The court affirmed the validity of Section 265A of the CPC, ruling it constitutional despite challenges regarding anonymity and fairness in criminal trials.

Lee Swee Seng JCA:

[1] This appeal raises the question as to whether when a constitutional question of law is raised in the High Court and application is made for the referral of the question to the Federal Court, may the High Court refuse to refer the question and instead proceed with or continue with the criminal trial.

[2] The issue is no doubt a novel one on whether s 265A of the Criminal Procedure Code (" CPC ") with respect to allowing a witness to testify without his identity being disclosed and in the absence of the accused and his counsel is unconstitutional in violation of arts 5 and 8 of the Federal Constitution ("FC").

[3] The High Court Judge had ruled in favour of the prosecution's oral application to hear a witness by way of s 265A CPC in the murder trial of 5 accused persons.

[4] This appeal also brings to the fore the question of jurisdiction as to whether the decision of the High Court to proceed to hear a witness under s 265A CPC and his refusal to refer the question of law to the Federal Court is a "decision" within the meaning of the Courts of Judicature Act 1964 ("CJA") that is appealable to the Court of Appeal or is it merely a ruling that does not finally dispose of the rights of the accused persons.

[5] In the case of the latter, the accused persons would have to canvass the issue as a ground of appeal should they be convicted for the offence or any lesser offence.

In The High Court

[6] The appellants are the accused persons in a joint criminal trial in Criminal Trial No: TA-458-3-01/2018 dan TA-458-4-01/2018 in the High Court at Kuala Terengganu. On 25 July 2017 the appellants were charged jointly for an offence under s 302 of the Penal Code and the charge in its original language reads as follows:

"BAHAWA KAMU, BERSAMA-SAMA DUA ORANG YANG MASIH BEBAS, PADA 21 JUN 2017, JAM LEBIH KURANG 4.40 PETANG SEHINGGA 5.15 PETANG DI KAWASAN PAYA DI TANAH LAPANG KG PENGKALAN NYIREH, KG RAJA, DI DALAM DAERAH BESUT, DALAM NEGERI TERENGGANU, DALAM MELAKSANAKAN NIAT KAMU SEBAGAIMANA YANG TELAH DITAKRIFKAN DIBAWAH SEKSYEN 34 KANUN KESEKSAAN, TELAH MEMBUNUH NIK MOHAMAD SHARULANUAR BIN NEK DER, No KPT: 950206035161. OLEH YANG DEMIKIAN KAMU TELAH MELAKUKAN SUATU KESALAHAN YANG BOLEH DIHUKUM DIBAWAH SEKSYEN 302 KANUN KESEKSAAN".

[7] The trial commenced on 11 November 2018 and after a year, a total of 19 prosecution witnesses had been called.

[8] Learned counsel for the accused persons were taken by surprise when the prosecution made an oral application for the procedure under s 265A CPC to be invoked for its next 3 witnesses. They were even more startled when the learned High Court Judge allowed, on 26 November 2019, the prosecution's oral application to continue with the trial by allowing the next 3 witnesses to give evidence in a protected manner without their identity being disclosed under s 265A and s 20(1) (a) and (b) of the Witness Protection Act 2009 .

[9] According to learned counsel for the appellants, initially they were not given an opportunity to object to the application and that they only knew of the decision of the learned High Court Judge on 26 November 2019 after an inquiry session by the Judge.

[10] On 27 November 2019 before commencing cross-examination, the appellants once again raised their objection through their learned counsel. After hearing the submissions of the parties from both sides, the learned High Court Judge dismissed the objections raised and proceeded with the hearing of the witnesses in accordance with the provision of s 265A CPC .

(1) Whether s 265A CPC that allows witnesses of the prosecution to be called to give evidence in a protected manner and without their identities being disclosed is inconsistent with arts 5 and 8 of the FC that provide for