DATO’ SRI MOHD NAJIB BIN HJ ABD RAZAK v PUBLIC PROSECUTOR AND OTHER APPEALS (NO.1) [2022] 5 MLJ 85

DATO’ SRI MOHD NAJIB BIN HJ ABD RAZAK v PUBLIC PROSECUTOR AND OTHER APPEALS (NO.1) [2022] 5 MLJ 85

Federal Court (Putrajaya)

Duty of the court in the absence of submissions from the Appellant

Facts

1.     The Appellant is the former Prime Minister of Malaysia.  He was charged and sentenced in the High Court for seven (7) charges namely relating to abuse of power, criminal breach of trust and money laundering.

2.     The Court of Appeal affirmed High Court’s conviction on all seven (7) charges.

3.     The instant appeal was fixed for nine (9) days starting from 15 August 2022 until 19 August 2022 and 23 August 2022 until 26 August 2022.

4.     Accordingly, on 16 August 2022, Tuan Haji Hisyam Teh (“THHT”), being the counsel of the Appellant refused to proceed for submission on the substantive merits of the appeals by claiming that he and his team were not prepared to submit on the merits of the appeal and request for a postponement by three (3) to four (4) months.

5.     On 18 August 2023, the Court rejected the ground that the counsels were not prepared and refused to adjourn the proceedings.  With the adjournment refused, THHT decided to no longer act for the Appellant in the proceedings.

6.     Consequently, the Court invoked its inherent jurisdiction in refusing THHT’s application to discharge himself as that would leave the Appellant without legal representative.  Therefore, THHT continue to act as counsel for the Appellant.

7.     To ease the proceedings, the Court instructed the Respondent to submit first with a view to provide THHT with time to prepare for his submission.  Accordingly, the Court also allowed THHT full liberty to request for leave to file written submissions and perhaps to amend the petition of appeal.

8.     Chronologically, THHT informed the Court on 18 August 2023 that he would rely on the submission filed in the Court of Appeal.  Nonetheless, on 19 August 2022, THHT took a different position stating that he would not be making any submission.

9.     Based on the circumstances, the Court concluded that the counsel for the Appellant has been given every opportunity to make submissions on the merits of the appeals, instead refused to do so.

Issue Whether the Court is empowered to proceed with the appeal proceedings.
Ratios

1.     The Court, in appreciating the authorities advanced by the Respondent pertaining to the counsel for the Appellant’s refusal to make any submission, held that none of the authorities cited deal with the specific situation of the discharge of the counsel was refused in the exercise of the inherent jurisdiction of the Court.

2.     It has been held by the cited authorities that the courts may still refuse to grant an adjournment and may proceed with and dispose of those cases even in the absence of the counsel.

3.     The Court is of the view that the principles in those authorities extends to the present appeal where counsel is present in name and in person but consistently refused to make any submission despite having opportunity to do so.

4.     This is supported by Section 313 of the Criminal Procedure Code (“Act 593”) which provides as follows:

“Procedure at hearing

313. (1) When the appeal comes on for hearing the appellant, if present, shall be first heard in support of the appeal, the respondent, if present, shall be heard against it, and the appellant shall be entitled to reply.

(2) If the appellant does not appear to support his appeal the Court may consider his appeal and may make such order thereon as it thinks fit:

Provided that the Court may refuse to consider the appeal or to make any such order in the case of an appellant who is out of the jurisdiction or who does not appear personally before the Court in pursuance of a condition upon which he was admitted to bail, except on such terms as it thinks fit to impose.”

5.     The Court held that even though the above section applies in relation to criminal appeals to the High Court, it may also be applied analogously to appeals to the Federal Court from the Court of Appeal.

6.     The Court further held as follows:

“The instant appeals mirror a position similar to that envisaged in Section 313(2) of Act 593 in that while the Appellant and his counsel are physically present, they deliberately refuse to participate in the appeal hearing. This, in our view, is equivalent to the Appellant ‘not appearing to support’ the appeals. In such circumstances, the Court is empowered to proceed with the appeals.”

 

Decision

The Federal Court unanimously dismissed the appeal and affirming the conviction and sentence.
Key Take Away 1.     An inherent jurisdiction of a court is a wide legal doctrine that allows the court to manage the proceedings before it.  The doctrine is empowered not from any written laws but rather from its inherent powers.

2.     There are four (4) general categories describing the court’s inherent jurisdiction-

(a)  Ensuring impartiality in legal proceedings;

(b)  Preventing steps being to avoid inefficient judicial proceedings;

(c)  Preventing any abuse of process; and

(d)  Aiding the superior, inferior courts and tribunals.

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