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2016 MarsdenLR 1314
FEDERAL COURT PUTRAJAYA
GAN BOON AUN – Appellant
Versus
PP – Respondent
[Criminal Appeal No: 05-217-10-2015 (W)]
The High Court lacks the jurisdiction to determine constitutional questions referred from subordinate courts; only the Federal Court holds that authority.
Headnote:In this case, the provisions of ss 30 and 84 of the Courts of Judicature Act 1964 were analyzed. The appellant contended that the High Court overstepped its jurisdiction by determining a constitutional question referred under s 30. The Court found that the High Court lacked the authority to rule on the constitutionality of s 122(1) of the Securities Industry Act 1983 since such determination lies solely with the Federal Court. The final ruling here reiterates that the appeal from the High Court is incompetent, leading to the striking out of the appeal and the remittance of the case back to the High Court for proper procedural handling.
| Table of Content |
|---|
| 1. summary of procedural background and initial charges. (Para 1 , 2 , 3) |
| 2. high court's decision on the constitutionality of the law. (Para 4 , 5) |
| 3. arguments regarding appeals and jurisdiction. (Para 6 , 8 , 9 , 10 , 11) |
| 4. discussion on legislative history and jurisdiction of the courts. (Para 12 , 13 , 14 , 15) |
| 5. court's analysis of jurisdictional powers relating to constitutional questions. (Para 16 , 17 , 18 , 19 , 20) |
| 6. final ruling on jurisdictional limits and remittance of the case. (Para 21 , 22 , 23 , 24 , 30) |
Zulkefli Ahmad Makinudin CJM:
Background Facts
[1] The appellant together with another accused person, Khiudin Mohd were charged before the Sessions Court in Kuala Lumpur and the charges are as follows:
Principal Charge
"That you between 28 February 2006 to 15 February 2007, at Bursa Malaysia Securities Berhad, Exchange Square, Bukit Kewangan, 50200 Kuala Lumpur, in the Federal Territory of Kuala Lumpur, abetted Transmile Group Berhad (Company No 373741-W) in making a statement that is misleading in a material particular in Transmile Group Berhad's 'Quarterly Report On Unaudited Consolidated Results For The Financial Year Ended 31 December 2006' and the misleading statement is underlined in red in the Appendix to this charge, and the said statement is likely to induce the purchase of securities of Transmile Group Berhad by other persons, and when the statement is misleading in a material particular, and you have thereby committed an offence under s 86(b) read together with s 122C(c) of the Securities Industry Act 1983 (Act 280) and punishable under s 88B of the same Act."
Alternative Charge
"That Transmile Group Berhad (Company No 373741-W) between 14 February 2007 and 15 February 2007 at Bursa Malaysia Securities Berhad, Exchange Square, Bukit Kewangan 50200 Kuala Lumpur, in the Federal Territory of Kuala Lumpur, has committed an offence under s 122B(a)(bb) of the Securities Industry Act 1983 (Act 280) when it, with intention to deceive, furnished a misleading statement to Bursa Malaysia Securities Berhad in Transmile Group Berhad's 'Quarterly Report On Unaudited Consolidated Results For The Financial Year Ended 31 December 2006' and the misleading statement is underlined in red in the Appendix to this Charge and that you, who at the time of the commission of the offence was a director of Transmile Group Berhad, are deemed to have committed an offence under s 122B(a)(bb) read together with s 122(1) of the Securities Industry Act 1983 , and punishable under s 122B of the same Act."
[2] On 16 March 2011, the Sessions Court Judge held that the prosecution had proved a prima facie and ordered them to enter on their defence to the alternative charge.
[3] On 21 June 2011, before the commencement of the defence case, an application was made by the appellant and Khiudin Mohd for a referral of a constitutional question to the High Court under s 30 of the Courts of Judicature Act 1964 ["CJA"]. The Sessions Court thereafter transmitted the case to the High Court under the said s 30 of the CJA.
[4] The High Court, on 14 November 2011, declared s 122(1) of the Securities Industry Act 1983 ["the Act"] to be unconstitutional on the basis that it is completely inconsistent with the fundamental right of an accused person to be presumed innocent until proven guilty as provided in art 5(1) of the Federal Constitution.
[5] In her written grounds of judgment, the learned High Court Judge, inter alia, held as follows:
(a) that s 122(1) of the Act be and is hereby declared unconstitutional and void as being in violation of the right to a fair trial because s 122(1) of the Act completely abrogates the fundamental right of an accused person to be presumed innocent until proven guilty, as a result, s 122(1) of the Act therefore violates arts 5(1) and 8(1) of the Federal Constitution;
(b) that s 122(1) of the Act be and is hereby declared unconstitutional and void as being in violation of the right to a fair trial because s 1
