Gan Boon Aun v Public Prosecutor [2024] 1 MLJ 277

Court of Appeal Putrajaya

Appeal against sentence imposed by High Court 

1. The Appellant was charged with giving a misleading statement in Transmile Group Bhd’s 2006 quarterly report, an offence under paragraph 122B(a)(bb) read with subsection 122(1) of the Securities Industry Act 1983. The trial started in July 2010, and after the prosecution established a prima facie case, the Appellant was called to enter his defence. However, the defence was delayed for almost seven years due to constitutional challenges filed by the Appellant, which were heard up to the Federal Court.
2. The defence case finally proceeded in July 2018, with the Appellant as the sole witness. On 27 August 2020, the Sessions Court found the Appellant guilty and sentenced him to one day’s imprisonment and a fine of RM2.5 million, which the Appellant served and paid.
3. The Respondent appealed against the leniency of the sentence and the Appellant appealed against his conviction and sentence. Several case management dates were fixed from November 2020 to October 2021. The Appellant’s counsel withdrew in March 2021 due to a lack of instructions, and the Appellant did not attend any further case management despite being notified.
4. On 13 October 2021, the Appellant’s appeal was struck out for non-attendance. The Respondent’s appeal was adjourned multiple times due to unsuccessful attempts to execute a warrant of arrest on the Appellant, eventually proceeding on 25 January 2022 despite the Appellant’s absence. The High Court then enhanced the sentence from one day to 24 months’ imprisonment due to the Appellant’s continued absence.
5. The Appellant subsequently filed a notice of appeal on 7 February 2022, challenging the High Court’s decision to increase the sentence.

1. Whether the Respondent’s notice of appeal was served on the Appellant.
2. Whether the High Court judge contravened subsection 314(1) of Criminal Procedure Code in enhancing imprisonment sentence in absence of Appellant.
3. Whether the order of the High Court dated 25 January 2022 is null, void and illegal and ought to be set aside.

1. Under subsection 314(1) of the Criminal Procedure Code (“CPC”), if the Respondent is absent during an appeal and the Court is not satisfied that the notice of appeal was personally served, the Court cannot make adverse orders and must adjourn to issue a new notice for personal service. Subsection 314(2) allows the hearing to proceed in Respondent’s absence only if personal service is impossible.
2. In this case, the DPP admitted the notice was served on the Appellant’s former solicitors, arguing this was sufficient since the provision does not explicitly require personal service and the solicitors’ attendance showed the Appellant’s awareness. However, the Appellant’s counsel argued that subsection 314(1) clearly requires personal service on the Appellant, highlighting terms like ‘respondent’, ‘duly served upon him’, and ‘shall issue requisite notice to him’.
3. Referring to the case of Lau Keen Fai v Lim Ban Kay [2012] 2 MLJ 8, the Court held that clear statutory wording must be given its plain meaning. Agreeing with the Appellant, the Court ruled that subsection 314(1) requires personal service, which did not occur, rendering the service invalid.
4. The Court of Appeal also noted case management records and affidavits showing repeated failed attempts to personally serve the Appellant, confirming that neither the notice of appeal nor the hearing notice had been served. Despite this, the High Court ruled service was effective based on the former solicitors’ attendance and assumed the Appellant waived his right to be heard.
5. The Court of Appeal found this reasoning flawed, clarifying that personal service and solicitors’ attendance are distinct, and without an affidavit proving personal service, the requirement under subsection 314(1) was not met. The High Court’s finding on service was therefore incorrect in law and fact.

2. Whether the High Court judge contravened subsection 314(1) of CPC in enhancing imprisonment sentence in absence of Appellant.

1. At the High Court, the Respondent’s counsel cited the case of Goh Thor Kiah [1952] 1 MLJ 91b, in which the Court refused to proceed with the prosecution’s appeal without notifying the Respondent, emphasising the need to uphold audi alteram partem (the right to be heard). In Chan Quee Long  [1993] MLJU 263  and Foo Kim Lai Public Prosecutor v Foo Kim Lai [2009] 1 MLJ 211 , the High Courts heard the Prosecution’s appeals in the Respondents’ absence but did not alter the sentences, respecting the limitation against making adverse orders under subsection 314(1) CPC.
2. In the present case, the High Court judge wrongly assumed that since the notice of appeal was believed to have been served on the Appellant, the Court could enhance the sentence despite the Appellant’s absence. However, the Court of Appeal clarified that even if subsection 314(2) allows the appeal to proceed without the Respondent, subsection 314(1) still restricts the Court from making adverse orders against the absent respondent.
3. Had the High Court correctly applied the cited cases, it should have dismissed the Prosecution’s appeal instead of imposing a harsher sentence. Increasing the imprisonment term to 24 months was prejudicial to the Appellant and clearly contravened subsection 314(1) CPC.

3. Whether the order of the High Court dated 25 January 2022 is null, void and illegal and ought to be set aside.

1. The Court of Appeal referred to the case of Badiaddin bin Mohd Mahidin v Arab Malaysian Finance Bhd [1998] 1 MLJ 393,  which established that Courts cannot act contrary to written law, and any order made in breach of statutory provisions is outside the Court’s jurisdiction, rendering it void and subject to being set aside.
2. In this case, counsel for the Appellant urged the Court of Appeal to use its powers under the Rules of the Court of Appeal 1994 to annul the High Court’s order and reinstate the original sentence given by the Sessions Court.
3. Rule 76 of the Rules of Court empowers the Court of Appeal to exercise all powers that were vested in the trial judge if needed during an appeal. Additionally, Rule 105 confirms that the Court retains inherent powers to issue any order necessary to prevent injustice or abuse of process.
4. In Ishak bin Haji Shaari v Public Prosecutor [2006] 3 MLJ 405, the Court of Appeal used Rule 76 to set aside a High Court order that had wrongly altered a sentence, finding that the change caused injustice.
5. Applying these principles and authorities, the Court of Appeal in the present case ruled that the High Court’s order on 25 January 2022, which increased the sentence from one day to 24 months imprisonment, was invalid and unlawful. 
6. To prevent injustice, the Court of Appeal exercised its inherent powers under Rule 105 to set aside the High Court’s order and reinstate the one-day imprisonment sentence imposed by the sessions court.

1. Under subsection 314(1) CPC, personal service of a notice of appeal on the respondent is required; service on solicitors does not fulfill this requirement.
2. The case reinforced the principle of audi alteram partem or right to be heard in which Courts should not make orders adverse to a party without giving them an opportunity to be heard unless strict statutory conditions are met.