JAYSAKTHI A/L MANIMARAN v Pendakwa Raya

Case Significance

Illustrates the wide discretion under section 310 of the Criminal Procedure Code to permit amendment of a notice of appeal so that substantial justice may be done, including to cure the omission of an appeal against sentence caused by counsel's oversight, notwithstanding the ordinary 14-day appeal period.

This High Court decision at Johor Bahru concerns a criminal application to amend a notice of appeal under section 310 of the Criminal Procedure Code. The applicant had been convicted under seksyen 39A(2) Akta Dadah Berbahaya 1952 (section 39A(2) of the Dangerous Drugs Act 1952) and sentenced to 11 years' imprisonment from the date of arrest together with 10 strokes of the cane. His former counsel had filed a notice of appeal against conviction only; some months later his new counsel filed a motion to amend the notice so as to include an appeal against sentence as well, on the footing that the omission had been the earlier counsel's oversight, that the application was made in good faith and not as an afterthought, and that there were reasonable prospects of arguing that the sentence was excessive relative to the prevailing trend for comparable quantities.

The prosecution objected that the supporting affidavit had been affirmed by counsel rather than by the applicant, and that the motion had been filed more than three months after sentence, contrary to the 14-day period for a notice of appeal under section 307(1) of the Code, and that the appeal lacked merit because the Sessions Court's sentence accorded with sentencing principles.

The court held that section 310 confers a wide discretion, its operative words directing that it be exercised as the judge thinks reasonable so that substantial justice may be done, as explained in PP v Azman Abdul Ghani. It reasoned that the purpose of section 310 is to allow a party affected by an original error to correct it so that the court can do substantial justice, and that the applicant should be given the opportunity to argue his appeal against sentence before the High Court. The court allowed the motion and directed that the amended notice of appeal be filed within 14 days. The judgment illustrates the use of section 310 to cure a defect in a notice of appeal caused by counsel's oversight.