Haidar Mohd Noor JCA:

The respondent, as the plaintiff in the court below, filed a writ action against the appellants, as defendants, seeking for the following orders:

1.a declaration that the plaintiff's conviction and dismissal from His Majesty's service by the Court-Martial, Kuching, Sarawak on 21 January 1988 is wrong in law and null and void;

2.a declaration that the plaintiff is still an officer of the Armed Force, Malaysia holding in rank of Major;

3.an order that the plaintiff be paid all salaries, allowances and other benefits to which the plaintiff is entitled since 21 January 1988.

4.Damages for unlawful dismissal.

5.Interest.

6.Costs and

7.Any further relief deemed fit and proper by this Honourable Court.

The respondent succeeded in the court below and order in terms of prayers 1, 2, 3, 5 and 6 was accordingly granted. Hence this present appeal before us against the judgment of the learned judge.

In this appeal there was only one ground for us to consider, that is, the interpretation of r. 103(5) of the Armed Forces (Court-Martial) Rules of Procedure 1976 ('the Rules') relating to the general duties of the judge advocate in respect of court-martial proceedings under Part XIV of the Rules.

It was conceded by Mr. Karpal Singh, counsel for the respondent, that the issue of the interpretation of r. 103(5) of the Rules was not canvassed before the learned judge but he argued that he could do so before us as it involved a question of law, and it was a matter for the discretion of this court. Counsel for the appellants objected.

We agree that generally the appellate courts are reluctant to allow points of law or issues to be raised when they were not raised at first instance (see A-G for Straits Settlement v. Pang Ah Yew [1934] MLJ 184, Central Bank of India v. Guardian Assurance Co Ltd [1936] MLJ 163, Hassan & Anor. v. Wan Ishak & Ors [1960] However, there are decided cases to show that there is a discretion in the appellate court to allow a point of law or issues not otherwise raised at the court below to be raised on appeal. The appellate court would exercise its discretion when the point raised relates to jurisdiction or illegality and not merely technical. In this respect, Abdul Hamid FJ (as he then was) in S Mariappan v. Government of Malaysia[1983] 2 CLJ 124; [1983] CLJ 382 (Rep); [1983] 2 MLJ 340 at p. 342 said:

In the present case the facts are not in dispute.

The point raised cannot be said to be merely technical but is related to jurisdiction to be determined by reference to certain provision of the constitution and service Regulations.

As we are of the view that the point raised relates to jurisdiction and the facts are not in dispute, we accordingly exercised our discretion and allowed the point or issue to be argued before us.

Mr. Karpal Singh could only rely on this ground as he conceded to the submission of counsel for the appellants that the learned judge got confused on the charges preferred against the respondent and the other accused (Captain Ramly bin Abdul Manaf) in their joint trial before the courtmartial. The confusion arose in this way.

Three charges were originally preferred against Captain Ramly bin Abdul Manaf ("Capt. Ramly") namely, under ss. 61(a), 87and 77(a) of the Armed Forces Act 1972 ("the Act"). As against the respondent, two charges were preferred namely, under ss. 61(a)and 88 of the Act. Before their pleas were taken, counsel for Capt. Ramly raised an objection in respect of charges under ss. 61(a), 87and ss. 61(a)and ss. 61(a), 87and 87 of the Acton ground of duplicity. The President of the court-martial agreed and noted accordingly that the second charge should be an alternative charge to the first charge and the third charge should then be as the second charge.

At the end of the prosecution case, the court-martial found Capt. Ramly had a case to answer on the first charge as well as the alternative charge (?) and the second charge. We pause here to say that in our opinion