Terrell A-G SS CJ:

The facts and arguments sufficiently appear from the judgment of the Court of Appeal.

Terrell A G CJ SS, Poyser CJ FMS & Gordon-Smith, A G JA: Section 23 of the Brunei Courts Enactment provides that when any person is charged with an offence punishable with death a preliminary inquiry shall be held, and thereafter the record of the proceedings shall be forwarded to the High Commissioner, who may direct that the accused shall be tried:

(a) in the Court of the Resident; or

(b) by a Judge of the Supreme Court of the Colony sitting in the State; or

(c) by a Judge of the Supreme Court sitting in the Colony.

In the case now before the Court the High Commissioner directed the trial to be in the Court of the Resident.

The accused was duly tried, convicted and sentenced to death.

An appeal was lodged under the provisions of s. 16 of the Brunei Courts Enactment, and s. 302 of the Criminal Procedure Code of the Colony which applies in Brunei by virtue of s. 25 of the Brunei Courts Enactment.

Such appeal was in form a Magistrate's appeal to a single Judge, but the chief Justice directed, under the provisions of s. 306 sub-section 3 of the Criminal Procedure Code, that the appeal should be heard before three Judges.

When the appeal was called on the Deputy Public Prosecutor, who appeared for the State of Brunei, raised the preliminary objection that the Court had no jurisdiction to entertain the appeal.

It is clear that there is no appeal if the trial is directed to be before a Judge of the Supreme Court either in Brunei or in the Colony, but it is argued that an appeal will lie if the trial has taken place in the Court of the Resident in view of the provisions of s. 16 (i) of the Brunei Courts Enactment which reads as follows:

An appeal shall lie to the Supreme Court sitting within the Colony from any decision of the Court of the Resident in the exercise of its original jurisdiction whereby any person has been convicted and sentenced to not less than two years imprisonment or to a fine of not less than $500.

It is argued that the section only refers to sentences of imprisonment and fine, and not to a death penalty, which is a sentence of an entirely different character. On the other hand, if there was no other indication in the Enactment, it might be argued that imprisonment and fine are clearly lesser sentences than a sentence of death, and that the subsection is sufficiently wide to include the right of appeal when the death penalty has been inflicted.

There is, however, a clear indication in s. 24 of the Enactment that an appeal to the Supreme Court in the case of a sentence of death was never contemplated. This section lays down the procedure to be followed after sentence of death has been pronounced, either in the Resident's Court or by a Judge of the Supreme Court.

Section 24 sub-section 1 provides that after sentence of death has been pronounced by the Court of the Resident, the Resident shall forward the record to the High Commissioner with a report setting out his opinion whether there are any and what reasons why the sentence should or should not be carried out.

Section 24 (ii) gives power to the High Commissioner to confirm the sentence, or commute it, or to pardon the person sentenced.

Section 24 (iii) gives power to the High Commissioner to direct further enquiry to be made, or further evidence to be taken.

It will be seen that the record and report have to be forwarded to the High Commissioner, and there is no provision, as in s. 275 sub-section (c) (i) of the Criminal Procedure Code, for the record and the report of the trial being forwarded to the appellate Court. The only possible conclusion is that no appeal to the Supreme Court was contemplated.

In the opinion of the Court, therefore, the preliminary objection is well founded and the Court had no jurisdiction to entertain the appeal.

Appeal dismissed.