NIK SYAZWAN BIN IBRAHIM v Pendakwa Raya (AB-44-50-10/2022)

The Applicant filed an appeal against the decision of this Court delivered on 8.12.2022 that dismissed his Notis Usul for stay of execution of sentence which was passed by the Kuala Kangsar Sessions Court on 23.9.2022. This Grounds of Judgment sets out the reasons for dismissal of the application. Background [2] The Appellant was charged with two (2) offences under s. 376B(1) of the Penal Code in Case Nos. AG-62JSK-10-12/2020 and AG-62JSK- 11-12/2020 respectively. At the end of the trial he was found guilty on both charges and convicted by the Sessions Court on 23.9.2022. He was then sentenced to 12 years’ imprisonment and 3 strokes of the rotan for each charge and the imprisonment terms were to run concurrently. The Applicant’s counsel applied for stay of execution of the sentences at the Sessions Court but it was dismissed.

The Applicant’s counsel filed a Notice of Appeal to the High Court against his conviction and sentence on 28.9.2022 in Appeal No. AB- 42JSKS-2-09/2022 but the notice was rejected since it should have been filed at the Sessions Court in Kuala Kangsar. On 3.10.2022 his counsel filed notices of appeal against conviction and sentence and was assigned the Appeal Nos. AB-42JKS-3-10/2022 and AB-42JSKS-4-10/2022.

The filing history in the electronic filing system showed that his counsel on 2.12.2022 filed a Petition of Appeal in the case number that had been earlier struck off. During the hearing of the application on 8.12.2022, counsel was told that that case number was not valid due to the notice being filed at the wrong forum. There is now an application pending for extension of time to file the Petition of Appeal. In regard to the trial at the Sessions Court, the Applicant was allowed bail in the amount of RM12,000 with 1 surety. The hearing of application for stay of execution [5] In support of his application, the Applicant had affirmed an Afidavit Sokongan dated 3.10.2022. The Deputy Public Prosecutor (DPP) filed an Afidavit Jawapan on behalf of the Respondent, opposing the application, on 28.10.2022.

During the hearing of the application, it was submitted for the Applicant that the Court must allow the stay of execution on the following grounds: i. special circumstances due to family hardship as the entire family is dependant on the Applicant for survival; and ii. a good chance of success in the appeal.

The Court is urged to grant the stay of execution of sentence because the family is in dire straits, the Applicant’s first child has stopped schooling as there is no money and the second child only goes to school once or twice a week as there is no one to send him. Now only the relatives are helping to send them food, the first child is also doing odd jobs to sustain the family, and that the Applicant’s wife is searching for a job but unsuccessful. These were only submissions from the Bar and counsel was candid that she had only been informed about their situation that morning in Court.

The Afidavit Sokongan stated that the Applicant had filed an appeal against the Sessions Court decision and that he worked at a tin mine earning RM500 monthly and that he supported his mother aged 57 years and who suffered from high blood pressure. As the sole breadwinner, his famly would suffer hardship and his children would not be able to attend school. He is a first offender and has never been involved in any crimes prior to his conviction. Those were the reasons given to support his application as having “special circumstances”. Nowhere in the Affidavit that he mentioned about the prospect of success in the appeal.

The DPP in her submission objected to all the reasons provided in the Afidavit and in the hearing of the application. She submitted these wre not special circumstances that merited consideration by the Court as everyone would claim family hardship and even health reasons were not considered as a special circumstance. While sympathising with their predicament, the DPP stated it was not incumbent upon the Court to accept those reasons. In the case of Pong Chan Fai v PP [2019] MLJU 602 the court dismissed the application that a serious health condition was 4 not a ground which merited consideration as special circumstances uder s. 311 of the Criminal Procedure Code (CPC) where a stay of execution could be given. The DPP submitted further that there were other avenues where the family may obtain aid and assistance including “zakat” organisation and welfare bodies. The children’s school should also take the initiative to manage their schooling while the Applicant is in remand. On another note, it was submitted that there was no documentary evidence appended to support the application. Decision of the Court [10] The Court noted that the application was not in order as the Notis Usul did not state the section under which he was found guilty and it did not state what was the prospect of success in the appeal. It is not necessary to go on the merits of the appeal but an outline of the defence case for the appeal would suffice to indicate the seriousness of the Applicant in moving the Court to allow the stay of execution. Counsel responded that she had filed the Petition of Appeal but the Court told her it was not in evidence before the Court in the Applicant’s Affidavit. This was when the Court told counsel that the document had been wrongly filed in the other case number that had been struck off. Nevertheless, it was noted that the Notice of Appeal had been subsequently filed on 3.10.2022 at the Kuala Kangsar Sessions Court as it should have been, whereas the Petition of Appeal was filed on 2.12.2022. About a week before the hearing of this application.

Counsel submitted that the victim was 15 years old at that time and it was not known if she understood the nature of the oath that she had taken. Moreover, there were allegedly discrepancies in the testimony of the prosecution witnesses such that the defence was unable to file an alibi 5 notice. It was submitted further that the Sessions Judge did not properly evaluate the evidence before her and had made her own presumptions in the trial. Again, the Court pointed out that it is unnecessary to go into the merits of the case, but the application should have the Petition of Appeal appended to it to show that there were merits to the application. As it was, there was no such document before the Court in the application for stay of execution.

It is trite law that an appeal against conviction and sentence do not operate as an automatic stay of execution on sentence. The operative provision on stay of execution on sentence is s.311 of the CPC which states:

Except in the case of a sentence of whipping (the execution of which shall be stayed pending appeal), no appeal shall operate as a stay of execution, but the Court below or a Judge may stay execution on any judgment, order, conviction or sentence pending appeal, on such terms as to security for the payment of any money or the performance or non-performance of any act or the suffering of any punishment ordered by or in the judgment, order, conviction or sentence as to the Court below or to the Judge may seem reasonable. [13] The Court refers to Re Kwan Wah Yip & Anor [194] 1 MLJ 146b which discussed the issue of discretion when granting stay of execution pending appeal. Spenscer-Wilkinson J stated: “My attention, however, has been called to a recent decision of the High Court in Kuala Lumpur in Doraisamy s/o Palanimuthu v Public Prosecutor (KL Criminal Application No 2 of 1954 — unreported). In that case Wilson J., after referring to section 311 of the F.M.S. Criminal Procedure said:- “Obviously the Court or the Judge has a discretion. In my view a stay of execution should not be granted and will not be granted by me unless there are special reasons for so doing, and the mere fact that a notice of appeal has been given is no sufficient reason. The only other reason given in this case is that the applicant who has been advised verily believes he has good grounds for appeal. That, also in my view does not constitute grounds for releasing an applicant pending appeal.” …I find myself, with respect, in agreement with Wilson J. when he says that obviously the Court or the Judge has a discretion. It remains to consider upon what grounds that discretion should be exercised. … It seems to me, however, that the granting of bail pending appeal by the Lower Court being a matter of discretion a Magistrate may, apart from the accused's statement that the intends to appeal, find in the circumstances of the case before him reasons which would justify the granting of bail. The considerations which I suggest should guide the Subordinate Courts in granting or refusing bail pending appeal in cases where a term of imprisonment has been imposed are the gravity or otherwise of the offence; the length of the term of imprisonment in comparison with the length of time which is likely to take for the appeal to be heard; whether there are difficult points of law involved; whether the accused is a first offender or has previous convictions; the possibility of his becoming again involved in similar or other offences whilst at liberty; and whether the security imposed will ensure the attendance of the appellant before the appellate Court.”. [Emphasis added] [14] About 45 years later the High Court in Kuala Lumpur in the case of Sharma Kumari a/p Oam Parkash v Public Prosecutor [2000] 6 MLJ 847 re-considered this issue, came to the same conclusion and held: “The approach by Wilson J is eminently sensible. Every appellant in any case believes he has good reasons for appeal. If that is the criteria, then every application for bail would be granted, there is in practice no judicious exercise of discretion and there is no purpose in s 311. An applicant must therefore show the grounds and particulars for his good reasons for appeal, so that the court to which the application is made is able to decide for itself whether the applicant has good reasons: (a) for his appeal, and (b) for releasing him pending appeal. The second decision necessitates a decision, without deciding finally on the issue, whether the grounds stand a good chance of success. The Court stated further: “… It is also well to remember that in an application for a stay of sentence pending appeal, there is no guarantee the appeal will be successful, and the application is made in the shadow of a judgment of a court. Section 114 illustration (e) of the Evidence Act 1950 allows a court to presume that judicial acts have been regularly performed. Thus unless it is set aside by a successful appeal, that judgment remains valid and in force. In such circumstances the burden is clearly upon the applicant to show that there are good grounds why a stay ought to be granted against that courts' order. It is not a burden that is lightly discharged by assertions not backed up or supported by evidence.” [Emphasis added] [15] Therefore, an application for a stay of execution shall not be allowed by the court unless there are special reasons for doing so. The term “special reasons” and “special circumstances” have been used interchangeably. Although s. 311 does not mention “special reasons” or “special circumstances”, when exercising its discretion whether or not to allow such application the courts deem it is a “logical” requirement to be complied with by an applicant. If one reads the case of Sharma Kumari, there the applicant had produced a long list of “special circumstances” why the stay of execution should be granted by the High Court including her prospect of success in the appeal and family hardship. Even then she failed in her application as it was dismissed by court. It was held, inter alia, that failure of the applicant to state what the points of law were made it impossible to decide what the points of law were, and hence, the applicant had failed to satisfy the court whether those points of law were good grounds for the grant of a stay. In the present case too, there was no mention of what were the difficult points of law which this Court will need to decide in the appeal. [16] Similar to that case also, this Court has only the Notis Usul and the Applicant’s Affidavit where the application presented some difficulty for the Court to acceded to the request when there was not much information for it to consider favourably the application made. If the application is made on the basis that his appeal would take a long time to be heard, this ground too would fail because appeals are nowadays expeditiously managed and disposed. In this case, the Court noted that the Grounds of Judgment and Notes of Evidence of the Sessions Court are ready (since the Applicant has filed the Petition of Appeal on 2.12.2022). The Applicant is serving a 12-year imprisonment sentence and his appeal against conviction and sentence, at most, may likely be disposed within the next year. [17] Hence, the Court does not see any “special circumstances” that have been justified by the Applicant, bearing in mind the legal burden is on him to enable the Court to exercise its discretion to allow a stay of execution of the sentence imposed by the Sessions Court. The Applicant’s matter is not a case of an application for bail pending trial but he has been convicted after a full trial. Again, drawing valuable principles from Re Kwan Wah Yip’s Case, the Court notes the following passage: “Mr. Lee Thean Chu on behalf of the applicants referred me to the decision of this Court in Regina v Ooi Ah Kow (1952) MLJ 95. That case, however, dealt with the admission to bail of persons awaiting trial. Entirely different considerations arise after trial and in my opinion once a person has been convicted by a Court of competent jurisdiction it must be assumed, in the absence of any obvious defect on the face of the record, that he has been rightly convicted unless and until the conviction is set aside.”. [Emphasis added] [18] It was submitted by counsel for the Applicant that there were no “special circumstances” shown in the case of Public Prosecutor v Dato Sri Mohd Najib Bin Haji Abd Razak [2020] 11 MLJ 808 and yet stay of execution pending appeal was granted. On that note, the Court viewed that compared to the present case, there were complicated issues in that corruption and commercial crimes trial as compared to the rape charges against the Applicant in this case. It is not an apple to apple comparison. [19] During the hearing there was some “confusion” about the first Notice of Appeal that was wrongly filed at the High Court. Nevertheless, the “confusion” had been sorted out and the Court did not hestate to dismiss the application as there were no “special circumstances” for its consideration put forth by the Applicant. The only Afidavit Tambahan filed on 6.12.2022 was to clarify the section which he was charged with since it was omitted in the Notis Usul. It is noted that the children are being cared for by the Applicant’s wife and they have family relations helping them, albeit possibly within limited means. In all applications for stay of execution of sentence filed in this Court, all of them cited family hardship as the main ground or “special circumstances” for consideration. Hence, it is not a “special circumstance” but a normal occurrence when the head of a household or a family member, being the main or sole breadwinner, is taken into custody pending trial or appeal. Conclusion [20] Borrowing a sentence from Re Kwan Wah Yip’s Case, “Had the Legislature intended that a stay of execution should always be granted it would no doubt have so provided as it has in the case of whipping.” Parliament in its wisdom when enacting s. 311 of the CPC stopped short of citing personal or family hardship as a “special circumstance” to grant a stay of execution. It is left to the courts to develop the jurisprudence on this issue over the years through the case laws and this Court is not about to depart from precedents when it is obvious that the application would fail for lack of evidential support. [21] Premised on the above considerations, the application was dismissed accordingly. Dated 22 December 2022 signed Noor Ruwena Binti Md. Nurdin Judicial Commissioner High Court of Malaya, Taiping Representation For the Applicant: Pavithra Rajendran Messrs. P Ravee & Co. For the Respondent: DPP Sariza Binti Ismail Pejabat Timbalan Pendakwa Raya Negeri Perak, Cawangan Taiping