MOHD RAZIN BIN RAZALI v Pendakwa Raya (K-06B-72-12/2022)

At the Sessions Court, the Appellant was charged with two offences. The first charge was under section 26B of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 [Act 670] and the second under section 130V(1) of the Penal Code. For the first charge, the Appellant's application to be released on bail was allowed by the High Court via Criminal Application No. KA-44(A)-5-10/2022.

However, the Appellant's application for bail under section 13(3) of the Security Offences (Special Measures) Act 2012 [Act 747] ("SOSMA") in respect of the second charge was dismissed by the High Court. Hence this Appeal.

The respondent, the Public Prosecutor, filed a notice of preliminary objection in Encl. 26 on the ground that the decision of the High Court Judge on the issue of bail is not appealable and the appellant's appeal is thus incompetent as it does not fall within the definition of "decision" under section 3 of the Court of Judicature Act 1964 ("the CJA").

After reading the written submissions filed, hearing both parties orally and perusing the records of appeal, we unanimously struck out this appeal. We now give our reasons.

We noted that the Appellant, in his application for bail at the High Court relied on the grounds that he was suffering from hypertension, diabetes, hypertriglyceridemia, fatty liver and hyperuricemia (gout). The learned High Court Judge dismissed the application on the ground that the Appellant failed to prove that his medical condition was life threatening. The learned High Court Judge came to this conclusion based on medical report prepared by Dr. Noor Hidayati binti Ani, a medical officer at the Alor Setar prison.

In fact, the learned High Court Judge had considered various authorities such as Dato' Seri Anwar Ibrahim v. PP [1999] 1 MLJ 321, PP v. Dato' Balwant Singh [2002] 4 CLJ 155, Raman Shunmugham v. PP [2020] 2 CLJ 818, Gobinath a/l Sinnaya v Public Prosecutor and other appeals [2022] MLJU 2723, Mohamad Faisal Mohamad Sharif v. PP [2022] 1 LNS 122, Ravindran Anemalai v PP [2022] 1 LNS 125, Ganesan Muniandy Iwn. Pendakwa Raya [2018] MLRU 1062 and Jimmy Seah Thian Heng & Ors v. PP [2019] 7 MLJ 308 before he arrived at the decision.

We now turn to deal first with the Respondent's preliminary objection. It was submitted by the Respondent that this appeal was incompetent as it does not fall within the definition of "decision" under section 3 of the CJA. It was argued that therefore, this Court has no jurisdiction to consider this appeal. The Respondent relied on the decision of this Court in the case of Dato' Seri Anwar Ibrahim v PP [1999] 1 CLJ 537 which held as follows: "A decision made pending the trial of the charges against the appellant is not, in our considered opinion, a decision (ruling) that had the effect of finally determining the rights of the appellant. It is only the outcome of the trial that would have the effect of finally disposing of his rights. A decision on bail (by the court of first instance), whether the grant or refusal of it, will not finally determine the rights of the appellant in the outcome of his trial. That being so, the order of the High Court in refusing to admit the appellant to bail is not appealable to the Court of Appeal."

Counsel for the appellant submitted otherwise. He submitted that this Court has jurisdiction hear this appeal and referred to the case of Syarikat Tingan Lumber Sdn Bhd v. Takang Timber Sdn Bhd [2003] 2 CLJ 177 which held as follows: "What we feel, however, must be emphasised, with equal force when scrutinising s. 3 CJA as amended, is that, the said ruling must be made in the course of a trial, or hearing. Much emphasis, we feel, is placed on the latter part of the sentence viz-aviz "... does not finally dispose of the rights of the parties", thus overlooking the fact that the ruling must be made in the course of a trial or hearing of any cause or matter. Counsel we found appeared to be preoccupied with the determination of whether the ruling disposes the rights of the parties, but paid scant regard to the fact as to at what juncture the said ruling was made. Equal weight should be attached to the entire sentence of s.3 CJA as amended, for what must be asked, is not only whether a ruling does not dispose the final rights of the parties but also the question whether it was a ruling made in the course of a trial or hearing, of any cause or matter. If it was not a ruling made in the course of a trial or matter, regardless of the fact that it did not dispose of the rights of the parties, it may not be excluded by the definition of "decision" as provided in s.3 of the CJA as amended, and is therefore appealable."

The Appellant further submitted that the bail application filed by the Appellant at Alor Setar High Court was an application that stood on its own and not related to the Appellant's trial for charge under Section 130V of the Penal Code. It was argued that the decision by the learned High Court Judge was not an interlocutory order, or ruling made during the trial, because the trial for the offence charged had not commenced and in fact the case was yet to be transferred from the Sessions Court to the High Court when the Appellant's application was dismissed.

The jurisdiction of this Court is derived from the statutory provisions. According NH Chan JCA in the case of Dato' Seri Anwar Ibrahim v PP [1999] 1 CLJ 537, "the right to appeal from one court to another must be conferred by some statute, otherwise, the decision of every court of law is final."

Section 50 of the CJA, prescribes the jurisdiction of this Court. It provides that the Court of Appeal shall have jurisdiction to hear and determine any appeal against any decision made by the High Court.

The relevant issue here is thus whether the ruling or decision by the High Court Judge in refusing bail to the appellants is appealable?

This same issue was considered in the case of Gobinath a/l Sinnaya v Public Prosecutor and other appeals [2022] MLJU 2723 by Nordin Hassan JCA where his Lordship held as follows:

The question of whether the decision on bail is appealable had also been decided by this Court in Dato' Seri Anwar Ibrahim's case (supra) where Lamin Mohd Yunus PCA said this: "The issue before us is whether the matter of bail is appealable to the Court of Appeal. The Courts of Judicature Act 1964 spells out the areas of jurisdiction for the Court of Appeal both criminal and civil. Its criminal jurisdiction is found within the terms of s. 50 of the Act. Section 50 employs the word "decision" with its definition provided for in s. 3. As it has been suggested the definition of the word "decision" would exclude any ruling on any matter extraneous to the issues to be determined in the main case. This, as I understand it, would mean any decision of the High Court on any matter would be appealable to the Court of Appeal. That cannot be the intention of Parliament. The matter of bail may very well be extraneous to the issues to be determined in the main case. But that is not the issue. What are appealable, as is intended by the current definition of the word "decision" are those decisions of the High Court that have the effect of finally disposing of the rights of parties. To get bail is not as of right. Bail under s. 388 of the Criminal Procedure Code is granted at the complete discretion of the court. The very nature of bail possesses no element of finality. It is something of a respite. It is a mechanism for temporary relief from confinement. Once given it is capable of being withdrawn. Upon refusal, it can be reapplied. With the greatest of respect, I am unable to accept the interpretation as submitted by the learned counsel for the appellant. I am therefore quite clear in my own mind that an appeal on the matter of bail is incompetent to be laid before this court and therefore is rightly dismissed. With that, the proceedings of this morning should end." (emphasis added)

In the same case, NH Chan JCA opined as follows: "A decision made pending the trial of the charges against the appellant is not, in our considered opinion, a decision (ruling) that had the effect of finally determining the rights of the appellant. It is only the outcome of the trial that would have the effect of finally disposing of his rights. A decision on bail (by the court of first instance), whether the grant or refusal of it, will not finally determine the rights of the appellant in the outcome of his trial. That being so, the order of the High Court in refusing to admit the appellant to bail is not appealable to the Court Appeal." (emphasis added)

Moreover, there is no finality in an application for bail as a fresh application can be made if new development arises. As such, the decision on bail, as in the present case, does not finally dispose of the rights of the appellant. This issue was addressed in Dato' Seri Anwar Ibrahim's case (supra)...”

In a similar vein, in Dato' Seri Anwar Ibrahim v. PP [1999] 1 MLJ 321 the court made it clear that "the very nature of bail possesses no element of finality. It is something of a respite. It is a mechanism for temporary relief from confinement. Once given it is capable of being withdrawn. Upon refusal, it can be reapplied."

It is clear from the cased discussed in the preceding paragraph that the ruling made by the learned High Court Judge in refusing bail to the Appellant did not finally dispose of the rights of the Appellant. Therefore, it was not a decision within the meaning of section 3 of the CJA and as such not appealable under section 50(2) of the same Act.

In the upshot, we uphold the preliminary objection by the Respondent. We therefore struck out the Appellant's appeal. -sgd- (AZMAN BIN ABDULLAH) Judge Court of Appeal Malaysia Putrajaya Date of Decision : 21 September 2023 Grounds Issued : 29 January 2024 Legal Representation For the Appellant G. Ravishankar (together with Mohd Nizam Azhar) [Messrs. R. Shankar Gandhi & Associates] For the Respondent : Atiqah binti Abdul Karim@Husaini [Attorney General's Chambers]