JUDGMENT

Aslam Zainuddin J:

[1] When a court hearing a criminal appeal decides a matter without the submissions of the appellants' counsel and the submissions of the Deputy Public Prosecutor, does this amount to a denial of a fair trial or hearing? This is the crux of the matter in this case.

[2] The appellants were granted leave by the court of Appeal on 15 November 2024 to appeal against the decision of the High court in dismissing their appeal against conviction in the Magistrates' court on the sole question of whether the appellants were allegedly, ostensibly or supposedly denied a fair hearing during the appeal. The question of law which was reserved is as follows:

"Sama ada Pemohon-Pemohon dinafikan hak untuk dibicarakan secara adil dan saksama (denied the rights to a fair trial) apabila Hakim Mahkamah Tinggi yang bijaksana memutuskan rayuan tanpa kehadiran peguam bela Pemohon-Pemohon dan juga Timbalan Pendakwa Raya yang tidak bersedia untuk meneruskan dengan rayuan pada hari tersebut."

[3] The Courts of Judicature Act 1964 [Act 91] provides:

"Section 50. Jurisdiction to hear and determine criminal appeals

(2) An appeal shall lie to the court of Appeal, with the leave of the court of Appeal, against any decision of the High court in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by a Magistrates' court but such appeal shall be confined to only questions of law which have arisen in the course of the appeal or revision and the determination of which by the High court has affected the event of the appeal or revision."

[Emphasis Added]

[4] In the book The Criminal Procedure Code: A Commentary (3rd Edn) it is said at p 55:

"1. Section 50(2) limits appeals emanating from the Magistrates' court to questions of law only. The rationale behind this limitation is that cases emanating from the Magistrates' court are relatively less serious in nature and in most circumstances these cases involve only findings of fact. Therefore, there is a very minimal risk of real injustice if further appeals to the court of Appeal should only be confined to questions of law.

2. In Tay Swee Teck v. PP; [2019] 1 MLJ 674; [2018] 4 CLJ 782; [2018] 1 AMR 907, an application for leave to appeal was dismissed as the court of Appeal was of the view that the thrust of the appellant's contention was not confined solely to the question of law but rather a mixture of a question law and fact.

3. In Mohamad Abdullah v. PP; [2012] 4 MLJ 425, the court of Appeal held that, unlike civil appeals to which the Rules of the of Appeal 1994, r 5 applies, criminal appeals are not heard by way of rehearing. This means that the court of Appeal is confined to a consideration of whether the learned judge had erred in his decision on any finding of law or facts. An error does not warrant intervention to correct it if the error did not lead the learned judge to a finding or conclusion he would otherwise not have made, but for that error. The court of Appeal intervenes only if the learned judge had so erred as to warrant intervention."

[5] The appellants were arraigned on the following charge in the court below:

"Bahawa kamu dengan niat bersama pada 14 September 2018 jam lebih kurang 10.40 pagi di kilometer 45 Lebuhraya Shah Alam (KESAS) menghala Sri Petaling dalam daerah Petaling, dalam Negeri Selangor Darul Ehsan dengan disedari terlibat dalam mengangkut barang-barang larangan import iaitu:

1. 2,304 kotak x 24 tin x 0.5 liter Maximus X-Strong Beer 12.1%

2. 120 kotak x 24 tin x 0.5 liter Maximus X-Strong Beer 8.0%

Yang ditaksirkan bernilai RM109,517.76 yang diangkut menggunakan lori bernombor Pendaftaran NCL 9871 membawa trailer bernombor T/M 1797 dengan niat mengelak larangan terhadap barang-barang yang dilarang pengimportannya di bawah Butiran 1, Jadual Ketiga, Bahagian II, Perintah Kastam (Larangan Mengenai Import) 2017 dan dengan itu kamu telah melakukan sesuatu kesalahan di bawah s 135(1)(e) Akta Kastam 1967 yang boleh dihukum di bawah