The Appellant abovenamed having given notice of appeal to the Court of Appeal against the decision of the Honourable Judge Yang Arif Dato’ Haji Arifin bin Haji Jaka given in the High Court of Malaya at Kuala Lumpur on the 16^th day of June 1999, states the following grounds for his appeal:-

Abuse of Process and Oppression

The learned High Court Judge erred in law and fact in that he did not give due consideration to the reasons given by counsel for your Appellant when applying for a postponement for time on 11^th of June 1999, to reply to the four affidavits in-reply affirmed by SAC1 Musa bin Hj. Hassan, Azahar bin Mohamed, Dato Gani Patail and Tan Sri Mohtar Bin Abdullah, filed by and on behalf of the Respondents.

The learned Judge’s reasoning in not allowing your Appellant a postponement to enable your Appellant the opportunity to produce an audio tape of a recording of a conversation between Manjit Singh Dhillon and Dato Gani Patail when he disallowed the postponement to enable your Appellant to produce the said crucial tape was most unreasonable and wrongly decided without due consideration, a fortiori, given that the said piece of evidence is fundamental and if given the opportunity would have affected the legitimacy, legality and the outcome of the whole trial.

The learned Judge failed to appreciate that it is very commonplace in everyday court room events that in the name of fairness, much latitute is given in terms of time, to an accused to fully prepare his case, moreso in this particular matter where the 4 affidavits required, on the face of it, reasonable and adequate lead time for preparation for a formal reply and it would have been just in the circumstances to have granted the adjournment sought.

The learned Judge’s reasons for holding the tape was relevant only in the Applicant’s first trial is wrong in law and in fact and is misconceived.

The learned Judge’s finding that your Appellant’s failure in not filing an affidavit much earlier amounts to a failure of justice as the matter was still in issue and the trial has yet to commence and also the Judge was not functus officio at that point in time and as such the denial of the postponement is oppressive on your Appellant and a gross violation of your Appellant’s right to a fair trial.

The learned Judge’s further reasons given for the rejection of the application for postponement i.e. quote: "Further on reading the affidavits in reply filed on behalf of the Respondent, I find the contents of these affidavits relate to issues raised by the applicants in their affidavits in support of the application. There are sufficient materials, which could form the basis of arguments by both the applicants’ counsel and the prosecution. A postponement under these circumstances would cause undue delay in the prosecution of this case." The aforesaid reasons by the learned Judge (for the rejection) is untenable, devoid of legal merit and self contradictory in that when the learned Judge said "there were sufficient materials which could form the basis of arguments", it was more than compelling for the Judge to inquire into the application and allow for examination and cross examination of relevant witnesses before proceeding with the main trial as the justice in this case requires. Hence your Appellant’s application was wrongly held to be devoid of merit and rejected without justification.

The learned Judge was wrong in law and in fact in disallowing the defence application to cross-examine Tan Sri Mohtar Abdullah, Dato Gani Patail and En. Azahar Mohamed by stating that there were no provisions in the Criminal Procedure Code (CPC) when he could have exercised his inherent judicial powers and also, he wrongly rejected counsel’s application under Sec 425 of the CPC, which is the correct Section of the law to be invoked. The learned Judge, by rejecting Sec 425 of the CPC and having failed to invoke and exercise his inherent powers, has occasioned a serious failure of justice.

The learned Judge failed to consider the authority of Karpal Singh & Anor v Public Prosecutor (1991) 2 MLJ 544 which is a direct case in point in respect of your Appellant’s case.

The learned Judge erred in law and in fact when he out rightly rejected your Appellant’s affidavit which alluded to several acts of mala fides, without first giving your Appellant an opportunity to hear the application.

The learned Judge failed to appreciate and was wrong in law and in fact to have allowed the prosecution to indiscriminately make several amendments to the date of the charge and to unduly and vaguely stretch the alleged date of commission to an ambiguous 3 months period (i.e. between January and March 1993).

The learned Judge erred in law when he held that the Attorney General had an absolute and unfettered power under Article 145 of the Federal Constitution.

Prayer

Your Appellant abovenamed therefore prays that the conviction and sentence on him may be set aside.
 

Dated on this day of 25 July, 2001

……………………………………
Solicitors for the Appellant
 

This Petition Of Appeal is filed by S.N. Nair & Partners solicitors for the Appellant whose address for service is at Suite B3-A-03, Plaza Mont Kiara, 2, Jalan 1/70C, Mont Kiara, 50480 Kuala Lumpur. Tel: 03-62016686/87 Fax: 03-62016685 [Ref No. SNN/DSAI/2001(2)AJ]