Except as otherwise provided in this section, an appeal may lie on a question of fact or a question of law or on a question of mixed fact and law. [5] The learned DPP submitted that the Public Prosecutor’s appeal is not limited to questions of law only and therefore there is no requirement to state any issue of law in the Notice of Appeal. His reasoning is based on sections 50(2) and 50(3) of the Courts of Judicature Act 1964 and the Court of Appeal decision in Public Prosecutor v Pasupathy s/o Kanagasaby [2001] 2 MLJ 143. Section 50(2) states generally that leave is required for appeals and revisions that originate from the Magistrates Court. It also states that the such appeals shall be confined to only questions of law. However, section 50(2) exempts the Public Prosecutor from the requirement of obtaining leave. He argued that the requirement of confining the appeal to questions of law is tied to the prerequisite of obtaining leave to appeal. 6 [6] In support, he cited the case of Public Prosecutor v Pasupathy s/o Kanagasaby (supra). In that case, Lamin Mohd Yunus PCA reasoned that “such appeal” in section 50(2) refers to “appeal” that requires leave. For that reason, “such appeal” must satisfy the prerequisite of disclosing the existence of questions of law. However, as the Public Prosecutor is not required to obtain leave, he is not required to disclose questions of law. His Lordship also opined that therefore, the appeal of the Public Prosecutor is not limited to questions of law and he is at liberty “to re-examine every aspect of the case”. [7] On the other hand, counsel for respondent in the first appeal relied on the Court of Appeal case Public Prosecutor v Mahathir bin Muhammad [2013] 1 MLJ 50 where diametrically opposite views were expressed by Mohd Hishamudin JCA. His Lordship opined that the stipulation that appeals from Magistrates Court in criminal matters must be confined to questions of law apply equally to accused persons as well as the Public Prosecutor. The Public Prosecutor is only exempted from applying leave to appeal under section 50(3). If section 50(3) also intended to exempt the Public Prosecutor from limiting his appeal to questions of law, the provision would have expressly stated so. In respect of the issue whether the Public Prosecutor must disclose questions of law at the outset in the Notice of Appeal, Mohd Hishamudin JCA said as follows: In our opinion, since the appeal can only be on a question of law - and it must be purely a question of law; and not a question of mixed law and fact - the pure question of law must be clearly set out in the notice of appeal itself. The question of law ought not to be withheld by the party appealing until the time comes for the filing and serving the petition of appeal. It would not be fair to the respondent in the appeal; it would be prejudicial to the respondent. From the time the notice of appeal is filed and right until the time when the petition of 7 appeal is filed, the respondent should not be left wondering as to why the Public Prosecutor is still insisting on pursuing the matter against him. Mohd Hishamudin JCA also referred to article 8 of the Federal Constitution that states that all persons are equal before the law to support his argument that the Public Prosecutor should not be treated differently from an accused person. Whether appeal of Public Prosecutor is confined to questions of law only? [8] I have given careful consideration to the argument of the learned DPP that the leave requirement is tied to the requirement of limiting the appeal to questions of law. Section 50(2) contains the words “but such appeal shall be confined to questions of law”. Learned DPP, argued that “such appeal” only refers to an appeal where leave of court is required. Since, the Public Prosecutor’s appeal does not require leave, according to the learned DPP, his appeal need not be confined to questions of law. This was also the view of Lamin Mohd Yunus PCA in Public Prosecutor v Pasupathy s/o Kanagasaby (supra) that I mentioned earlier. [9] In answering this question, I should think that it is important to read holistically all the sub-sections of section 50. Section 50 gives jurisdiction to the Court of Appeal to hear appeals from criminal matters decided in the High Court and it includes appeals from Sessions Court and Magistrates Court. However, section 50(2) provides a limitation to the manner that appeals that emanate from Magistrates Court are brought to the Court of Appeal. It must be noted that section 50(2) provides generally and without qualification that “an appeal shall lie to the Court of Appeal, with leave of the Court of Appeal”. It also enacts that “such appeal” shall only be confined to questions of law. Therefore, on a plain reading of 8 section 50(2), two prerequisites apply to all appellants regardless of their status as the Public Prosecutor or as the aggrieved accused person. The first prerequisite is that prior leave must be obtained from the Court of Appeal and the second prerequisite is that the appeal must be confined to questions of law. However, section 50(3) states that “notwithstanding” section 50(2), no leave is required in the case of an appeal by the Public Prosecutor. Section 50(3) uses the word “notwithstanding” when referring to the prerequisite of obtaining prior leave. It does not say that section 50(2) has no application at all to the appeal of the Public Prosecutor. If words to that effect appear in section 50(3), it is possible to argue that the Public Prosecutor is not only exempted from obtaining leave but is also exempted from limiting his appeal to questions of law. Therefore, on this point, I would respectfully agree with the reasoning of Mohd Hishamudin JCA but without the need to consider the equality provision of Article 8 of the Federal Constitution. For the same reason, with the greatest of respect, I would disagree with the reasoning of Lamin Mohd Yunus PCA who opined that the Public Prosecutor’s appeal is not confined to questions of law as he is the custodian of public interest. To my mind, such an argument is tenable only if the clear provision of the law exempted the Public Prosecutor from the restriction that had been placed generally on all appellants by section 50(2). Otherwise, one can also argue that the Public Prosecutor, by virtue of being the custodian of public interest, is exempted from other written provisions of the law as well which are of general application. In fact, as noted earlier, Parliament in enacting section 50(3) specifically exempted the Public Prosecutor from applying for leave but did not go further than that and exempt him from confining his appeal to questions of law only. In the premises, I am of the view that appeals of the Public Prosecutor from decisions of the Magistrates Court in criminal matters that come before this court are confined to issues of 9 law only. As I said earlier, my learned brother Dato’ Nordin bin Hassan JCA has a different opinion on this issue alone. Whether questions of law must be disclosed in the Notice of Appeal? [10] In my opinion, regardless of whether the appeal of the Public Prosecutor is confined to questions of law only, there is no requirement to state questions of law in the Notice of Appeal filed by the Public Prosecutor. In fact, an aggrieved accused person is not obligated to state his questions of law in the Notice of Appeal either. None of the sub-sections of Section 50 stipulate that questions of law must be stated in the Notice of Appeal. Section 51 which stipulates what goes into a Notice of Appeal, does not require questions of law to be stated in the case of appeals that emanate from the Magistrates Court. The provision reads as follows: