REVISIONARY POWER OF HIGH COURT

1.0 Purpose

1. To correct or prevent miscarriages of justice from error in judgement and procedure

and from neglect or indolence by those in authority.
a. HARI RAM SEGHAL [1981].
i. The powers of revision by a High Court, as contained in Part VII of the
Criminal Procedure Code and under section 31 of the Courts of
Judicature Act must be given a wider interpretation. The object of
these provisions is to correct any miscarriage of justice arising not
only from error in judgment and procedure but from neglect or
indolence on the part of those in authority and resulting in undeserved
hardship on any individual affected by such judgment, neglect or
indolence;
ii. The powers of the courts in England to intervene and make rules not
provided in the criminal procedure are inherent and are exercisable to
correct any injustice. The power to make rules such as the Judges'
Rules, notice of additional evidence and power to expunge words from
records are some examples of this inherent power. By virtue of section
5 of the Criminal Procedure Code, the use of this power could be
extended to this country provided it does not conflict with our statutory
provisions.
b. Liaw Kiaw Wah v PP [1987] 2 MLJ 69.
 i. The applicants had been convicted on their pleas of guilty of the
offence of armed robbery of a motor car and other articles and
sentenced to two years imprisonment and one stroke of the rattan
each. The sentences of whipping were duly carried out. Subsequently
the learned Judge of High Court acting in revision enhanced the
sentence of imprisonment on each applicant to five years and the
sentence of whipping to five strokes. The applicants applied to the
Supreme Court to determine (a) whether the High Court had the
power to increase the strokes after the sentence of whipping imposed
by the Magistrate's Court had already been executed and (b) whether
it was their right to be given time to engage counsel to defend them.
ii. Held:
1. the High Court's power sitting in revision is discretionary and it
must therefore be exercised judicially and within the limits and
in the spirit of the legislation;
2. The Criminal Procedure Code clearly prohibits whipping to be
executed in instalments and therefore in the circumstances it
was clearly improper for the learned Judge to exercise his
revisionary power to impose additional strokes of whipping;
3. A Judge should use the power of revision to increase a
sentence only in exceptional cases. The power of revision is to
be used sparingly and 'should remain a discretionary power to
be exercised primarily for the purpose of correcting a
miscarriage of justice;
4. The answer to the first question must therefore be in the
negative and the additional whipping imposed by the learned
Judge on each of the applicants must be quashed.
2. To satisfy itself as to the correctness, legality, propriety (regularity) of any decision of
the subordinate court: 323(1) CPC.
3. Purpose served when HC calls for record of lower court which shows no offence or A
is subjected to vexatious and groundless prosecution.
4. Cases:
a. RAMANATHAN CHETTIYAR v SUBRAHMANYA AYYAR [1981]
i. The applicant was convicted by the sessions court on two charges of
outraging of modesty under s. 354 of the Penal Code. Although the
conviction was entered on 8 November 1996, the grounds of
judgment were not made available until 26 October 2001, almost
 five years later. The accused appealed to the High Court. It was clear
from the notes recorded by that court that several points were argued
in support of the appeal, among which were the effect of the long
delay by the sessions court to deliver its written reasons and the
correctness of its direction unto itself on the standard of proof
applicable. However, when the High Court gave its decision, it
confined itself to only the delay point and direction as to the standard
of proof. It held for the accused on both these points and quashed the
conviction. The public prosecutor appealed to this court (a differently
constituted Bench), which allowed the appeal and reinstated the
conviction. The accused then applied to set aside this court's order on
the ground that it had been made without an opportunity being given
to him to support the acquittal on grounds other than those given by
the High Court.
ii. Held: This court came to its earlier decision in the absence of the
views of the High Court on the other points argued before it. In a
matter so important as the appreciation of evidence, this court will be
at a serious disadvantage without the benefit of the views of the
intermediate appellate court. The accused did attempt to address
arguments on the other points raised before the High Court as
evidenced in the note of this court's decision delivered at the
conclusion of arguments. But the note went on to reject the attempt on
the ground that the court was functus officio. The accused, as
respondent to the appeal, was clearly entitled to put forward
other arguments in support of the orders made by the High Court
in response to the public prosecutor's appeal. It was plainly
obvious that the accused was denied such an opportunity, which
constituted a serious departure from the well-established
principles of procedural fairness. The accused had, therefore,
made out a strong prima facie case of a miscarriage of procedural
justice warranting the exercise of this court's residual power to set
aside its earlier judgment. Since this court was the final arbiter in this
case, the accused had no effective alternative remedy to correct the
injustice done to him. Thus, the conditions for the exercise of this
court's residual jurisdiction were satisfied.
b. TAN SRI ERIC CHIA ENG HOCK v PP [2007] 1 CLJ 565
 i. Federal Court may review decisions made by the Court of Appeal in
the exercise of its inherent powers. The inherent power of the Federal
Court under r 137 can therefore be invoked to prevent an injustice or
to prevent an abuse of the process of any court where there is no
other available remedy.

1.1 Law

5. s.31 CJA 1964 – HC may exercise powers of revision in criminal proceedings and
matters in subordinate courts.
a. ‘subordinate courts’ – include juvenile court: s.3 CJA
6. s. 35 CJA – HC has general supervisory and revisionary jurisdiction over all sub
courts.
7. These confer upon the High Court some kind of paternal or supervisory jurisdiction in
order to correct or prevent a miscarriage of justice.
a. Liaw Kiaw Wah [1987] 2 MLJ 69.
8. Powers to call records of inferior courts: s.323(1) CPC.
9. Power to order further inquiry: s. 324 (1) CPC.
10. Power of Judge on revision: s.325 CPC
a. Judge may:
i. stay execution: s.311
ii. Arrest respondent – s.315
iii. Make decision in appeal – s.316; and
iv. Order fresh evidence to be taken: s. 317
b. No order if it prejudices A unless A given opportunity to be heard.
c. Cannot convert finding of acquittal into conviction
11. The power to call for the record of proceedings of the subordinate court is at the
absolute discretion of the High Court.
a. Happened in: Re Soo Leot (1956) MLJ 54.
12. The High Court may call for the record on its own volition or upon the application of
any person including a third party who has no locus standi in the proceedings.
a. Happened in: R v Abu Kassim bin Babu (1940) MLJ 243.
13. The Judge would call for the records should his attention be drawn to a case. It may
be through the newspapers, or relatives of convicted offenders have written to him, or
sometimes magistrates or sessions judges may themselves forward the record of
proceeding should they feel the need for revision of the decision made.
14. This can be done voluntarily even without waiting for an appeal to be lodged by the
offender if the presiding officer feels the need to do so.
 15. Sometimes the cases come to the attention of the judge through an invalid appeal
where although the judge cannot hear the appeal, he may instead act in revision.
a. Heng Kim Khoon [1972] 1 MLJ 30
b. Chunbidya & Ors AIR (1935) PC 35.
16. However, the High Court will exercise its revisionary power sparingly, such as when
there is gross injustice done. Examples are like where the offender did not have the
freedom to choose his plea.
a. Re Pang Po Pah [1985] 2 MLJ 214
i. Pursuant to a preliminary enquiry into an offence of murder under
section 302 of the Penal Code, the learned Magistrate at Melaka,
purporting to act under Chapter XVII of the Criminal Procedure Code,
committed the accused for trial at the High Court not on the tentative
charge of murder, as framed by the prosecution, but on a lesser
charge under section 304 of the Penal Code. The prosecution felt that
the Magistrate had acted in excess of the power conferred by sections
140 and 141 and applied for revision.
ii. Held: the learned magistrate had acted improperly by committing a
case not ordinarily triable by a High Court to this court for trial; a prima
facie case of murder under section 302 of the Penal Code had been
made out at the enquiry. The order of the Magistrate should therefore
be set aside and he be directed to draw a charge under section 302 of
the Penal Code against the accused and to commit the accused for
trial to the High Court.
b. PP v Muhairi bin Mohd. Jani & Anor [1996] 3 MLJ 116.
i. The powers of revision of the High Court are exercisable at the
discretion of the court and that discretion is untrammelled and free, so
as to be fairly exercised according to the exigencies of each case.
However, it may be used to increase a sentence only in exceptional
cases. It is to be used sparingly, with regard to all the circumstances
of each particular case, and the thrust would be primarily for the
purposes of preventing or correcting a miscarriage of justice. The
main question to be asked is whether substantial justice has been
done or will be done and whether the lower court should be interfered
with in the interests of justice

1.2 Procedure

17. Normal Procedure:

a. Sub Court informs HC of any doubt in decision; or
b. Either party may apply HC;
c. in appeal – HC Judge may invoke revisionary powers.
i. RE A JUVENILE [1990] – HC received undated and unsigned letter –
revisionary powers invoked.
ii. MUHARI b. MOHD JANI [1996] – KC Vohrah J – ways to seek
revisionary powers:
1. newspaper reports
2. letters
3. requests by sub courts
4. formal application
5. Here A found dead in police custody – A’s brother sought
revisionary powers by formal application.
d. In a revision the main question to be considered is whether any order made
by the subordinate court should be interfered with in the interest of justice.
e. Although the object of revisionary powers is such, it is available to correct any
miscarriage of justice arising not only from error in judgment and procedure
but from neglect or indolence on the part of those in authority and resulting in
undeserved hardship on any individual affected by such judgment, neglect or
indolence. See the case of Hari Ram Seghal [1981] 1 MLJ 165.
f. After examining the record of proceedings, the High Court may direct the
Magistrate to make further inquiry into any complaint which has been
dismissed or into case of any accused person who has been discharged. See
sub-section 324 (1) CPC.
g. The High Court exercising revisionary jurisdiction may exercise any of the
powers as if it were an appellate court. See sub-section 325 (1) CPC. It can
order a stay of execution, arrest of the respondent and order for recording of
further evidence.
h. The High Court may not convert a finding of acquittal into one of conviction
but instead it can order a retrial. See sub-section 325 (3).
i. Re Pichi Muthu [1970] 2 MLJ 143
1. In this case the learned magistrate had acquitted the accused
on a charge under section 4(b) of the Prevention of Corruption
Act, 1961. Acting in revision the High Court set aside the order
of acquittal and ordered a retrial.
 2. Held: in appropriate cases the High Court does and should
interfere to set aside the orders of acquittal solely with the
object to order a retrial.
ii. Mohamed Tarmizi [1985] 1 MLJ 219
1. Issue: Whether on a revision it would be right in law for the
learned judge to acquit and discharge the accused who had
pleaded guilty to an offence under section 35 of the Arms Act
1960 without giving the prosecution an opportunity of being
heard.
2. Held: The order made by a judge on revision must be deemed
to be a final order, as it cannot be the subject of an appeal,
and therefore no final order discharging and acquitting an
accused person should be made by the judge in exercising his
revisionary power until all the evidence in possession of the
prosecution has been produced in a trial and the trial court has
pronounced a judgment upon the merits. The learned judge in
this case was therefore wrong in law to have made an order
discharging and acquitting the accused.
i. At the hearing of a revision, no party has any right to be heard either
personally or by advocate before the High Court unless the High Court allows
the party to do so. See section 326 CPC read together with subsection 325
(2).
i. Ee Yee Hua v PP [1969] 2 MLJ 123
1. As interference in a criminal revision is discretionary, the High
Court is not absolutely bound even to hear the accused or
complainant much less his counsel. But it has always been the
invariable practice in all courts to hear them and their counsel,
if ready.
ii. Roslan bin Yahya [1985] 2 MLJ 218
1. “Although no party has a right to be heard before a Judge
exercising his powers of revision, yet I granted permission for
the accused and a deputy public prosecutor to appear and
address the Court before I exercised my powers of revision
under Chapter XXXI of the Criminal Procedure Code.”
j. However, the High Court may not make an order prejudicial to any person
unless the person had the opportunity to be heard. See also section 36 of
the CJA 1964 (Act 91).
 k. On revision, the High Court shall certify its decision or order to the court by
which the finding, sentence or order revised was recorded or passed, and the
subordinate court to which the decision or order is so certified shall then make
such order as are conformable to the decision of the High Court so certified
and if necessary the record shall be amended accordingly. See section 327
CPC.

1.3 Issues in relation to Revisionary Power of HC

1. Whether HC may revise matter not arising from record of proceedings

a. HARI RAM SEGHAL [1981] (FC)
i. A wanted to appeal against conviction – no notes of evidence and
grounds of judgment. HC invoked revisionary powers- quashed
conviction.
ii. FC Held: If no record of proceedings – HC cannot invoke revisionary
powers to acquit without ordering retrial.
b. JAAFAR b. ABU [1988] (SC)
i. A wanted to appeal against conviction – only notes of evidence but no
grounds of judgment. HC exercised revisionary powers and confirmed
conviction – SC confirmed HC’s decision.
c. HARI RAM – HC quashed conviction; JAAFAR – HC confirmed conviction.
d. 2 possible reasons for conflicting decisions:
i. HARI RAM – both notes of evidence and grounds of judgment not
available;
ii. JAAFAR – notes of evidence available.

2. Whether revisionary power can be invoked if decision can be appealed

a. Should not be resorted unless in very exceptional circumstances and for very
good reasons: Gopal Sri Ram JCA in MOHD DALHAR b. REDZWAN [1995]

3. Whether parties should appear when HC invoked revisionary powers

a. s. 36 CJA – no party has right to appear before HC provided no final order
shall be made to prejudice of any person unless he has opportunity to be
heard.
b. S.326 CPC (to be read with s.325 (2)) – no party has right to appear before
HC unless permitted.
c. S.325(2) CPC – any order made must not prejudice A unless A given
opportunity to be heard.
 d. [Note: - s.325 & s.326 CPC elaborate s.36 CJA]
e. Thus, safer for HC to allow both parties to be present.
i. ROSLAN b. YAHYA [1985] – Gunn Chit Tuan J – applied s. 326 and
s. 325 – allowed A and DPP to appear and address court.
ii. MOHAMED TARMIZI [1985] (FC) – HC wrong – did not allow
prosecution to be heard – case remitted to M for trial as conviction
was illegal.

SUPERVISORY POWERS OF HIGH COURT

1. s.35 CJA 1964 – HC shall have general supervisory … jurisdiction over all sub courts
in the interest of justice in any criminal or civil matter and may call for record or may
give such direction to sub court as justice may require.
2. s.36 CJA – no party shall have right to be heard before HC when exercising its
power of …. Supervision provided that no final order shall be made to the prejudice
of any person unless the person has had the opportunity of being so heard.
3. Application of supervisory powers of HC can be seen in:
4. ANG GIN LEE [1991] (SC) – order made by M for A to undergo drug treatment and
rehabilitation was not pronounced in a criminal case or matter and hence it was not
appealable. To be appealable, order must be final which disposes of rights of the
parties.