B-09-92-2010

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5 10 15 20 25 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. 2
5 10 15 20 25 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 3
Page 1: 5 10 15 20 25 DALAM MAHKAMAH RAYUAN

B-09-92-2010

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