1. ) MUHAMMAD SHAFIQ BIN MANSOR 2. ) MUHAMMAD AIMAN BIN MAHAMAD 3. ) MUHAMMAD FATHURRAHMAN BIN AMMAR EFFENDI 4. ) MUHAMMAD AMIR BIN ABDUL RAHMAN v Pendakwa Raya

Case Significance

Illustrates the demanding special-circumstances threshold for staying a custodial sentence pending appeal and how the seriousness of the offence weighs against granting a stay.

This High Court decision at Kangar, Perlis, concerns an application by four applicants, all of whom had already been convicted of gang rape under seksyen 375B Kanun Keseksaan (section 375B of the Penal Code), for a stay of execution of their custodial sentences pending the hearing of their appeals in the High Court. The applicants sought orders that the sentences be stayed and that they be released on bail while their appeals were pending. The prosecution opposed the application. The central legal question was whether the applicants had shown the special circumstances required before a court will suspend the execution of a sentence pending appeal. The court set out the governing principle drawn from subseksyen 57(1) Akta Mahkamah Kehakiman 1964 (subsection 57(1) of the Courts of Judicature Act 1964) and the authority of Sharma Kumari a/p Oam Parkash v Public Prosecutor, namely that although an appeal does not itself operate as a stay of execution of a judgment, order, conviction or sentence, the High Court or Court of Appeal has a discretion to grant such a stay where it is reasonable and where special reasons or circumstances exist to justify it, and that the mere fact that a notice of appeal has been filed is not enough. Applying that test, the court examined the grounds advanced in the applicants' supporting affidavit against the reply and submissions of the prosecution and found them to be without merit. It held that the reasons given did not amount to the special or exceptional circumstances that would warrant suspending the imprisonment, and it further reasoned that, given that the applicants had been convicted of gang rape, a serious offence, it would not be proper to allow a stay or suspension of the sentences. On those grounds the court dismissed the applicants' notice of motion. The judgment is a useful illustration of the demanding special-circumstances threshold that governs applications to stay a custodial sentence pending appeal, and of the weight the seriousness of the offence carries against a stay.