Syamsul Zaman Sukri v PP [2024] MLRAU 44

Court of Appeal, Putrajaya

Criminal Procedure – Courts of Judicature Act 1964 [Act 91] – Penal Code [Act 574]

Facts

1.    This is an application for the leave to appeal against the conviction and sentence by the High Court of Kota Bharu.

2.    The Applicant was charged with gross indecency under section 377D of the Penal Code.

3.    The facts of the case showed the gross indecency conduct (the conduct) was made towards a 30-year-old male (SP1) at the Infinite Hotel (the Hotel) at around 1.15 am.

4.   The conduct awoke SP1 from his sleep.  Feeling uneasy and shocked, SP1 pretended to receive a phone call and left the room.  On his way down to the Hotel lobby, SP1 bumped into his sister (SP2) and the Hotel plumber (SP3).

5.    SP2 told the police that she saw SP1 nervously running to the lobby and that SP1 asked to be brought to the police.  The Applicant was tried with an offence under Section 377D of the Penal Code at the Magistrate Court in Kota Bharu, Kelantan.

6.     The Applicant appealed to the High Court against both conviction and sentence.  However, the Applicant’s appeal was dismissed.

7.     The Applicant was found guilty of the charge and sentenced to imprisonment for a period of thirteen (13) months.

8.    The Applicant had filed for leave to appeal from this Honourable Court on the following ground:

(a)      Whether the High Court Judge had erred in law when stated in his judgment that time is not an important element, with the permission of “time is not an essence” whereas the time of the incident is specifically stated in the charge and its existence is a clear discrepancy regarding the time of the specific event.

1.    Whether the Court should grant the leave to Appeal to the Accused

1.    Whether the Court should grant the leave to Appeal to the Accused

(a)    The Court of Appeal has the jurisdiction to hear and determine criminal appeals as provided under subsection 50(2) of the Courts of Judicature Act 1964 [Act 91] which reads-

“50. (1) Subject to any rules regulating the proceedings of the Court of Appeal in respect of criminal appeals, the Court of Appeal shall have jurisdiction to hear and determine any appeal against any decision made by the High Court—

(a)  in the exercise of its original jurisdiction; and

(b) in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by the Sessions Court.

(2) An appeal shall lie to the Court of Appeal, with the leave of the Court of Appeal, against any decision of the High Court in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by a Magistrates’ Court but such appeal shall be confined to only questions of law which have arisen in the course of the appeal or revision and the determination of which by the High Court has affected the event of the appeal or revision.”

(b)    The Court emphasized that it is trite law that appeals from the Magistrates’ Court’s decisions in criminal cases should be limited to questions of law only and require prior leave before being filed in the Court of Appeal.  The Applicant must demonstrate the existence of legal questions; however, the Public Prosecutor is not compelled to do the same.

(c)      In support of this, the Court referred to the judgment of the Court of Appeal in the case of Public Prosecutor v Rahmat Bin Ghazali & Another Appeal [2020] MLRAU 302 which held as follows:

“[9] Section 50 gives jurisdiction to the Court of Appeal to hear appeals from criminal matters decided in the High Court and it includes appeals from Sessions Court and Magistrates Courts. However, s 50(2) provides a limitation to the manner that appeals emanates from Magistrates Court are brought to the Court of Appeal. It must be noted that s 50(2) provides generally and without qualification that “an appeal shall lie to the Court of Appeal, with leave of the Court of Appeal”. It also enacts that “such appeal” shall only be confined to question of law.”

(d)      The above principle is affirmed in the case of Nor Azman bin Ghazali v Public Prosecutor [2013] 6 MLRA 57; [2013] 1 MLJ 486; [2013] 1 CLJ 938, which held as follows:

“[12] From the express wording of s 50 and in particular to sub-section (2) thereof, for the Court of Appeal to be conferred jurisdiction two preconditions must be fulfilled by the applicant, namely:

(a) a leave application must be filed within 14 days from the date of the High Court decision; and

(b) it must be shown in the leave application the question of law which arose in the course of the appeal and the determination of which by the High Court has affected the event of the appeal.”

(e)     The necessary pre-requisites were clearly explained in the case of Public Prosecutor v Pasupathy s/o Kanagasaby [2001] 1 MLRA; [2001] 2 MLJ 143; [2001] 2 CLJ 753 which stated as follows:

“When an accused person desires to appeal, the full force of sub-section (2) comes into play. He has to apply for ‘leave’ and that his appeal must be confined to only questions of law which have arisen in the course of the appeal or revision and the determination of which by the High Court has affected the event of the appeal or revision.” 

(f)     Furthermore, the Court held that the fundamental element of ‘question of law’ only involves questions about the interpretation of relevant and applicable legal principles.  It is very distinct from questions of facts, which involve references to facts and evidence, as well as inferences formed from those facts.

(g)      The rationale for limiting the Appeal to question of law is further elaborated in the case of Public Prosecutor v Mahathir Bin Muhammad [2013] 6 MLRA 131 which held as follows:

“[20] The rationale for limiting the appeal to question of law only is not difficult to appreciate. The cases that emanate from the magistrate’s courts are relatively less serious in nature as compared to cases dealt with by the session courts, and in most cases, they involve only finding of facts. Hence, there is very minimal risk of real injustice if further appeals to the Court of Appeal should only be confined to questions of law.”

(h)     Therefore, the Court found that there is no necessity for the Court to provide a detailed review on the evidence given to the Court since the trial’s court reasoning were already convincing.

(i)       In discussing on the issue of discrepancy of time, the Court reproduced the judgment from the trial court as below-

“35.  This court view that discrepancy on time in this case, is irrelevant. Although there were discrepancies, these discrepancies were minor and fully explained by the witnesses. Plus, what important here is that every witness testified that it was midnight to morning. The fact that it happened at night is undisputed. To provide exact minute on the act will defeat any sexual offences case and thus, I dismissed the contention.

36. Discrepancies exist in every witnesses of the court. I am of the opinion that it is a normal and minor discrepancies which does not lead to destruction of prosecution case. The fact in issue remains whether the act has been committed, and whether the prosecution sufficiently adduced that the act was done. Based on SP1’s evidence, I find it was sufficiently adduced.”

(j)     Hence, the Court held that the Applicant raised only a question of fact, which the trial court had fully addressed, and failed to raise any questions of law.

2.        However, before an appeal can be lodged to the Court of Appeal, it must necessarily be confined to questions of law only that have affected the appeal or revision outcome.