The appellate Court determined that the one-day imprisonment for publishing misleading statements was manifestly inadequate, enhancing it to twenty-four months while upholding the fine.

JUDGMENT

Mohamed Zaini Mazlan J:

Introduction

[1] The respondent was charged with publishing a misleading statement under the Securities Industry Act 1983 . He was found guilty and sentenced to a day's imprisonment and a fine of RM2,500,000.00, and in default, 18 months' imprisonment.

[2] This appeal arises out of the prosecution's dissatisfaction with the sentence meted.

[3] One of the novel issues arising from this appeal is whether the Court could proceed to hear the appeal in the respondent's absence.

Facts

[4] The respondent was, on the 12 July 2007, charged under s 86(b) read together with s 122C(c) of the Securities Industry Act 1983 ('SIA 1983'). The charge read as follows:

"That you, between 28 February 206 to 15 February 2007, at Bursa Malaysia Securities Berhad, Bukit Kewangan, 50200 Kuala Lumpur, abetted Transmile Group Berhad (Company No: 373741-W), in making a statement that is misleading in a material particular in Transmile Group Berhad's "Quarterly Report on Unaudited Consolidated Results for the Financial Year ended 31 December 2006", and the misleading statement is underlined in red in the Appendix to this Charge, and the said statement is likely to induce the purchase of securities of Transmile Group Berhad by other persons, and when the statement was made Transmile Group Berhad ought reasonably to have known that the statement is misleading in a material particular, and you have thereby committed an offence under s 86(b) read together with s 122C(c) of the Securities Industry Act 1983 (Act 280) and punishable under s 88B of the same Act"

[5] The respondent was subsequently, on the 26 May 2008, charged in the alternative under s 122B(a)(bb) read together with s 122(1) of the SIA 1983 as follows: "That Transmile Group Berhad (Company No: 373741-W), between 14 February 207 to 15 February 2007 at Bursa Malaysia Securities Berhad, Bukit Kewangan, 50200 Kuala Lumpur, in the Federal Territory of Kuala Lumpur, has committed an offence under s 122B(a)(bb) of the Securities Industry Act 1983 (Act 280) when it, with intent to deceive, furnished 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 December 2006", and the misleading statement is underlined in red in the Appendix to this Charge and that you, who at the time of the commission of the offence w/as a director of Transmile Group Berhad, are deemed to have committed an offence under s 122B(a)(bb) read together with s 122(1) of the Securities Industry Act 1983 , and punishable under s 122B of the same Act."

[6] The trial commenced on 22 July 2010. The Sessions Court had, at the end of the prosecution's case, held that the prosecution had established a prima facie case. However, the defence's case did not proceed without much ado, as the respondent had filed several applications to challenge the constitutionality of some provisions in the SIA 1983. These applications and the appeals arising from them took up almost seven years and were heard at all levels, from the Sessions Court to the Federal Court.

[7] The defence's case eventually commenced in July 2018. The respondent was the sole witness. The Court reached its verdict on 27 August 2020, where the respondent was found guilty and sentenced to one day imprisonment and a fine of RM2,500,000.00, and in default, 18 months imprisonment. He had since served the sentence and paid the fine.

[8] Both prosecution and respondent appealed against the conviction and sentence. Both appeals were fixed to be heard by this Court. The case management for both appeals were fixed on the same dates, save for 13 October 2021. The dates were 17 November 2020, 22 December 2020, 2 March 2021, 6 May 2021, 25 May 2021, 15 July 2021, 29 September 2021 and 13 October 2021. However, the case management on 17 November 2020 was vacated due to the Conditional Movement Control Order imposed by the government. There were seven case manag