Aizz Amidie bin Aziz & Ors v Public Prosecutor [2021] MLJU 444

Court of Appeal (Putrajaya)

Refusal by the High Court to refer a question of law to the Federal Court

1. The Appellants were the accused in a joint criminal trial, Criminal Trial No. TA-458-3-01/2018 and TA-458-4-01/2018, before the High Court at Kuala Terengganu. On 25 July 2017, they were jointly charged with the offence of murder under section 302 of the Penal Code, read with section 34 of the same Code. The charge alleged that, together with two other individuals still at large, they caused the death of Nik Mohamad Sharulanuar bin Nek Der (the Deceased), at Kampung Pengkalan Nyireh, Besut, Terengganu, on 21 June 2017 between 4.40 p.m. and 5.15 p.m.
2. The trial commenced on 11 November 2018. Over the span of a year, the Prosecution called 19 witnesses. Subsequently, the Prosecution made an oral application under section 265A of the Criminal Procedure Code (CPC) for the next three witnesses to testify in a protected manner, with their identities withheld, pursuant to paragraph 20(1)(a) and (b) of the Witness Protection Act 2009. The High Court allowed this application on 26 November 2019.
3. Counsel for the Appellants contended that they were taken by surprise by this oral application and were not given the opportunity to object. They only became aware of the Judge’s decision after an inquiry session had been conducted. The following day, on 27 November 2019, before cross-examining the protected witnesses, counsel for the Appellants renewed their objections. However, the High Court dismissed these objections and proceeded under section 265A CPC.
4. On 19 January 2020, the Appellants filed a Notice of Motion under section 84 of the Courts of Judicature Act 1964 (CJA), seeking to have the High Court refer constitutional questions to the Federal Court.
5. The High Court ruled that there was no necessity to refer the matter to the Federal Court, holding instead that it had jurisdiction to determine the issue. It further held that section 265A CPC was not unconstitutional and thus valid. The trial then continued with the three witnesses testifying in the protected manner.
6. Dissatisfied, the Appellants appealed to the Court of Appeal against the High Court’s refusal to refer the constitutional issue to the Federal Court.

1. Whether the referral under section 84 CJA is on a question that arises as to the effect of any provision of the Constitution that the High Court has jurisdiction to decide.
2. Whether the decision of the High Court to dismiss the s.84 CJA application is an appealable decision before the disposal of the criminal trial.

(a) On appeal, the Court of Appeal reviewed the principles in Ah Thian v Government of Malaysia [1976] 2 MLJ 112, which identifies three possible grounds for constitutional challenge: (i) lack of legislative competence under Article 74 FC; (ii) inconsistency with the Federal Constitution under Clause (1) of Article 4 and (iii) inconsistency between State and Federal law under Article 75. Only challenges under (i) fall within the exclusive jurisdiction of the Federal Court under Art. 128(1), requiring leave under Clause (4) Article 4. Challenges under (ii) and (iii) are within the High Court’s jurisdiction. The Appellants’ challenge, namely, inconsistency of section 265A CPC with Articles 5 and 8 FC  fell under category (ii), hence properly within the High Court’s competence.

(b) The Court of Appeal also considered comparative jurisprudence from the European Court of Human Rights (Kostovski v The Netherlands), the United Kingdom (R v Mayers) and Australia on the dangers of anonymous witnesses, noting the principles of open justice (section 7 CPC), the Accused’s right to confront witnesses and the need for proportionality when balancing witness protection with fair trial rights.

(c)  The Court of Appeal held that the High Court was correct in declining to refer the questions of law to the Federal Court at that stage, as the High Court had jurisdiction to determine the constitutional issue itself. The validity of section 265A CPC was upheld, though the broader constitutional arguments remain open for consideration before the Federal Court in appropriate proceedings.

Whether the decision of the High Court to dismiss the section 84 CJA application is an appealable decision before the disposal of the criminal trial

(a) The Court of Appeal held that the High Court’s refusal to refer constitutional questions under section 84 of the Courts of Judicature Act 1964 (“CJA”) did not amount to an appealable “decision” within the meaning of subsection 50(1) CJA read together with section 3 CJA. By virtue of the 1998 amendment (Act A1031), the term “decision” is confined to a judgment, sentence or order that finally disposes of the rights of the parties, and excludes interlocutory rulings made in the course of trial proceedings. The legislative intent, as explained in Dato’ Seri Anwar Ibrahim v Public Prosecutor [2010] 6 MLJ 585, was to prevent parties from stalling criminal trials by filing piecemeal appeals against interlocutory rulings, thereby ensuring the expeditious disposal of trials.

(b) In the present case, the High Court’s dismissal of the Appellants’ application under section 84 CJA did not finally determine their rights. The admissibility of evidence under section 265A of CPC would still be weighed together with all other evidence at the conclusion of the trial, when the High Court decides whether the Prosecution has proved its case beyond reasonable doubt. Only that final judgment, whether conviction or acquittal, would conclusively dispose of the rights of the parties, at which stage the appellants may pursue their constitutional arguments on appeal.

(c)  The Court of Appeal emphasised that a ruling which does not finally determine the rights of the parties is not appealable, as reaffirmed in Public Prosecutor v Mohamed Shahabuddin Mohamed Ali & Ors [2018] 8 CLJ 535, where the test for a “final decision” was whether it is definitive, final in effect, and leaves nothing else to be decided in the trial. Similarly, in Saad bin Abas & Anor v Public Prosecutor [1999] 1 MLJ 129, and Lim Hung Wang & Ors v Public Prosecutor [2011] 9 MLJ 752, it was held that rulings made in the course of trial that do not dispose of substantive rights are interlocutory and thus not appealable.

(d) The Court of Appeal distinguished cases such as Dato’ Seri Anwar Ibrahim v Public Prosecutor [2010] 2 MLJ 312; [2010] 4 CLJ 265, where disclosure orders under section 51 CPC were held to be appealable because they finally determined the statutory rights of the accused. By contrast, the refusal under section 84 CJA in the present case was merely procedural, and did not conclusively determine the constitutional validity of section 265A CPC, and was subsumed within the ongoing criminal trial.

1. The Court of Appeal struck out the Appeal and ruled that the Appeal was incompetent.

1. High Courts have competence to decide most constitutional validity questions, except where legislative competence is implicated.
2. Courts must balance witness protection with the accused’s right to a fair trial and to confront witnesses.