DATIN SERI ROSMAH BT MANSOR V PUBLIC PROSECUTER [2021] MLJU 2394

COURT OF APPEAL (PUTRAJAYA)

Stay Proceedings in Criminal Cases

1.    The Applicant was charged with two corruption offenses under the Malaysian Anti-Corruption Commission Act 2009 in the High Court at Kuala Lumpur and the trial so as at the defense stage which has been fixed for continuation of hearings on 5th, 7th, 21st, 28th October 2021 and 15 November 2021.

2.    The grounds for requesting a stay of proceedings in the motion notice are outlined as follows by the Appellant:

(a) If stay is not granted and if the Applicant’s appeal is allowed by the Court of Appeal, it would render the appeal nugatory. As such, it is a waste of time and effort by all parties for the continuation of the trial;

(b) The decision of the High Court Judge is appealable to the Court of Appeal without having to wait for the court’s decision at the end of the defense case;

(c)  There is a novel question of law in the said appeal which concerns the legality of proceedings against the Appellant;

(d) The legality of the appointment of Datuk Gopal Sri Ram (“DGSR”) as Senior Deputy Public Prosecutor by fiat should be determined first by the Court of Appeal and/or Federal Court before proceeding with the prosecution against the Appellant;

(e)  The Appellant’s right for fair and impartial trial will be prejudiced if stay proceedings is not granted.

(f)   There are special circumstances for granting the stay of proceedings.

Issue

1.    Whether the application for stay of proceedings in criminal cases is different from civil cases?

1.    Whether the application for stay of proceedings in criminal cases is different from civil cases?

(a) In matters concerning the stay of proceedings in a criminal trial, it is essential to recognize that it involves the exercise of judicial discretion. To secure approval for such an application, the Applicant must demonstrate the presence of extraordinary and uncommon circumstances justifying the granting of a stay of proceedings.

(b) The test for determining exceptional and unusual circumstances were clearly elucidated by the Federal Court in the case of Public Prosecutor v Dato’ Sri Najib bin Hj. Abdul Razak [2019] 4 MLJ 421:-

(i)  There exists a significant public interest in the prosecution of criminal activities, emphasizing the importance of ensuring that individuals accused of serious criminal offenses undergo a fair and thorough trial.

(ii)    It is undesirable to disrupt or fragment the criminal process with interlocutory proceedings. The considerations of public interest strongly support the swift and efficient resolution of criminal charges, emphasizing the importance of avoiding unnecessary delays.

(iii)   The undesirability of fragmenting the criminal process extends beyond specific stages and encompasses the entirety of the process. Any disruption to any part of the process is antithetical to the proper and equitable dispositional of criminal cases. The warning against the fragmentation of the criminal process becomes more pronounced, particularly when proceedings have already commenced.

(iv)  A stay of proceedings application demands exceptionally compelling justification, particularly in cases warranting urgent judicial decisions. It is crucial, especially for individuals accused of serious criminal offenses, to face a prompt trial.   Allowing the defense to seek delays would not serve the public interest, as individuals innocent of serious criminal charges should have the chance to vindicate themselves without undue postponement.

(vi)  a stay of proceedings will not normally be granted pending an interlocutory appeal in a criminal trial. It is only in very exceptional or unusual circumstances that a stay order is granted. This is so even if the issuing of the interlocutory appeal is not opposed by the prosecution or in fact, supported by both the prosecution and the defence;

(vii) The accused’s rights over preliminary or interlocutory rulings made by the trial judge are best vindicated by appeal after conviction, if any.  It is generally more desirable to consider preliminary or interlocutory rulings made by the trial judge in appeal after conviction upon full trial with the benefit of a concrete factual setting than considering them in the abstract during interlocutory appeal;

(viii)The fact that an accused will be put to the expense of a trial is irrelevant and would not qualify as ‘exceptional circumstances’ to justify a stay of a criminal trial pending resolution of an appeal; and

(ix)   The courts should exercise great caution in allowing other forms of collateral challenge, in parallel proceedings such as an application for a declaration or other form of judicial review with similar relief like certiorari, be it commenced in the same court or another civil or criminal court, which have the net effect of staying the criminal proceedings or would interfere with or impinge directly upon the normal course of proceedings in a criminal trial.

(c)  Accordingly, the Federal Court said that:

“As stated above, a stay of criminal proceedings will only be granted in the rarest of cases and the fact that the proceedings may be rendered a nullity is not a special circumstance. In the context of an application for a stay of proceedings, it is also immaterial that the accused is put

to the expense of a trial even if he is subsequently v indicated on appeal.”.

(d) The main contention by counsel for the Applicant was that the proceedings at the High Court may be rendered a nullity if their appeal to the Court of Appeal is successful. This is due to the fact that the legality of the proceedings and the legality of the appointment of DGSR as the lead prosecutor were the subject matter of the Applicant’s appeal. In relation to this, as decided by the Federal Court in Dato Sri Najib’s case alluded to earlier, the proceedings may be rendered a nullity is not a special circumstance and as such it does not support the Applicant’s application for the stay of proceedings.

(e)  The Court had also considered public interest which dictates that the trial of serious offence especially by a public figure to be resolved expeditiously without interruption or fragmentation by interlocutory appeal. Moreover, the hearing of the Applicant’s proceedings has already commenced which need to be completed without delay.  Besides, it is also the best interest of the Applicant if the trial be resolved as soon as possible where the Applicant has the opportunity to put her defence and clear her name if she is truly innocent.

Key Take Away

1.    The application for a stay of proceedings in criminal cases involves the exercise of judicial discretion and requires the presence of exceptional circumstances justifying such a stay.

2.    In the context of the Malaysian Anti-Corruption Commission Act 2009 trial, the Court of Appeal dismissed the application for a stay of proceedings, emphasizing the importance of expeditiously resolving serious criminal charges without unnecessary delays or interruptions.