LECTURE 11: APPEAL

1.0 Introduction
1. Any party who is dissatisfied with the decision of the trial court is given the right to
appeal.
2. An appeal shall lie against a judgment, sentence or order.

3. The judgment, sentence or order may have been made by a Subordinate Court or High
Court exercising original jurisdiction. The subordinate court will include a Sessions Court
or the Magistrate’s Court. It will also include a Court for Children.

4. An appeal is always to the superior court. The superior courts are the High Court, Court
of Appeal and the Federal Court.

5. When a superior court hears an appeal, it is in fact exercising its appellate jurisdiction.

6. Under Malaysian law, a convicted person is given a two-tier right of appeal once
convicted by the trial court. For cases that are tried in the subordinate courts, the final
appeal is before the Court of Appeal, whereas, if the High Court is the court of first
instance, the final appeal is to be heard by the Federal Court (See ss 50 & 87 of the
Court of Judicature Act 1964 (Revised-1972)
7. The appellate jurisdiction of a superior court is provided for in the Courts of Judicature
Act 1964 (CJA - Act 91).
8. Section 26 of CJA provides for appellate criminal jurisdiction of the High Court
comprising hearing of appeals from subordinate courts according to any law for the time
being in force.
9. Chapter XXX Part VII of the CPC provides the procedure regarding appeals to the High
Court (S. 303A to 322)
10. The procedure of appeal to the Court of Appeal and Federal Court is stipulated in the
Rules of the Court of Appeal 1994 and the Rules of the Federal Court 1995 respectively.

11. Note: no appeal from a subordinate court lies to a superior court unless there is a
statutory provision allowing such a right to appeal. There is no general right of appeal.
Appellate jurisdiction is solely a creation of statute. It extends only as far as the words of
the statute require.

12. The decision made by a court of original jurisdiction is final and it is appealable only if it
is provided for by statute.

1
© Lim Shu Ting (2020)
 a. DSAI v PP [1999] 1 MLJ 321

1.1 APPEAL TO HIGH COURT

1.1.1 Bail/Stay of Execution Pending Appeal

(A) Bail pending appeal against conviction
13. Section 311 CPC allows for the court to grant stay of execution on any judgment, order,
conviction or sentence pending appeal. Simultaneously the court may grant bail pending
appeal. See also similar provisions - section 57 and 89 CJA 1964.
a. Ralph v R (1972-1974) SLR 322; Sharma Kumari Om Prakash v PP [2000] 6
MLJ 847
14. However, this is a discretion of the trial court.
a. Re Kwan ah Yip & Anor [1954] 1 MLJ 146b
 …the granting of bail pending appeal by the Lower Court being a
matter of discretion a Magistrate may, apart from the accused's
statement that the intends to appeal, find in the circumstances of the case
before him reasons which would justify the granting of bail. The
considerations which I suggest should guide the Subordinate Courts in
granting or refusing bail pending appeal in cases where a term of
imprisonment has been imposed are the gravity or otherwise of the
offence; the length of the term of imprisonment in comparison with
the length of time which is likely to take for the appeal to be heard;
whether there are difficult points of law involved; whether the
accused is a first offender or has previous convictions; the
possibility of his becoming again involved in similar or other
offences whilst at liberty; and whether the security imposed will
ensure the attendance of the appellant before the appellate Court.
15. There must be special or exceptional circumstances:
a. Obvious error or defect on the face of the record of proceedings. See the case of
Re Kwan Wah Yip & Anor (1954) 20 MLJ 146; Yusof bin Mohamed v PP [1995] 3
MLJ 66.
b. There is a strong likelihood of success or an arguable ground of appeal which is
certain and will be decided in favor of the applicant if the matter is heard by the
appellate court. An example is when the trial is held by a court which has no
jurisdiction or the prosecution did not issue consent before instituting prosecution

2
© Lim Shu Ting (2020)
 against the accused as required by the law. See the case of KWK (A Child) v PP
[2003] 4 CLJ 51.
c. When the court considers the grounds for stay of execution, it has to look at the
factors surrounding the application cumulatively and not in isolation. Such factors
are like gravity of the offence; the length of imprisonment compared to the length
of time that is likely to take before the appeal is heard; the possibility of the
accused becoming involved in similar or other offences while he is at liberty; the
nature and seriousness of the offence; character of the evidence on which the
case rests; possibility of the accused absconding; public and national interest.
d. Cases whereby stay of execution was refused are like Re Kwan Wah Yip & Anor
– there were no grounds of appeal raised in court except that a notice of appeal
had been filed and that it was submitted that it would take some time before the
appeal could be heard; Yusof bin Mohamed v PP – there was evidence of
previous convictions that showed the applicant’s tendency to commit the same
type of crime while he is at liberty, that the record of appeal was not lengthy and
could be prepared quickly and an early date of appeal could be fixed; Sharma
Kumari v PP – the reasons given were merely that a notice of appeal had been
filed and that the applicant had been advised and she believed that she had
good grounds for appeal; PP v DSAI (No. 3) [1999] 2 MLJ - the court considered
the seriousness of the offences on which the applicant was found guilty and the
nature of defense advanced by the accused.

(B) Bail pending appeal against acquittal

16. Who would be normally appeal against an acquittal? The answer is…….
17. A subordinate court judge cannot impose bail on an acquitted person.
18. The procedure of bail pending appeal is stipulated under s 315 of the CPC which states
that a High Court Judge may admit the acquitted person to prison or admit him to bail
pending the disposal of appeal.
19. Case:
a. Ment & Ors v PP [1994] 1 MLJ 201
 In this case though the court has been informed by counsel that the
applicants have been in remand for a period of about eleven months
covering the period pending and subsequent to the trial in the magistrate
court, yet it is this court's view that because the applicants are Thai

3
© Lim Shu Ting (2020)
 nationals and the charge against them was, to wit, fishing illegally in
Malaysian waters – which activity affects the national interests of
Malaysia – these two factors would constitute sufficient special
circumstances and grounds to enable it to exercise of its discretion
under s 315 of the Criminal Procedure Code in favour of the public
prosecutor. In the event, the DPP's application under this provision is
allowed and I order that the applicants be admitted to bail at RM1,500
each in two local sureties, and in default, a warrant be issued
committing the applicants to prison until the disposal of the DPP's
appeal against the acquittal decision of the learned magistrate.

1.1.2 Who Can Appeal?

20. Section 307.
(1) Except in any case to which section 304 applies and subject to sections 305 and
306 any person who is dissatisfied with any judgment, sentence or order
pronounced by any Magistrate's Court in a criminal case or matter…

21. The phrase “any person” means the appellant must be a party to the criminal case which
include the Public Prosecutor.
22. Case:
a. PP v WBR Rudguard [1939] 1 MLJ 56
 Section 307 allows an appeal "by any person who is dissatisfied with any
judgment etc". The context shows that 'any person' means the accused
or the Public Prosecutor.
b. Public Finance Bhd v PP [1989] 2 MLJ 448
 BN, an accused, was charged and found guilty of two offences under s 33
of the Commercial Vehicle Licensing Board Act 1987 and s 90 of the
Road Transport Act 1987 in the magistrate's court. He was fined and a
vehicle no KK4790 owned by the applicant/appellant was forfeited. By a
notice of motion, the applicant (Public Finance Bhd) applied for
enlargement of time for filing a petition of appeal so as to set aside
the forfeiture order made by the magistrate's court against the said
vehicle.

4
© Lim Shu Ting (2020)
  HC Held: It is clear that the applicant was not an accused in the
criminal proceedings nor was it a party to the criminal case or
matter. As such, under the terms of Criminal Procedure Code s
307(i) the applicant cannot appeal against the forfeiture order.
c. See also Koay Ban Siew v PP [1948] 1 MLJ 54

1.1.3 What can be appealed?

(A) Judgment, sentence or order
23. The judgment, sentence, or order must have finally disposed of the right of the parties.
a. Ang Gin Lee v PP [1991] 1 MLJ 498 (SC)
 To satisfy that provision the order must first of all be a final order. This
requirement has already been dealt with in Maleb bin Su v PP [1984] 1
MLJ 311. In that case it was held that the order must be a final order
in the sense that it is final in effect as in the case of a judgment or
sentence. The test for determining the finality of the order is to see
whether the order finally disposes of the rights of the parties. That
part of the judgment reads as follows.
 First, the question of the right to appeal. Under s 307(i) of the Criminal
Procedure Code any person dissatisfied with any judgment, sentence or
order pronounced by the magistrate in a criminal case may appeal to the
High Court against any such judgment, sentence or order. There is no
argument, in my opinion, that the ejusdem generis rule applies to the
word 'order' which is preceded by the words 'judgment' and 'sentence'.
The order must therefore be a final order in the sense that it is final in
effect as in the case of a judgment or a sentence. The test for determining
the finality of an order is to see whether the judgment or order finally
disposes of the rights of the parties. See discussion of this point in
Mohammed Amin Bros v The Dominion of India AIR 937 1950 FC 77. The
order which finally disposes of the rights of the parties should be
distinguished from a purely procedural ruling. See also PP v Hoo Cheng
Chwen [1962] MLJ 284 and PP v RK Menon & Anor [1978] 2 MLJ 152. In
the former case Rose CJ of Singapore dealt with an appeal on the
admissibility of certain statements and the learned judge held that
the ruling of the magistrate was a procedural ruling and therefore

5
© Lim Shu Ting (2020)
 not an appealable order. In the latter case Ajaib J also correctly took the
view that a ruling on non-compliance with s 129(i)(b) of the Criminal
Procedure Code was a procedural and non-appealable ruling.

24. Therefore, a procedural ruling which does not finally dispose the right of parties is not
appealable. See the case of PP v Hoo Chan Chwen (1962) MLJ 284; Mohamed bin
Musa v PP (No. 2) [1972] 1 MLJ 61; Marzuki bin Mokhtar v PP [1981] 2 MLJ 155.
25. However, ruling made by a Court under s 51 of the CPC on summon to produce
document is considered as the final order that finally dispose the right of parties. Thus,
appealable.
a. Dato' Seri Anwar bin Ibrahim v Public Prosecutor [2010] 2 MLJ 312 (FC)
 Next, the passage from the Supreme Court's decision in Public
Prosecutor v Raymond Chia Kim Chwee & Anor Zainal bin Hj All v Public
Prosecutor [1985] 2 MLJ 436, stating:
…the right of a person to ask for a document or other material in a
criminal proceeding under s 51 of the Criminal Procedure Code is a right
exercisable at the discretion of the court. Thus a decision or order to
issue a summons under s 51 of the Criminal Procedure Code is a
final order in the sense that it is final in its effect and therefore
appealable under s 307(i) of the Criminal Procedure Code. (Emphasis
added.) … It sought for a determination of the appellant's right pursuant to
s 51 of the CPC. Thus the order made by the learned judge on that
application is a final order that has finally disposed of the rights of
the appellant. It has disposed of the matter in dispute. It is therefore
appealable.
26. There is also possibility that the accused could not appeal because his or her right is not
finally disposed of but the decision of the court has actually disposed the right of the
prosecution. In this situation, the prosecution has the right to appeal.
a. Letchumanan a/l Suppiah v Public Prosecutor and another appeal [2009] 5
MLJ 597 (FC)
 At the close of the prosecution's case, he was acquitted by the High Court
without his defence being called. Against this decision, the prosecution
appealed to the Court of Appeal (CA). The CA thereafter ordered the

6
© Lim Shu Ting (2020)
 respondent to enter his defence on a reduced charge of possession of the
said drugs under s 12(2), punishable under s 39A of the Act.
 The prosecution appeal against the CA decision. The respondent cross-
appealed against the decision of the Court of Appeal in calling for his
defence on the reduced charge of possession.
 The Federal Court Held:

(1) The respondent cross-appeal is dismissed because the decision did not finally
dispose his right;

(2) The DPP can appeal because the effect of the Court of Appeal's decision to
call the defence on the reduced charge of possession would mean that the
respondent had been acquitted of the original charge of trafficking. If the
trial were to continue on the basis of possession, then the respondent could only
be required to rebut the presumption of possession. It would also mean that the
prosecution could only get back the original charge of trafficking by appealing to
the Federal Court at this stage, as it did in the instant appeal. The effect of the
Court of Appeal's order is that the charge of trafficking has been finally
disposed of by calling for the defence only for possession. It is my
considered opinion that this would be the correct time for the public prosecutor to
appeal against the Court of Appeal's decision if he wants the case to continue on
the trafficking charge and not wait to file his appeal at the end of the whole trial.

27. What about an order by the court to grant or refuse bail? Is it a decision within section 3
CJA?

a. The granting or refusal of bail is not a ‘decision’ within the meaning of section 3
CJA because such a decision (ruling) is not final as it does not have the effect of
finally determining the rights of the parties. This is so because an accused who
has been refused bail may make another fresh application for bail provided there
is a material change in circumstances. Likewise, the prosecution may apply for
revocation of bail granted to an accused if there are material and cogent
evidence to support the revocation.

7
© Lim Shu Ting (2020)
  See the case of DSAI v PP [1999] 1 MLJ 321.

b. Then why do we have a provision in the form of section 394 CPC? – This only
applies to the order of bail made by the subordinate court which is appealable to
the High Court.

28. See the case of Saad Abbas & Anor v PP [1999] 1 MLJ 129 (CA). In that case it was
decided that:

c. The court has to first ascertain whether the ‘decision’ of the High Court in
ordering the appellants to enter on their defense was a ruling that had the effect
of finally disposing of their rights.

d. Certainly not as the accused has not been convicted or acquitted. Until then the
accused has to wait, which would happen only after a decision is made at the
close of the defense case.

(B) In a criminal case or matter

29. An appeal can only be made pertaining to a criminal case or matter. So what is a meant
by a criminal case or matter?

a. Ang Gin Lee v PP [1991] 1 MLJ 498 (SC)

 We have in fact another local case quite helpful on the same question,
that is the case of PP v Chin Keow [1947] MLJ 55. In that case Justice
Spenser-Wilkinson sat in appellate criminal jurisdiction and relied on
Amand v Home Secretary & Anor [1943] AC 147 for the authority that if a
cause or matter is one which, carried to its conclusion, might result
in the conviction of the person charged and in a sentence of some
punishment it is a criminal cause or matter.

 Amand [1943] AC 147 itself relied on Clifford and O'Sullivan [1921] 2 AC

570 where Viscount Cave laid down two conditions to be satisfied in order
that a matter may be a criminal cause or matter. The two conditions laid
down by Viscount Cave are firstly, it must involve the consideration
of some charge of crime, that is, of an offence against the public
law; and secondly, the charge must be preferred or about to be

8
© Lim Shu Ting (2020)
 preferred before some court or judicial tribunal having or claiming
jurisdiction to impose punishment for the offence.

30. In Ang Gin Lee’s case it was decided that an order made by a Magistrate under s 6(1)
(a) of the Drug Dependants (Treatment and Rehabilitation) Act 1983 s not an order
appealable to the High Court.

9
© Lim Shu Ting (2020)
1.1.4 Restrictions on the Right to Appeal
(A) Section 304 of the CPC
31. Section 304. Cases in which no appeal lies.
a. No appeal shall lie from a judgment, sentence or order of a Magistrate in the
case of any offence punishable with fine only not exceeding twenty-five
ringgit.
(B) Section 305 of the CPC

32. Section 305.When plea of guilty limited right of appeal.

a. When an accused person has pleaded guilty and been convicted by a

Magistrate on that plea, there shall be no appeal except as to the extent or
legality of the sentence.

33. Case:

a. Philip Hoalim v PP [1936] 1 MLJ 121

 I take the preliminary objection that appellant is precluded from

appealing against his conviction because he pleaded guilty…
Appellant can only appeal as to the extent or legality of the
sentence.

34. However, there is an exception to the above rule. For example, an accused may appeal
on the ground of the legality of the guilty plea/ legality of the conviction. (Please refer to
cases you have studied on Pleading Guilty in Summary Trials.)

a. Lee Yu Fah & 5 Ors v PP [1937] 1 MLJ 179

 The first one that I propose to deal with is the submission of the learned
Deputy that as the Appellants have pleaded guilty no appeal lies, it being
ruled out by the provisions of section 305 of the Criminal Procedure
Code. The first thing I would say is that whether or not the Accused are
legally entitled to appeal a Judge can always exercise his powers of
revision under section 323 of the Criminal Procedure Code; but apart
from that it seems to me that it is impossible for any Judge to interpret
section 305 actually literally until he is satisfied that the other provisions of
the Code leading up to the acceptance of the plea of guilty have been
complied with. It is most difficult for a Judge to come to any opinion on

10
© Lim Shu Ting (2020)
 this matter unless the Magistrate has recorded fairly fully and fairly
literally the statement of the accused in answer to the charge. Here there
is no statement of any kind; simply the record that all pleaded guilty.

(C) Section 306 of the CPC

35. Section 306. Appeal against acquittal.
a. When an accused person has been acquitted by a Magistrate there shall be
no appeal except by, or with the sanction in writing of, the Public
Prosecutor.

36. Appeal against an acquittal including cases in private summons must be made by the
sanction in writing of the Public Prosecutor. (See Re Radha Krishna Naidu [1962] 1
MLJ 130)
37. However, there is no need for the appeal to be sanctioned by the Public
Prosecutor, personally. This means a Deputy Public Prosecutor can also file the notice
of appeal.
38. Case:
a. PP v Joehari Bin Abdullah @ Leong Kin Seng & Anor [1996] 1 CLJ 100
 Section 306 of the CPC does not expressly state that the right of appeal
are to be exercised by the Public Prosecutor personally. So by virtue of s.
376(iii) of the CPC a Deputy Public Prosecutor can file notice of appeal
against an acquittal under s. 306 of the CPC and no sanction in writing of
the Public Prosecutor is required. Reverting to our case I note that the
notice of appeal dated 31 March 1995 filed in the Magistrate's Court at
Federal Territory of Labuan is signed by Mohd. Yazid bin Mustaffa,
Timbalan Pendakwa Raya Sabah.

11
© Lim Shu Ting (2020)
1.2 TYPE OF APPEAL

1. An appeal from a conviction by accused.

a. The basis, inter alia, being:
i. Error of law – trial judge erred when applying the correct principle of law
to the facts thus making an erroneous finding of law.
ii. Error of fact – trial judge erred when making a finding of fact which is
inconsistent or unsupported by the weight of evidence in the case.
iii. The above is also referred to as misdirection or a non-direction on the
law, facts or evidence adduced.
b. An example is the case of DP Vijandran v PP [1999] 1 MLJ 385 wherein the
COA decided not to interfere with the concurrent findings of fact made by the
sessions and high court save in very rare cases:
i. When it can be shown that the course of events affirmed by the trial judge
could not have occurred;
ii. Trial judge had failed to critically assess and analyze the prosecution’s
evidence.
c. Pursuant to section 316 (b) CPC, after hearing an appeal from a conviction the
appellate court may reverse the finding of guilt and sentence and acquit or
discharge the accused or order the accused to be retried. An example of a case
where retrial was ordered by high court is Awaluddin b Suratman & Ors v PP
[1992] 1 MLJ 416.
d. There may be a substitution of the conviction from the original charge to a
conviction on an amended charge. This takes place only if the conviction on the
amended charge is supported by the evidence adduced in court and not
something new which the accused is not in a position to refute as the trial of the
case has ceased. See the case of Ng Ee v PP (1941) MLJ 180; Banta Singh v
PP (1941) MLJ 154; Lew Cheok Hin v PP (1956) MLJ 131; Sivalingam v PP
[1982] 2 MLJ 172; Gurdit Singh [1983] 1 MLJ 204.
e. Pursuant to section 316 (c) CPC, if an appeal is from any other final order made
by the court of original jurisdiction, the appellate court may alter or reverse the
order made.
2. An appeal from an order of acquittal.

12
© Lim Shu Ting (2020)
 f. When deciding on such the appellate court has to be mindful of the following
(Sheo Swarup & Ors v King Emperor AIR 1934 PC 227; Lim Kheak Tong
[1985] 1 MLJ 38):
i. Proper weight and consideration must be given to the views of the trial
judge on the credibility of witnesses.
ii. The presumption of innocence in favor of the accused.
iii. Right of the accused to the benefit of the doubt.
iv. Slowness of the appellate court to disturb the finding of fact of the trial
judge as he was in a better position to appreciate the audible evidence of
witnesses.
g. Pursuant to section 316 (a) CPC, after hearing an appeal from an order of
acquittal, the appellate court may reverse the order of acquittal and record a
finding of guilt followed by conviction of the accused and consequently pass
sentence on him according to law or order a retrial of the case or direct that
further inquiry be made into the case before a decision is made by the appellate
court on the appeal.
h. Where further inquiry or the recording of additional evidence is deemed
necessary in the interest of justice, the appellate court may record the evidence
itself or direct the trial court below to do so. This is pursuant to section 317 (1)
CPC9. The circumstances under which the court will allow the recording of
additional evidence are very limited with a view to finality of proceedings. The
conditions10 that must be satisfied to justify taking such additional evidence are
namely:
i. unavailability of the evidence at the trial;
ii. evidence relevant to the issue;
iii. evidence which is credible and capable of belief (reliability);
iv. might have been a reasonable doubt as to the guilt of the appellant if
taken together with other evidence.
3. An appeal as to sentence.
i. The prosecution may appeal as to inadequacy of sentence passed by the court
and an accused may appeal on excessive severity of the sentence passed by the
court. In this regard take note of the limited right of appeal by an accused if he
has pleaded guilty and been convicted by the subordinate court on that plea, he
shall appeal only as to the extent and legality of the sentence. The basis being:

13
© Lim Shu Ting (2020)
 i. Sentence is grossly inadequate.
ii. Sentence is manifestly excessive.
iii. Sentence is not according to law.
j. An example is the case of Ganesan a/l Nachiappan & Ors. v PP [2000] 3 MLJ
244 wherein the COA decided that the power of sentencing given to a trial court
is a discretionary one and in order for the appellate court to disturb the sentence
imposed, the court must be convinced that the trial judge had:
i. Erred in applying the correct principles of sentencing or
ii. Had embarked on some unauthorized or extraneous exercise of
discretion.
k. Generally, in an appeal as to sentence, the appellate court may interfere if the
sentencing judge made a wrong decision as to the factual basis for sentence,
erred in considering the material before him, passed a sentence which is wrong
in principle or imposed a sentence which is manifestly excessive or grossly
inadequate. Otherwise, the appellate court has no grounds to interfere with the
sentence. See also the case of Rosli bin Supardi v PP [2002] 3 MLJ 256
(COA) whereby the Court of Appeal decided to enhance the sentence without an
appeal by the Public Prosecutor, considering the circumstance of the crime
committed by the accused.
l. See also the latest decision of the Court of Appeal in the case of Md Ridwan b
Md Yusof v PP (Criminal Appeal No A-09 (S)-90-04/2014).
m. Pursuant to section 316 (b) CPC, after hearing an appeal as to sentence, the
appellate court may maintain the sentence, reduce or enhance the sentence or
alter the nature (type) of the sentence.
4. In a private summons case, which is initiated by the complainant, if it ends up in an
acquittal of the accused, the Public Prosecutor shall step in for the appeal process
unless he sanctions the private person concerned in writing to pursue with the appeal.
See section 306 CPC as well as the case of Hardial Singh v Faridah & Ors. [1988] 1
MLJ 465.

1.3 PROCEDURAL STEPS IN A CRIMINAL APPEAL

1. To lodge a Notice of Appeal within 14 days after the final judgment, sentence or order
(decision) of the court exercising original jurisdiction.
a. On the requirement of the Notice of Appeal, see section 307 (1) and (2)17.

14
© Lim Shu Ting (2020)
 b. If there is an error in the Notice, it may be resolved in favor of the appellant
provided the notice of appeal serves as sufficient notice to the court. However,
the appellant is not precluded from amending the said notice.
2. Receipt of Grounds of Decision within 8 weeks from the day of decision (it is not a rule of
law but a rule of practice directed by way of a Practice Direction).
a. Delivery of the grounds of decision has to be prompt. Promptness is essential as
the grounds ought to be written by the judge when the witnesses’ audible
evidence in court is still fresh in his mind. If there is a delay there is a tendency
for the memory or freshness to fade causing injustice hence prejudicing the
accused. This may turn out to be a good ground of appeal entitling a reversal of
the judgment made by the trial judge.
b. It has to be a well-reasoned judgment or a speaking judgment21 containing
findings of fact and law by the judge.
c. There must be reasons given for believing or disbelieving the evidence of the
prosecution or the accused. See the case of Murugiah v PP (1941) MLJ 17.
d. In an acquittal, the court’s reasons that the defense has been carefully
considered and the reasons for rejecting it shall be given.
3. Petition of Appeal within 14 days after receipt of grounds of decision or judgment or from
the date of receipt of Notes of Evidence, whichever is later.
a. On the content of the petition of appeal, see section 307 (6) as well as Form 51
to the second schedule CPC.
b. The effect of the petition of appeal not filed within time is provided for in section
307 (9) CPC. Section 53 (2) CJA provides that the appellant shall not be
permitted on the hearing of the appeal to rely on any ground of appeal other than
those set forth in the petition. Although a similar provision is not found in the
CPC, but this rule of law has to be adhered to by the appellant. However the
appellant is at liberty to amend its petition of appeal, if necessary. See the recent
case of PP v Jitwer Singh Ojagar Singh [2014] 1 CLJ 433 (FC) on the issue of
whether court is powerless to permit a point of law or fact which is not in petition
of appeal to be raised.
c. Note: If the notice of appeal or petition of appeal is not filed within the specified
time by the appellant, he may request for an extension of time to file the same
out of time. This is made pursuant to section 310 CPC. An order in terms of such
an application is not automatic but always subject to the discretion of the

15
© Lim Shu Ting (2020)
 appellate court. The appellate court would consider the legitimacy of the reasons
given for not filing the said notice or petition within the specified time and the
period of delay involved. In that regard the court would at times require the
appellant to show that he has a good prospect of success if the appeal is
prosecuted. In order to demonstrate that the appellant may have to exhibit in his
affidavit in support of the application for extension of time a proposed petition of
appeal which would show the grounds of appeal relied upon by the appellant.
Such an instance is discussed in the case of Masnelan Pakpahan [1989] 2 MLJ
362.
4. Hearing of the Appeal.
a. The process is clearly spelt out in section 313 (1) CPC.
5. Presence of parties (Appellant and Respondent).
a. What if the appellant is absent during the appeal?
i. Pursuant to section 313 (2) CPC, the appellate court may consider his
appeal and may make the requisite order either to allow or dismiss the
appeal.
ii. If the appellant is out of jurisdiction, the court may refuse to consider the
appeal made by him. If the appellant is released on bail pending appeal
and if he does not appear, the court may dismiss the appeal, it will revoke
bail; issue a notice to the bailor and warrant to arrest the appellant for the
purpose of serving sentence imposed on him. Thus generally, the
appellate court will dismiss the appeal if the appellant is absent without
reason. If reasons are given for his absence at the hearing of the appeal,
the appellate court will scrutinize the legitimacy of the reasons given
before dismissing the appeal (See Leong Yew Thong v PP [1996] 2 SLR
48; Rahim bin Usoff & Ors v PP [1985] 1 MLJ 241).

b. What if the respondent is absent?

i. The appellate court will first ensure that the Notice of Hearing of the
Appeal is duly served on the respondent.
ii. If the said notice of hearing is not served, the appellate court shall not
make any order adverse to him but has to ensure that the requisite notice
is properly served on the respondent.
iii. That will be the final notice served on the respondent and if such notice
cannot be served on him, the court will proceed with hearing the appeal in

16
© Lim Shu Ting (2020)
 the absence of the respondent and is in a position to make an order
adverse to the respondent (See the Singapore case of PP v Tan Fook
Sum [1999] 2 SLR 523 for a situation where the respondent refused
to attend the appeal).
iv. If the appellant is the Public Prosecutor, the appeal cannot proceed
without the presence of the respondent. See the case of Gor Thor Kiah
[1952] 3 MLR 16.
c. What if an accused die?
i. Pursuant to section 320 CPC, if it is an appeal from an order of acquittal,
it shall finally abate upon the death of the accused.
ii. In an appeal from a conviction the appeal shall abate on the death of the
appellant (accused).
iii. But if it is an appeal as to sentence of fine, it does not abate upon death
of the accused, but it survives. However, see the case of Sunny Yap Eu
Leong [1994] 3 MLJ 434 where it was decided that a composite order of
sentence combining the substantive imprisonment with fine and a penalty
cannot be construed as a sentence of fine.
6. Decision on appeal.
a. Section 316 of the CPC provides a wide discretionary power to the High Court in
making decision on appeal depending on what is the subject matter of the appeal.
How the discretion is to be exercised would depend upon circumstances of each
case before the High Court. (See Sallehuddin bin Yahya v PP [1979] 2 MLJ 138)

b. Pursuant to s 316 (a) CPC, after hearing an appeal from an order of acquittal, the
appellate court may reverse the order of acquittal and record a finding of guilt
followed by conviction of the accused and consequently pass sentence on him
according to law or order a retrial of the case or direct that further inquiry be
made into the case before a decision is made by the appellate court on the appeal.

c. Pursuant to section 316 (b) CPC, after hearing an appeal from a conviction the
appellate court may reverse the finding of guilt and sentence and acquit or
discharge the accused or order the accused to be retried. An example of a case

17
© Lim Shu Ting (2020)
 where retrial was ordered by high court is Awaluddin b Suratman & Ors v PP
[1992] 1 MLJ 416. An order of a re-trial should only be made in the interest of
justice and will not be prejudiced to the accused as mentioned in the case of
Sallehuddin bin Yahya v PP [1979] 2 MLJ 138. An example of where it might
prejudice the accused if the re-trial would enable the Prosecution to fill the gap
in its case.

d. Besides that, s 316(b) of the CPC also provides the power to “alter” the finding.
This may include a substitution of the conviction from the original charge to a
conviction on an amended charge. This takes place only if the conviction on the
amended charge is supported by the evidence adduced in court and not something
new which the accused is not in a position to refute as the trial of the case has
ceased. See the case of Ng Ee v PP (1941) 1 MLJ 180; Banta Singh v PP (1941)
1 MLJ 154; Lew Cheok Hin v PP (1956) 1 MLJ 131; Sivalingam v PP [1982] 2
MLJ 172; Gurdit Singh [1983] 1 MLJ 204.

e. Finally, s 316(c) of the CPC states that in an appeal from any other order made by
the court of original jurisdiction, the appellate court may alter or reverse the order
made. (For example, an order to produce document under s 51 of the CPC).

1.4 CAN THE HIGH COURT HEAR ADDITIONAL EVIDENCE DURING APPEAL?
1. Section 317 of the CPC provides that the High Court may hear additional evidence for
the purpose of the appeal process.
2. The High Court Judge can either take the additional evidence himself or herself or order
the evidence to be taken by a Magistrate. (ss 317(1) and (2).
3. However, it is settled law in Malaysia that such an additional evidence can only be
allowed if four cumulative conditions as set out in the English case of R v Parks [1961]
3 All ER 633 are met:
a. …First, the evidence that it is sought to call must be evidence which was not
available at the trial. Secondly, and this goes without saying, it must be evidence
relevant to the issues. Thirdly, it must be evidence which is credible evidence in
the sense that it is well capable of belief; it is not for this court to decide whether
it is to be believed or not, but it must be evidence which is capable of belief.

18
© Lim Shu Ting (2020)
 Fourthly, the court will after considering that evidence go on to consider whether
there might have been a reasonable doubt in the minds of the jury as to the guilt
of the appellant if that evidence had been given together with the other evidence
at the trial.
4. The principles laid down in R v Parks have been approved by a number of Malaysian
cases such as Mohamed Bin Jamal v Public Prosecutor [1964] 1 MLJ 254 (FC); Che
Din Bin Ahmad v Public Prosecutor [1976] 1 MLJ 289 (HC); and Murugayah v
Public Prosecutor [2004] 2 MLJ 545 (CA).

19
© Lim Shu Ting (2020)