Nik Hashim FCJ:

Application

[1] This is yet another application under r. 137 of the Rules of the Federal Court 1995 (r. 137). By a notice of motion the applicant applies to this court to set aside his conviction and sentence of death or make such order or further order deemed fit and proper in the interest of justice.

[2] The facts of the case are that on 30 April 1993 the applicant, a Hong Kong resident, was found to be carrying 17 packages containing heroin upon a body search at the immigration control post in Bukit Kayu Hitam, Kedah. He was charged with trafficking in 2,125.4 grammes of heroin under s. 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act) and punishable under s. 39B(2) of the Act. At the end of the trial the applicant was convicted and sentenced to death by the High Court at Alor Setar Kedah on 11 October 1994. Dissatisfied with the decision, the applicant appealed to the Court of Appeal. On 16 April 1997 the Court of Appeal dismissed the appeal and affirmed the conviction and sentence of the High Court. The applicant appealed to the Federal Court against the decision of the Court of Appeal. On 20 August 2001, the Federal Court (Mohamed Dzaiddin CJ, Steve Shim CJ (Sabah & Sarawak) and Haidar FCJ) dismissed the appeal of the applicant. And there was no written grounds of judgment of the Federal Court in this case.

[3] Meanwhile, a petition for clemency on behalf of the applicant was presented to the Pardons Board, Kedah.

[4] We were informed by the learned counsel for the applicant and confirmed by the learned Senior Deputy Public Prosecutor (DPP) for the respondent that on 19 April 2006 the Pardons Board, Kedah commuted the sentence of death to that of imprisonment for life.

[5] It is relevant at this point to reproduce r. 137 which reads:

For the removal of doubts it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court.

Preliminary Objection

[6] At the outset of the proceedings, the respondent raised a preliminary objection to the effect that r. 137 does not give the Federal Court the jurisdiction to hear this application nor to reopen and review the case on the merit as it had been conclusively settled by this court.

Threshold Question

[7] With respect, we do not agree with the respondent. Applications of this nature have been repeatedly heard by this court as demonstrated by the following cases:

(i) In Chia Yan Tek & Anor v Ng Swee Kiat & Anor [2001] 4 CLJ 61 (Mohamed Dzaiddin CJ, Steve Shim CJ (Sabah & Sarawak) and Haidar FCJ) Mohamed Dzaiddin CJ said at p 72:

Rule 137 of the Rules clearly gives us the inherent powers to hear any application or to make any order as may be necessary to prevent injustice.

In that case the Federal Court invoked r. 137 to set aside the judgment of the Federal Court on the ground that the court was not duly constituted as there was only one judge remaining out of the three presiding judges, the other two having retired, when the judgment was pronounced.

(ii) In Megat Najmuddin bin Dato' Seri (Dr) Megat Khas v. Bank Bumiputra (M) Bhd [2002] 1 CLJ 645 (Wan Adnan CJ (Malaya), Steve Shim CJ (Sabah & Sarawak), Abdul Malek FCJ, Ahmad Fairuz FCJ (as they then were) and Mohtar Abdullah FCJ) Steve Shim CJ (Sabah & Sarawak) invoked r. 137 to prevent an injustice done to the appellant as he had been denied the right to have his appeal heard on its merits by the Court of Appeal. As the learned CJ (Sabah & Sarawak) said at p 666:

Had the Court of Appeal considered r. 102 of the RCA, it would have taken note of the following salient facts: that there was no dispute as to the contents of the order appealed against; that the appellant had already filed and served the appeal record containing a photocopy of the sealed order; that the authenticity of the said photocopy of the sealed order w