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2025 MarsdenLR 6358
Low Hop Bing, Suriyadi, Zainun Ali, JJ
Public Prosecutor (Deputy Public Prosecutor) – Plaintiff
Versus
Norman bin Ismail – Defendant
For the Appellants/Petitioners: Ms Nurulhuda Nur’aini bt Mohamed Nor
For the Respondents: None
The court held that Section 56A permits remand of an acquitted accused pending appeal to preserve the integrity of the prosecution's case, balancing justice with the accused's rights.
Headnote:(A) Courts of Judicature Act 1964 - Section 56A - Dangerous Drugs Act 1952 - Accused charged with drug trafficking - Acquitted and discharged by trial court - Prosecution's application for remand pending appeal - Court must balance the interests of justice against the accused's liberty - Section 56A allows for arrest where acquittal is appealed to preserve the integrity of the appeal process. (Paras 1-11)
(B) Discretion of court - The court must exercise discretion judicially, considering established principles and the circumstances of each case when deciding on remand or bail. (Paras 12-15)
Facts of the case:
The accused, an Indonesian national, was found in possession of cannabis during police surveillance, later acquitted by the trial court. He is currently detained pending prosecution’s appeal against acquittal.
Findings of Court:
The court emphasizes the importance of ensuring the accused's presence for the appeal process while also considering the rights of the accused.
Issues: Whether it is proper to remand an acquitted accused who is a foreigner without travel documents pending the prosecution’s appeal?
Ratio Decidendi: The court ruled that under Section 56A, the remand is justified as it preserves the integrity of the prosecution's appeal against an acquittal, balancing public interest with the accused's rights.
Result: Application allowed, accused remanded to prison pending appeal.
Low Hop Bing JCA (delivering judgment of the court):
NOTICE OF MOTION
Before us is the prosecution's application by way of notice of motion under s 56ACourts of Judicature Act 1964
FACTUAL BACKGROUND
This has been set out in the affidavit in support affirmed by the learned deputy public prosecutor Ms Nurulhuda Nur’aini bt Mohamed Nor.
The accused was charged in the Ipoh High Court with an offence of drug trafficking under s 39B(1)(a) Dangerous Drugs Act 1952
The accused was represented by counsel in the High Court.
On 29 January 2008, at the close of the prosecution's case, the learned trial judicial commissioner acquitted and discharged the accused without calling for defence.
On the basis of the evidence adduced for the prosecution at the trial, the affidavit in support averred that:
(a)On 20 May 2001, at about 8.30pm, SP5 together with his police party kept watch on the road leading to Kampung Tersusun, Tronoh Mines, in the district of Kinta, in the state of Perak;
(b)At about 9pm, SP5 saw four men, including the accused, walking from Kampung Tersusun towards the direction of the Ipoh-Lumut trunk road. Some 10 minutes later, the accused was seen walking from a food stall towards Kampung Tersusun. Five minutes later, the accused was seen carrying a bag in his left hand and walking from Kampung Tersusun towards the direction of the Ipoh-Lumut trunk road;
(c)When the accused arrived at the place where SP5 and his police party were based, he was detained by SP5. On checking the bag carried by the accused, SP5 recovered five slabs of substances which, upon analysis, were found to contain 4973g of cannabis; and
(d)SP5 and his police party also arrested the other three men and detained their Indonesian passports as well. However, they were subsequently released, as nothing incriminating was found on them.
On 29 January 2008, in an oral judgment, the trial court acquitted and discharged the accused on the basis of s 114(g) Evidence Act 1950
The accused is apparently an Indonesian without any travel document. He has since 18 February 2008 been detained by the Perak Immigration Department at the Langkap Immigration Depot.
Upon the prosecution's application on an ex parte basis, this court issued a warrant of arrest against the accused on 28 February 2008.
The warrant was executed on 29 February 2008 and he was brought before this court on the same date.
Pending the disposal of the prosecution's appeal, the prosecution has now filed this application for an order to remand the accused to prison.
SECTION 56A OF THE COURTS OF JUDICATURE ACT 1964
In urging the court to order the remand of the accused, the prosecution submitted that the accused's presence at the hearing of the appeal is essential; otherwise the appeal would be rendered academic or nugatory.
The accused was not legally represented at the hearing of this application. However, he did not dispute the fact that he is an Indonesian without any travel document and that he is now brought before this court on the warrant.
In my judgment, the question that arises for determination herein may be stated as follows:
Where an accused has been acquitted and discharged of an offence punishable with death sentence, and is a foreigner without any travel document, is it just and proper for the Court of Appeal to invoke s 56A of the Courts of Judicature Act 1964 and to issue a warrant directing that the accused be arrested and brought before it and to remand him to prison pending the disposal of the prosecution's appeal against the acquittal?
So far as I am aware, this question appears to be the first of its kind to be determined by this court. The significance is self-evident. It revolves around the resolution of the competing interest of the accused and that of the prosecution representing the public and hence the State. One end of the scale shows the fundamental liberty of the accused, while the other end reveals the preservation of the integrity of the prosecution's appeal.
The answer to the above question req
