IN THE FEDERAL COURT OF MALAYSIA

(APPELLATE JURISDICTION)
CRIMINAL APPEAL NO. 05(L)-(72-74)-03/2019(W)

BETWEEN

PUBLIC PROSECUTOR … APPELLANT

AND

DATO’ SRI MOHD NAJIB BIN HJ ABD RAZAK

[In the Court of Appeal at Putrajaya

Between

Dato’ Sri Mohd Najib bin Hj Abd Razak … Appellant

And

Public Prosecutor … Respondent]

Coram: Richard Malanjum, CJ

1
 JUDGMENT OF THE COURT

INTRODUCTION

1. The Respondent is the immediate former Prime Minister of

Malaysia who is currently facing seven (7) charges before the

High Court, i.e. (i) one (1) charge under section 23 of the MACC

Act; (ii) three (3) charges under section 409 of the Penal Code

and (iii) three (3) charges for offences under section 4 of the Anti-

Money Laundering, Anti-Terrorism Financing and Proceeds of

Unlawful Activities Act 2001 (“the AMLATFA proceedings”).

2. The present appeals emanate from the decision of the Court of

Appeal granting an order of stay of proceedings and consequently

stopping the commencement of a trial against the Respondent at

the High Court pending the disposal of his appeals to this Court.

Dissatisfied with the decision of the Court of Appeal granting stay,

the Appellant filed the present appeals.

3. The three (3) appeals pending before this Court filed by the

Respondent relate to:

2
 a. his failure to secure a “gag order” restraining publication by

members of the public on matters pertaining to his

prosecution and trial;

b. his failure to secure documents other than those provided

under section 51A of the Criminal Procedure Code (“CPC”)

prior to the commencement of trial although 32 bundles

(7000 pages) of documents had already been served to him

by the prosecution in compliance with its statutory duty under

section 51A of the CPC; and

c. his failure to challenge the withdrawal by the Public

Prosecutor of a transfer certificate to transfer the case

against the Respondent to the High Court, which is the

agreed forum of both parties for this trial.

4. In essence, the Appellant relies on the following grounds of

appeal:

a. the test for granting a stay should be different for civil and

criminal trials. Staying a criminal trial should in law be

differently treated from staying a civil trial. The omission of

3
 power of the appellate courts in their criminal jurisdiction to

grant stay of proceedings was deliberate and the

parliamentary draftsperson had good reason to treat the

power in civil and criminal stays separately and distinctly.

b. precedents in civil cases relied by the Respondent before the

Court of Appeal like Kosma Palm Oil Mill Sdn. Bhd. & Ors

v. Koperasi Serbausaha Makmur Bhd. [2004] 1 MLJ 257

and Rowstead Systems Sdn. Bhd. v. Bumicrystal

Technology (M) Sdn. Bhd. [2005] 3 MLJ 132 must be

treated with caution in criminal proceedings.

c. with the coming into force of section 172B(4) to the CPC in

2012, the previous practice of delaying criminal trials for

many years is a thing of the past. If trials are statutorily

required to commence within three (3) months, granting a

stay will defeat this objective. Stay of a criminal trial should

only be granted on exceptional grounds: that is sparingly so

as not to defeat the purposive object of section 172B(4) of

the CPC for trials to start in three (3) months.

4
d. if this Court is of the view that special circumstances are the

principal consideration in determining an application for stay

of proceedings for criminal trials, the facts in this case

militates against the granting of a stay because no special

circumstances favoring the Respondent exist. On the

contrary, these factors indicate that a stay should be refused:

i. the offences for which the Respondent have been

charged are serious in nature;

ii. this case is one of public and national importance; it has

generated much public interest locally as well as

internationally;

iii. trial dates were fixed eight (8) months ago as opposed

to the three (3) months specified under section 172B(4);

iv. that no prejudice would be caused to the Respondent

because he will have an early opportunity to vindicate

himself.

5
BEFORE THE HIGH COURT

5. Three matters were brought before the High Court for

determination:

Case No: WA-44-115-07/2018

a. The Respondent had filed a Notice of Motion to prevent

the media and the public from discussing the merits of the

criminal charges against the Respondent until the

conclusion of proceedings.

b. An interim gag order had been put into effect at the

conclusion of an oral application after the initial four

charges were read on 4.7.2018. A subsequent formal

application was filed and fixed for hearing on 19.4.2018.

c. While the Respondent had no issue with accurate

reporting and articles that were fair, factually accurate, and

published contemporaneously in good faith, the motion is

for an order to prevent the publication of opinions on guilt

or innocence and character of the Respondent, as well as

those of the witnesses, and to prevent discussion of the

6
 merits predicting or even influencing the outcome of the

trial.

d. The Respondent sought the order to ensure that he would

receive a fair trial, and the order would be proportionate

and would not unfairly impinge upon the interest of free

speech.

e. The Appellant took the position that the Court did not have

jurisdiction to grant such an order and that this was not a

proper case for the Court to invoke its inherent powers.

There was no substantial risk of prejudice to the

administration of justice, and that there were many

remedies available to the Respondent to protect his

interests.

f. The Appellant contended that a gag order would infringe

Article 10 of the Federal Constitution, and that the order

would be in vain as it would potentially not bind the

international media. The Appellant argued that sub-judice

would be inapplicable due to the absence of jury trials in

this country.

7
g. The learned trial Judge found that the scope of the

application was plainly wide, and the Respondent’s

intention was to stop future discussion or publication that

would prejudice his right to a fair trial, the ramifications of

which would result in a contempt of court. The learned trial

Judge found that according to Article 126 of the Federal

Constitution the Courts did have the power to make orders

in the nature of prior restraint against prejudicial

discussions or publications affecting a fair trial. But the

test to be applied before such orders are made is to

consider whether the risk of prejudice to a fair trial is

serious or real or substantial. The learned trial Judge

referred to Syarikat Bekalan Air Selangor Sdn Bhd v

Fadha Nur Ahmad Kamar & Anor (2012) 7 MLJ 657.

h. The learned trial Judge found that the immediacy of the

risk or threat of the prejudice is especially pertinent when

one seeks a prohibition which involves a pre-emptive and

prior restraint order, as those who are in breach would

immediately be in contempt as opposed to situations

where in the absence of a gag order an action for contempt

8
 is only taken after the actual commissions of the

contemptuous act. There is a heavier burden of showing

the immediacy of the threat. The gag order must be shown

to be necessary to prevent an immediate threat of a real

and substantial risk of serious prejudice to the

administration of justice in the relevant proceedings, in the

absence of alternative measures, and is proportionate in

reference to the competing interests of free speech and

risk of prejudice to a fair trial.

i. The learned trial Judge found that since there are no jury

trials in Malaysia and that cases are tried before a single

judge who is constitutionally duty-bound to consider only

the evidence in Court and disregard all extraneous

matters, the possibility of prejudice from unwarranted

publications is unmistakably remote. This is not to say

judges are infallible, but it bears emphasis that judges in

discharging their judicial responsibilities must only

consider the facts and the law applicable to the particular

case and cannot succumb to public opinion.

9
j. The learned trial Judge found that the absence of jury trials

meant that the scope for the application of the sub-judice

rule is decidedly more circumscribed in the Malaysian

justice system. As for the unwarranted publicity

influencing witnesses, they would be subject to

examination in chief, cross-examination, and re-

examination to determine their reliability, credibility or lack

thereof. The decisions of the judges would also be subject

to appeals.

k. Some accusatory articles cited by the Respondent had

been in the public sphere since 2014, negating the

element of immediacy. The Respondent had also given

interviews attempting to answer the allegations, and

probably attracted far greater public and media interest

than the less-than-current allegations that have surfaced

for a number of years. This also suggests a balanced

reporting of the rival views.

l. Legal remedies are available to the Respondent, making

the gag order unnecessary as contempt laws and

defamation laws can be resorted to. The gag order is also

10
 difficult to sustain as it is targeted to the world at large, and

the application proposes a scope significantly wider that

what has been affirmed in the accompanying affidavit in

support.

Thus, the learned High Court Judge dismissed the application.

Case No: WA-44-160-10/2018

a. The Appellant filed a Notice of Motion for pre-trial

production of statements and documents given by

potential witnesses to the Malaysian Anti-Corruption

Commission (MACC) in the course of investigations.

b. The Appellant had delivered all documents under section

51A of the CPC, mostly covering the documents sought by

the Respondent in this Notice of Motion, save for paras

1(g), (h), (i), (j), and 2(b)(i). These mainly pertain to names,

statements, information and documents obtained under

Section 30(1)(a), (b), (c) and 30(8) of the MACC Act and

Sections 32(a), (b) and (c) of AMLATFA. The Respondent

also sought for a list of witnesses the Appellant intends to

call and their proposed order.

11
c. The thrust of the application is on the non-obstante

clauses (latin: notwithstanding) whereby, these

statements, documents etc, such as those obtained under

section 30(9) of the MACC Act and Section 40 of

AMLATFA, are automatically admissible at the behest of

either party. It is the Respondent’s contention that due to

this very nature, they ought to be supplied to the

Respondent before commencement of trial, and that this is

also supported by section 62 of the MACC Act, as well as

the role of the Court.

d. The Appellant’s position is that the application ought to be

dismissed as the Respondent has misconstrued section

30(9) of the MACC Act and section 40 of AMLATFA to

exclude all other legislation/provisions, particularly the

Evidence Act 1950. The non-obstante clauses must be

read subject to the rules of privilege and prohibition on the

grounds of public policy.

e. The learned trial Judge made reference to Suruhanjaya

Sekuriti v. Datuk Ishak Ismail (2016) 3 MLJ 733 that held

12
 that where statements taken in the course of investigations

are to be automatically admissible, they must be subject to

provisions of the Evidence Act, which were made to codify

rules pertaining to law of privilege and public policy against

disclosure of investigation statements. While the

Respondent argued that the provisions of Datuk Ishak’s

case did not involve a non-obstante clause, the learned

trial Judge further referred to Ho Tack Sien & Ors v. Rotta

Research Laboratorium SPA & Anor (Registrar of

Trade Marks, Intervener) (2015) 4 MLJ 166 and held that

the Respondent had not clearly made out a case as to the

extent to which the legislature had intended to give the

relevant non-obstante clauses overriding effect over all

other rules and legal provisions.

f. The learned trial Judge held that the admissibility of these

documents did not equate to the right to inspect. The

Respondent cited various authorities from Commonwealth

jurisdictions, and even beyond, and propagated the

equality of arms principle by claiming the Respondent was

being put at a disadvantage if not afforded the opportunity

to view the documents etc. However, the learned trial

13
 Judge was of the view that the Respondent did not

demonstrate how he was being discriminated against, as

compared to the other persons who are similarly under

investigation by the MACC. While other countries have

had advancements in adhering to the equal arms principle,

Malaysia too has seen fundamental progress with the

introduction of section 51A of the CPC. Any further

development must await legislative intervention, and

cannot be achieved by mere and purported prismatic

construction of constitutional prescriptions.

g. The learned trial Judge found that other than section 51A

of CPC and section 62 of the MACC Act, no other law or

clear legislative prescriptions exist demanding disclosure,

and no automatic disclosure can be founded on non-

obstante clauses. There has been no compelling legal

analysis that could support the quantum leap from

automatic admissibility to right to inspection. The learned

trial Judge made reference to PP v. Dato’ Seri Anwar

Ibrahim and another appeal (2010) 4 CLJ 331.

14
Hence the Respondent’s application was dismissed as he had

failed to establish a case for delivery of the information and

documents applied for.

Case No. W-05-72-02/2019

a. The High Court had fixed the trial of the seven charges on

12.2.2019 and to continue on 29.3.2019.

b. On both dates of 4.7.2018 and 8.8.2018, the charges were

initially filed at the Sessions Court but they were

immediately transferred on the same dates to High Court

pursuant to the certificate issued by Public Prosecutor

under section 418A of CPC and section 60 of the MACC

Act.

c. On 28.1.2019 another three (3) additional charges under

AMLATFA were read out to the accused. The prosecution

asked for these three new charges to be jointly tried with

existing seven charges. Counsel for the Respondent

asked the High Court to allow the defence a few days to

consider. The Court allowed the request and fixed hearing

15
 for submission of the parties on the proposed joint trial on

7.2.2019.

d. On 7.2.2019, the Appellant informed the court that a ruling

on the issue of joinder would not be necessary as he was

proposing not to proceed on the three new charges and

asked for the Respondent be granted a DNAA (Discharge

Not Amounting to Acquittal), since the prosecution would

file these charges before the Sessions Court instead. The

High Court then ordered the DNAA of the Respondent on

the three new charges.

e. The Appellant also wished to withdraw the transfer

certificates that had been previously issued under section

418A of the CPC and section 60 of the MACC Act to

transfer the seven charges to the High Court.

f. The withdrawal was stated by the Appellant to be done out

of abundance of caution in order to avoid any possible

constitutional argument that the transfer effected by the

Appellant under section 418A of the CPC and section 60

of the MACC was a nullity in view of the decisions of this

16
 Court in Semenyih Jaya Sdn. Bhd. v. Pentadbir Tanah

Hulu Langat [2017] 3 MLJ 561 and Indira Ghandi Mutho

v. Pengarah Jabatan Agama Islam Perak [2018] 1 MLJ

545.

g. The Appellant informed the High Court that upon

withdrawal, the cases on the seven charges would be

reverted to the Sessions Court where they originated. The

prosecution then immediately applied under section 417 to

have the cases transferred back to the High Court.

h. Alternatively, the Appellant suggested the High Court to

act suo moto (on its own motion) under section 417(2) of

the CPC to order the transfer of the cases from the

Sessions Court back to High Court. The Appellant

highlighted that these procedural steps would be

necessary to prevent any unwarranted postponement of

the trial.

i. The learned trial Judge then ordered the transfer of the

seven charges from the Sessions Court back to the High

Court in accordance with section 417(1)(cc) of the CPC.

17
6. It is to be noted that following the dismissal of these three criminal

applications the Respondent made an oral application for a stay

of proceedings that were to commence on 12.02.2019 to

29.03.2019, pending the appeals against the dismissal of the

same. The learned High Court judge dismissed the application for

a stay of proceedings on the ground that the mere prospect of the

trial being a nullity could not be construed as special

circumstances to warrant a stay of proceedings.

BEFORE THE COURT OF APPEAL

7. Aggrieved by the decision of the High Court, the Respondent

appealed to the Court of Appeal where all the appeals were

heard together. Prior to the hearing to the appeals the

Respondent applied for a stay of proceedings under section 44

of the Courts of Judicature Act 1964 (“CJA”). A stay of

proceedings was duly allowed by the Court of Appeal pending

the disposal of the appeals proper. On 21.03.2019 the Court of

Appeal dismissed the Respondent’s appeals and on oral

application by the Respondent granted an order to stay the

proceedings pending the disposal of the Respondent’s appeals

to this Court.

18
8. The Court of Appeal opined that there is no distinction between

civil and criminal proceedings and that what is relevant is

whether there are special circumstances. From the facts, the

Court of Appeal held that the prospect of the charges being

declared a nullity was there. Moreover the present appeals

involved novel issues namely the withdrawal of the section 418A

certificate, the pre-emptive gag order and discovery of

documents based on non-obstante clauses. The Court of Appeal

also found that there were no delaying tactics by the

Respondent.

ISSUES BEFORE THIS COURT

9. The question before us is whether the Court of Appeal was

correct in allowing the Respondent’s application for a stay of the

criminal proceedings.

THE APPELLANT’S SUBMISSION

10. It is the Appellant’s position that in respect of the present

appeals, which are all of an interlocutory nature:

19
 i. concurrent findings by both the courts below have been

made against the accused and that the appeals are

frivolous and doomed to fail;

ii. a distinction should be made between a stay of execution

that is governed by section 311 of the CPC and a stay of

proceedings, on which the CPC is silent. This difference

must be taken to have been a deliberate act by the

parliamentary draftsperson to highlight the distinction

between the both particularly when read together with

section 172B(4) CPC which provides that criminal trials

should start no later than three months after an accused

has been charged. If trials are statutorily required to

commence within three months after an accused has been

charged, then granting a stay would defeat this objective.

iii. Furthermore, under the Courts of Judicature Act 1964 (Act

91), both appellate courts have jurisdiction to grant stay of

proceedings and stay of execution in civil matters but in

criminal matters the appellate courts only have power to

grant a stay post-conviction, that is, at the conclusion of

20
 trial. Again this omission by the parliamentary draftsperson

must been taken to have been intentional.

iv. Notwithstanding an absence of statutory power to order

the stay of a criminal trial, the court may still exercise

power to order a stay of criminal proceedings by way of its

inherent jurisdiction. However, this absence of statutory

power to stay criminal trials must mean that:

(a) the test for granting a stay should be different for civil

and criminal trials;

(b) precedents laid down in civil cases must be treated

with caution in criminal matters; and

(c) a stay of a criminal trial should only be granted in

exceptional circumstances (as per the Court of

Appeal decision in Dato’ Seri Anwar Ibrahim v

Public Prosecutor [2011] 5 MLJ 535).

v. If the civil law test of “special circumstances” is applicable

in a criminal law context, it is the possibility of the appeal

21
 being rendered nugatory that needs protection, and not the

proceedings in the court below. On the facts, the appeals

would not be rendered nugatory if a stay of the trial is

refused because the accused would still be able to

proceed with the hearing of the appeals currently pending

before this Court.

vi. In Dato’ Seri Anwar Ibrahim (supra) a stay was refused

for a charge of sodomy. For the present appeals, no

“special circumstances” favouring the accused exist as:

(a) the offences are serious in nature;

(b) the case is one of public and national importance;

(c) it has generated much public interest locally as well

as internationally;

(d) trial dates were fixed eight (8) months ago (as

opposed to the three (3) months specified under

section 172B(4); and

(e) no prejudice will be caused to the accused because

he will have an early opportunity to vindicate himself.

22
THE RESPONDENT’S SUBMISSIONS

11. The Respondent on the other hand contends that:

(i) The Court of Appeal in issuing the “interim order” was fully

empowered under sections 44, 79 and 80 of the CJA to

stay of proceedings;

(ii) Sections 44 and 80 CJA fall within the “general” provisions

applicable to both the civil and criminal jurisdiction of the

Court of Appeal and Federal Court;

(iii) Cases such as Silver Concept Sdn Bhd v Brisdale Rasa

Development Sdn Bhd (formerly known as Ekspedisi

Ria Sdn Bhd) [2002] 4 MLJ 113, Choong Wooi Leong &

Ors v Lebbey Sdn Bhd (No 2) [1998] 2 MLJ 661, Takako

Sakao (f) v Ng Pek Yuen (f) & Anor (No. 3) [2010] 2 MLJ

141, and Rowstead Systems Sdn Bhd v Bumicrystal

Technology (M) Sdn Bhd [2005] 3 MLJ 132 affirm the

jurisdiction of the Court of Appeal to make interim orders

under section 44 or 80 of the CJA in the nature of stay of

proceedings in order to “prevent prejudice to the claims of

23
 parties” pending the hearing of an appeal and to “preserve

the integrity of pending appeals”;

(iv) The court retains inherent jurisdiction to make any orders

to prevent prejudice to an accused person. The CPC is

limited to the procedure to try offences and is not an

exhaustive directory of the court’s powers. As part of the

inherent powers of the court it may do all things reasonably

necessary to ensure fair administration of justice and to

safeguard an accused person from oppression or

prejudice;

(v) The case of Dato’ Seri Anwar Ibrahim (supra) adopted

the special circumstances approach and the nugatory

approach;

(vi) The court should not consider the merits of the case in an

application for stay;

(vii) The prospect that the trial is rendered a nullity amounts to

special circumstances. For the present appeals, the

potential nullity of proceedings arises from the following:

24
(a) If the Federal Court agrees with the Respondent on

the issue of natural justice, the entire proceedings

would be nullified (see: PP v Ishak Hj Shaari [2003]

6 CLJ 843). If the proceedings are subsequently

nullified, it would waste the time and effort of all

persons involved. Besides, a retrial in the event of

nullity would be prejudicial to the Respondent as the

witnesses who are re-examined may change their

evidence and the Prosecution may get a second bite

of the cherry in the conduct of the trial;

(b) If the Public Prosecutor has no power to withdraw

the section 418A certificate and had acted

unconstitutionally when he did so, the proceedings

would be vitiated;

(c) If the matter was never “pending” before the

Sessions Court as no plea was taken therein, the

High Court could not have exercised the powers

under section 417(2) of the CPC (see: PP v Dato’

25
 Yap Peng [1987] 2 MLJ 311 SC and section 417(2)

CPC);

(d) The High Court judge had allegedly exercised his

powers suo muto to transfer the matter back to

himself, thereby bypassing the registry and the

powers of the Chief Judge of Malaya under section

20 of the CJA to distribute business;

(e) The Appellant’s reliance on R v Christian [2007] 2

AC 400 PC is distinguishable in fact and law

because in that case the application for a stay was a

final remedy sought by the accused in the

substantive appeal on the grounds of an alleged

abuse of process while the present appeals are in

respect of an interlocutory application for a stay of

proceedings pending appeal;

(f) The Dato’ Seri Anwar Ibrahim case (supra) which

held that “delaying tactics engineered by the

appellant should be a factor in refusing to grant the

stay” is distinguishable in fact as the Court of Appeal

26
 had on two occasions held that there was no

evidence of any delay tactics by the Respondent;

and

(g) The Court of Appeal’s ruling in granting stay of

proceedings is consistent with the decision of this

Court in Subashini a/p Rajasingam v Saravanan

a/l Thangathotray [2008] 2 MLJ 147 as its purpose

is to maintain the status quo of an earlier interim

order pending an appeal on a matter that has been

dismissed.

DECISION OF THIS COURT

12. As alluded to above, the only issue in the present appeals is

confined to the decision of the Court of Appeal granting an order

to stay the commencement of a criminal trial pending disposal of

three appeals brought by the defence to this Court.

13. During the course of oral submissions before us, the

Respondent confirmed that the Court of Appeal had allowed a

stay of proceedings based on sections 44, 79 and 80 of the CJA

alone.

27
 Section 44(1) of the CJA reads:

“In any proceeding pending before the Court of Appeal any

direction incidental thereto not involving the decision of the

proceeding, any interim order to prevent prejudice to the

claims of parties pending the hearing of the proceeding,

any order for security for costs, and for the dismissal of a

proceeding for default in furnishing security so ordered

may at any time be made by a Judge of the Court of

Appeal.” (Emphasis added).

14. Next, section 79 of the CJA states that:

“Whenever application may be made either to the Court of

Appeal or to the Federal Court, it shall be made in the first

instance to the Court of Appeal.” (Emphasis added).

15. While section 80(1) of the CJA provides that:

“In any proceeding pending before the Federal Court any

direction incidental thereto not involving the decision of the

28
 proceeding, any interim order to prevent prejudice to the

claims of parties pending the hearing of the proceeding,

any order for security for costs, and for the dismissal of a

proceeding for default in furnishing security so ordered

may at any time be made by a Judge of the Federal Court.”

(Emphasis added).

16. We have scrutinised sections 44(1) and 80(1) of the CJA. It is

noteworthy that both speak of “pending proceedings” as a pre-

requisite before an interim order can be made by the relevant

court. It is to be noted that when the stay application was made

by the Respondent, the Court of Appeal had already dismissed

the three appeals filed by the Respondent. In the circumstances,

there was no longer any “pending” proceeding before the Court

of Appeal enabling it to exercise its jurisdiction to grant a stay of

proceedings under section 44(1) of the CJA.

17. Similarly, for the Respondent to avail himself of section 80(1)

CJA, there must also be a “proceeding pending” before the

Federal Court. When the Respondent’s appeals were dismissed

by the Court of Appeal, there was no pending proceeding before

the Federal Court at that stage. There was only an undertaking

29
by the Respondent that they would be filing an appeal. As such

section 79 was not relevant. For those reasons sections 44(1)

and 80(1) of the CJA do not empower the Court of Appeal to

grant a stay of proceedings in light of the factual matrix of the

present appeals. Since the Respondent’s reliance on sections

44(1) and 80(1) fails as alluded to above it follows that section

79 of the CJA is similarly of no assistance to him. Going from the

above, the Court of Appeal had no jurisdiction to entertain the

Respondent’s application for a stay of proceedings upon the

dismissal of the three appeals. The grant of the stay was

therefore made without jurisdiction and thus a nullity. It is

therefore incumbent on this Court to revise such order for being

a nullity. The enabling provisions are section 86 of the CJA read

together with section 87 of the same which confer upon this

Court a general supervisory and revisionary power identical to

the High Court’s to correct mistakes committed by courts

subordinate to it in respect of any criminal matter (see: PP v

Dato’ Seri Anwar Ibrahim [2014] 5 CLJ 805 FC (at paragraph

[17]). On this ground alone this Court is seised with the

necessary jurisdiction to exercise its revisionary power to rectify

the grave error committed by the Court of Appeal.

30
18. More crucially and independently of the above, we shall now

address the applicable test in the grant of stay in criminal

proceedings. In his application before the Court of Appeal, the

Respondent relied on the decision of this Court in Kosma Palm

Oil Mill Sdn Bhd v Koperasi Serbaguna Makmur Bhd [2004]

1 MLJ 257. In Kosma Palm Oil, this Court held that the test

applicable to the grant of a “stay of execution” is whether there

are special circumstances, the most common of which is

whether the appeal would be rendered nugatory if a stay of

execution is not granted (see paragraphs [7] – [10]).

19. Kosma Palm Oil represents the legal position governing stays

of execution for civil appeals (see: Tan, Kee Heng, Civil and

Criminal Appeals in Malaysia, 3rd ed., (Sweet & Maxwell,

2016) at Chapter 7.3). The relevant question before us now is

whether it applies with equal force to a stay of criminal

proceedings at the trial court when there are pending appeals in

respect of interlocutory applications before this Court.

20. On this point, we note that there is only one reported decision

from the Court of Appeal affirming the proposition that Kosma is

applicable. In Dato’ Seri Anwar bin Ibrahim v Public

31
 Prosecutor [2011] 5 MLJ 535, Abdul Malik Ishak JCA expressly

endorsed the dual tests of “special circumstances” and

“nugatoriness” propounded in Kosma (at paragraph [81]) as

being equally relevant in an application to stay a criminal

proceeding. His Lordship further held that the background

scenario, seriousness of the offence which the accused is

currently facing, and the conduct of the defence in the trial (i.e.

the delaying tactics employed by the defence) are all relevant

factors to be considered by the court in deciding whether a stay

of proceedings in a criminal trial should be granted (at

paragraphs [88] – [90]).

21. The position in Australia is that generally jurisdiction of the courts

to stay civil or criminal proceedings pending appeal is an

exercise of the inherent jurisdiction of the courts (Jennings

Constructions Ltd v Burgundy Royale Investments Pty Ltd

(1986) 161 CLR 681 at 684; Fuller & Cummings v Director of

Public Prosecutions (Cth) (1994) 68 ALJR 611). Being an

extraordinary jurisdiction, exceptional circumstances must be

shown before its exercise is warranted. Keeping matters in

status quo until the litigation is finally resolved is not the purpose

for which the inherent jurisdiction is invoked. Something quite

32
 exceptional must be shown before that jurisdiction is exercised

(Edelsten v Ward (No.2) (1988) 63 ALJR 346).

22. The courts apply a more stringent test in considering stay of

criminal proceedings. It will not normally be granted pending an

interlocutory appeal in any criminal trial. It is only in very

exceptional or unusual circumstances that a stay order is

granted (McNamara v R (1978) 20 ALR 98; R v Iorlano (1983)

151 CLR 678 at 680; De Simone v The Queen [2012]

HCATrans 86). In Beljajev v Director of Public Prosecutions

(1991) 65 ALJR 400, the accused was committed to prison to

await his trial on various counts involving narcotic drugs. He

applied for a stay of that order pending appeal. Brennan J held

at paragraph [10] that preservation of a status quo alone does

not warrant the exercise of the extraordinary jurisdiction to grant

a stay. The jurisdiction can be exercised only in extraordinary

circumstances, particularly in the case of interlocutory

applications in a criminal trial.

23. The reluctance of the court granting a stay of criminal proceeding

is primarily based on policy consideration. It is undesirable that

the criminal process be interrupted or fragmented by

33
 interlocutory proceedings (Sankey v Whitlam (1978) 142 CLR

1 at 25-26, 82-83; The Queen v Iorlano (1993) 151 CLR 678 at

680; Clyne v The Director of Public Prosecutions for the

Commonwealth of Australia (1984) 154 CLR 640 at 643; Re

Rozenes; Ex parte Burd (1994) 120 ALR 193 at 194; Joosse

v Australian Securities and Investment Commission (1999)

73 ALJR 232 at 234; Gedeon v Commissioner of New South

Wales Crime Commission (2008) 236 CLR 120 at [23]; R v WR

[2009] ACTSC 93 at [21]; The Queen v AI, AD and JR [2013]

ACTCA 16 at [19]).

24. In Seymour v AG (Cth) (1984) 4 FCR 498, Jenkinson J

explained the underlying policy consideration having regard to

the prominence of public interest in the expeditious resolution of

accusations of crime. He said this: ‘the longer such an

accusation remains unresolved the greater the risk of serious

harm to the community. Those risks are multifarious: the fading

of witness’s recollections, the diminution of public confidence in

the administration of the criminal law, the prolonging of fears and

hatred which the resolution of criminal charges tends to allay,

and uncertainty as to the course which the life of the accused is

to take, and not infrequently uncertainty as to the courses of

34
 other lives, are perhaps the more obvious and the most

common. Those considerations of public interest are of great

weight …’ ((1984) 4 FCR 498 at 501).

25. It has also been reasoned that “Crown appeals could easily lead

to oppression and the defendant’s rights are best vindicated by

appeal after conviction”. (See: R v Garrett (1988) 49 SASR 435

at 451; see further Brennan J in Beljajev v DPP (1991) 173 CLR

28 at 32). The caution about the undesirability of fragmentation

of criminal process would be more pronounced where a hearing

of proceedings has actually commenced (Khalil v His Honour,

Magistrate Johnson and Anor [2008] NSWSC 1092 at [117]).

Nevertheless, the general position remains that the

undesirability of fragmenting the criminal process is not confined

to any particular part of the criminal process, but rather to the

process as a whole: “it is not the point that in this case the trial

had not commenced or had only just commenced at the time the

application for an adjournment to pursue a remedy in this Court

was made. The principle would make little sense if it applied only

to the particular phase of the criminal process which was

immediately threatened by being interrupted. Any interference

with any part of the process for other than reasons as grave as

35
 those acknowledged in the cases referred to is antithetical to the

proper and just disposition of criminal cases.” (Atlas v D.P.P.

[2001] VSC 209 at paragraph [26]).

26. Besides, the Australian courts have taken the view that even if

the matters being complained of in the interlocutory appeal do

take place and the accused is convicted, “should the accused

reach the stage (after conviction upon full trial) where he wishes

to contest on appeal the matters which he now raises, it would

then be possible to consider them in a factual setting – a more

desirable course than considering them in the abstract” (see: Re

Rozenes; Ex parte Burd (1994) 120 ALR 193 at 195). This is

so even if the issuing of the interlocutory appeal is not opposed

by the prosecution or in fact supported by both the prosecution

and the defence, for instance to seek a definitive ruling of the

appellate or superior court on certain novel issues: “many

questions arise before and in the course of a trial in respect of

which a trial judge would be much assisted by a definitive ruling

of this Court or the Court of Appeal. However, the proper

application of the principles of criminal procedure means that

trial judges are required to make rulings on evidence or

determine points of procedure as and when they arise either

36
 prior to or in the course of criminal trials no matter how novel or

difficult the points raised might be. The appeal system exists to

ensure that an error made by a trial judge which leads to the

possibility of a miscarriage of justice in the result can be

corrected in the Court of Appeal.’ (Atlas v D.P.P. [2001] VSC

209 at [23]).

27. Perhaps most importantly, the Australian courts have taken the

stance that the fact that an accused will be put to the expense of

a trial is irrelevant in considering whether proceedings should be

stayed (Re Rozenes; Ex parte Burd (1994) 120 ALR 193 at

195): “it is undeniable that, if the applicants were ultimately to

succeed upon appeal on the grounds which they now raise,

they would nevertheless have suffered the expense and strain

of a criminal trial. That, however, is a circumstance which is

always present when it is sought to contest the ruling of a trial

judge and is not of itself, in my view, an exceptional

circumstance” (followed in R v Chardon [2016] QCA 50 at

paragraphs [27]-[28]).

28. Likewise, the courts in Australia generally show disinclination to

allow other forms of collateral challenge in parallel proceedings

37
 such as an application for a declaration or other form of judicial

review with similar relief in the nature of certiorari, be it

commenced in the same court or another civil or criminal court,

which has the net effect of staying the criminal proceedings or

would interfere with or impinge directly upon the normal course

of proceedings in a criminal trial (Sankey v Whitlam (1978) 142

CLR 1 at [14]; R v Iorlano (1983) 151 CLR 678 at 680; Yates v

Wilson (1989) 18 CLR 338 at 339; Attorney-General v Smith

(1985) 39 SASR 311 at 313; Jarrett v Seymour (1993) 119 ALR

46). In those cases, an important consideration is the need to

observe and not fragment the ordinary, and orderly, process of

a trial. That consideration would apply with particular force

“where proceedings are in charge of a judge who at this very

moment is beginning the trial”: Anderson v Attorney-General

of New South Wales (1987) 10 NSWLR 198 at page 200

(followed in Hinch v County Court of Victoria [2009] VSC 548

at paragraph [46]).

29. In the UK, the power of the court to stay a criminal proceeding is

inherent in nature. (See: Re Wickham [1887] 35 Ch D 272 at

page 280). Historically, a stay of proceedings “had the draconian

effect of bringing proceedings to a conclusion, unless it was of

38
the conditional variety. This has, however, been superseded by

contemporary practice”. (See: R (on the application of AO &

AM) v Secretary of State for the Home Department (stay of

proceedings – principles) [2017] UKUT 168 (IAC) at

paragraph [20]). A stay of proceedings is different from a stay of

execution (AB (Sudan) v Secretary of State for the Home

Department [2013] EWCA Civ 921 at paragraph [25]). In the

case of a stay of proceeding, the governing principles formulated

by the Court of Appeal in AB (Sudan) (at paragraph [26]), albeit

discussed in the immigration and asylum context, are that:

“A stay on proceedings may be associated with the grant

of interim relief, but it is essentially different. In determining

whether proceedings should be stayed, the concerns of

the court itself have to be taken into the balance. Decisions

as to listing, and decisions as to which cases are to be

heard at any particular time are matters for the court itself

and no party to a claim can demand that it be heard before

or after any other claim. The court will want to deal with

claims before it as expeditiously as is consistent with

justice. But, on the other hand, it is unlikely to want to

waste time and other valuable resources on an exercise

39
that may well be pointless if conducted too soon. If,

therefore, the court is shown that there will be, or there is

likely to be, some event in the foreseeable future that may

have an impact on the way a claim is decided, it may

decide to stay proceedings in the claim until after that

event. It may be more inclined to grant a stay if there is

agreement between the parties. It may not need to grant a

stay if the pattern of work shows that the matter will not

come on for trial before the event in question. The starting

point must, however, be that a claimant seeks expeditious

determination of his claim and that delay will be ordered

only if good reason is shown.”

In cases where a request for a stay on proceedings is

coupled, expressly or by necessary implication, with a

request for interim relief, the court will need to take into

account the factors relevant to both types of decision, and

may need to take into account a third: that by securing

interim relief and a stay, the applicant may be asking the

court to use its powers to give him, for as long as he can

secure it, a benefit that he may not obtain at the trial.”

40
30. In short, the principles distilled from the English Court of Appeal

decision in AB (Sudan) are these:

(a) every claimant is entitled to expect expeditious judicial

adjudication. The strength of this expectation will be

calibrated according to the individual litigation equation;

(b) the judicially imposed delay flowing from a stay order

requires good reason;

(c) judicial choreography whereby one case is frozen awaiting

the outcome of another is justified for example where the

assessment is that the latter will have a critical impact upon

the former;

(d) great caution is to be exercised where a stay application is

founded on the contention that the outcome of another

case will significantly influence the outcome of the instant

case. (See: R (on the application of AO & AM) at

paragraph [23]); and

41
 (e) a stay application will require especially compelling

justification in a case qualifying for urgent judicial decision.

(See: R (on the application of AO & AM) at paragraph

[24]).

31. While it is true that the above criteria were discussed in the

context of immigration and asylum cases, we do not find any

reason to decline adopting and applying the same to criminal

proceedings.

DETERMINATIVE PRINCIPLES

32. In summary, in considering an application for stay of criminal

proceedings when commencement of the trial is imminent or

continuing in the court of first instance, the determinative

principles to be derived from the above cases are as follows:

1) There is a strong public interest in the prosecution of crime

and in ensuring that those charged with serious criminal

offences are tried (R v Crawley and others [2014] EWCA

Crim 1028 at paragraph [18]).

42
2) It is undesirable that the criminal process be interrupted or

fragmented by interlocutory proceedings. The

considerations of public interest are of great weight leaning

in favour of expeditious resolution of accusations of crime.

3) The undesirability of fragmenting the criminal process is

not confined to any particular part of the criminal

process, but rather to the process as a whole. Any

interference with any part of the process is antithetical to

the proper and just disposition of criminal cases. The

caution about the undesirability of fragmentation of

criminal process would be more pronounced where a

hearing of proceedings has actually commenced.

4) A stay of proceedings application will require especially

compelling justification in a case qualifying for urgent

judicial decision. For instance, it is important that anyone

charged with serious criminal offences be brought to trial

expeditiously. Public interest would not be served by

allowing the defence to request for a delay. An accused of

serious criminal offences who is not guilty should have the

opportunity of clearing his name without excessive delay

43
 (Attorney General’s Reference No. 2 of 2001 [2003]

UKHL 68 at [16]).

5) A stay of proceedings will not normally be granted pending

an interlocutory appeal in a criminal trial. It is only in very

exceptional or unusual circumstances that a stay order is

granted. This is so even if the issuing of the interlocutory

appeal is not opposed by the prosecution or in fact

supported by both the prosecution and the defence.

6) The accused’s rights over preliminary or interlocutory

rulings made by the trial judge are best vindicated by

appeal after conviction, if any. It is generally more

desirable to consider preliminary or interlocutory rulings

made by the trial judge in appeal after conviction upon full

trial with the benefit of a concrete factual setting than

considering them in the abstract during interlocutory

appeal.

7) The fact that an accused will be put to the expense of a

trial is irrelevant and would not qualify as “exceptional

44
 circumstances” to justify a stay of a criminal trial pending

resolution of an appeal.

8) The courts should exercise great caution in allowing other

forms of collateral challenge, in parallel proceedings such

as an application for a declaration or other form of judicial

review with similar relief in the nature of certiorari, be it

commenced in the same court or another civil or criminal

court, which have the net effect of staying the criminal

proceedings or would interfere with or impinge directly

upon the normal course of proceedings in a criminal trial.

33. Now, the accused is a public figure who stands charged with

offences which cannot by any means be described as trivial,

allegedly committed while he was holding office as Prime

Minister. Public interest, and indeed his personal interest, dictate

that the trials against him should be commenced expeditiously

without any unreasonable delay as it is at the denouement of the

trial that the court is best-equipped to determine his guilt or

otherwise based on factual evidence instead of speculative

arguments. Furthermore, he has not established to our

satisfaction that his application is so unusual or exceptional that

45
 it falls within that class of cases which would justify the grant of

a stay. As stated above, a stay of criminal proceedings will only

be granted in the rarest of cases and the fact that the

proceedings may be rendered a nullity is not a special

circumstance. In the context of an application for a stay of

proceedings, it is also immaterial that the accused is put to the

expense of a trial even if he is subsequently vindicated on

appeal.

34. We have not overlooked the Respondent’s assertion that the

appeal by the Appellant was incompetent since there was no

appeal record and no petition filed as required by the CJA. This

is a non-issue because for criminal proceedings, the record of

appeal including the grounds of judgment of the lower court is

prepared by the court below (see: Rule 91 of the Rules of the

Federal Court 1995). And without the grounds of judgment, the

Appellant cannot proceed to file the petition of appeal (see: Rule

95 of the Rules of the Federal Court 1995). Accordingly, we do

not think that the Appellant is at fault and in any case the

incomplete appeal papers are no impediment to us hearing the

appeal proper as we are exercising our revisionary powers. At

any rate, the stay order granted by the Court of Appeal cannot

46
 be sustained in the face of our elucidation on the correct test to

be applied for a stay of criminal proceedings.

35. For the foregoing reasons we set aside the stay order of the

criminal trial granted by the Court of Appeal. Similarly the

Respondent’s oral application for a stay of proceedings before

us is dismissed in the absence of any “exceptional or unusual

circumstances”. The matter was therefore remitted forthwith to

the High Court to proceed with the criminal trial.

Signed.
(RICHARD MALANJUM)
Chief Justice

Date: 10/04/2019

Counsel for the Appellants

Tommy Thomas, Sithambaram s/o Vairavan, Manoj Kurup, Donald

Counsel for the Respondent

Harvinderjit Singh, Farhan Read, Wan Aizuddin Wan Mohamed,

47