Abdul Hamid Omar CJ (Malaya):

Lye Thai Sang and Leong Kum Weng, the respondents in Supreme Court Civil Appeals Nos. 79/84 and 90/84, in respect of which the Court on 18 May 1985 allowed the appeals with costs, applied by way of motion for an order or orders that the judgment given in the said appeals be reviewed.

Mr. Humphrey Ball appearing on behalf of the applicants submitted that these applications were made pursuant to r. 70 of the Supreme Court Rules. Rule 70 of the Supreme Court Rules relates only to form of application. Under this rule, all applications to the Court shall, unless otherwise provided, be made by motion.

He also submitted that, in the light of s. 69 of the Courts of Judicature Act 1964 read together with Article 118(3) of the Federal Constitution, the Supreme Court has unlimited power to review its decision.

Basically the applicants are invoking the provisions of the Courts of Judicature Act 1964, (hereafter called the Act), in particular sub-section (3) and (4) of s. 69 of the Act, to support their argument that this Court has such a power. For easy reference, the whole of s. 69 is reproduced as follows:

69 (1) Appeals to the Supreme Court shall be by way of re-hearing, and in relation to such appeals the Supreme Court shall have all the powers and duties, as to amendment or otherwise, of the High Court, together with full discretionary power to receive further evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner.

(2) The further evidence may be given without leave on interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought.

(3) Upon appeals from a judgment, after trial or hearing of any cause or matter upon the merits, the further evidence, save as to matters subsequent as aforesaid, shall be admitted on special grounds only, and not without leave of the Supreme Court.

(4) The Supreme Court may draw inference of fact, and give any judgment, and make any order which ought to have been given or made, and make such further or other orders as the case requires.

(5) The powers aforesaid may be exercised notwithstanding that the notice of appeal relates only to part of the decision, and the powers may also be exercised in favour of all or any of the respondents or parties, although the respondents or parties have not appealed from or complained of the decision.

Section 69 is one of the sections dealing with appeals. Other relevant provisions are ss. 50 to 66 in respect of the Supreme Court's appellate jurisdiction in criminal appeals and ss. 67 to 73 in respect of civil appeals. As can be seen, even from the marginal note to s. 69, it is abundantly clear that the object of sub-section (1) of this section is to vest the Supreme Court with certain powers and duties exercisable in relation to and during the course of hearing of appeals before it. One of the powers is a discretionary power to receive further evidence. It is also abundantly clear that the purpose of sub-sections (2) and (3) of s. 69 is to regulate the applications for and the admission or receipt of further evidence in respect of an appeal properly before the Court.

Consequently, sub-section (4) of s. 69 of the Act confers power upon the Supreme Court (a) generally to draw inferences of fact from the evidence appearing in the record of appeal, and (b) specifically to draw inferences of fact on new or further evidence admitted pursuant to sub-sections (2) and (3) of s. 69 and give any judgment and/or make any order which ought to have been given or made by the High Court.

The question before the Court is, therefore, whether sub-section (4) can be construed to confer an unlimited power on the Supreme Court to review, meaning to re-open, re-examine and re-consider with a view to correction, variation, alteration or reversal, if necessary, an earlier decision in an appeal that has already been heard and