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

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

Previously on the above ...

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.

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.

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.

SO, CAN THE HIGH COURT INVOKE ITS INHERENT POWERS TO AMEND AN ORDER?

1. Firstly, Order 1 Rule 2(2) of the Rules of Court 2012 clearly states as follows:-

"These Rules do not have effect in relation to proceedings in respect of which rules have been or may be made under any written law for the specific purpose of such proceedings or in relation to any criminal proceedings."

2. These proceedings before us were criminal proceedings wherein, the applicants were charged pursuant to Section 39B of the Dangerous Drugs Act 1952. As such, the Rules of Court 2012 WILL NOT APPLY.

3. In any event, the High Court exercised its powers pursuant to Order 20 Rule 11 of the Rules of Court 2012 to amend the Order dated 10.4.2017; i.e. by utilizing the "slip rule". The "slip rule" is a rule whereby: -

The Court may at any time correct clerical mistakes in judgment or orders, or errors arising therein from any accidental slip or omission, by a notice of application without an appeal.

4. It is important to note that an application to amend under Order 20 Rule 11 of the Rules of Court 2012 can only be done via a notice of application. This means, the application has to be made by any of the parties to the suit. The accidental slip or omission must arise out of a clerical mistake by officers of the court or by the parties to the suit.

5. Do note that, the error or mistake must be accidental or an omission. The amendment sought must be one that the court intended to pronounce and does not prejudice the other party.

6. It is clear and undisputed that, the High Court clearly intended to pronounce in the Order dated 10.4.2017 that Pang Chan Kok, William be allowed to examine the original documents in the Prosecutor’s possession at the Prosecutor’s office on 23.4.2017 at 2.30 p.m.

7. The High Court, however, took the unwanted step to amend the Order dated 10.4.2017, to state that the examination is instead, to be done in Court; after the documents were tendered in Court.

8. The High Court could not have, at the time the Order dated 10.4.2017 was pronounced, intended for the documents to be examined in Court; when the documents at that point in time were not yet even in the High Court’s possession but was still in the Prosecutor’s possession.

9. The amendment was clearly not as a result of a mistake or an omission.

10. Thus, this is a clear misapplication of Order 20 Rule 11 of the Rules of Court 2012.

The Final Chapter Ensues ...