: Ishak bin Hj Shaari, the applicant in this case, was sentenced to 15 years' imprisonment and six strokes of the rotan after being found guilty by the sessions court judge of a charge under s 376 of the Penal Code (FMS Cap 45). In brief, the victim — a 13-year old girl who was a pupil of Sekolah Menengah Indah Tampin — had a counselling appointment on 3 July 1995 with the applicant, who was the religious counsellor of that school. On some pretext, the latter told her to follow him to his house, where she was asked to swear by the Quran not to reveal to anyone whatever was to happen to her; otherwise she would face the wrath of God. The applicant then said that he was suffering from cancer curable only by a virgin maiden. She was requested to strip and thereafter went through the rigmarole of a mock marriage ceremony. He then had sexual intercourse with this girl. The next day, the victim told PW9, one of the witnesses, that the applicant had had sex with her previously. He was subsequently arrested, charged and convicted on 14 October 1996.

Chronologically speaking, a notice of appeal was filed on time by Messrs Azman Razak & Associates, the then firm of solicitors on 23 October 1996. On 12 December 1996, the notes of evidence and the grounds of judgment were received by the same firm of solicitors. In the event the accused was interested in pursuing the appeal on receipt of the grounds of decision, pursuant to s 307(iv) of the Criminal Procedure Code (FMS Cap 6) ('the CPC'), the applicant was to lodge a petition of appeal in triplicate addressed to the High Court within 10 days. The last day was supposed to be 23 December 1996. Unfortunately for the applicant, the petition of appeal was never lodged much to his detriment causing Messrs Karpal Singh & Co to seek an enlargement of time of two weeks before me. The relevant provision resorted to by Mr Karpal Singh was s 310 of the CPC, whereby:

A judge may, on the application of any person desirous of appealing who may be debarred from so doing upon the ground of his not having observed some formality or some requirement of this Code, permit an appeal upon such terms and with such directions to the Magistrate and to the parties as such Judge shall consider desirable, in order that substantial justice may be done in the matter.

For the purposes of this provision, nothing in s 307(ix) shall be deemed to limit or restrict the court's powers even though the appeal was deemed to have been withdrawn due to the non-lodgment of the petition of appeal within time.

In the course of the hearing, much court time revolved around the inaction of Messrs Azman Razak & Associates, the solicitors who represented the applicant at the sessions court in not lodging the petition of appeal on time. The learned deputy public prosecutor ventilated that a solicitor's incompetence was not good ground for the court to enlarge the time and in the process advanced the case of Jumari bin Mohamed v PP [1982] 1 MLJ 282. As in this case, the applicant Jumari bin Mohamed ran out of time due to the tight schedule of the solicitor involved and certain other reasons which revolved around him. Mohd Azmi J (as he then was) dismissed the application as he opined that the reasons put forward were too flimsy and frivolous for him to exercise his discretion under s 310 of the CPC in favour of the applicant. The learned deputy public prosecutor also took great pains to bring to my attention this extraction as said by the learned judge (at p 284):

In the circumstances, I am of the view that no substantial justice would be done if the extension of time were allowed in this particular case. For the purpose of doing substantial justice, the court must bear in mind that justice must be done not only to the convicted person but also to society at large on whose behalf the public prosecutor acts.

If I were to agree with the submissions of both the parties that the non-lodgment was due to the inadvertence of Messrs Azma