Revision exercise unsuitable if accused told to enter defence, says judge

 

The Melaka High Court has refused to intervene in a lower court order calling for accused Fariz Mohd Ali to enter his defence to four charges of corruption. (Facebook pic)

PETALING JAYA: The High Court in Melaka has ruled that decisions of the subordinate courts calling on accused persons to enter their defence should not be subject to revision, except in exceptional circumstances.

Justice Radzi Abdul Hamid said the High Court’s revisionary powers, set out in Section 35 of the Courts of Judicature Act 1964 and Section 323 of the Criminal Procedure Code, must be exercised sparingly.

“(If allowed) the accused will have two rounds at challenging the finding of prima facie, one in a revision and another on appeal after conviction and sentence. Such a process is not expressly provided by the law,” he said.

He dismissed a revision application brought by Fariz Mohd Ali, who faces four charges of receiving bribes.

Radzi, who ordered Fariz to return to the sessions court to answer the charges, said the case did not fall within the category of exceptional circumstances that warrant the utilisation of his revisionary power.

He said such exceptional circumstances could include cases where a trial has proceeded premised on an offence not known to law or if a charge is plainly and materially defective.

“In such cases, there would be clear injustice caused to the accused which must be corrected,” he said.

He said he was satisfied that the trial judge in Fariz’s case had considered and evaluated all evidence, submissions of parties and authorities relied on by them.

Radzi declined to adopt the position taken by the Kuala Lumpur High Court in the case brought against Kinabatangan MP Bung Moktar Radin and his wife, Zizie Izette Abdul Samad.

“Firstly, the grounds of decision in that case are not available for this court’s consideration. Secondly, being a court of equal jurisdiction, this court is not bound to follow that decision,” he said in the 44-page judgment released last week.

In Bung and Zizie’s case, Justice Azhar Abdul Hamid had, on Sept 7 last year, exercised his revisionary powers to set aside a sessions court judge’s decision calling on the couple to enter their defence in a corruption case. Azhar said the ruling had occasioned a miscarriage of justice.

However, Radzi said an order finding that the prosecution has proven a prima facie case or requiring an accused to enter his defence is not a final decision that disposes of the rights of the parties in law.

“The rationale for non-final decisions being non-appealable is primarily geared towards the speedy disposal of cases,” he said.

For a decision to be final, he said, the defence must first be heard, after which a maximum evaluation of the entire body of evidence is undertaken.

“It is at that conclusive stage, when the fate of the appellant is known, the right of appeal is triggered,” he said.

Radzi said he agreed with the prosecution that a revision of the finding of a prima facie case would be tantamount to re-litigating the issues and facts which has been deliberated by the trial court. - FMT