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2023 MarsdenLR 362

FEDERAL COURT PUTRAJAYA
DATO SRI MOHD NAJIB HJ ABDUL RAZAK – Appellant
Versus
PP – Respondent
[Criminal Application No: 05(RJ)-11-09-2022(W)]



Petitioner Advocates:Muhammad Shafee Abdullah,Sarah Abishegam,Muhammad Farhan Shafee,Wan Mohammad Arfan Wan Othman,Alaistair Brandah Norman,Genevieve Vanniasingham,Umi Nafesah Mohd Noor,Tania Scivetti ,Respondent Advocate: V Sithambaram,Donald Joseph Franklin,Sulaiman Kho Kheng Fuei,Mohd Ashrof Adrin Kamarul,Manjira Vasudeva

The right to legal representation and a fair trial is paramount; courts must ensure that adjournment requests are judiciously considered to prevent injustice.

Headnote:The court analyzed the review application under r 137 of the Rules of Federal Court which permits review to prevent injustice or abuse of process. The applicant was convicted and sentenced to imprisonment and a fine. His appeals were dismissed, but he sought to review the refusal of adjournment and related decisions. The court emphasized the stringent conditions for invoking review powers, affirming that such powers should only be exercised in exceptional cases. The refusal to grant an adjournment deprived the applicant of legal representation, leading to a breach of natural justice. The court concluded that the review application was justified, quashing the convictions and ordering acquittal.

Table of Content
1. judgment establishes elements essential for review under r 137. (Para 1 , 2 , 3 , 4)
2. significance of legal representation emphasized. (Para 9 , 14 , 28)
3. court's inherent power to prevent injustice is crucial. (Para 11 , 12 , 16)
4. fair trial principles underscore the ruling. (Para 30 , 32 , 41 , 44)
Vernon Ong Lam Kiat, Rhodzariah Bujang, Nordin Hassan FCJJ, Abu Bakar Jais JCA:

[1] The applicant Dato' Sri Mohd Najib bin Hj Abdul Razak was tried and convicted on seven charges in the High Court. He was sentenced to an aggregate concurrent term of imprisonment of twelve years and a fine of RM210 million, in default 5 years' imprisonment. His appeals to the Court of Appeal against his convictions and sentence were dismissed. He then appealed to this Court. His appeals to this Court were dismissed and his convictions and sentence affirmed. The applicant who was dissatisfied with the decisions of this Court filed an application under r 137 of the Rules of Federal 1995 to review four decisions of the Federal Court. The four decisions are as follows:

(i) the decision on 16 August 2022, dismissing the applicant's application to adduce additional evidence and the disqualification of Justice Mohd Nazlan, the trial Judge who convicted and sentenced the applicant in the SRC case;

(ii) the decision on 16 August 2022, refusing to grant an adjournment of the hearing of the main appeals requested by the applicant's Counsel;

(iii) the decision on 23 August 2022, dismissing the applicant's application to recuse the Chief Justice ('the CJ') from hearing the main appeal of the SRC case;

(iv) the decision on 23 August 2022, dismissing the applicant's main appeal of the SRC case.

[2] We have read the cause papers and written submissions and heard the oral submissions by both parties. Considering the law and the facts in the present case, our analysis and decision are as follows.

The Law

[3] Before we proceed to decide on the merits of the applicant's review application, it is instructive to recapitulate the law in a review application under r 137. Rule 137 states:

"For the removal of doubts, it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court."

[4] It is also a settled principle of law that, although the Federal Court is clothed with the jurisdiction to review its decision, this power is only exercised in very exceptional circumstances and limited grounds or the rarest of rare cases. The power under r 137 cannot be invoked inter alia to review a decision on its merits which includes the findings of fact or interpretation of the law. This stringent requirement and high threshold for the invocation of this Court's review powers is consistent with the fundamental principle that there should be finality in litigation; put in another way, that the outcome of litigation should be final. (See Fong Kong Meng & Anor v. PP, [2019] 12 MLJ 110 (FC), Kerajaan Malaysia v. Semantan Estates ; 2018 MarsdenLR 430 ; ; [2019] 1 AMR 637 (FC) , Chan Yoke Cher v. Chan Teong Peng , 2005 MarsdenLR 2456 (FC), Asean Security Paper Mill Sdn Bhd v. Mitsui Sumitomo Insurance Malaysia , 2008 MarsdenLR 4657 , Dato See Teow Chuan, [2013] 4 MLJ 351 (FC), TR Sandah Tabau & Ors v. Director of Forest Sarawak & Anor; [2019] 6 MLJ 141; [2019] 10 CLJ 436, Busing Jali & Ors v. Kerajaan Negeri Sarawak; [2022] 2 MLJ 273; [2022] 3 CLJ 1 (FC), Dato' Seri Anwar Ibrahim v. PP ; 2004 MarsdenLR 1984 ; 2004 MarsdenLR 2033 ; [2004] 5 AMR 525 (FC) ; Dato' Seri Anwar Ibrahim v. Government of Malaysia, [2021] 6 CLJ 1(FC)).

[5] Essentially, what we have before us is an application for this Court to review its own decisions. At the forefront of our minds is that this Court is not hearing an appeal from the decision of the Court of Appeal which affirmed the convictions and sentence im

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