Categories: Selected Judgments

CoA’s Outline of Reasons in DSAI v PP (s418A Transfer Issue)

The Outline of Reasons delivered by the Court of Appeal on July 2, 2009 is here.

The Court held inter alia:

I. On the issue of legitimate expectation that the AG would not in any way partake in the prosecution of DSAI:

… 46. In our view that assurance given by the former PM should be taken only in that context, that the PP should no longer be seen to appear in court proceedings relating to the prosecution of this charge against the appellant. It could not be stretched to mean that the former PM intended to bar the PP from exercising his formal statutory functions, such as putting down his signature on this certificate. …

II. On the issue of bias, conflict of interest and necessity:

… 53. In this case, we are of the considered opinion that the rule that a person under a suspicion of bias should not act as an adjudicator is not applicable to the act of the PP in signing this certificate. We would apply the exception that natural justice may be overridden by a statutory provision as enunciated in FRANKLIN & ORS v MINISTER OF TOWN AND COUNTRY PLANNING (1948) AC 87, an exception which is applicable in both administrative and legislative processes.

54. We rule that, in this instance, despite the allegations of bias and conflict of interest against him, the PP being the specific and only officer authorised by law to sign the s. 418A certificate, may do so. His act cannot be impugned by reason of the imputed bias or conflict of interest. (see MOHD ZAINAL ABIDIN BIN ABDUL MUTALIB v DATO SERI DR. MAHATHIR MOHAMED, MINISTER OF HOME AFFAIRS & ANOR (1989) 3 MLJ 170)

… 56. With respect, we disagree. The rule of necessity is inapplicable if the optional routes as suggested by Hj. Sulaiman are real alternatives. In our view, there are no true alternatives to the powers conferred under s. 418A CPC. As said earlier, it is a special power that stands alone. This power is personal to the PP and he not apply to the court for a transfer. The doctrine of necessity therefore necessitates the PP to exercise that power.

Edmund Bon Tai Soon

Life's a sufferance. Lawyering a bore. As Edmund continues various escape techniques to be rid of Lord Bobo’s influence, he crusades with UndiMsia! movers to build strange youth love movements around the country. And so he tweets @edmundbon and practises the black magic art of advocacy at www.BONadvocates.com

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