Pendakwa Raya v Haris Fadzilah Bin Abu Bakar (J-06A(LB)-14-11/2023)

1.

[In the matter of the High Court of Malaya at Johor Bahru

Tengku Jajang Sagita bin Tengku Redzuan (NRIC No. 660616-61-5059)

M. Amir Bin Nasir (NRIC No. 591015-71-5357)

Haris Fadzilah bin Abu Bakar (NRIC No. 720415-01-5243)

Noryati Binti Abu Bakar (NRIC No. 700515-13-6490)] S/N tmnDaEW0isv3jmk4V2ew CRIMINAL APPEAL NO: J-06A(LB)-13-11/2023 …

1.

[In the matter of the High Court of Malaya at Johor Bahru

M. Amir Bin Nasir (NRIC No. 591015-71-5357)

Haris Fadzilah bin Abu Bakar (NRIC No. 720415-01-5243)

Noryati Binti Abu Bakar (NRIC No. 700515-13-6490)] S/N tmnDaEW0isv3jmk4V2ew CRIMINAL APPEAL NO: J-06A(LB)-14-11/2023 …

1.

[In the matter of the High Court of Malaya at Johor Bahru

M. Amir Bin Nasir (NRIC No. 591015-71-5357)

Haris Fadzilah bin Abu Bakar (NRIC No. 720415-01-5243)

Noryati Binti Abu Bakar (NRIC No. 700515-13-6490)] S/N tmnDaEW0isv3jmk4V2ew CRIMINAL APPEAL NO: J-06A(LB)-15-11/2023 …

1.

[In the matter of the High Court of Malaya at Johor Bahru

M. Amir Bin Nasir (NRIC No. 591015-71-5357)

Haris Fadzilah bin Abu Bakar (NRIC No. 720415-01-5243)

Noryati Binti Abu Bakar (NRIC No. 700515-13-6490)] S/N tmnDaEW0isv3jmk4V2ew CRIMINAL APPEAL NO: J-06A(LB)-16-11/2023 …

1.

[In the matter of the High Court of Malaya at Johor Bahru

Tengku Jajang Sagita bin Tengku Redzuan (NRIC No. 660616-61-5059)

M. Amir Bin Nasir (NRIC No. 591015-71-5357) S/N tmnDaEW0isv3jmk4V2ew

Haris Fadzilah bin Abu Bakar (NRIC No. 720415-01-5243)

Noryati Binti Abu Bakar (NRIC No. 700515-13-6490)] CRIMINAL APPEAL NO: J-06A(LB)-17-11/2023 …

1.

[In the matter of the High Court of Malaya at Johor Bahru Criminal Trial No.: JA-46SOM-6-10/2020 Between Public Prosecutor And S/N tmnDaEW0isv3jmk4V2ew

M. Amir Bin Nasir (NRIC No. 591015-71-5357)

Haris Fadzilah bin Abu Bakar (NRIC No. 720415-01-5243)

Noryati Binti Abu Bakar (NRIC No. 700515-13-6490)] CRIMINAL APPEAL NO: J-06A(LB)-18-11/2023 …

1.

[In the matter of the High Court of Malaya at Johor Bahru Criminal Trial No.: JA-46SOM-7-10/2020 Between Public Prosecutor S/N tmnDaEW0isv3jmk4V2ew

M. Amir Bin Nasir (NRIC No. 591015-71-5357)

Haris Fadzilah bin Abu Bakar (NRIC No. 720415-01-5243)

Noryati Binti Abu Bakar (NRIC No. 700515-13-6490)] CRIMINAL APPEAL NO: J-06A(LB)-19-11/2023 …

1.

[In the matter of the High Court of Malaya at Johor Bahru Criminal Trial No.: JA-46SOM-8-10/2020 S/N tmnDaEW0isv3jmk4V2ew

M. Amir Bin Nasir (NRIC No. 591015-71-5357)

Haris Fadzilah bin Abu Bakar (NRIC No. 720415-01-5243)

Noryati Binti Abu Bakar (NRIC No. 700515-13-6490)] CORAM: WONG KIAN KHEONG, JCA AZMI BIN ARIFFIN, JCA HAYATUL AKMAL BINTI ABDUL AZIZ, JCA

This judgment discusses the following issues:

whether the Court of Appeal can strike out a criminal appeal (Appeal) filed by the Public Prosecutor (PP) against an individual respondent (X) when -

the notice of appeal cannot be served on X; and

the PP does not apply to the Court of Appeal to withdraw the Appeal?; S/N tmnDaEW0isv3jmk4V2ew

if the Court of Appeal has struck out the Appeal, does the Court of Appeal have the subsequent power to allow the PP’s application to reinstate the Appeal?; and

if the Court of Appeal reinstates the Appeal -

can the Court of Appeal issue a warrant to arrest X (Warrant) under s 56A of the Courts of Judicature Act 1964 (CJA)?; and

if the Warrant has been executed against X, can the Court of Appeal grant bail to X pending the disposal of the Appeal pursuant to s 56A CJA?

In the High Court, the above-named second respondent (2nd Respondent) had been jointly charged by the PP with other accused persons in eight cases (8 Cases) with offences under s 26A of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 read with s 34 of the Penal Code (Charges).

As against the above-named first respondent (1st Respondent) and 2nd Respondent (collectively referred to in this judgment as the “Respondents”), the Charges were tried together before the learned Judicial Commissioner (JC) in the High Court (Joint Trial). S/N tmnDaEW0isv3jmk4V2ew

At the end of the prosecution case in the Joint Trial, the learned JC acquitted and discharged the Respondents of all the Charges [High Court’s Acquittal and Discharge Order (Charges)].

With regard to the Respondents, the PP filed eight appeals to the Court of Appeal against the High Court’s Acquittal and Discharge Order (Charges) (8 Appeals).

In these 8 Appeals -

the notices of appeal for the 8 Appeals (8 Notices of Appeal) could be served on the 1st Respondent but not on the 2nd Respondent;

there were three mentions of the 8 Appeals in the Court of Appeal [3 Mentions (8 Appeals)] but the 2nd Respondent was absent for these 3 Mentions (8 Appeals) because the 8 Notices of Appeal could not be served on the 2nd Respondent; and

during the fourth mention of the 8 Appeals, the learned Deputy Public Prosecutor (DPP) applied to withdraw the 8 Appeals. Hence, the Court of Appeal struck out the 8 Appeals. S/N tmnDaEW0isv3jmk4V2ew

On 8.7.2025, the PP filed a notice of motion in the Court of Appeal to reinstate the 8 Appeals (PP’s Reinstatement Application). The PP’s Reinstatement Application was based on an affidavit by DPP Puan Iznina Hanim binti Hashim (DPP’s Affidavit). According to the DPP’s Affidavit, the police had managed to trace the 2nd Respondent.

The Court of Appeal heard the PP’s Reinstatement Application on 14.8.2025 and granted the following order:

the 8 Appeals were reinstated; and

a Warrant was issued to arrest the 2nd Respondent [Court of Appeal’s Order (14.8.2025)].

On 25.9.2025, the Warrant was executed and the 2nd Respondent was arrested by the police.

The 2nd Respondent was brought to the Court of Appeal on 26.9.2025 and the following matters transpired:

the 2nd Respondent’s learned counsel submitted that the 2nd Respondent’s arrest by virtue of the execution of the Warrant, was unlawful because -

the 2nd Respondent had been acquitted and discharged of all the Charges by the High Court; S/N tmnDaEW0isv3jmk4V2ew

the Court of Appeal had previously struck out the 8

the 2nd Respondent is a serving Immigration officer and does not pose a “flight risk”;

the learned DPP contended as follows -

the Court of Appeal had reinstated the 8 Appeals by allowing the PP’s Reinstatement Application;

the Warrant had been lawfully issued by the Court of Appeal. Hence, the 2nd Respondent’s arrest pursuant to the Warrant, was lawful; and

the learned DPP invited the Court of Appeal to offer to the 2nd Respondent bail pending the disposal of the 8 Appeals [Bail (Disposal of 8 Appeals)] on the following conditions -

the 2nd Respondent should deposit with the Court of Appeal a bail sum of RM20,000.00;

(ii) two sureties should execute a bail bond for the 2nd Respondent; and S/N tmnDaEW0isv3jmk4V2ew

(iii) the 2nd Respondent should surrender her international passport to the Court of Appeal as a condition for the Bail (Disposal of 8 Appeals); and

the 2nd Respondent’s learned counsel replied as follows -

these 8 Appeals and the Warrant should be struck out because the Court of Appeal had no jurisdiction and power to reinstate the 8 Appeals; and

if the 8 Appeals and Warrant were not struck out, Bail (Disposal of 8 Appeals) should be offered to the 2nd Respondent on the following conditions -

a bail sum of RM5,000.00; and

(ii) only one surety was required to furnish a bail bond for the 2nd Respondent. The 2nd Respondent’s learned counsel urged the Court of Appeal not to require the 2nd Respondent to surrender her international passport to the Court of Appeal as a condition of the Bail (Disposal of 8 Appeals). This was because, according to the 2nd Respondent’s learned counsel, the 2nd Respondent is a public servant who is presently serving in the Malaysian Immigration Department. S/N tmnDaEW0isv3jmk4V2ew C. Can the Court of Appeal strike out an appeal filed by the PP?

We reproduce below r 105 of the Rules of the Court of Appeal 1994 (RCA): “r 105. Inherent powers of the Court. For the avoidance of doubt, it is declared that nothing in [RCA] shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.” (emphasis added). Rule 105 RCA has the following two limbs:

the Court of Appeal has an “inherent power” to make any order “to prevent injustice” [1st Limb (r 105 RCA)]; and

the Court of Appeal has an inherent power to make any order so as “to prevent an abuse of the process of the Court” [2nd Limb (r 105 RCA)].

In these 8 Appeals, the learned DPP had initially applied to withdraw the 8 Appeals against the 2nd Respondent. We will now discuss the question of whether the Court of Appeal can S/N tmnDaEW0isv3jmk4V2ew strike out an appeal filed by the PP against an individual respondent when -

the notice of appeal cannot be served on the respondent; and

the PP does not apply to the Court of Appeal to withdraw the appeal (2 Circumstances).

In the event of the 2 Circumstances, we are of the view that the Court of Appeal has an inherent power to strike out an appeal so as to prevent an abuse of the process of the Court of Appeal within the meaning of the 2nd Limb (r 105 RCA). This is because if an appeal is allowed to remain in the docket of the Court of Appeal when there is no reasonable prospect for the appeal to be heard, the process of the Court of Appeal would have been abused as understood in the 2nd Limb (r 105 RCA). Accordingly, these 8 Appeals had been rightly struck out by the Court of Appeal pursuant to the 2nd Limb (r 105 RCA). D. Whether the Court of Appeal can reinstate an appeal which had been previously struck out

With effect from 16.5.2002, r 1A RCA had been inserted by the Rules Committee by way of the Rules of the Court of Appeal (Amendment) 2002 [P.U.(A)196/2002]. According to r 1A RCA - S/N tmnDaEW0isv3jmk4V2ew “r 1A Court or Judge shall have regard to justice In administering any of [RCA] herein, the Court or a Judge shall have regard to the justice of the particular case and not only to the technical non-compliance of any of [RCA] herein.” (emphasis added).

If the Court of Appeal had struck out an appeal filed by the PP due to the sole reason that the notice of appeal could not be served on an individual respondent and if the PP subsequently applies to reinstate the appeal on the ground that the respondent had now been traced, the Court of Appeal has an inherent power under the 1st Limb (r 105 RCA) read with r 1A RCA to reinstate the appeal so as “to prevent injustice”. This decision is premised on the following two reasons:

when the Court of Appeal initially struck out the appeal, the merits of the appeal had not been considered at all by the Court of Appeal; and

we rely on the following judgment of Lord Diplock in the House of Lords in R v Sang [1980] AC 402, at 437 - “… for the fairness of a trial according to law is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about S/N tmnDaEW0isv3jmk4V2ew whose guilt there is any reasonable doubt should be acquitted.” (emphasis added). The above passage in Sang had been approved by our Supreme Court in a judgment delivered by Mohd. Azmi SCJ in Ramli bin Kechik v Public Prosecutor [1986] 2 MLJ 33, at 38. It is only in the interest of justice, in accordance with the 1st Limb (r 105 RCA) read with r 1A RC, for the Court of Appeal to reinstate these 8 Appeals so as to enable the merits of the 8 Appeals to be fully ventilated in the Court of Appeal. E. Does the Court of Appeal have the power to issue the Warrant?

Section 56A CJA provides as follows: “s 56A. On appeal against acquittal, accused may be arrested Where an appeal is presented against an acquittal, the Court of Appeal may issue a warrant directing that the accused be arrested and brought before it and may remand him to prison pending the disposal of the appeal or admit him to bail.” S/N tmnDaEW0isv3jmk4V2ew (emphasis added).

It is clear to us that once the Court of Appeal has reinstated these 8 Appeals (please refer to the above paragraph 15), the 8 Appeals constituted appeals “presented against an acquittal” of the 2nd Respondent as understood in s 56A CJA. Consequently, by way of the Court of Appeal’s Order (14.8.2025), the Court of Appeal had the discretionary power to issue the Warrant against the 2nd Respondent pursuant to s 56A CJA and did exercise such discretion in this case.

We are of the view that at this stage, the 2nd Respondent could not challenge the validity of the Warrant due to s 114(e) of the Evidence Act 1950 (EA). We reproduce below s 114(e) EA: “s 114. Court may presume existence of certain fact The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS …

that judicial and official acts have been regularly performed;” (emphasis added). S/N tmnDaEW0isv3jmk4V2ew It was not disputed that the issuance of the Warrant by way of the Court of Appeal’s Order (14.8.2025), was a “judicial” act within the purview of s 114(e) EA. By reason of s 114(e) EA, there is a rebuttable presumption that the Court of Appeal had lawfully issued the Warrant in this case against the 2nd Respondent. We have to add that the 2nd Respondent has the right to file a civil suit to set aside the validity of the Warrant. F. Whether the Court of Appeal could grant Bail (Disposal of 8 Appeals) to the 2nd Respondent

Upon the execution of the Warrant against the 2nd Respondent, s 56A CJA clearly confers a discretionary power on the Court of Appeal to grant Bail (Disposal of 8 Appeals) to the 2nd Respondent.

With regard to the exercise of the Court of Appeal’s discretion pursuant to s 56A CJA to grant bail to a respondent who had been arrested, we express the following view:

the primary purpose for bail pending the disposal of an appeal is to ensure the respondent’s attendance throughout the entire duration of the appeal, until the delivery of the Court of Appeal’s decision for the appeal; S/N tmnDaEW0isv3jmk4V2ew

the Court of Appeal should take cognizance of the fact that the presumption of innocence of the respondent is now fortified by the High Court’s acquittal and discharge of the respondent after a trial;

the Court of Appeal may take into account all the considerations which are relevant for the High Court’s exercise of discretion in granting or refusing bail to the respondent pending the disposal of the trial; and

a decision of the Court of Appeal to grant bail or otherwise to a respondent under s 56A CJA, is an exercise of the Court of Appeal’s discretion based on the particular facts of the case. Hence, from the view point of the doctrine of stare decisis, the Court of Appeal’s decision to allow or refuse bail to a respondent pending the disposal of the appeal, does not constitute a binding legal precedent.

We exercise our discretion under s 56A CJA to grant Bail (Disposal of 8 Appeals) to the 2nd Respondent. The following reasons support the exercise of this discretion:

the 2nd Respondent is presently serving as an Immigration officer. Hence, there is every possibility that the 2nd Respondent would appear and resist these 8 Appeals; S/N tmnDaEW0isv3jmk4V2ew

the High Court’s Acquittal and Discharge Order (Charges) had affirmed the 2nd Respondent’s innocence in respect of the Charges; and

the 2nd Respondent had been granted bail in the High Court [Bail (High Court)] and she had appeared throughout the entire Joint Trial until the High Court’s Acquittal and Discharge Order (Charges). In other words, there was no ground for the PP to apply to the High Court to revoke the Bail (High Court). Nor was there an application by the prosecution to forfeit the bail bond for the Bail (High Court) pursuant to s 404(1) of the Criminal Procedure Code (CPC). Reproduced below is s 404(1) CPC - “s 404. Procedure on forfeiture of bond

Whenever -

it is proved to the satisfaction of the Court by which a bond under this Code has been taken; or

when the bond is for appearance before a Court, it is proved to the satisfaction of that Court, that the bond has been forfeited the Court shall record the grounds of such proof and may call upon any person bound by the bond pay the penalty thereof or to show cause why it should not be paid.” (emphasis added). S/N tmnDaEW0isv3jmk4V2ew Premised on the above reasons, we have no hesitation to grant Bail (Disposal of 8 Appeals) to the 2nd Respondent as follows -

the 2nd Respondent shall deposit with the Court of Appeal a bail sum of RM7,000.00; and

one surety shall execute a bail bond for the 2nd Respondent. As the 2nd Respondent is not a flight risk, we do not require the 2nd Respondent to surrender her international passport to the Court of Appeal as a condition of the Bail (Disposal of 8 Appeals). DATE: 9 MARCH 2026 sgd WONG KIAN KHEONG Judge Court of Appeal Counsel for Puan Iznina Hanim binti Hashim the Appellant: (Deputy Public Prosecutor) (Attorney General’s Chambers) Counsel for the Puan Latheefa Koya, Encik Zaid Malek & 2nd Respondent: Ms. Yu Ying Ying (Messrs Daim & Gamany) S/N tmnDaEW0isv3jmk4V2ew