JUDGMENT

Raja Azlan Shah LP:

The question for reference under s. 66 (1) of the Courts of Judicature Act 1964 is:

Whether a petition of appeal signed by only the solicitor for the appellant acting on the authority of the appellant meet the requirements of s. 307 (iv) of the Criminal Procedure Code.

While the reference is of course of great importance to the appellant, and no doubt to others similarly placed, the question whether the appellant was in breach of s. 307 (iv) of the Criminal Procedure Codeby not signing himself the petition of appeal raises a question of law of public importance, and it was for that reason that leave was given to refer the question to us under s. 66(1) of the Courts of Judicature Act 1964 so that that question might be fully argued and determined, especially in the light of a number of recent decisions of the High Court on this issue the correctness of which have been challenged.

The facts can be shortly stated. The appellant was charged and convicted of an offence under s. 465 of the Penal Code and was bound over for 1½ years under s. 294 of the Criminal Procedure Code (The Code). He appealed against conviction. Both he and his solicitor signed the notice of appeal but only the solicitor signed the petition of appeal. The learned Judge held, on a preliminary point, that the appellant himself must sign the petition of appeal. He struck out the appeal on the ground of non-compliance with subsection (iv) of s. 307 of the Code.

The learned Judge seems to think that the words "any person who is dissatisfied with any judgment" in sub-section (i) of s. 307 of the Code when read in conjunction with the words "the appellant" in sub-section (iv) of the section can only refer to the accused person. He therefore concluded that the accused person and not the solicitor who must sign the petition of appeal. Sub-section (iv) of s. 307 of the Code reads as follows:

Within ten days after the copy of the grounds of decision has been served as in the last preceding subsection provided, the appellant shall lodge with the clerk of the Magistrate's Court at which the trial was held a petition of appeal in triplicate addressed to the High Court.

The learned Judge relied on Practice Note No. 2 of 1960 which was issued some two decades previously by the Chief Registrar on the direction of the Chief Justice to the effect that a notice of appeal and petition of appeal must be signed by the appellant himself, and where Counsel is retained, both the appellant and Counsel must sign the documents. He also relied on the decisions in Pitting bin Hj. Mohd Ali v. PP [1979] 2 MLJ 136 and Toh Yew Sing & Ors. v. PP [1980] 2 MLJ 215. In the former case BTH Lee J held that Counsel or an advocate cannot sign a petition of appeal. So to read the provision of sub-section (iv) of s. 307 of the Code is to read into it a great deal that is not there.In the latter case Tan Chiaw Thong J held that a petition of appeal must be signed by the appellant. A petition of appeal signed by anyone else including an advocate on behalf of the appellant is not in compliance with the requirements of sub-section (iv) of s. 307 of the Code.

We are of the view that Practice Note No. 2 of 1960 was intended to be no more than a direction for administrative purposes. It cannot be exalted into a rule of law reflecting the true effect of the requirements of s. 307 of the Code, and if it is wrong then the position should be rectified. We think it is wrong.

We are also of the view that the two cases relied upon by the learned Judge were erroneous in as much as they held that it was mandatory for the appellant to sign the petition of appeal, and they should not be followed.

An appeal is instituted within the meaning of sub-section (i) of s. 307 of the Code when the appellant takes the initiative by lodging the notice of appeal in triplicate with the clerk of the Magistrate's Court which passed the judgment, sentence or order within the time prescribed. That, in our opin