The court emphasized that recalling witnesses requires clear justification of necessity; vague reasons do not suffice, and discretionary powers must be exercised judiciously to prevent miscarriages of justice.

The Application For Revision

[1] By letter dated 23 May 2023 (the said letter), the Deputy Public Prosecutor (DPP) wrote to this Court seeking review of the decision of the Session Court Judge (SCJ) dismissing its application to recall two prosecution witnesses, PW24 and PW25 (the two witnesses), in the ongoing trial of five (5) criminal cases before the Session Court, Johor Bahru.

[2] The DPP states in the said letter that an oral application was made before the SCJ on 22 May 2023, asking the SCJ to exercise his discretion under s 425 of the Criminal Procedure Code ( CPC ) to recall the two witnesses to adduce additional evidence (see para 3.1 of the said letter) as it is essential for the just determination of the case and in the interest of justice.

[3] The DPP further states that the reason for the recalling was "ingin mengetengahkan keterangan berkenaan dengan tatacara kerja di premis kilang OKT-OKT dan peranan-peranan OKT-OKT dalam menjalankan proses dalam kilang tersebut yang mana ianya terkait secara terus kepada pertuduhan". (See para 3.2).

[4] The DPP refers to the cases of Ramli Kechik v. Public Prosecutor 1986 MarsdenLR 164 ; 1986 MarsdenLR 934 ; [1986] CLJ (Rep) 243 and Phon Nam v. Public Prosecutor 1991 MarsdenLR 403 ; 1991 MarsdenLR 1395 ; [1991] 1 CLJ (Rep) 381; [1991] 2 CLJ 1467 to support their contention that the SCJ should exercise his discretion judicially and allowed the recalling of the two witnesses as the additional evidence was essential for arriving at a just decision of the case. It was submitted that the SCJ's refusal was thus incorrect and inconsistent with the provision of the law.

[5] The DPP now requested for me to exercise my discretion under ss 323 / 325 CPC to review the SCJ's decision as being erroneous, which resulted in a miscarriage of justice to the prosecution to adequately present their case in the said ongoing trial.

[6] I requested the minutes and records of the hearing in the Session Court and allowed both parties to respond to this application. The SCJ had briefly emailed me the reasons for his decision, noting that the grounds were almost identical to those recorded in the notes of the proceedings on the day his decision was announced.

[7] Counsels for the Respondents vehemently opposed the application, claiming that the DPP did not come with clean hands. They submitted that the DPP misled the Court by concealing the real reason(s) for the recall and what had transpired before the SCJ. Counsels for the Respondent further argued that the only reason for the recalling was to treat the two witnesses as hostile and to impeach them for their contradictory testimonies. For this reason, they contended the SCJ was correct in denying the application citing the case of PP v. Ramli Shafie 2002 MarsdenLR 351 ; [2002] 6 MLJ 153; .

Evaluation And Findings

[8] The High Court's power of revision is aimed at correcting a miscarriage of justice arising from a misconception of law, irregularity of procedure, neglect of proper precautions, or apparent harshness of treatment that has resulted in some injury to the due maintenance of law and order or undeserved hardship to individuals (see the case of Liaw Kwai Wah & Anor v. Public Prosecutor 1986 MarsdenLR 503 ; 1987 MarsdenLR 719 ; [1987] CLJ (Rep) 163).

[9] In the case of PP v. Sogas Trading 2020 MarsdenLR 1963 ; , it was held that the High Court would generally exercise its revisionary powers "where the lower Court fails to comply with the provisions of the law, the decision is