(b) That the learned Judge 2 erred in holding that the appellant must only appeal and that he could not exercise his inherent powers to set aside the forfeiture order. 10 Our Deliberations and Decisions [14] In regard to the first ground, learned counsel submitted that learned Judge 2 erred when his Lordship held that the forfeiture order dated 25.11.2011 was a final order. Learned counsel argued that the forfeiture order is not a final order because it was not made after hearing the appellant. Instead it was a default order made in the absent of the appellant. The appellant was not heard before the forfeiture order was granted by the learned Judge 1. [15] Learned counsel further argued that the forfeiture order was made in breach of the rules of natural justice. Therefore, the learned Judge 2 was seized with the inherent jurisdiction to set aside the forfeiture order. The learned counsel relied on Hock Hua Bank Bnd v. Sahari Bin Murid [1981] 1 MLJ 143 where the Federal Court held: “Clearly the court has no power under any application in the same action to after, vary or set aside a judgment regularly obtained after it has been entered or an order after it has been drawn up, ….unless it is a judgment by default or made in the absence of a party at the trial or hearing. [Emphasis added]. 11 [16] We agreed with the learned counsel submission on the issue raised in the first ground of appeal. The principle laid down in Hock Hua Bank Bhd had been duly fortified by the Federal Court in Badiaddin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd [1998] 2 CLJ where it was decided as follows: “It is of course settled law as lain down by the Federal Court in Hock Hua Bank case that one High Court cannot set aside a final order regularly obtained from another High Court of concurrent jurisdiction. But one special exception to this rule (which was not issue and therefore not discussed in Hock Hua Bank) is where the final judgment of the High Court could be proved to be null and void on ground of illegality or lack of jurisdiction so as to bring the aggrieved party within the principle laid down by a number of authorities culminating in the Privy Council case of Isaacs v. Robertson [1985] AC 97 where Lord Diplock while rejecting the legal aspect of voidness and voidability in the orders made by a court of unlimited jurisdiction, upheld the existence of a category of orders of the court “…. which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court, without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity, and give to the judge a discretion as to the order he will make. The Privy Council through Lord Diplock also emphasised that the courts in England have not closed the door as to the type of defects in the final judgment of the court that can be brought into the category that attracts ex debito justitiae the right to have it set aside without going into the appeal procedure, “save that specifically it includes orders that have been obtained in breach of rules of natural justice”. Similarly, in this 12 country the statement of Abdoolcader J (as he then was) in Eu Finance Bhd v. Lim Yoke Foo [1982] 1 LNS 21; [1982] 2 MLJ 37 @ 39 provides the correct guideline on the subject: The general rule is that where an order is a nullity, an appeal is somewhat useless as despite any decision on appeal, such an order can be successfully attacked in collateral proceedings; it can be disregarded and impeached in any proceedings, before any court or tribunal and whenever it is relied upon – in other words, it is subject to collateral attack. In collateral proceedings the court may declare an act that purports to bind to be non-existent.”. [17] In a more recent decision in CIMB Investment Bank Bhd v Metroplex Holdings Sdn Bhd [2014] 9 CLJ 1012, the Federal Court held: “In Badiaddin, the Federal Court settled that there is inherent and discretionary jurisdiction to set aside ex debito justitiae an order of court regularly obtained where there has been a breach of the rules of natural justice following the Privy Council case of Isaacs v Robertson [1984] 3 AII ER 140; [1985] AC 97.”. [18] In the Australian case of Cameron v Cole [1944] 68 CLR 571, it was held: “It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. It this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside; and a court which finds that it has been led to 13 purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside: Craig v Kanssen 1943.”. [19] We refer to Article 13(1) of the Federal Constitution which protect the rights of one property. Article 13 guaranteed that “no person shall be deprived of property save in accordance with law”. Whereas Article 160 of the Federal Constitution defined “law” to includes “written law, the common law in so far as it is in operation in the Federation or any part thereof, or any custom or usage having the force of law in the Federation or any part thereof”. We are of the view that the rules of natural justice and procedure which form an integral part of the common law must be fully satisfied before one’s property can be forfeited without any compensation. The right to be heard is one of the pillars of the rules of natural justice. Any breach of these rules amount to a contravention of Article 13 of our Federal Constitution. [20] We agreed with learned counsel’s submission that the forfeiture order being a default order made in the absence of the appellant and without hearing the appellant, is an order in breach of natural justice and therefore liable to be set aside on ex dibito justitiae by the learned Judge 2. The learned Judge 2 had clearly erred when his Lordship allowed the PO of the learned Deputy Public Prosecutor. 14 [21] In B Surinder Singh Kanda v. The Government of The Federation of Malaya [1962] 1 MLJ 169, the Privy Council held: “If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. This appears in all the cases from celebrated judgment of Lord Loreburn, L.C. in Board of Education v Rice [1911] AC 179 182 27 TLR 378 down to the decision of their Lordships’ Board in Ceylon University v Fernando [1960] 1 WLR 223; [1960] 1 AII ER 631 PC. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The Court will not enquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The Court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the Judge without his knowing. Instances which were cited to their Lordships were Re Gregson (1894) 70 LT 106, Rex v Bodmin Justices [1947] KB 321; [1947] 1 ALL ER 109 and Goold v Evans [1951] 2 TLR 1189 to which might be added Rex v Architects Registration Tribunal [1945] 2 AII ER 131; 61 TLR 445 and many others.”. [Emphasis Added] [22] The Privy Council then went on to set aside the disciplinary proceedings for breach of natural justice. At page 178 of the reported case, Lord Denning held: 15 “Applying these principles their Lordships are of opinion that Inspector Kanda was not in this case given a reasonable opportunity of being heard. They find themselves in agreement with the view expressed by Rigby J. in these words: In my view the furnishing of a copy of the Findings of the Board of Inquiry to the Adjudicating Officer appointed to hear the disciplinary charges, coupled with the fact that no such copy was furnished to the plaintiff, amounted to such a denial of natural justice as to entitle this Court to set aside those proceedings on this ground. It amounted, in my view, to a failure to afford the plaintiff a reasonable opportunity of being heard in answer to the charge preferred against him which resulted in his dismissal.”. [23] The learned Deputy Public Prosecutor (the learned Deputy) argued that one High Court Judge cannot overrule another High Court Judge who made the decision at some crucial stage of proceedings in the same case. The learned Deputy relied on this Court’s decision in Azmi Osman v. PP & Another Appeal, supra. Much as we agree with the proposition enunciated in that decision, nevertheless, the facts of that case are clearly distinguishable and different from the present case at hand. [24] In Azmi Osman v. PP & Another Appeal, supra, the facts disclosed as follows: 16 a. Azmi (“the accused”) was charged before the Sessions Court in Johor Bahru on 4 charges of money laundering under s.4 of the AMLAFTA. b. at the end of the prosecution case, the Sessions Court Judge (“the SCJ”) found that the prosecution had failed to establish a prima facie case on all the 4 charges, and acquitted the accused without calling for his defence. c. the prosecution appealed to the High Court (“1st Appeal”) against this decision of the SCJ. The 1st Appeal was heard by the High Court Judge 1 (“the HCJ 1”), who allowed the appeal and ordered the accused to answer to all the 4 charges before the Session Court. d. after hearing evidence for the defence, the same SCJ this time convicted the accused on all 4 charges and sentenced him. The SCJ also ordered a third forfeiture of the property of the accused that were seized. e. aggrieved by this decision of the SCJ, the accused appealed to the High Court against the conviction, sentence and order of the issuance of the notice under s.61 (“2nd Appeal”). f. the 2nd Appeal was heard by the High Court Judge 2 (“the HCJ 2”), who made the following orders: i. having reviewed the ruling of the HCJ1 on whether defence ought to have been called, the HCJ 2 found that the accused ought not to have been called to enter his defence on all the 4 charges; 17 ii. upon review, the HCJ2 found that the prosecution had not established a prima facie case on all 4 charges; iii. the HCJ2 acquitted the accused; iv. then went on to hold that assuming he was wrong in his finding that prosecution had not proved a prima facie case, he proceeded to consider the defence and concluded that the SCJ was correct in finding the accused guilty as his version was to improbable and did not create any reasonable doubt in the prosecution case; and v. that the issue of a notice under s.61 of the AMLAFTA by the SCJ was affirmed. g. The prosecution appealed against the order of acquittal and discharge of the HCJ2, and the accused appealed against the issuance of the s.61 notice to the Court of Appeal. h. before the Court of Appeal, the prosecution raised a preliminary issue: “whether the HCJ2 in dealing with an appeal from the SCJ against conviction, was competent to review the evidence led at the prosecution stage, in determining whether there was a prima facie case established and for defence to be called, as had been found by the HCJ1, when the HCJ1 allowed the appeal by the prosecution against the order of acquittal at the end of the prosecution stage of the same case. [25] The Court of Appeal held at page 859, as follows: “[28] With respect, we are of the view that the learned HCJ2 had erred when he disturbed the findings of the earlier HCJ1 who had ordered the accused to enter on his defence to all the four charges, on appeal. The dominant issue that ought to guide the HCJ2’s mind in dealing with a 18 situation that has now become this preliminary issue must of necessity be the fact that when the HCJ1 made that decision for defence to be called, the latter was carrying out his appellate jurisdiction. Granted that the High Court jurisdiction is coordinate among its judges, inherent in that concept is the fact that a High Court Judge cannot overrule another High Court Judge who had made a decision at some crucial stage of proceedings in the same case. In the context of this appeal before us, the HCJ1 had ordered the accused’s defence to be called to answer to the four charges leveled against him. The jurisdiction to correct that purported error, said by the HCJ2 as having been committed by the HCJ1, with respect, lies with the Court of Appeal, should there be an appeal against the decision of the HCJ2. In other words, as much as a High Court Judge’s decision does not bind his brother or sister judge on the High Court bench, by the same token, neither does it lie with his brother or sister judge of the High Court to overturn his decision in the same case. In a situation now prevailing in this case, the role of the HCJ2 is only limited to see whether the defence evidence as led has succeeded in creating a reasonable doubt in the prima facie case as found by the HCJ1 on appeal by the prosecution. With respect, this must be preferred position as to what the proper approach ought to be, as was employed by the Court of Appeal in Sulaiman’s case (supra). Coordinate jurisdiction connotes parity and as such, it does not admit nor permit mutual overriding or overruling each other’s decision. Only a higher appeal court can disturb or vary or affirm a High Court’s decision. [29] In the context of the situation that arose in this case before us, it is therefore our view that the reason advanced by the learned HCJ2 that had purportedly provided him with the power to review the HCJ1 decision to call for the defence to be entered was, with respect, flawed and erroneous. As such, on the preliminary issue raised by the learned deputy, we find that there is merit in his contention. The learned HCJ2 19 was wrong in reviewing and overturning the earlier decision of the HCJ1, in the first appeal by the prosecution. His role, in the circumstances, as stated above, is limited to determining whether the defence had raised a reasonable doubt at the end of the defence case. [26] It is thus clear that in Azmi Osman’s case that: a. the HCJ2 in the 2nd Appeal had reviewed and overruled the decision of the HCJ1 in the 1st Appeal, wherein the HCJ1 was carrying out his appellate jurisdiction; b. the HCJ2’s role was limited to only determining the issue in the 2nd Appeal before him, ie. ‘whether the defence had raised a reasonable doubt at the end of the defence case’; c. the HCJ2’s role was not to overrule the HCJ1’s decision in the 1st Appeal ie. “whether the defence ought to have been called”, which appeal was not before the HCJ2 in the 2nd Appeal. The HCJ2 had gone beyond his scope in the 2nd Appeal; and d. the HCJ2 was wrong in reviewing and overturning the decision of the HCJ1 in the 1st Appeal. The jurisdiction to correct any purported error of the HCJ1 lies with the Court of Appeal. [27] In the present case, the appellant had not appealed to the High Court and was not seeking for the High Court to review or overrule the earlier decision made by learned trial judge 1. Therefore, in our view the forfeiture order dated 25.11.2011 is not a final order and it is not appealable. What the appellant asking for is for the learned Judge 2 to 20 invoke its inherent powers to set aside the forfeiture order on the grounds of breach of the rules of natural justice and/or on the maxim of audi alteram partem, nullity and illegality. We are also of the view that the learned Judge 2 can and is competent to set aside the forfeiture order earlier made by learned Judge 1 in this case before us. [28] The High Court is armed with inherent powers or jurisdiction to be invoked when it is necessary to prevent injustice and to do justice especially in cases where a blatant breach of the rules of natural justice occurred. The High Court derived the inherent powers or jurisdiction from Section 25(1) of the Courts of Judicature Act 1964 as well as Sections 4 and 5 of the Criminal Procedure Code to arrest a wrong (see Dato’ Seri Anwar Ibrahim v. PP [2010] 7 CLJ 397; Karpal Singh & Anor v. PP [1991] 2 CLJ 1458, Asean Security Paper Mills Sdn Bhd v. Mitsui Sumitomo Insurance (M) Bhd [2008] 6 CLJ1). [29] It was not disputed by the respondent that the forfeiture order was obtained without the knowledge of the appellant. What the learned Deputy argued before us was the delay in the appellant to file their application to set aside the forfeiture order. It was not denied as well that the appellant was not heard before the forfeiture order was churned out by the learned Judge 1. In this respect, we agreed that it was crystal 21 clear that the rule of natural justice had been breached. On this natural justice application we can do no better than reproduce Abdul Malik Ishak, JCA explanation in PP v. Dato’ Saidin Thamby [2012] 4 CLJ 15, as follows: “[148] As to the meaning of “natural justice”, the case of Walter Annamunthodo (supra) at p. 949 explains it lucidly in this way: ‘Natural justice’ is not the same thing as sophisticated justice; the most famous passage on the point is in Local Government Board v. Arlidge [1915] AC 120, 138; 30 TLR 672, HL. There are three basic elements which, by and large, make up the sum of natural justice: (i) The complainant must be given fair notice of the charge against him.