J's Case Study - The Jegatheson Trial (Part I)

Jegatheson Subramaniam & Satu Lagi Lwn. Fithril Hakim Ab Jalil & Kes Yang Lain [2018] 1 LNS 364

A. BACKGROUND FACTS

1. The Applicants in this matter (Jegatheson Subramaniam & Another) filed an application via Notice of Motion No.: MTJ(3) 44-19-04/2017 (hereinafter referred to as 'the said NOM') before the High Court, and the said NOM was fixed for hearing on 10.4.2017.

2. The prayers sought for in the said NOM were, inter alia, that one Pang Chan Kok William, a Forensic Handwriting and Questioned Document Examiner (hereinafter referred to as 'William'), be given leave by the High Court to examine the original Search List dated 19.4.2016 which was in the possession of the Prosecutor; and to make a comparative study with the original Section 112 Statement of the 2nd Applicant dated 24.4.2016, at the Pejabat Penasihat Undang-Undang Negeri Johor, at a time and place to be given by the High Court.

3. The said NOM was supported by an affidavit by William, which exhibited a Preliminary Report of the Examination of Signatures of the 2nd Applicant dated 4.4.2017; examining copies of the Search List dated 19.4.2016 and the Section 112 Statement of the 2nd Applicant dated 24.4.2016.

4. Pursuant to the said Preliminary Report, William concluded that, on a preliminary basis, there was very strong evidence to suggest that the writer of the "specimen signatures"; i.e. the 2nd Applicant, did not write the "questioned signature". However, William would only be able to reach a conclusive determination via the scale of probability and certainty, by examining the original documents. Hence, the filing of the said NOM.

5. At the hearing of the said NOM, the Prosecutor stated that he had no objections to the said NOM and the orders sought for therein. As such, the High Court gave an Order on 10.4.2017 which reads as follow:-

"Permohonan Notis Usul di para (1), bahawa Pang Chan Kok William (No. Paspot Singapura: E5140722K) diberikan kebenaran untuk memeriksa salinan asal senarai geledah bertarikh 19/4/2016 dan salinan asal rakaman percakapan Seksyen 112 Kavita A/P Kumaran bertarikh 24/4/2016 adalah dibenarkan dan hendaklah dibuat pada 23/4/2017 jam 2.30 petang di Pejabat Penasihat Undang-Undang Negeri Johor."

6. However, when the Applicants' legal representative; together with William, arrived at 2.00 p.m. on 23.4.2017, to examine the documents in question, they were informed at approximately 3.00 p.m. that, upon the Prosecutor's instructions, William will not be allowed to examine the documents as specified in the Court Order dated 10.4.2017.

7. Following thid chain of events, 3 Notices of Motion were subsequently filed:

  (a) an application for revision by the Prosecutor, of the Order dated 10.4.2017

  (b) an application for stay of the Order dated 10.4.2017, pending the disposal of an appeal; and

  (c) an application for contempt by the Applicants.

B. THE HIGH COURT’S DECISION

8. In brief, the Court held as follows: -

  (a) The Order dated 10.4.2017 did not come within the definition of a decision within the definition of Section 3 of the Courts of Judicature Act 1964 and as such is not an appealable decision;

  (b) As the decision was not an appealable decision, the High Court can invoke its inherent powers to amend the said Order dated 10.4.2017; and

  (c) The Prosecutor was not in contempt of court, as he was following the orders of his superior officer, not to comply with the Order dated 10.4.2017.

C. EXAMINATION OF THE HIGH COURT’S DECISION

9. In Part I of my case study, I will deal with the question of whether, "is the Order dated 10.4.2018 an appealable decision or not?"

10. Section 3 of the Courts of Judicature Act 1964 (hereinafter referred to as the ''CJA 1964') rightly defines the meaning of a "decision" which would be appealable, and is as follows:

"decision" means judgment, sentence or order, but does not include any ruling made in the course of a trial or hearing of any cause of matter which does not finally dispose of the rights of the parties."

11. Hence, it is clear that there are two limbs to be considered:-

(a) IF a decision is one which is made in the course of trial or hearing; and

(b) IF it does not finally dispose of the rights of parties,

the decision is NOT appealable.

Equal weight must be attached to both limbs of Section 3 of the CJA 1964.

12. In relation to the first limb, due regard must be given to the juncture at which the decision was made; it is my contention that, the meaning "in the course of a trial or hearing" must rightly mean, any ruling or decision made during the midst of a trial proper.

13. This is to give cognizance to the intention of Parliament when amending Section 3 of the CJA 1964 which is, to stop parties from stalling a trial before the trial court; by filing appeal after appeal, on rulings made by the trial court in the course of a trial.

14. It must be noted though that (in regard to the second limb), orders or rulings made before or after the conduct of a trial proper; are appealable, provided that it disposes finally of the rights of parties.

15. In our present case, I strongly am of the view that, the provisions of the Order dated 10.4.2017; giving William permission to inspect the original documents, is final in nature as it had finally disposed the rights of both parties in relation to this matter, within the High Court’s jurisdiction.

16. This is different from a ruling, for e.g. the admissibility of documents made during the trial proper - in this case, the weight that such document carries can still be submitted on after trial.

17. Therefore, it is clear that the Order dated 10.4.2017 is appealable and therefore, an appeal should have been lodged to the Court of Appeal. The High Court should not and ought not amend its own Order which was final in nature.

18. I would go a little further to say that, such an act by the High Court may give rise to the unwanted precedent of Courts amending their Orders / Judgments, at their own whims and fancies.

19. Justice must not only be done but must be seen to be done.

To Be Continued ...