JUDGMENT

Augustine Paul FCJ:

[1]Section 87 of the Courts of Judicature Act 1964 ("s. 87") confines the appellate jurisdiction of the Federal Court to a decision of the Court of Appeal in its appellate jurisdiction in respect of any criminal matter decided by the High Court in its original jurisdiction. Accordingly, there is no right of appeal to the Federal Court in a criminal matter that originated in the subordinate courts. Does this violate art. 121(2)(a) of the Federal Constitution ("art. 121(2)(a)") which provides that the Federal Court shall have jurisdiction to determine appeals from decisions of the Court of Appeal, of the High Court or a judge thereof without any qualification? If it does, an appeal to the Federal Court will be competent as the restriction on the right of appeal will be unconstitutional. If it does not, by virtue of art. 121(2)(a) being read with art. 128(3) of the Federal Constitution ("art. 128(3)"), does it mean that a person who is dissatisfied with a decision made by the Court of Appeal in respect of a criminal matter that originated in the subordinate courts is left with no further avenue to seek redress? In such circumstances can he invoke the inherent jurisdiction of the Federal Court as contained in r. 137 of the Rules of the Federal Court ("r. 137") to seek a remedy? These are the dominant issues that require to be addressed in this proceeding before us.

[2] The accused was charged in the Sessions Court at Kuala Lumpur with an offence under s. 409 of the Penal Code together with an alternative charge under the same section. He claimed trial. On 26 April 2005 the prosecution sought to admit in evidence, in the course of its case, the evidence of six witnesses recorded in Hong Kong pursuant to s. 8(3) of the Mutual Assistance in Criminal Matters Act 2002. The defence objected to the admissibility of the record of evidence. The learned Sessions Court Judge upheld the objection on the ground that there was no compliance with the Evidence Act and the Criminal Procedure Code. Accordingly, he ruled that the record of evidence was inadmissible. The prosecution then requested the High Court to revise the ruling made by the learned Sessions Court Judge. On 29 April 2005 the High Court exercised its power of revision and ordered that the record of proceedings be admitted in evidence. The accused appealed to the Court of Appeal. The appeal was dismissed by the Court of Appeal on 1 July 2005. The accused then filed a notice of Appeal in this Court on 8 July 2005 pursuant to s. 87. The accused also filed a motion under r. 137 praying for this court to exercise its inherent jurisdiction to review the decision of the Court of Appeal.

[3] When the hearing commenced in this court it was contended by the prosecution that the appeal was not competent pursuant to s. 87 as it was not in relation to a criminal matter decided by the High Court in the exercise of its original jurisdiction. Arguments were advanced by both parties on the constitutional validity of s. 87 as to whether it violated art. 121(2)(a). Learned counsel's argument that a decision made in the exercise of revisionary power is part of the original jurisdiction of the High Court thereby rendering the decision appealable under s. 87 will be addressed by YAA Dato' Richard Malanjum CJ (Sabah and Sarawak). With regard to the motion filed by the defence under r. 137 the prosecution said that the rule did not come within the meaning of s. 16 of the Courts of Judicature Act 1964 ("s. 16") pursuant to which it was made. It was argued that any rule made under s. 16 must be procedural in nature and refer to a matter over which the Federal Court has jurisdiction. Accordingly, it was said that r. 137 is not valid as it did not satisfy the requirements of s. 16. It was also contended that in any event this was not a case where the defence could avail itself of the inherent jurisdiction of the court.

[4] We shall now address both the issues argued before us.

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