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2018 MarsdenLR 755
COURT OF APPEAL PUTRAJAYA
PP – Appellant
Versus
MOHAMED SHAHABUDDIN MOHAMED ALI & ORS – Respondent
[Criminal Appeal No: P-05-388-08-2017]
Interim decisions in a trial that do not finally dispose of the rights of the parties are not appealable.
Headnote:The appeal raised the issue of whether a trial judge's decision to reduce a murder charge to culpable homicide was appealable. The court held that such interim decisions do not constitute a final ruling and thus are not appealable based on section 50(1) of the Courts of Judicature Act 1964. The appeal was struck out, and the case was remitted to the High Court.
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| 1. the charge was reduced, and its appealability was questioned. (Para 1 , 2) |
| 2. the public prosecutor's right to appeal was analyzed. (Para 8) |
[1] The legal issue in the instant appeal is quite narrow, namely, whether the decision of the learned trial judge at the close of the prosecution's case in reducing the charge against the respondents from the offence of murder under s 302 of the Penal Code read together with s 34 of the same Code to one of culpable homicide not amounting to murder under s 304(a) of he Penal Code read together with s 34 of the same Code and in calling the respondents to enter their defence on the said amended charge is appealable to he Court of Appeal.
The Factual Antecedents
[2] In order to place the issue in this instant appeal in its proper perspective, it is necessary to recount briefly the history of the proceedings.
[3] The respondents were jointly charged with the murder of one Chew Hup Kheng, an offence punishable under s 302 of the Penal Code read together with s 34 of the same Code. The offence was alleged to have been committed on 1 May 2015, at about 7.05 am, at the roadside infront of Chulia Court, Lebuh Chulia, in the District of Timur Laut, Penang.
[4] The trial of the prosecution's case took eight days and 11 witnesses were called to testify for the prosecution.
[5] At the close of the prosecution's case, the parties filed heir written submissions as directed by the learned trial judge and the oral arguments were heard on 2 June 2017.
[6] After subjecting the prosecution's case to a maximum evaluation, the learned trial judge held that the prosecution had failed to establish a prima facie case of murder under s 302 of Penal Code. Consequently, he learned trial judge had reduced the charge from the offence of murder under s 302 of the Penal Code read together with s 34 of the same Code to one of culpable homicide not amounting to murder under s 304(a) of the Penal Code read together with s 34 of the same Code.
[7] The amended charge was read out to all the respondents on 26 July 2017. They were scheduled to plead on the amended charge on 7 September 2017. The prosecution, however, on 7 August 2017, had filed the Notice of Appeal against the decision of the learned trial judge to the Court of Appeal. The rial was postponed pending the disposal of the PP's appeal in the Court of Appeal.
Preliminary Objection
[8] At the outset of the hearing of this appeal, learned counsel for the respondents raised a preliminary objection stating that the Public Prosecutor ("PP") had no right to appeal because the trial of the respondents had not been finally disposed of yet. The decision relates to an uncompleted criminal proceedings. The ruling of the learned trial judge in calling the respondents to enter their defence on the amended charge does not constitute a final order. The High Court should be allowed to hear the respondents' defence.
