1. ) KIRUBAHARAN A/L K. GANESAN 2. ) SUGENDREN A/L SELLADORAI v Pendakwa Raya

Case Significance

Illustrates that a genuine, good-faith filing error by the prosecution may be relieved by an extension of time where the delay is short and explained and no prejudice results, applying the substantial-justice principle in section 310 of the Criminal Procedure Code.

This Court of Appeal decision concerns an appeal by two accused against a High Court order granting the prosecution an extension of time to file its petition of appeal out of time. The underlying charge was one of obstructing a public servant in the discharge of his official duty, an offence under section 353 of the Penal Code (Kanun Keseksaan). At the close of the prosecution case the Magistrate's Court at Georgetown had acquitted and discharged the two accused without calling on them to enter their defence, and the prosecution appealed to the High Court. After the grounds of judgment and notes of evidence were supplied, the last date for filing the petition of appeal was 26 November 2024. The prosecution filed its petition through the electronic filing system a day before that deadline, but mistakenly filed it in the High Court at Georgetown rather than in the Magistrate's Court, and later re-filed it in the correct court in January 2025. The High Court granted an extension of time, and the accused appealed against that indulgence. The Court of Appeal held that the omission was not one that caused prejudice: the principal cause of the delay had been explained on affidavit, the period of delay was not excessive, and the mistake was genuine, honest and made in good faith (suci hati — in good faith), with no material fact concealed. Emphasising the requirement of substantial justice reflected in section 310 of the Criminal Procedure Code and that the public prosecutor acts on behalf of society at large, the Court was satisfied that the extension had been properly granted and that the accused's appeal disclosed no basis for interfering with it. The accused had contended that the misfiling was fatal and that the prosecution's petition should be treated as time-barred, but the Court considered the error curable in the interests of justice and declined to shut out the prosecution's appeal on a purely technical footing, given that the intention to appeal within time was never in doubt.