The High Court has discretionary power to review subordinate court decisions and must ensure that revisional jurisdiction is exercised judiciously, adhering to legal principles for a just outcome.

Introduction

[1] This is an application by the Public Prosecutor pursuant to s 325 Criminal Procedure Code seeking for a revision of the Order made by the Learned Sessions Court Judge to recall witnesses for the prosecution to ascertain the authenticity of some documents published on an application over the internet that is known as "Facebook" after these witnesses were called, cross examined and the accused was called to enter his defence.

[2] The Respondent / accused was charged at the instance of the Public Prosecutor and the Charge reads as follows:

English Translation:

That you, on 5 January 2019, at about 1000hours, at Ci Guang Ting Temple, Jalan Genuang, in the District of Segamat, in the State of Johore, committed sexual assault on one male child by the name of (victim) who was aged 16 years and 11 months and you thereby committed an offence under s 14(a) Sexual Offences Against Children 2017 which may be punished under the same provision of the Act.

[3] The Respondent pleaded not guilty and was tried by the Sessions Court in Segamat. At the end of the prosecution's case, 7 June 2020, the Learned Sessions Court Judge found that the Prosecution succeeded in proving a prima facie case against the Respondent and ordered him to enter his defence.

[4] On 28 March 2021 the respondent made an application to have copies of the statements of the witnesses PW3, PW6 and PW9. These statements were recorded by the police pursuant to s 112 Criminal Procedure Code . The basis of the application was that the Respondent found out that there is a Facebook ("FB") posting where purported statements given by prosecution witnesses were published.

[5] Facebook is an American online social media and social networking service owned by Facebook Inc. Facebook can be accessed from devices with Internet connectivity, such as personal computers, tablets and smartphones. After registering, users can create a profile revealing information about themselves. They can post text, photos and multimedia which are shared with any other users who have agreed to be their "friend" or, with different privacy settings, publicly. Users can also communicate directly with each other with Facebook Messenger, join common-interest groups, and receive notifications on the activities of their Facebook friends and pages they follow. (see www.facebook.com)

[6] The FB account was under the name of one "Fahrim Mohamad", an unascertained person. The application was strongly opposed by the Prosecution because the statements of witnesses were never extended to the Defence and the purported witnesses' statements were obtained from an unknown FB account.

[7] On 25 April 2021 the Sessions Court dismissed the Respondent's application but allowed the 3 prosecution witnesses to be recalled to give evidence in respect of this. The Sessions Court further order that before the 3 witnesses are recalled to give evidence, the Respondent must testify first. The Sessions Court then fixed 18 July 2021 for the recalling of the 3 prosecution witnesses and directed the Applicant to prepare the subpoena for the purpose.

[8] The Public Prosecutor vide a letter dated 18 July 2021 made an application for a revision of the Sessions Court Order to recall the 3 prosecution witnesses.

[9] Upon receiving the Public Prosecutor's letter and after deliberating on the issue, I decided to exercise the powers of the High Court pursuant to s 323 Criminal Procedure Code and I called for the records of the Sessions Court for the purpose of ascertaining the propriety or legality or correctness of the Sessions Court Order and further to the powers conferred by s 326 of the Code, I decided to hear