I refer to your report, Basikal lajak’ case: why did high court overturn magistrate’s decision?.
Much reference in the report has been made to the accused’s first acquittal in 2019, “when magistrate Siti Hajar Ali decided that the prosecution had failed to establish a prima facie case.”
“Only upon an appeal by the prosecution to the high court was the case remitted back to the magistrates’ court where, after a full trial, Sam (Ke Ting) was again acquitted last October,” the report continues.
Now, the legal principle is this:
Once an appellate court (in an earlier appeal) had overruled the findings and rulings the learned trial judge made at the close of the case for the prosecution and had instead made a finding of a prima facie case against the accused, and had ordered the learned trial judge to call for the defence of the accused, whatever findings and rulings of the learned trial judge at the close of the prosecution stage had been expressly or impliedly contradicted or overruled by the appellate court.
The findings and rulings of the trial judge at the close of the prosecution’s case are now no longer of any significance when the trial judge proceeded to hear the defence. The trial judge must, at the continued hearing stage, discard those findings and rulings that he had earlier made.
The trial judge (as well as the parties before him) must now have due regard to the findings and rulings of the appellate court, as if those findings and rulings of the appellate court had been made by the learned trial judge himself at the close of the case for the prosecution.
The above being the legal position, the magistrate was therefore wrong in law to consider again the issues relating to the identity of the driver of the car at the end of the defence’s case.
Findings at the end of the prosecution’s case by the magistrate, such as reported, that “the only piece of evidence available pointing to Sam being the driver was a police report she filed after the incident” have been overruled by the appellate court.
That is why high court judge Abu Bakar Katar ruled that the magistrate erred in law. The learned judge’s reference to the error of the magistrate appears in the very first paragraph of the grounds of judgement as follows (in Malay):
“Mahkamah Bicara dalam Alasan Penghakimannya di akhir kes pembelaan telah menimbangkan semua isu-isu yang pernah dibangkitkan di akhir kes pendakwan berkaitan identiti pemandu kereta, kebolehterimaan [keterangan] dan tiada pengecaman…”
The above elementary principle of law has been enunciated by the Court of Appeal in the case of Ouseng Sama-Ae v Public Prosecutor [2011] 4 MLJ 756, which was referred to by the learned high court judge.
The Court of Appeal decision is binding on the high court and the magistrate court. – The Vibes, April 17, 2022
Hafiz Hassan is a reader of The Vibes
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