An applicant seeking a stay of execution must demonstrate sufficient grounds to justify the request; failure to do so will result in dismissal.

The Applicant had applied by way of this notice of motion for orders as follows:

a. bahawa penangguhan perlaksanaan terhadap hukuman yang dikenakan oleh Mahkamah Majistret 1B Kuala Lumpur dalam kes tangkap No. A83-237-99 on the 25/4/2000 dimana Pemohon dipenjarakan selama tiga tahun (3) dari 25/4/2000 untuk setiap satu daripada pertuduhan tersebut yang mana hukumannya akan berjalan secara serentak, dibenarkan sehingga rayuan terhadap sabitan dan hukuman diputuskan oleh Mahkamah yang Mulia ini.

b. Lain-lain perintah yang dianggap sesuai dan adil.

On the face of it applications for a stay of execution presents some difficulty since the Court before which the application is made usually has only the application and the affidavit. This was the case in this notice of motion. The notice of motion was filed on 3rd May 2000 and was supported by the affidavit of the application affirmed on the 3rd May 2000. It was heard on 9th May 2000. Thus the Respondent hardly had time to file an affidavit in reply. An early date is given in order firstly to find out if the respondent intends to file an affidavit in reply, in which case an adjournment is usually given, and secondly if the respondent does not intend to file a reply, the application would be heard immediately so that an applicant who has good reason to be released on bail would be granted a stay of execution without delay.

A stay of execution is applied for under section 311 of the Criminal Procedure Code which provides:

311. Stay of execution pending appeal.

Except in the case of a sentence of whipping (the execution of which shall be stayed pending appeal), no appeal shall operate as a stay of execution, but the Court below or a Judge may stay execution on any judgment, order, conviction or sentence pending appeal, on such terms as to security for the payment of any money or the performance or non-performance of any act or the suffering of any punishment ordered by or in the judgment, order, conviction or sentence as to the Court below or to the Judge may seem reasonable.

The grant of a stay of execution is a matter of discretion (see GANESAN P. AWANTHAN v. PP 1983 MarsdenLR 76; ). It should be applied for in the first instance in the court that passed the sentence (see MOHAMED RAZIP FADZILLAH v. PP & OTHER CASES [1987] 2 CLJ 478), and if refused, an application may be made before the court to which an appeal is made. The basic guideline as to a stay of execution is expressed in section 311 of the Criminal Procedure Code , that except in the case of a sentence of whipping, a stay shall not operate as a stay of execution. Mallal's Criminal Procedure, 4th Edn. p. 461, has stated as follows:

Bail should not be refused on the ground that the accused have been sentenced to a long term of imprisonment or that the granting of bail has a tendency to increase the number of appeals and of protracting the appellate proceedings. The discretion vested in the Court to grant bail should be judiciously exercised in accordance with the principles laid down by the Statutes on the facts of each particular case.

In PP v. DATO' SERI ANWAR IBRAHIM (NO 3) 1999 MarsdenLR 1331 Augustine Paul J approached the issue as follows:

The defence applied for a stay of execution pending appeal and referred to me cases such as Re Kwan Wah Yip & Anor. 1954 MarsdenLR 240 and Ganesan v PP 1983 MarsdenLR 76 . The prosecution relied on the same cases in opposing bail. In considering the application I took into account factors such as the seriousness of the offences for which the accused has been found guilty and the defence advanced which consisted of after-thoughts and the attempted use of tampered evidence. Accordingly, I dismissed the application.

The reported cases concerning the application for a stay under s. 311 (and s. 279 - in Suhaili's case) of the Code following a conviction are Tan Tee v. R 1948 MarsdenLR 194 , Re Kwan Wah Yip & Anor 1954 MarsdenLR 240 , Suhaili bin Haji Chuchu v. PP 19