A non-final decision by an appellate court is not appealable under the Court of Judicature Act 1964, affirming the need for a complete hearing before rights can be determined.

[1] In a media conference held at his office, Mr Karpal Singh (the appellant), was alleged to have uttered seditious statements that contravened s 4(1) of the Sedition Act 1948 , and was charged at the Sessions Court. The case was then transferred to the High Court. The charge reads as follows:

"Bahawa kamu pada 6 Februari 2009 jam antara 12. 00 tengahari dan 12. 30 petang di Tetuan Karpal Singh & Co yang beralamat No 67, Jalan Pudu Lama, dalam Daerah Dang Wangi, Wilayah Persekutuan Kuala Lumpur dalam satu sidang akhbar telah menyebut kata-kata menghasut (transkrip ucapan dilampirkan sebagai LAMPIRAN 'A' kepada pertuduhan ini dan kata-kata menghasut digariskan); dan oleh yang demikian, kamu telah melakukan satu kesalahan di bawah s 4(1)(b) Akta Hasutan 1948 (Akta 15) dan boleh dihukum di bawah s 4(1) Akta yang sama. "

[2] From the evidence gleaned of the prosecution's case the facts of the case are as follows. On 6 February 2009 at about 11. 30 am the appellant had called for a media conference at his office at Jalan Pudu Lama, Kuala Lumpur. Several members of the press together with cameramen were in attendance. In that media conference the appellant read out a press statement and later distributed copies of them. The second segment saw a question and answer session, which was also recorded. Recordings of the media conference were aired by RTM at 6 pm and 9 pm and TV3 transmitted it to the public at 8 pm also on the same day. Witnesses who saw and heard the media conference aired on TV subsequently filed police reports.

[3] Altogether 103 police reports of the appellant's media conference were filed resulting in a police investigation and culminating with the appellant being charged at the Sessions Court on 17 March 2009. On the request of the prosecution the case was transferred to the High Court pursuant to s 418A(1) of the Criminal Procedure Code . After the calling of 19 witnesses, and at the end of the prosecution's case, the learned judge acquitted the appellant on 11 June 2011. Following an appeal by the Public Prosecutor, the Court of Appeal comprising Mohamad Apandi bin Ali JCA, Clement Skinner JCA and Ahmad bin Hj Maarop JCA (as he then was), set aside the acquittal and ordered the defence be called. The Court of Appeal also directed the case be transmitted back to the High Court. The grounds of judgment were subsequently prepared in Bahasa Malaysia by Ahmad bin Hj Maarop JCA.

[4] Being dissatisfied with the Court of Appeal's order the appellant filed an appeal to the Federal Court vide notice dated 25 January 2012. Three substantive grounds were supplied, namely that the Court of Appeal erred when it decided that s 3(1)(f) of the Sedition Act 1948 was constitutional having regard to the facts and circumstances prevailing in the appeal, that the Court of Appeal went beyond its appellate jurisdiction when it made specific and final findings regarding the defence which had yet to be heard, and thirdly there was corum failure as Clement Skinner JCA, despite not being conversant in Bahasa Malaysia was empanelled. The notice of appeal clarified that despite both the prosecution and the defence counsel having submitted in English, Clement Skinner JCA could not have comprehended Ahmad bin Hj Maarop JCA's grounds of judgment, as they were in Bahasa Malaysia.

[5] In response to the appeal by the appellant, the Public Prosecutor filed a notice of motion (encl 6(a)), praying that the appellant's appeal be struck out in limine, and the Court of Appeal's order be complied with, without any delay. The basis of the application was that the definition of 'decision' under s 3 of the of Judicature Act 1964 (CJA)