Abdul Hamid Omar CJ (Malaya):

This is a reference under s. 66(1) of the Courts of Judicature Act 1964 for the determination by the Supreme Court of the following questions of law of public interest, viz.

(1) Whether the High Court was right in ruling that after the execution of whipping the Court has the power to increase the number of stroke.

(2) Whether or not the High Court ought to give ample time to the accused to engage Counsel to prepare for his case in the event that the case is called up for revision by the Judge.

Brief facts

The applicants, Liaw Kwai Wah and Chan Hai Ching, were charged in the Magistrate's Court, Petaling Jaya, for robbery under s. 397 of the Penal Code. The charge was that on 17 December 1985 at about 11.30 p.m., they robbed one Ng Char Hoe of a white Honda car and some other articles. At the time of the commission of the offence they were armed with knives.

On 18 March 1986, the applicants pleaded guilty and were convicted. The Magistrate imposed two years' imprisonment and one stroke of rattan on each of them. The sentence of whipping was carried out three months after the date of the sentence.

There was no appeal against the sentence by either of the applicants nor by the Public Prosecutor. However, on 27 September 1986 the applicants were summoned by the High Court to appear before it for a revision. The learned Judge enhanced the sentence of imprisonment on each applicant to five years and the sentence of whipping to five strokes.

The applicants now ask this Court to determine whether the High Court had the power to increase the strokes after the sentence of whipping imposed by the Magistrate's Court had already been executed. They also ask this Court to determine whether it was their right to be given time to engage Counsel to defend them.

Power of revision

Section 31 of the Courts of Judicature Act 1964 confers on the High Court, in respect of criminal proceedings and matters in the subordinate Courts, the powers of revision. And s. 323(i), Criminal Procedure Code (the Code), empowers a Judge to call for and examine the record of any proceeding before any inferior criminal Court for the purpose of satisfying himself as to the correctness,legality or propriety of any finding, sentence, or order recorded or passed ... Section 325 of the Code further provides that in any case, the record of proceedings of which had been called for by the Judge himself or which otherwise comes to his knowledge, the Judge may, in his discretion, exercise any of the powers conferred by ss. 311,315,316 and 317 of the Code. Among the powers set out in ,s. 325(i) Criminal Procedure Code, is the power of the Court to enhance or alter the nature of the sentence imposed (see also s. 316(b) of the Code).

Object of revision

We could observe that the power of revision is to be exercised in accordance with the law for the time being in force relating to criminal procedure. In the present case that law is the Criminal Procedure Code. We would also observe that the object of the revisionary powers provided for in the Code is-

... to confer upon criminal Courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment, which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand, in some undeserved hardship to individuals.

(Emperor v. Nasrullah & Others [1928] AIR All 287).

It is also clear that the High Court may examine the record of proceedings in the subordinate Courts "wherever it considers that in doing so the purpose of justice will be served, as for example, when the record discloses no offence or when the accused is subjected to a vexatious and groundless prosecution." (Chettiyar v. Ayyar IRC 47 Mad 722).

Duty of High Court

Basically, the duty lies with the High Court to see that the criminal law is pr