The High Court erred in enhancing the appellant's sentence from one day to 24 months without proper service of notice, violating procedural justice.

[1]This is an appeal by Gan Boon Aun against the decision of the High Court dated 25.1.2022 wherein the High Court had allowed the respondent’s appeal against the sentence meted out by the Sessions Court in the absence of the appellant and enhanced the sentence of 1 day imprisonment imposed by the Sessions Court against the appellant under section 122B(a)(bb) read together with section 122 (1) of the Securities Industry Act 1983 Court against the appellant.

[2]This appeal raised one important issue, i.e., whether the High Court’s Order dated 25.1.2022 is in contravention of the provisions of section 314 (1) Criminal Procedure Code

Background Facts

[3]The appellant was charged with an offence of giving a misleading statement to Bursa Malaysia Securities Berhad in Transmile Group Berhad’s “Quarterly Report on Unaudited Consolidated Results for the Financial Year Ended 31.12.2006”,an offence under section 122B (a)(bb) read together with section 122(1) of the Securities Industry Act 1983

[4]The trial commenced at the Sessions Court on 22.7.2010. At the end of the prosecution’s case, the Court held that the prosecution had established a prima facie case. The appellant was called upon to enter his defence. However, the defence’s case did not proceed promptly as the appellant had filed several applications to challenge the constitutionality of some provisions in the Securities Industry Act 1983 . These applications and the appeals arising there from took up almost seven years and were heard at all levels, from the Sessions Court to the Federal Court.

[5]The defence’s case eventually commenced in July 2018. The appellant was the sole witness. On 27.8.2020, the Sessions Court found the appellant guilty and sentenced him to one day’s imprisonment and a fine of RM2.5 million in default 18 months imprisonment. He had served the imprisonment sentence and paid the fine.

[6]Both the respondent and the appellant appealed against the decision of the Sessions Court. The respondent appealed against the sentence of one day imprisonment. The appellant appealed against his conviction and sentence.

[7]Both appeals were fixed to be heard together before High Court Judge, Zaini Mazlan J. The case managements for both appeals were fixed on 17.11.2020, 22.12.2020, 2.3.2021, 6.5.2021, 25.5.2021, 15.7.2021,29.9.2021 and 13.10.2021. However, the appellant’s counsel, Dato’ Tan Hock Chuan from Messrs Tan Hock Chuan & Co discharged himself for both appeals during the case management on 2.3.2021 on the ground of lack of instructions from the appellant. The appellant did not attend any case management after that, even though the court had issued letters to him to inform of the dates.

[8]The appellant’s appeal was fixed for hearing on 13,10.2021. The respondent’s appeal was fixed for case management on the same date. The appellant’s appeal was struck out as he had failed to attend.

[9]The respondent’s appeal was fixed for hearing on 18.10.2021. The appellant was still absent. A warrant of arrest was issued against him. The appeal was adjourned to 13.12.2021. As the police could not execute the arrest warrant on the appellant, the appeal was adjourned to 25.1.2022.

[10]On the date of hearing of the respondent’s appeal on 25.1.2022, the appellant or his counsel was not present. The learned Deputy Public Prosecutor (DPP) informed the learned High Court Judge that the warrant of arrest could not be executed. Taking into account the fact that the respondent had attempted to locate the appellant for the past one year, but was unsuccessful, the learned High Court Judge decided to proceed with the