Lee Hun Hoe CJ (Borneo):

We granted the application of the applicants for an order that the judgment dated 1 September 1987 delivered by Dzaiddin J be the judgment to be included in the record of appeal and not his grounds of judgment dated 10 December 1988. We stated that we would give our reasons later because of the importance of the issue involved. We do so now.

The two applicants are mother and son. The charges were preferred against them for trafficking in dangerous drugs in Penang, contrary to s. 39B(1)(a) and punishable under s. 39B(2) of the Dangerous Drugs Act 1952. At the conclusion of the trial on 1 September 1987 the 1st applicant was sentenced to death and the 2nd applicant was sentenced to life imprisonment plus six strokes of the rotan.

It is not in dispute that the learned Judge handed down a fifteen-page judgment on 1 September 1987 which was dated and signed. Some fifteen months later, he purported to hand down another grounds of judgment dated 10 December 1988.

Having filed their appeal the applicants wrote to the Senior Assistant Registrar, High Court, Penang for notes of proceedings and grounds of judgment. On 14 February 1989 the Senior Assistant Registrar stated, inter alia, that:

Mr. Justice Datuk Mohamed Dzaiddin had only given an `Oral written judgment' without stating his grounds of judgment which meant the learned Judge had only read his `written judgment' in open Court without stating the grounds of his said decision after which he prepared his `grounds of judgment' in writing.

The contention of the applicants is that the learned Judge cannot deliver a second judgment having written, dated and signed the first judgment dated 1 September 1987.

The relevant part of s. 52(1) of the Courts of Judicature Act 1964 provides:

When a notice of appeal has been filed the Judge by whom the decision was given shall. if he has not already written his judgment, record in writing the grounds of his decision. and the written judgment or grounds of decision shall form part of the record of the proceedings ...

The significance of the words "if he has not already written his judgment" becomes apparent. In Chapter Four under the heading of Criminal Appeals of the Rules of the Supreme Court 1980, r. 105(1)(d) states:

As soon as practicable after the filing of a notice of appeal in his Registry the Registrar of the High Court shall forward to the Registrar of the Court at Kuala Lumpur particulars of the appellant's trial in the Form 9 in the First Schedule to the rules together with seven copies of the following papers:

(a) ...

(b) ...

(c) ...

(d) where the trial has been by a Judge alone any written judgment delivered by the trial Judge or where no such written judgment has been delivered a statement in writing by the trial Judge of the grounds of his decision.

Rule 105(1)(d) repeats substantially what was stated in s. 52(1) of the Courts of Judicature Act 1964.

Since there was already a written judgment, signed and delivered on 1 September 1987 no second written judgment or grounds of decision could be delivered subsequently to supplement the first judgment. We do not think it is competent for the learned Judge to supplement the first judgment by delivering a second judgment or ground of decision. This is clearly against fundamental principle as is normally understood. In Nathan v. PP [1972] 2 MLJ 101 it was held, inter alia, that the only judgment for consideration by the Court was the signed copy of the grounds of decision. It is not competent for the Court to supplement the signed grounds of decision.

This general principle was in fact laid down some 23 years ago by a powerful Court of Appeal in Ankur Nath Ganguli V. Public Prosecutor [1956] comprising Mathew CJ, Whyatt CJ(S) and Good J. In that case reference was made to subsection (1) of s. 21 of the Courts Ordinance 1948 which reads, inter alia, that:

When a notice of appeal has been lodged the Judge by whom the appellant was convicted shall, if he ha