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1999 MarsdenLR 125

COURT OF APPEAL KUALA LUMPUR
DATO SERI ANWAR IBRAHIM – Appellant
Versus
PP – Respondent
[Criminal Appeal No: W-05-66-1998]



Petitioner Advocates:Raja Aziz Addruse,Christopher Fernando,Gurbachan SinghPannu,Sankara Nair,Zulkifli Nordin,Robyn Choi,Pawanchek Marican ,Respondent Advocate: Abdul Gani Patail,Azahar Mohamed,Mohd Yusof Zainal Abiden

JUDGMENT

Lamin Mohd Yunus PCA:

[1] My learned brother NH Chan, JCA will now deliver the judgment of the court.

[2] This court, as you have just heard, has no jurisdiction to entertain an appeal on the subject of bail.

7

[3] However if I may add one other point. Raja Aziz Addruse, one of the learned counsels for the appellant (the accused below) submitted that the definition of the word "decision" in s 3 as amended would appear to exclude a ruling on any matter extraneous to the disposal of issues in the main action. He said that a bail application would be such a matter. A matter of bail is determined in the light of whether it is a bailable offence (s 387 CPC) or a non-bailable offence (s 388 CPC). The Criminal Procedure Code defines what is a "bailable offence" and what is a "non-bailable offence." Clearly therefore it must relate to the charge with which an accused person is preferred. The purpose of a criminal trial is to dispose of the case in respect of the charge. The question of bail cannot be said to be unrelated to the trial. A non-bailable offence is indicated in the first schedule of the Criminal Procedure Code as being an offence against which the words "not bailable" appear. At first blush the words "non-bailable offence" or "not bailable offence" suggest that when a person is charged with a non-bailable offence he is not to have his freedom until he is freed of the charge because he has been accused of having committed a serious offence. However the court is given a complete discretion to decide whether to allow bail or not (s 388 CPC). A court has to consider various interests such as those of the state, the public, the accused, the prosecution and the court before it can exercise its judicial discretion whether to grant bail or not. The issue before us is whether the matter of bail is appealable to the court of Appeal. The Courts of Judicature Act 1964 spells out the areas of jurisdiction for the court of Appeal both criminal and civil. Its criminal jurisdiction is found within the terms of s 50 of the Act. Section 50 employs the word "decision" with its definition provided for in s 3. As it has been suggested the definition of the word "decision" would exclude any ruling on any matter extraneous to the issues to be determined in the main case. This, as I understand it, would mean any decision of the High court on any matter would be appealable to the court of Appeal. That cannot be the intention of Parliament. The matter of bail may very well be extraneous to the issues to be determined in the main case. But that is not the issue. What are appealable, as is intended by the current definition of the word "decision" are those decisions of the High court that have the effect of finally disposing of the rights of parties. To get bail is not as of right. Bail under s 388 of the Criminal Procedure Code is granted at the complete discretion of the court.

[4] The very nature of bail possesses no element of finality. It is something of a respite. It is a mechanism for temporary relief from confinement. Once given it is capable of being withdrawn. Upon refusal it can be reapplied. With the greatest of respect I am unable to accept the interpretation as submitted by the learned counsel for the appellant. I am therefore quite clear in my own mind that an appeal on the matter of bail is incompetent to be laid before this court and therefore is rightly dismissed. With that, the proceedings of this morning should end.

[5] However with the happenings around this court building where the trial involving the appellant also takes place, I feel compelled to make an observation. Tremendous noise caused by shouts is heard every day of the trial particularly at the time when the court adjourns for the day and the appellant is making his exit from this building. This has become public knowledge. I consider such noises constitute a breach of the peace. I can well imagine the kind of situation that can prevail if the appellant is free to mov

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