Criminal appeals may be struck out, with right of reinstatement

The Court of Appeal has ruled it has the power to strike out criminal appeals filed by the Public Prosecutor (PP) in cases where accused persons cannot be traced or served.

The court however said the prosecution is entitled to apply for such appeals to be reinstated at a later stage.

A three-member bench unanimously ruled that the court is empowered to do so under Rule 105 of the Rules of the Court of Appeal 1994, which preserves its inherent powers to prevent any abuse of process.

Justices Wong Kian Kheong, who wrote the 28-page judgment, said allowing an appeal to remain on the court’s docket when there was no reasonable prospect of it being heard would amount to an abuse of process.

The ruling was made in two separate criminal appeals brought by the PP.

Also on the bench hearing the appeals were Justices Hayatul Akmal Abdul Aziz and K Muniandy.

In the first appeal, the prosecution was unable to serve the notice of appeal on Nor Khairi Nosoha, one of two accused in the case, despite the matter being mentioned in court several times.

Consequently, the appeal was struck out on May 18 in the presence of co-accused, Azizan Abu Kasim.

In the second appeal, only one of four accused was present in court when the appeal was scheduled to be heard on April 10.

Arrest warrants were issued against two others, while the notice of appeal could not be served on another. The appeal was eventually struck out on June 18, after the matter was called up for case management nine times.

Wong said the PP could apply to reinstate the appeals under Rule 105, read together with Rule 1A, which requires the court to act in a manner that prevents injustice.

He explained that reinstatement was possible because the merits of the appeals had not been considered, adding that there was no limitation period that bars the revival of a criminal appeal.

The court further ruled that the PP could not challenge the striking-out orders in the Federal Court, as those orders did not finally dispose the substantive rights of all parties.

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