B-09-92-2010

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DALAM MAHKAMAH RAYUAN MALAYSIA
RAYUAN JENAYAH NO: B-09-92-2010
(Mahkamah Tnggi Perbicaraan Jenayah 41-77-2009)
ANTARA
TAN KIM LOOK … PERAYU
DAN
PENDAKWA RAYA … RESPONDEN
CORAM:
NIHRUMALA SEGARA M K PILLAY, JCA
BALIA YUSOF HAJI WAHI, JCA
MOHTARUDIN BAKI, JCA
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JUDGMENT OF THE COURT
The appellant (accused) was charged with 3 charges under s 420 Penal
Code in the Magistrates’ Court.
The offences were alleged to have occurred in 1992 and 1993. The
cases were registered in the Magistrates’ Court in 2001.The Magistrate
called for the defence at the close of the prosecution’s case in 2006. The
accused gave evidence on oath. He was found guilty and convicted. He
was sentenced to 24 months imprisonment on each of the three charges.
The entire trial process before the Magistrate lasted about 8 years.
The accused lodged an appeal on 18/5/2009 to the High Court. It was
alleged that the copy of the Record of Appeal furnished by the
Magistrates’ Court was incomplete and did not contain part of the Notes
of Proceedings and some of the exhibits. The Judicial Commissioner
adjourned the hearing of the appeal to 23/10/2009 and on that date
stated that the additional notes he had received from the Magistrates’
Court contained the findings on the calling for the defence.
The decision on the appeal was delivered on 6/11/2009. The accused’s
appeal was allowed and it was further directed to be re-tried in the
Magistrates’ Court pursuant to s.316 Criminal Procedure Code.
The accused filed a motion for leave to appeal in the Court of Appeal
against the decision of the Judicial Commissioner pursuant to s. 50(2)
Courts of Judicature Act 1964. The Court of Appeal granted leave to
appeal on 17/5/2010.
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This Panel is unanimous in its decision to-day. We dismissed the Appeal
before us on the ground the question of law which had arisen in the
course of the appeal in the High Court (from the decision of the
Magistrates’ Court) the determination of which by the High Court has
affected the events of the appeal before the High Court, is not before
us.
Going by the Petition of Appeal placed before us, the issue of concern to
the accused appears to be the order of the High Court directing a re-trial
before the Magistrate. We are of the view that this is an exercise of
judicial discretion on the part of the Judicial Commissioner after taking
into consideration the facts, circumstances and material placed before
him or made available to him in the exercise of his appellate/revisionary
jurisdiction.
We see no reason to interfere with the decision of the Judicial
Commissioner and, do not see any appealable error of law.
Appeal dismissed. The order for retrial made by the High Court is
affirmed.
(NIHRUMALA SEGARA A/L M.K. PILLAY)
Judge
Court of Appeal
PUTRAJAYA
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Peguam Perayu:
Encik Bastian Vendargon
Encik Gene Anand Vendargon
Tetuan Bastian Vendargon.
Peguambela dan Peguamcara
B54, Tingkat 1 & 2, Lorong Tun Ismail 8
Sri Dagangan 2
25000 Kuantan
PAHANG DARUL MAKMUR
Peguam Responden:
Encik Hasrul Nizam Bin Mohd Zameri
Timbalan Pendakwa Raya
Jabatan Peguam Negara Malaysia
21 JUNE 2012
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