Judges Can Fly – in the face of Rule 137 of the Federal Court Rules! (Part 2)

A thorough and critical consideration of the Federal Court’s inconsistent and dishonest approach to Rule 137 of the Rules of the Federal Court 1995 as it relates to section 51 and 51A of the Criminal Procedure Code and the Federal Court decisions in Adorna Properties v Kobchai Sosothikul [2006] 1 MLJ 417 and Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd [2008] 5 AMR 377. This is the concluding part.

(Comments have now been allowed for Parts 1 and 2 of this article.)

The two misguided decisions are Adorna Properties v Kobchai Sosothikul [2006] 1 MLJ 417 and Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd [2008] 5 AMR 377. Practicing lawyers will tell you that not too long ago the Federal Court have been exercising their inherent powers to right a wrong which is to prevent injustice as envisaged in Rule 137.

In the case of Adorna Properties Sdn Bhd v Kobchai Sosothikul [2006] 1 MLJ 417 (PS Gill and Rahmah Hussein FCJJ and Richard Malanjum JCA, as he was then) Mr. Kobchai Sosothikul – who was substituted for his late mother Mrs. Boonsom Boonyanit – applied under rule 137 of the Federal Court Rules 1955 to review the Federal Court’s decision in Adorna Properties v Boonsom Boonyanit. PS Gill FCJ (who delivered the judgment of the court) dismissed the application for review. He said:

Our reasons may be shortly stated. Firstly, although the consequence and effect of the main judgment [What main judgment? There is only Eusoff Chin’s judgment] may be harsh when viewed without the benefit of the relevant statutory provision, we do not think this is a case where “grave injustice had occasioned” due to clear infringement of any principle of law thereby making it permissible for successive application to be made under the said rule. Without going into the merits of this application we find that the substance of the main judgment revolves in the interpretation of s 340 subsection (3) including the proviso thereof of the National Land Code 1965.

And having read the reasoning therein and bearing in mind the words used in the said subsection including the proviso we are not convinced that the interpretation given in the main judgment is patently wrong thereby resulting in grave injustice thus warranting successive applications under rule 137. And even if we are wrong [in] our view it should be left to another occasion to further debate on the issue. For now we are of the opinion that … this is not a proper case for us to proceed to hear the merits or to grant the order as sought for.

This is the silliest judgment I have ever read. But then this is not surprising at all these days considering that we are being surrounded by a bunch of idiots in high places. This is what I said in How to Judge the Judges, p 92:

By this endorsement of the judgment of Chief Justice Eusoff Chin, PS Gill FCJ has revealed his own ignorance of the law, or should I say, his lack of understanding of plain English. The understanding of plain English in this respect is as simple as giving the words of s 340(3) and its proviso their natural and ordinary meaning. You do not have to be a lawyer to be able to do that.

The facts of the Adorna case are well known. Recently the Federal Court held in another case that Adorna is no longer good law. But PS Gill FCJ – the judge who has revealed himself to be an ignoramus in the law – was not convinced that the decision of Eusoff Chin in Adorna was patently wrong “thereby resulting in grave injustice thus warranting successive applications under rule 137.”

The late Mrs. Boonyanit who is the registered owner had lost her two plots of land in Tanjong Bungah, Penang because some unscrupulous person had forged her signature and transferred the two plots to Adorna Properties. Such registered titles now in the name of Adorna are clearly defeasible (it means “capable of being defeated or rendered void”) because the registration of the transfer from the forger to Adorna was obtained by forgery. If it is defeasible it can be set aside. Yet she lost her action to render void the registration of the transfer to Adorna.

Is this not the gravest injustice committed against Mrs. Boonyanit by Eusoff Chin who gave a perverse decision through a false interpretation of section 340 of the National Land Code? Despite the unjust decision of Eusoff Chin in Adorna, PS Gill held that Eusoff Chin was not patently wrong as would result “in grave injustice thus warranting” the application of rule 137.

The other errant Federal Court decision on rule 137 is Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd [2008] 5 AMR 377 (Abdul Hamid Mohamad CJ, Zaki Tun Azmi PCA (as he then was) and Zulkefli Ahmad Makinuddin FCJ). This is what Abdul Hamid Mohamad CJ said, at p 381:

In an application for a review by this court of its own decision, the court must be satisfied that it is a case that falls within the limited grounds and very exceptional circumstances in which a review may be made. Only if it does, that the court reviews its own earlier judgment.

But that is not what Rule 137 says. Rule 137 is emphatic that the Federal Court has the power to hear or to make an order to prevent injustice or to prevent an abuse of the process of the Court. However, this Federal Court ignored the Rule completely. Instead, it substitutes its own perverse prerequisite for any review of its own decision.

In a Rule 137 application, the aggrieved party is only concerned with whether an injustice was occasioned by the earlier decision of the Federal Court as in Adorna Properties v Boonsom Boonyanit or whether the process of the Court has been abused as disclosed in the Ayer Molek case.

The “limited grounds and very exceptional circumstances” has nothing to do with the application of Rule 137 at all. The conditions were manufactured by the bad judges of the Federal Court themselves in order to conceal the true intent or purpose of Rule 137 which is to avert an injustice or to prevent an abuse of the process of the court.

As usual the judges of the highest court in the land have shown their incompetence by missing the point altogether. The point is not “the limited grounds and very exceptional circumstances in which a review may be made.” The point, in truth and reality, is whether the earlier decision has occasioned an injustice or whether it has abused the process of the court.

In fact, these judges have missed the point when they considered the application of Rule 137 in Asean Security Paper Mills v Mitsui Sumitomo Insurance. It resulted in a grave injustice to the insurance companies who had to pay a huge amount of money to an unscrupulous arsonist who had made a claim on his company’s fire policy. You will find my critique of this decision in How to Judge the Judges, 2nd ed., pp xxxix to xliii.

But what is most appalling is that the Federal Court supports the unjust decision of PS Gill FCJ in Adorna Properties v Kobchai Sosothikul where PS Gill held that the unjust judgment of Eusoff Chin was not a suitable case for review. PS Gill said at p 507 of the report:

If the application of r 137 is made liberally the likely consequence would be chaos to our system of judicial hierarchy. There would then be nothing to prevent any aggrieved litigant from challenging any decision on the ground of “injustice” vide r 137.

Only an unjust, or a stupid, judge would ever say that injustice is not a ground to apply for a review of the decision of the Federal Court under Rule 137. And the judges of the Federal Court in Asean Security Paper Mills v Mitsui Sumitomo Insurance are as revolting for approving PS Gill in Adorna v Kobchai Sosothikul. This is how Chief Justice Hamid Mohamad puts it, p 382:

… where there is clear infringement of statutory law. In this respect, a clear example would be where the court has mistakenly applied a repealed law. But, where it is a matter of interpretation or application of the law, it is in my view not a suitable case for review. The judgment of this court in Adorna Properties Sdn Bhd v Kobchai Sosothikul [2005] 1 AMR 501 does throw some light in this respect. (I have supplied the emphasis)

It seems that bad judges are birds of a feather. They flock together and support each other.

An uphill struggle for Dato’ Seri Anwar Ibrahim in his fight for justice before an unjust judiciary

On Thursday 25 February 2010 the Federal Court unanimously decided not to review its January 29 decision barring Anwar Ibrahim from access to the documents “which would be tendered as part of the evidence for the prosecution” and “a written statement of facts favourable to the defence” which he is entitled to under section 51A(1)(b) and (c) of the Criminal Procedure Code. Such evidence would include CCTV footage, medical reports and witness statements from the prosecution.

Anwar Ibrahim made the application for the evidence to be delivered to him by the prosecution under section 51A (1) (b) and (c) of the Criminal Procedure Code. The Code was amended in 2006 to add this new provision: section 51A. It reads:

51A. (1) The prosecution shall before the commencement of the trial deliver to the accused the following documents:

(a) a copy of the information made under section 107 relating to the commission of the offence to which the accused is charged, if any;
(b) a copy of any document which would be tendered as part of the evidence for the prosecution; and
(c) a written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution. (The emphasis is supplied by me)

(2) Notwithstanding paragraph (c), the prosecution may not supply any fact favourable to the accused if its supply would be contrary to public interest.

As rational members of the general public you would say at once that the words in section 51A (1)(b) and (c) are clear and unambiguous. They mean exactly what they say. Without a doubt Anwar Ibrahim is entitled to the documentary evidence and the statement he is asking under section 51A (1).

Yet when Anwar Ibrahim applied for the documentary evidence and written statement of facts to be supplied to him under section 51A(1)(b) and (c) the application was rejected by the Court of Appeal (Hasan bin Lah, Abu Samah bin Nordin and Sulaiman bin Daud JJCA) and by the Federal Court (Arifin Zakaria CJ (M), Raus Sharif and Abdull Hamid Embong FCJJ) on the spurious ground that section 51 of the Criminal Procedure Code has restricted the application of section 51A to within the confines of section 51.

In other words, so say the Federal Court, section 51A has no meaning other than what case law has already determined on section 51. This is how the Federal Court puts it:

47. The Appellant cannot say at this stage that his defence is going to be so and so and that he needs to have access to such and such documents and materials to prepare for the defence. One settled principle attached to the application for discovery under s.51 CPC is that, at this pre-trial stage, a roving and fishing inquiry for evidence is not permissible. A catch all net cannot be cast. The Appellant is not entitled to know by what means the prosecution proposes to prove the facts underlying the charge he faces. This remains the prerogative of the prosecution. Mohd Azmi J, at the intermediate appeal in PP v Raymond Chia [1985] 2 MLJ 63, described this situation neatly in this manner – “The important thing is to keep a proper balance between the right of the accused to know exactly what the charge is against him so as to give him reasonable opportunity to prepare his defence, and the right of the prosecution not to disclose their evidence and the manner in which they are to prove their case before trial in order to sustain our adversary system of criminal justice. To what extent the right of the prosecution not to disclose documents specifically referred to in the charge before trial is qualified by the right of the accused to be given reasonable opportunity to prepare his defence is of crucial importance in the administration of criminal justice.”

48. In our view, the Appellant has thus not met the dual requirements of necessity and desirability laid down in s.51 CPC. We concur with the finding of the Court of Appeal on this issue.

The judgment of the Federal Court makes no sense at all. It is a non sequitur. It is gibberish to us all.

And more importantly, Anwar Ibrahim applied under section 51A of the CPC, not under section 51. Therefore, “the dual requirements of necessity and desirability laid down in s 51 CPC” does not apply to his application.

For one thing, section 51A came into force in 2006. The case law relied on by the prosecution on section 51 were those cases decided by the courts well before section 51A ever existed.

Furthermore, section 51A states, “The prosecution shall before the commencement of the trial deliver to the accused … a copy of any document which would be tendered as part of the evidence for the prosecution” and “a written statement of facts favourable to the defence of the accused.” There is no ambiguity in those words. They mean exactly what they say. Now compare this with the wording of section 51 of the CPC. It reads:

51. Summons to produce document or other things.

(1) Whenever any Court or police officer making a police investigation considers that the production of any property or document is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before that Court or officer, such Court may issue a summons or such officer a written order to the person in whose possession or power such property or document is believed to be requiring him to attend and produce it or to produce it at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce any property or document shall be deemed to have complied with the requisition if he causes the property or document to be produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed to affect the provisions of any law relating for the time being in force or to apply to any postal article, telegram or other document in the custody of the postal or telegraph authorities.

Anyone, unless he is an imbecile, can see immediately that section 51 and section 51A are as different as a chicken from a duck.

Since section 51A stands separate and apart from section 51, Anwar Ibrahim is, therefore, entitled to make his application solely under section 51A for all the documentary evidence before the commencement of his trial that would be tendered as part of the evidence for the prosecution. He is also entitled to a written statement of the facts favourable to his defence. Any denial of his statutory right by the Federal Court is an injustice to him. The decision of the Federal Court is unjust to Anwar Ibrahim because as a person who is the accused in a criminal prosecution he is entitled as of right, under the mandatory provisions of section 51A of the Criminal Procedure Code, to the documentary evidence “which would be tendered as part of the evidence for the prosecution” as well as to the “written statement of facts favourable to the defence of the accused”. Since Anwar Ibrahim has suffered injustice at the hands of both the Court of Appeal and the Federal Court for not applying the mandatory provisions of section 51A of the Criminal Procedure Code as they stand, The decision of the Federal Court in defiance of the clear provisions of section 51A is clearly an unjust decision.

On an application for review under Rule 137 the Federal Court has no option but to set aside the earlier decision of the Federal Court to prevent injustice. But in the instant case, the reviewing Federal Court has defied Rule 137 by not exercising the inherent powers of the Court to set aside the unjust decision of the earlier court and, as a result, has allowed an injustice to be perpetuated.

With judges such as these in the Malaysian judiciary where, to them, the principles of the law are not to be consonant with justice to be manipulated by them to uphold injustice, it is no wonder that the errant judges have forfeited the confidence of the people. The general public does not respect such judges anymore! They have put themselves beyond the pale. Just like pariahs.

Don’t you think they should be despised?

[Loyarburok Editorial Note: The articles Sodomy2: Why is AG’s Chambers refusing to release evidence? analyzes the actual merits of Anwar Ibrahim’s application; and How can you defend a criminal ah? considers the role of the lawyer, judge and prosecutor in the criminal justice system.]

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NH Chan, a much respected former Court of Appeal Judge, is a gavel of justice that has no hesitation in pounding on Federal Court judges with wooden desks for heads. Retired from the Judiciary to become the People’s Judge. Wrote the explosive “Judging The Judges”, now in its 2nd edition as “How To Judge The Judges”. Once famously hinted at a possible “case match” between lawyer and judge by remarking that “something is rotten in the state of Denmark” (see Ayer Molek Rubber Company Berhad & Ors v Insas Berhad & Anor [1995] 3 CLJ 359). We need more people like NH Chan. That is why you should buy PASOC and his book.

Posted on 9 March 2010. You can follow any responses to this entry through the RSS 2.0.

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9 Responses to Judges Can Fly – in the face of Rule 137 of the Federal Court Rules! (Part 2)

  1. dev sing

    can anyone tell me where to buy the book – How to Judge the Judges.

    • Hi Dev Singh, I know you can get a copy from Kinokuniya, KLCC (top floor, centre). They had loads of the second editions when they were released. I think they may have them in the bigger MPH or Border stores (not those small waste of time ones like at the Curve or Tropicana City Mall, as examples). Try browsing in the Legal section. All the best!

    • Ong Jo-Lene

      Dev, I enquired on the availability of the book with MPH Customer Service and on 2nd March their response was:

      Tittle: Judging the Judges.
      ISBN:97898352384
      Price:RM48.00
      Availability: Subang Parade – 1 copy left 03-55139677
      Alpha Angle – 1 copy left 03-41421246

      Customer Service Officer
      MPH Mid Valley Megamall
      Tel:03 29383818 (Customer Service Hotline)

      From my experience, Kinokuniya has more local titles/authors.

  2. Malaysian

    Practically every single case involving Anwar or Pakatan's Perak MB/Speaker have been decided by the same clowns – fittingly described by Chan as pariahs, impostors, imbecile, a bunch of idiots in high places, ignoramus in the law and unable to differentiate between a chicken and a duck.

    Honestly any judge, I mean any judge worth his salt, must have an elephant hide to take this sitting down.

    I am sure every single application made by Anwar (which will surely be dismissed by the high court judge) in Sodomy ll will go on appeal.

    And Anwar will lose every single appeal.

  3. Americk Sidhu

    I have a query.

    The provisions of s51(A)(1) of the CPC appear to be rather explicit. It seems it is mandatory for the prosecution to not only divulge, but actually deliver, to the accused, before the commcement of the trial, all those documents listed in the subsequent sub sections.

    What happens if the prosecution fail to do this?

    Does this mean they are restricted to producing only those documents actually disclosed and delivered and not those that have not been?

    Does this mean that if the prosecution attempt to enter a document into evidence during the trial, which has not been disclosed and delivered to the accused BEFORE the commencement of the trial, it necessarily becomes inadmissible?

    I am thinking along the lines of the provisions relating to alibi evidence having to be given at least 10 days before the commencement of a criminal trial otherwise it becomes inadmissible.

    The reasoning behind this alibi provision is that the prosecution have to be given the chance to investigate the alibi before the trial begins so as not to be taken by surprise when it is raised at the defence stage or to consider withdrawing the charges if this evidence is found to be true.

    Surely by the same token this would apply to the failure of the prosecution to deliver those documents in question to the accused in Anwar's case. They shouldn't be able to use them.

    If that is the case, perhaps it would be better for Anwar's legal team to just sit in court with arms folded waiting for these rather important documents to be produced by the prosecution and then object to their admissibility. Remember the trial has already COMMENCED so bridges have already been burned. This will inevitably result in further appeals by either side whatever the ruling and a whole new Pandora's box on the interpretation of s51(A) will be opened up. Looks like we may potentially be in store for a lot of legal fun and acrobatics. Any comments anyone?

  4. Layman

    I often wonder how these inept judges are viewed by their peers in the Commonwealth countries. Hope they are not the butt of jokes that the foreign judges share among themselves over drinks after dinner.

    I also wonder how our more righteous and conscientious judges are able to hold themselves among their peers in Commonwealth countries … must be really tough to hold your head high.

    I further wonder whether any of our Malaysian cases are ever quoted to support any judgement in any Commonwealth country and if so, quoted in a favourable manner.

    It pains the Malaysian laymen to see the present state of the judiciary but it must pain the righteous and conscientious among the judges and former judges more that their lifetime of work value and conviction are being brought to disrepute.

  5. mykantree

    "They have put themselves beyond the pale. Just like pariahs. Don’t you think they should be despised?"

    How succinct, and accurate, that statement about the condition of our current judiciary.

    Such rot has been in place for a long time, and for those who plotted and schemed its placement, this case is just one of many, and many more to come, where its objective is served. These judges are beyond shame and beyond redemption.

  6. In coffee shop talk, NH Chan has taken on the role, though unofficially, of the legendary Justice Pao in China! He has given us hope of correcting, or at least a better understanding of some wrong judgments, and hopefully, shaping future judgments by conscientious judges.

    We are very fortunate to have a retired Court of Appeal Judge who has the credentials (his former position was not reflective of his stature) and legal knowledge to be able to share his judgment of the judges' decisions with the public. Only a very confident person would dare make public his opinions on the present judiciary.