that it is against public interest to temporarily release the applicant’s international passport. Analysis [8] The grant or otherwise of the present application is a matter of an exercise of judicial discretion. In considering an exercise of a judicial discretion, regard must be had to the established legal principles and an assessment of the facts and evidence as well as the prevailing circumstances as justice of 8 the case may require. If the facts and evidence fall short of the necessary requirements, the basis for an exercise of the discretion would be wanting. If in that circumstance the discretion is still exercised in favour of the applicant, it would be one which is exercised without regard to the legal parameters or one which is not exercised judiciously. [9] Judicial pronouncements in this regard are aplenty. In Saravanan Rajagopal & Anor v. PP & Another Appeal [2019] 7 CLJ 202 CA, the Court of Appeal affirms the decision of the learned Judicial Commissioner in refusing to allow the learned counsel to recall and re-examine two of the prosecution’s witnesses. The Court of Appeal reasoned that since the power to recall witnesses which is exercisable under section 425 of the Criminal Procedure Code is discretionary in nature, the court can only exercise that power if sufficient basis for it can be shown. And since the learned counsel has failed provide the grounds for the application to recall, the learned Judicial Commissioner did not err when she refused the application. 9 [10] Stay of execution pending appeal is governed by section 311 of the Criminal Procedure Code. It provides as follows: “Stay of execution pending appeal 311. 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.”. [11] In granting a stay of execution and imposing the conditions of bail pending appeal, it is trite that the court is vested with the power to attach such conditions as may be necessary to secure attendance of the applicant and these may 10 include conditions relating to the surrender of the applicant’s international passport. Where the court imposes a condition for the applicant’s international passport to be surrendered, the amount of bail imposed would be lesser compared with the amount of bail imposed without the surrender of the applicant’s international passport. In Public Prosecutor v. Dato’ Mat Safuan [1991] 1 CLJ Rep 385 SC; [1991] 1 MLRA 213, the then Supreme Court observed as follows: “As discussed earlier there is no express authority in our Criminal Procedure Code providing for conditions to be included in any bail. The practice to do so however had gained judicial recognition in both Courts in India and Malaysia on the rationale that such condition would provide an adjunctive or supplemental security towards ensuring the attendance of the arrested person at his subsequent trial. No person can be admitted to bail under s. 388 or 389 purely on his undertaking to abide by some conditions alone without binding himself to forfeit a certain sum in the event of his default, but a person may be released on a bail without any 11 condition attached to it. Such condition therefore, to our mind, is not the principal but only a complementary security to be applied concomitantly with the amount prescribed in the bail bond. Such condition in the bail bond would have a persuasive effect of reducing a larger amount of bail which would have been otherwise required by the Court. To put it in another way - a Court may require a certain large amount to be deposited in respect of a non bailable offence but would be willing to reduce it to a lesser sum on the undertaking of the detained person to surrender his passport.”. [Emphasis added] [12] Following the prompt of the then Supreme Court in Dato’ Mat Safuan’s case, it is to be observed that when the stay of execution was granted at the lower court, the fact that the learned Sessions Court Judge had imposed an additional condition for the applicant’s international passport to be surrendered must have a certain bearing to the amount of bail fixed. Being part of the conditions in granting bail, the court is 12 also equipped with the power to vary the terms relating to the surrender of the applicant’s international passport. [13] In considering the applicant’s affidavit in support of her application, I find that there is no evidence advanced by the applicant to show that she is required to attend to any operational, financial or administrative matters of the group companies in the designated countries other than the bare assertions at paragraphs 19, 20 and 21 of the affidavit. I also find that other than the list of companies in Supermax Group of Companies annexed as Exhibit “TBG- 6” in the applicant’s affidavit in support of the application, there is no evidence to show that, despite her conviction, the applicant still holds the respective positions in the group companies in the designated countries as averred to in paragraph 18 of the applicant’s affidavit in support of the application. 13 [14] Generally speaking, it is accepted that in most jurisdictions a person will be disqualified from holding office as a director upon a conviction and the countries referred to by the applicant in paragraph 18 of the affidavit are no exception. Exhibit “TBG- 6” in the applicant’s affidavit in support of the application does not in any manner show that the applicant is who she says she is in the group companies and the assertions must, in that circumstance, remain as a bare statement. [15] It must first and foremost be borne in mind that the applicant has been convicted based on due process and in that context, having a family and assets within Malaysia in itself are not the real test to show that the applicant is not a flight risk. It is not totally inaccurate to say that the applicant is a financially capable person and has vast financial resources at her disposal. With such a potential, the risk of the applicant absconding and defeating the impending appeal cannot be ruled out. In considering this risk, I am of the considered view 14 that this Court should balance the interest of the applicant with public policy considerations. [16] I am of the considered view that averments in an affidavit are mere assertions and will remain as bald statements of facts bereft of evidence worthy of any consideration by this Court of the very fact they seek to establish unless there are documentary evidence to support the averments. After considering the applicant’s affidavit in support of the application, I find that the averments which purport to demonstrate the need for the applicant to perform her corporate responsibilities in the group companies in those countries are not supported by any evidence. They remain as mere assertions and do not deserve much consideration. Mere assertions are not evidence. [17] The Court of Appeal in Ming Ann Holdings Sdn Bhd v. Danaharta Urus Sdn Bhd [2002] 3 CLJ 380 CA; [2002] 3 MLJ 49; [2002] 1 MLRA 214; [2002] 3 AMR 2867 reiterated the duty of the courts to properly consider the facts and circumstances 15 placed before them in deciding whether or not to exercise their judicial discretion. The case of Ming Ann Holdings Sdn Bhd relates to the exercise of discretion in an application for stay of execution in a civil case. Nevertheless, the prompt by His Lordship in that case relating to exercise of judicial discretion is a worthy reminder. Speaking for the Court of Appeal, His Lordship Abdul Hamid Mohamad JCA (as His Lordship then was) remarked as follows: “It is to be noted that the affidavit in support says that there are special circumstances, there are merits in the appeal and also that if stay is not granted, the appeal will be rendered nugatory. I have said the function of the court is not to look for phrases used (as they are not ‘passwords’) but to look at the substance, consider the facts and the circumstances of the case in the light of the relevant factors that should be considered in the exercise of the discretion of the court and decide.”. [Emphasis added]. 16 Conclusion [18] Based on the aforesaid reasons, I find that the applicant has not provided any cogent reasons for this Court to consider in exercising its discretion. In the circumstances, I hereby dismiss the application. Dated 05 December 2019. sgd AHMAD SHAHRIR MOHD SALLEH JUDICIAL COMMISSIONER HIGH COURT KUALA LUMPUR. For the applicant: Purshotaman a/l Puvanendran (Messrs. Vignesh Kumar & Associates) For the respondent: Ng Chin Huey