a-05-561-12-2022 — Tan Hoo Eng v Public Prosecutor

Catchwords

This appeal concerns the discretionary power of the High Court to transfer a criminal trial in the Sessions Court to the High Court pursuant to s 417(1)(a), (b) and (e) of the Criminal Procedure Code (CPC). This judgment discusses, among others, the following issues: (1) whether subordinate courts have the “jurisdiction” and the “power” to decide constitutional law issues; (2) should the High Court have exercised its discretion to transfer this case in the Sessions Court to the High Court under s 417(1)(a), (b) and (e) CPC? In this regard - (a) can the High Court transfer a case in the subordinate court to the High Court pursuant to - (i) s 4 CPC; or (ii) the High Court’s inherent jurisdiction and/or power?; and (b) whether the High Court can take into account the following considerations - (i) the alleged breaches of the appellant’s rights under the Federal Constitution; (ii) the alleged bad faith of the Public Prosecutor (PP) in this case; (iii) the Sessions Court’s decision that the Sessions Court should not decide on constitutional law issues; (iv) the concession of the learned Deputy Public Prosecutor that this case should be transferred from the Sessions Court to the High Court; (v) the personal exercise of the PP’s discretion under s 418A(1) CPC to transfer other cases in the subordinate courts to the High Court; (vi) a decision of the High Court in a civil suit filed by the appellant’s son against the police, DPP and Government of Malaysia (Civil Suit); and (viii) the evidence of the complainant and two investigating officers in the Civil Suit; and (3) is there any reason for the Court of Appeal to intervene in this appeal in respect of the exercise of the learned High Court Judge’s discretion to dismiss the appellant’s application to transfer this case from the Sessions Court to the High Court?

Practice Areas

This appeal concerns the discretionary power of the High Court to transfer a criminal trial in the Sessions Court to the High Court pursuant to s 417(1)(a), (b) and (e) of the Criminal Procedure Code (CPC). This judgment discusses, among others, the following issues: (1) whether subordinate courts have the “jurisdiction” and the “power” to decide constitutional law issues; (2) should the High Court have exercised its discretion to transfer this case in the Sessions Court to the High Court under s 417(1)(a), (b) and (e) CPC? In this regard - (a) can the High Court transfer a case in the subordinate court to the High Court pursuant to - (i) s 4 CPC; or (ii) the High Court’s inherent jurisdiction and/or power?; and (b) whether the High Court can take into account the following considerations - (i) the alleged breaches of the appellant’s rights under the Federal Constitution; (ii) the alleged bad faith of the Public Prosecutor (PP) in this case; (iii) the Sessions Court’s decision that the Sessions Court should not decide on constitutional law issues; (iv) the concession of the learned Deputy Public Prosecutor that this case should be transferred from the Sessions Court to the High Court; (v) the personal exercise of the PP’s discretion under s 418A(1) CPC to transfer other cases in the subordinate courts to the High Court; (vi) a decision of the High Court in a civil suit filed by the appellant’s son against the police, DPP and Government of Malaysia (Civil Suit); and (viii) the evidence of the complainant and two investigating officers in the Civil Suit; and (3) is there any reason for the Court of Appeal to intervene in this appeal in respect of the exercise of the learned High Court Judge’s discretion to dismiss the appellant’s application to transfer this case from the Sessions Court to the High Court?

Judges (3)

Azman bin Abdullah Coram Azmi bin Ariffin Coram Hadhariah bt Syed Ismail Delivered

Counsel (8)

Attorney General's Chambers Firm Bachan & Kartar Firm Afina binti Abdul Hakim Counsel Appellant Amir Faliq bin Mohamad Jamil Counsel Appellant Datin Asmah binti Musa Counsel Prosecution Gobindeep Singh a/l Gurbachan Singh Counsel Appellant Gurbachan Singh a/l Bagawan Singh Counsel Appellant Mohd. Fuad bin Abdul Aziz Counsel Prosecution

Parties (2)

Ng Siew Wee Respondent Tan Hoo Eng Appellant

Summary

Tan Hoo Eng, charged with various offences in the Ipoh Sessions Court, sought leave to cite Deputy Public Prosecutor Ng Siew Wee for contempt of the Court of Appeal for allegedly misleading the court regarding a preliminary objection in a transfer application. The Court of Appeal dismissed the application, finding no basis for the contempt allegation as the DPP had the right to maintain the preliminary objection that was ultimately upheld. The Court held the application was incompetent and not within the scope of criminal appellate jurisdiction under the Courts of Judicature Act.

What was the outcome of Tan Hoo Eng v Public Prosecutor?

<p>Tan Hoo Eng, charged with various offences in the Ipoh Sessions Court, sought leave to cite Deputy Public Prosecutor Ng Siew Wee for contempt of th...