Public Prosecutor v Rahmat bin Ghazali and another appeal, [2021] 3 MLJ 660

Court of Appeal Putrajaya

Appeal against Acquittal of Respondent

1. In this case, two separate appeals were heard jointly by the Court of Appeal as both appeals had the same legal issue.
2. In the first appeal case of Public Prosecutor v Rahmat bin Ghazali, the Respondent had been found guilty by the Sessions Court under section 354 of the Penal Code for using criminal force with the intention of outraging modesty. However, upon appeal, the High Court overturned the conviction and ordered his acquittal. The Public Prosecutor then challenged that acquittal at the Court of Appeal.
3. The second appeal involved the case of Public Prosecutor v Mohamad Pogi bin Abdul Lateb, who was charged under subsection 41(1) of the Road Transport Act 1987 for allegedly causing death through reckless or dangerous driving. The Magistrates’ Court acquitted him, and that acquittal was later upheld by the High Court. As in the earlier case, the Public Prosecutor appealed the acquittal to the Court of Appeal.
4. In response to both appeals, the respective respondents raised preliminary objections, arguing that under subsection 50(2) of the Courts of Judicature Act 1964, the appeals must be limited to questions of law only. They further argued that the notices of appeal were defective because they did not clearly specify any legal questions. These objections led the Court to consider whether the Public Prosecutor is bound to include questions of law in the notice of appeal, and whether his right to appeal is limited to legal questions alone in cases from the Magistrates’ or Sessions Courts.

1. Whether the appeal of a Public Prosecutor is confined to questions of law only?
2. Whether questions of law must be disclosed in the notice of appeal?

Ratio

1. Whether the appeal of Public Prosecutor is confined to questions of law only?

1. The Court acknowledged the argument advanced by the Deputy Public Prosecutor, who claimed that the words “such appeal” in subsection 50(2) should apply only to appeals requiring leave, and therefore, the Public Prosecutor being exempt from seeking leave under subsection 50(3) should also be exempt from the limitation to questions of law.
2. However, the Court rejected this interpretation. The Court held that subsection 50(2) imposes two general requirements on all appellants appealing from Magistrates’ or Sessions Courts: (1) the need to obtain leave, and (2) that the appeal must involve a question of law. While subsection 50(3) expressly removes the leave requirement for the Public Prosecutor, it does not remove the second condition in which the appeal must relate to questions of law only.
3. The Court stressed that subsection 50(3) uses the term “notwithstanding section 50(2)” solely to exempt the Public Prosecutor from the need to apply for leave. It does not override or nullify the rest of subsection 50(2). Thus, the phrase “such appeal shall be confined to questions of law” remains applicable, even in appeals brought by the Public Prosecutor.
4. The Court disagreed with the earlier interpretation in Public Prosecutor v Pasupathy s/o Kanagasaby [2001] 2 MLJ 143, where it had been suggested that the Public Prosecutor could appeal more broadly due to his role in upholding public interest. The Court clarified that such a position is only sustainable if Parliament had expressly excluded the Public Prosecutor from all the limitations in subsection 50(2), which it did not.
5. Therefore, the Court concluded that appeals by the Public Prosecutor from decisions of the Magistrates’ Court in criminal matters are limited to questions of law, notwithstanding the fact that no leave is required. This interpretation maintains the statutory balance and ensures that exceptions are only granted where clearly provided by law.

2. Whether questions of law must be disclosed in the notice of appeal?

1. The Court of Appeal, in addressing the issue of procedural compliance, held that there is no legal requirement for the Public Prosecutor to state questions of law in the notice of appeal, even when appealing from a decision of the Magistrates’ Court. Upon examining the relevant statutory provisions, the Court found that section 50 of the Courts of Judicature Act 1964 does not contain any clause mandating the inclusion of questions of law in the notice of appeal. Similarly, section 51 outlines the format and content of a valid notice of appeal, and does not impose any obligation to specify questions of law.
2. The Court acknowledged that while an accused person is required to obtain leave under subsection 50(2A) when appealing from decisions originating in the Magistrates’ Court, and must therefore present legal issues in the application for leave, this does not extend to the notice of appeal itself, particularly in cases where no leave is required, such as appeals by the Public Prosecutor under subsection 50(3).
3. The Court also disagreed with the earlier view expressed in Public Prosecutor v Mahathir bin Muhammad [2013] 1 MLJ 50, where it was suggested that the failure to state legal questions in the notice of appeal could prejudice the accused. The Court found no such prejudice, especially since the full legal grounds are required to be laid out in the petition of appeal, which is filed at a later stage. Furthermore, the procedural timeline, including the filing of petitions and case management scheduling, ensures that adequate notice is provided to all parties before the appeal is heard.
4. Therefore, the Court concluded that questions of law may be set out in the petition of appeal rather than in the notice of appeal, and that doing so does not result in unfairness or procedural irregularity.

1. The Court of Appeal, by majority, dismissed the preliminary objections raised by the Respondents in both cases. The Court ruled that the Public Prosecutor is not required to state specific questions of law in the notice of appeal. However, the Court affirmed that under section 50(2) of the Courts of Judicature Act 1964, appeals from criminal decisions of the Magistrates’ and Sessions Courts are limited to questions of law, even though the Public Prosecutor is not required to obtain leave to appeal under subsection 50(3).
2. As a result, the Court allowed both appeals to proceed on their merits, dismissing the Respondents’ argument that the appeals were defective.
3. However, in a dissenting opinion, Nordin Hassan JCA disagreed with the majority view. He took the position that the Public Prosecutor should be allowed to appeal on questions of law, fact, or mixed law and fact, in line with the prosecutor’s role in upholding the public interest. He also disagreed with the interpretation that limits the scope of prosecutorial appeals solely to questions of law.

1. The Court reaffirmed that appeals from the Magistrates’ and Sessions Courts under section 50(2) of the Courts of Judicature Act 1964 are strictly confined to questions of law, regardless of whether the appeal is brought by an accused person or the Public Prosecutor. 
2. The majority of the Court applied a strict interpretation of the law, focusing on the text of the statute. In contrast, the dissenting judge adopted a more purposive approach, suggesting the Public Prosecutor should be allowed to appeal on broader grounds (law, fact, or mixed), especially where public interest is involved.