Gopal Sri Ram JCA:

[1] The applicant (whom we will refer to as the accused throughout this judgment) was convicted by the sessions court at Kuala Lumpur on two charges of outraging of modesty under s. 354 of the Penal Code. The conviction was entered on 8 November 1996. However, the grounds of judgment were not made available until 26 October 2001, that is to say almost five years later. The accused appealed to the High Court. It is clear from the notes recorded by that court that several points were argued in support of the appeal. Among these was the effect of the long delay by the sessions court to deliver its written reasons as well as the correctness of its direction unto itself on the standard of proof applicable. However, when the High Court came to give its decision, it confined itself to only the delay point and direction as to the standard of proof. It held for the accused on both these points and quashed the conviction. The public prosecutor being dissatisfied with the acquittal appealed to this court, a differently constituted bench of which allowed the appeal and reinstated the conviction. The accused then applied to set aside the order of this court on the ground that it had been made without an opportunity being given to him to support the acquittal on grounds other than those given by the High Court. We heard argument and in a reserved decision set aside the earlier order of this court and gave certain directions to which we will refer later in this judgment. In arriving at our decision we had perforce to address two issues. First, whether this court has jurisdiction to review its earlier decision in an appeal heard and disposed by it. Second, if there is jurisdiction, then the circumstances in which the review is available.

[2] We will take the question of jurisdiction first. It is now settled that the Court of Appeal has jurisdiction to review its own decision in a given case. See, Taylor v. Lawrence [2002] EWCA Civ 90, where it was held as follows:

The Court of Appeal had a residual jurisdiction to reopen an appeal which it had already determined in order to avoid real injustice in exceptional circumstances. The court had implicit powers to do that which was necessary to achieve the dual objectives of an appellate court, namely to correct wrong decisions so as to ensure justice between the litigants involved, and to ensure public confidence in the administration of justice, not only by remedying wrong decisions, but also by clarifying and developing the law and setting precedents. A court had to have such powers in order to enforce its rules of practice, suppress any abuses of its process and defeat any attempted thwarting of its processes. The residual jurisdiction to reopen appeals was linked to a discretion which enabled the Court of Appeal to confine its use to the cases in which it was appropriate for the jurisdiction to be exercised.

See also, Chu Tak Fai v. Public Prosecutor [2006] 4 CLJ 931.

[3] We are of the view that it is important to recognise that this Court has a residual jurisdiction to reopen an appeal which it had already determined particularly in cases where there is no further recourse to a party. In a case as the present, since the accused was tried in a subordinate court, this court is the court of last resort. The jurisdiction to reopen and review is therefore important in a case as the present to ensure that a manifest injustice does not go by uncorrected.

[4] That brings us to the second issue. The residual jurisdiction will be exercised:

if it can be shown that there was a probability of a significant injustice which must be clearly established and that there was no effective alternative remedy to correct this injustice. It must be shown that the trial or the appeal has been critically undermined. The jurisdiction is not solely concerned with the case where the earlier process has or may have produced a wrong result. It must also be shown that there was special circumstance