JUDGMENT

Low Hop Bing JCA:

Application

[1] This application vide notice of motion filed by the applicant seeks, inter alia, to review and set aside the decision of this court which had on 30 October 2007 dismissed the applicant's appeal against the decision of the High Court. The applicant also sought an order that the appeal before the High Court be heard on its merits and to call witnesses as required.

Factual Background

[2] The applicant was originally charged at the Kuala Lumpur Sessions Court with the offence of gross indecency under s. 377D of the Penal Code.

[3] The applicant pleaded guilty to the charge. He was convicted and sentenced on 19 September 1998 to six months imprisonment with effect from the date of arrest ie, 18 September 1998. On 29 September 1998, the applicant filed a notice of appeal in the High Court against the Sessions Court decision.

[4] Meanwhile, the applicant began serving sentence at the Kajang Prison. Subsequently, he was admitted to the National Heart Institute on 23 September 1998. He was later transferred to the Coronary Rehabilitation Ward No. 29 of the Kuala Lumpur General Hospital, and remained there until the completion of his imprisonment term on 6 January 1999.

[5]When the applicant was absent on the date of the hearing of his appeal on 9 September 2003, the learned High Court judge, in exercising the powers under s. 313(2) of the Criminal Procedure Code, dismissed the appeal. Section 313(2) reads as follows:

(1) ...

(2) If the appellant does not appear to support his appeal the Court may consider his appeal and make such order thereon as it thinks fit:

Provided that the Court may refuse to consider the appeal or to make any such order in the case of an appellant who is out of the jurisdiction ..., except on such terms as it thinks fit to impose.

[6] The applicant's appeal against the decision of the High Court was dismissed by this court on 30 October 2007.

[7] On 15 November 2008, the applicant filed a notice of motion in the Federal Court urging the Federal Court to invoke its power under r. 137 of the Rules of the Federal Court 1995 so as to review and set aside the order made by this court and to have the appeal heard on its merits. That notice of motion was unanimously dismissed by the Federal Court on 30 October 2008, as reported in Munawar Ahmad Anees v. PP [2009] 2 CLJ 42.

[8] The Federal Court, speaking through Zulkefli Makinudin FCJ, examined the applicant's constitutional right of hearing, in the light of s. 313(2), and found that since the applicant had failed to appear personally in court for his appeal to be heard on several occasions whereby the hearing of the appeal had to be repeatedly postponed, that would be a ground to justify the dismissal of the applicant's appeal.

Review Jurisdiction

[9] Learned counsel Mr Manjeet Singh Dhillon (assisted by Mr M Puravalen and Mr Amrit Singh Pal) sought support in Ramanathan Chelliah v. PP [2009] 6 CLJ 55 CA and submitted that a review of its own decision is viable:

(1) If it can be shown that there was a probability of a significant injustice which must be clearly established; and

(2) If there was no effective alternative remedy to correct this injustice.

[10] Mr Awang Armadajaya, learned deputy public prosecutor, responded that the applicant should not be allowed to relitigate on an issue pertaining to the conviction and sentence meted out to him on his own guilty plea which has been subsequently heard and determined by the High Court, the Court of Appeal, and the Federal Court.

[11] In our view, the applicant is urging us to reopen the appeal which has been dealt with by the High Court on 9 September 2003, then by this court which had delivered its decision on 30 October 2007 dismissing his appeal, and finally by the Federal Court, as alluded to above. The instant application before us reflects the conduct of an indefatigable idealist who is unable to accept the finality of proceedings. He chooses to plod o