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1 THE HIGH COURT OF MALAYA IN THE FEDERAL TERRITORY OF KUALA LUMPUR CRIMINAL APPEAL NO. WA-41(Ors.)-10-07/2024 BETWEEN APPELLANT AHMAD SYUKRY BIN ISMAIL ERAYU AND RESPONDENT RASIDAH BINTI RATAG 03/08/2025 18:00:07 WA-41(Ors)-10-07/2024 Kand. 56 S/N /wRNU0v73UqaEabLbyn9uQ JUDGMENT Background Facts [1] Central to the dispute in the present case is the child, whom belongs to both the father and mother. They are divorced. Due to incidences of abuse etc., the mother was prevented from having access to the child and to clothe it with validity under the law, an interim protection order (IPO) was issued against her, under section 4 of the Domestic Violence Act 1994 (DVA/Act 521). [2] Progressing from there, an application was made by mother of the child to set aside the IPO dated 7.12.2023 which was given to the father of the child, as the mother was supposed to have physically abused the child, thus found unsuitable to live with the mother. [3] The magistrate had allowed the application ex parte, as only the mother of the child was party to the setting aside application. The father of the child and the Social Welfare Department (JKM), was not cited as parties. Thus, the order was made by the magistrate without adherence to the audi alteram partum rule, according right to be heard by the father and the representative of the JKM. S/N /wRNU0v73UqaEabLbyn9uQ [4] Hence, the core issue before this Court, wherein its appellate jurisdiction was invoked pursuant to section 307 of the Criminal Procedure Code (CPC/Act 593) read together with section 26 of the Courts of Judicature Act 1964 (CJA/Act 91), is the procedural propriety of the order made by the magistrate, which had allowed the mother's application to set aside the IPO ex parte. Findings [5] The foregoing, will address the implications of the ex parte order made by the magistrate court, specifically in light of the fundamental principle of audi alteram partem. As emphasised, the magistrate had allowed the ex parte application to set aside the IPO. It is undisputed that neither the father, who was the beneficiary of the original IPO and had a direct interest in its continuance, nor the JKM which has a statutory duty to protect children, were cited as parties to the setting aside application. Consequently, they were not afforded any opportunity to present their respective cases or respond to the mother's assertions. [6] The Latin maxim audi alteram partem means "hear the other side" or "let the other side be heard." It is a cornerstone of natural justice and is universally recognized as a fundamental principle of fair procedure. This rule dictates that no person should be condemned, S/N /wRNU0v73UqaEabLbyn9uQ or have their rights or interests adversely affected, without being given a fair opportunity to be heard. The importance of this rule has been emphasized in numerous judicial pronouncements. As stated by Lord Denning M.R. in Ridge v Baldwin (1964) AC 40: "It is a principle of natural justice that no man is to be condemned unheard, and that no man is to be deprived of his property without being given an opportunity of being heard." While Ridge v Baldwin specifically concerned disciplinary proceedings, the principle is of universal application to any decision-making process that affects rights or interests. In the Malaysian context, the principle of audi alteram partem is deeply entrenched in administrative law and has been consistently applied in various judicial settings. The Federal Court in Surinder Singh Kanda v The Government of the Federation of Malaya (1962) 28 MLJ 169, while dealing with a case of dismissal, highlighted the importance of fair hearing, stating that a public officer should not be dismissed without being heard. Although this case dealt with public law, its underlying principle resonates strongly in any judicial process where an individual's rights are at stake, in the present case, the father of the child. [7] The application of this rule is not confined to formal hearings. It extends to ensuring that all parties who stand to be affected by an S/N /wRNU0v73UqaEabLbyn9uQ order are given notice of the proceedings and an opportunity to make representations, present evidence, and cross-examine witnesses where appropriate. It equally applies to IPOs and child welfare. Interim protection orders, particularly those concerning the welfare of children, are serious matters. They are issued to safeguard children from harm and are often granted expeditiously due to the urgency of the situation. However, once such an order is in place, any application to set it aside directly impacts the child's safety and the rights of the party who sought and obtained the order. [8] The father, having obtained the IPO, had a legitimate expectation that the order would remain in force unless good cause was shown for its variation or discharge, and that he would be given an opportunity to be heard when there is contest vide an application to have it set aside. The setting aside of the IPO without his knowledge or input effectively deprived him of the protection afforded by the order and potentially jeopardized the child's welfare, without him having a say in the matter. [9] Likewise, the Welfare Department or JKM plays a crucial role in child protection. Their involvement in cases involving protection orders is often vital, as they conduct investigation, provide reports, and monitor the child's well-being. To set aside an IPO without their S/N /wRNU0v73UqaEabLbyn9uQ knowledge or input undermines their statutory functions and the overarching public interest in child protection. [10] While an ex parte application is permissible in certain circumstances, typically where there is extreme urgency or a risk of prejudice if notice were given, they are generally intended to be temporary in nature. The very nature of an ex parte order dictates that it should be reviewed at the earliest opportunity with all parties present, to ensure that the principles of natural justice are upheld. [11] An application to set aside an existing order, particularly one that affects substantive rights or the welfare of a child, is not a matter that should ordinarily be dealt with ex parte. The rationale for granting an IPO ex parte (i.e., immediate protection of the child) does not apply to an application to set it aside. In fact, the potential for injustice is significantly higher when an existing protective measure is unilaterally removed. [12] The case of Re B (Care Proceedings: Notification of Father without Parental Responsibility) (1999) 2 FLR 408, a common law authority, but illustrative of the principle, highlights the general reluctance of courts to make significant orders concerning children without all parties being heard. While not directly on point concerning setting aside an IPO, the underlying principle is that decisions affecting S/N /wRNU0v73UqaEabLbyn9uQ children should ideally be made with the fullest possible information and input from all interested parties. Decision [13] In the present case, the magistrate's decision to allow the mother's application to set aside the IPO ex parte constitutes a clear breach of the audi alteram partem rule. The father, as the party who obtained the IPO and whose rights were directly affected, was not given notice or an opportunity to be heard. The Welfare Department, with its significant interest in child welfare, was also not cited. The argument that the application was merely to "set aside" and therefore could be heard ex parte is untenable. Setting aside a protective order has profound consequences, potentially exposing the child to the very harm the IPO sought to prevent. It is not a mere procedural formality. The failure to hear the father and the Welfare Department renders the order made by the magistrate fundamentally flawed and unsustainable. It is a nullity, or at best, voidable, due to the egregious procedural irregularity. [14] The principle of natural justice is not a mere technicality; it is essential to the administration of justice. Its breach in this instance undermines the fairness and legitimacy of the judicial process. S/N /wRNU0v73UqaEabLbyn9uQ [15] For the reasons elaborated, I find that the order made by the magistrate allowing the mother's application to set aside the IPO ex parte was made in clear violation of the audi alteram partem rule. The failure to cite the Father and the Welfare Department as parties and to afford them an opportunity to be heard is a serious procedural irregularity that vitiates the order. Therefore, the order of the magistrate allowing the application to set aside the IPO is hereby set aside. [16] Consequently, the IPO originally granted to the father is hereby reinstated pending a proper hearing of the mother's application to set aside the IPO, with all necessary parties (including the father and the Welfare Department) being given due notice and a full opportunity to present their respective cases. [17] This matter is remitted to another magistrate for a fresh hearing of the mother's application to set aside the IPO, ensuring strict compliance with the principles of natural justice. At that hearing the father and the representative of the Welfare Department shall be present, after being duly notified, with proper notice to them personally and directly, of their presence in court. It would be at that hearing all other matters pertaining to investigation of the allegation of crime against the mother of the child, which is adduced as fresh S/N /wRNU0v73UqaEabLbyn9uQ evidence in this appeal, could be raised and ventilated for the magistrate to arrive at a fair and just decision after hearing all parties, including the appellant father and the Welfare Department. It is best for the matter to be fully adjudicated by the magistrate, whom had issued the IPO to the father of the child and not this court, which only exercises its appellate jurisdiction. [18] The mother who is aggrieved with the decision of this court, has now appealed to the Court of Appeal. For completeness, it has to be emphasised that the appeal filed is incompetent for the following bases: • Pursuant to section 3 of the CJA, “decision” means judgment, sentence or order, but does not include any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties. The order made by this court to have the IPO reinstated and for another magistrate to rehear the setting aside application is not a final order disposing of the rights of parties, including the mother, as her rights could still be ventilated before the magistrate who would hear the matter afresh. • Further, pursuant to section 50 (2) of the CJA, an appeal shall lie to the Court of Appeal, with the leave of the Court of Appeal, S/N /wRNU0v73UqaEabLbyn9uQ against any decision of the High Court in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by a Magistrates' Court but such appeal shall be confined to only questions of law which have arisen in the course of the appeal or revision and the determination of which by the High Court has affected the event of the appeal or revision. An application for leave shall be made within fourteen days after the date of the decision of the High Court. Therefore, the order made by this court is not automatically appealable, pursuant to section 50 (2) of the CJA, as since the matter originates from the magistrate court, leave of the Court of Appeal has to be obtained first before the aggrieved party pursue with this appeal. That is not pursued, hence the appeal filed herein is incompetent for want of compliance with the salient provisions of the CJA. Interim Protection Order reinstated. Dated 3 August 2025 SGD Muniandy Kannyappan Judge, High Court 2 (Criminal) Kuala Lumpur S/N /wRNU0v73UqaEabLbyn9uQ Parties For the Appellant/Father – Sreedhara Naidu of Naidu Chambers. For the Respondent/Mother – Nurul Huda Razali together with Anis Qistina bte Abdul Malek of Messrs, Haniff Khatri. S/N /wRNU0v73UqaEabLbyn9uQ