicable to this case. FINDINGS [24] It is to be noted that between the adjourned hearing date on 22.10.2025 and the next hearing date of 29.10.2025, there were 5 working days. The Court takes notice that it’s rather a short duration of time for applying, extracting, and serving the subpoena on the witnesses for the following hearing date, even if it did not involve public witnesses. This moreover, when the Prosecution was ready with their witnesses to proceed on 23.01.2025. Therefore, the adjournment request by the Prosecution on 29.10.2025 was not a frivolous application and the learned Magistrate ought to have considered it favourably than take a simplistic approach of granting a DNAA. [25] Nevertheless, the learned Magistrate had exercised her discretion to grant a DNAA and subsequently allowing the charge in case 48, both of which was in accordance with law. According to s.254A of the Criminal Procedure Code, the court also has the power to revive the trial after the Applicant has been granted a DNAA. [26] It is also to be noted that the Prosecution had never at anytime indicated that it was disinterested in prosecuting the Applicant. [27] In the premises the learned Magistrate had acted in accordance with s. 173(g) CPC by granting a DNAA and not D&A for case JA-82D-10-02/2025. [28] The scope and purpose of section 173(g) have been ably explained by Ong CJ in CHU CHEE PENG v. PP (1973) 2 MLJ 35, and I adopt the same: ”When the entirety of section 173 is viewed in its logical sequence, it becomes apparent that paragraph (g) has a sound raison d'être for its placement between paragraphs (f) and (h) et seq. Section 173 prescribes the procedure for summary trials. There are many cases in subordinate courts where the very cornerstone of the Prosecution collapses at an early stage for various reasons. In such circumstances, should the Magistrate persist in the futile exercise of hearing the remainder of the Prosecution’s case to its bitter end, knowing that an acquittal must inevitably follow at the close of the Prosecution? Without the express power conferred by paragraph (g), such a pointless process would be unavoidable. Hence the paragraph provides: “Nothing in paragraph (f) shall be deemed to prevent the court from discharging the accused at any previous stage of the case if for reasons to be recorded the court considers the charge to be groundless.” However, Magistrates may on occasion act hastily, misdirect themselves, or fall into error when dismissing a case prematurely. Thus, they are required to record their reasons, and to avoid irreversible consequences, they are authorised only to discharge—not, it must be noted, to acquit—the accused.” [29] Similarly, in PP v. HETTIARACHIGAE LS PERERA, Harun J pointed out that in a summary trial, the power to acquit may only be exercised either under section 173(f) at the close of the Prosecution’s case where there is no case to answer, or under section 173(m)(i) at the close of the defence where the accused is found not guilty. His Lordship observed that apart from these two situations, a Magistrate may also order a discharge amounting to an acquittal when the Public Prosecutor declines to further prosecute at any stage before judgment under section 254(3) CPC. His Lordship recognised that a Magistrate may discharge under section 173(g) before the close of the Prosecution’s case or under section 173(n) before calling the accused to enter his defence, but such discharges do not amount to an acquittal. [30] In PP v. HETTIARACHIGAE LS PERERA, the case had been called up for revision, and the record revealed that no Prosecution evidence had been heard and the Prosecution had not declined to prosecute. The Prosecution had merely sought an adjournment. In such circumstances, the only power available to order a discharge was under section 173(g), which requires a finding that the charge is groundless. This was not supported on the facts, and the Magistrate’s D&A order was therefore set aside and the matter remitted for disposal according to the CPC. The facts of HETTIARACHIGAE is similar to this case under revision where the Prosecution only sought for an adjournment which the learned Magistrate could have readily granted. [31] Having said that, the act of the Magistrate in granting DNAA was exercised according to law and the Magistrate would have fallen into grave error had she given a D&A order. Hence, the Applicant’s argument the Magistrate had erred in granting DNAA instead of D&A is misplaced and untenable. [32] Therefore, this Court finds no reason to interfere with the learned Magistrate’s decision. Accordingly, for the foregoing reasons, the Applicant’s revision application is hereby dismissed. Dated 20-11-2025 Abdul Fareed bin Abdul Gafoor Judicial Commissioner High Court 3 (Criminal) Johor Bahru COUNSEL : Applicant’ Counsel : TC Lim Alan Lim, Poh & Oh Peguambela & Peguamcara Advocates & Solicitors No. 7B, Jalan Perang, Taman Pelangi, 80400 Johor Bahru, Johor On Behalf of the Respondent : Pn Nor Deana Aqilah binti Aliman Penasihat Undang-Undang Negeri Johor Aras 2, Bangunan Dato’ Ja’afar Muhammad Kota Iskandar, 79100 Nusajaya, Johor