The verdict is not the end of it

One · Acquitted, and arrested anyway

On 4 September 2013, at the conclusion of his trial in the High Court, Bird Dominic Jude was acquitted and discharged of trafficking in dangerous drugs under s 39B(1)(a) of the Dangerous Drugs Act 1952. The court ruled that the defence had succeeded in raising a reasonable doubt on the prosecution's case. On a capital charge, he had won.

Five days later, on 9 September, the prosecution filed a notice of appeal — and at the same time applied to the Court of Appeal for a warrant to have him arrested and remanded in prison until that appeal was heard. He was brought before the court on 10 September.

The Court of Appeal did not send him to prison. Balancing the relevant factors, it held that "the balance of justice lay in favour of admitting the appellant to bail at RM50,000 with two local sureties" — with his travel documents surrendered, a fixed address provided, and reporting to the nearest police station every Monday at 5pm.

He appealed against that, to the Federal Court. His case was not that the bail terms were too harsh. It was that the arrest should never have happened at all.

What the Federal Court decided

Three arguments were run for the appellant, and all three failed.

The first was that the warrant was defective. It had recited that he "sengaja gagal hadir di Mahkamah tersebut" — deliberately failed to attend court — when no notice requiring his attendance had ever been issued to him, and when in any event he had been in the custody of the Immigration Department since his acquittal, a fact known to the prosecution. He also argued that the substance of the warrant was never notified to him as s 41 CPC and art 5(3) of the Federal Constitution require.

The Federal Court held the defect was not fatal. At the first, ex parte stage the threshold for granting a warrant had been met; the warrant issued under a valid legal power, was executed, and referred on its face to s 56A. And by the time the second stage arrived, the point had been overtaken by events.

The second argument was constitutional: that s 56A violates art 5(1) (no deprivation of personal liberty save in accordance with law) and art 8(1) (equality before the law), because it permits a person to be detained after a court has pronounced him not guilty. The Court answered that art 5(1) asks whether there is a specific law authorising the deprivation — and s 56A is that law. On art 8(1) the answer was in the negative because the section is not discriminatory: "As long as an accused person is acquitted at the High Court, the public prosecutor can apply for a warrant under s 56A of the CJA." It applies to everybody, citizen or not.

Underpinning the constitutional answer was a point about what an appeal is. At [19], introduced with "Furthermore", the Court said it was "important to consider that an appeal is a continuation of a trial". The criminal proceedings against the appellant were therefore still running, and this "gives jurisdiction to the Court of Appeal to rehear the case and decide on the appellant's guilt or innocence". That reasoning does not carry the warrant-defect answer, which was decided separately at [13]–[14] on the second-stage inter partes hearing and on Saw Kim Hai.

Having rejected the challenge, the Federal Court explained what s 56A is for. It is "designed to confer judicial power upon the court to grant an order that will have the effect of preserving the integrity of any criminal appeal pending before it" [16]. Its specific purpose is "ensuring that the right of the prosecution to appeal is not rendered academic or nugatory as a result of the absence or non-attendance of an accused who had been acquitted by the High Court" [16].

Put plainly: an acquittal that can be appealed is not yet final, and a right of appeal is worth nothing if the person it concerns has left the country.

The disposition is stated in a single sentence at [22]: "For the reasons abovestated we find no merits in the appellant's appeal. The appeal is therefore dismissed." The bail terms imposed by the Court of Appeal stood.

Two · Convicted, and not in prison that night

On 21 August 2020, in the High Court at Kuala Lumpur, Mohd Nazlan bin Mohd Ghazali J convicted Dato' Sri Mohd Najib bin Hj Abd Razak on seven charges arising out of the same RM42 million belonging to SRC International: one of abuse of position under s 23 of the MACC Act, three of criminal breach of trust under s 409 of the Penal Code, and three of money laundering under s 4 of the AMLATFPUAA.

The sentence was twelve years' imprisonment on the abuse of position charge together with a fine of RM210 million (five years' jail in default), and ten years on each of the remaining six charges. Because the court considered the seven charges intimately connected — each referring to the same RM42 million — the custodial sentences were ordered to run concurrently [2941]–[2942].

He did not go to prison that day. The defence applied for a stay of execution, and at the very end of a judgment running to some 2,957 paragraphs, the court granted it — for the imprisonment and for the fine. The reasoning occupies fifteen paragraphs, [2943] to [2957], and contains the least understood distinction in this entire area.

Applying them — and then a different question entirely

The court found special circumstances established, for reasons it stated compactly at [2946]. It accepted that novel points of law were involved — "I would not say they are difficult, but they have probably never been judicially considered before" — naming two examples, the finding that the accused was a Director under s 402A of the Penal Code for the CBT charges, and the definition of interest under s 23(2) of the MACC Act. The accused was a first offender with no previous convictions. And it appeared unlikely he would become involved in another offence while at liberty, as he was then answering criminal charges in two High Courts.

The judge added a further consideration at [2947]: that courts should ensure art 8 of the Federal Constitution, that everyone is equal before the law, "is applied strictly" — which "must mean the accused should not have basis to feel that he is unfairly treated when compared to others in respect of stay applications."

Here the judgment does something genuinely unusual, and it is the part most worth carrying away.

The accused had also asked for the fine to be stayed. The obvious move would have been to treat the question as already answered — special circumstances shown, therefore stay everything. The court did not do that. At [2948] it observed that the principles in KWK and Anwar governing stays of execution "seem to apply more to the sentence of imprisonment. Not to the sentence of fine."

Read that wording carefully, because it is doing less work than it is often made to do. "Seem to apply more to" is a hedge, not a holding. The judge is not announcing that a separate legal test governs fines; he is saying that the factors those two authorities enumerate — gravity, first offender, difficult points of law, risk of reoffending — are pitched at loss of liberty, and that a fine raises a different set of relevant considerations. The governing standard stays where it was. That is confirmed by the language the court reaches for when it finally grants the stay: at [2956] the matters it relies on "constitute extenuating and special circumstances justifying a stay of execution of the sentence of fine in this case" — the same vocabulary of special circumstances used for the prison term. What changes between the two limbs is what counts as such a circumstance, not the threshold being applied.

The reason a fine is normally not stayed is a practical one, and the court accepted it: money can be given back. If the sentence is later set aside, a fine already paid is refunded. Imprisonment cannot be refunded. So the usual asymmetry runs in favour of enforcing fines immediately and staying prison terms only on strong grounds.

And then the court identified the condition that argument silently depends on.

What makes this passage more than theory is that the judge was describing his own sentence.

He had decided to impose imprisonment under s 24 of the MACC Act. That decision obliged him to impose a fine as well, and to follow the quantum formula in the section — which produced a minimum of RM210 million, the exact figure imposed [2952].

He then set out the principle that constrains such a sentence: "A court should not impose a fine which it knows or ought to have known that the accused is not in a financial position to pay" [2955]. And earlier, at [2951]: "The imposition of a fine beyond the accused's means or a term of imprisonment in default of payment is tantamount to sentencing the accused to imprisonment without the option of a fine."

Neither side had proposed time to pay or payment by instalments under s 283(1)(b) CPC. The judge considered those options on his own motion and rejected them — "I had, on my own, considered invoking the provisions of allowing time for payment and of settling for an instalment structure under s. 283 but found it unworkable because of the sheer size of the fine" [2954]. He also noted, as submitted by the defence, that another High Court had recently ordered the accused to pay RM1.69 billion in additional taxes and penalties [2955].

Those matters, the court held at [2956], "constitute extenuating and special circumstances justifying a stay of execution of the sentence of fine in this case." At [2957]: "I therefore allow the application of the accused for a stay of the execution of the sentences of imprisonment and fine."

Three · The judge who read the newspaper

The third power is the strangest, because of how it starts.

Earlier that month, Kamal Hisham bin Ja'afar — a lawyer — had been arrested at a hotel in Singapore on warrants issued by the Johor Bahru Magistrate's Court, and extradited to Malaysia the same day. He was charged before the Sessions Court on two counts of criminal breach of trust under s 409 of the Penal Code, and later on charges under the Companies Act 1965. Two different Sessions Court judges granted him bail — RM300,000 on one CBT charge, RM200,000 on the other, RM200,000 on the Companies Act charges, in each case with two sureties, his passport surrendered, and regular reporting to the police.

All of those offences were non-bailable, which as the court explained does not mean bail is unavailable — it means bail is at the court's discretion rather than a matter of right, and that discretion must be exercised judiciously.

The judgment records no appeal against those bail orders and no application to the High Court for anything. What happened instead is described in the judgment's opening lines, under the heading "PRELUDE".

The judge set out s 325 CPC: "A Judge may, in any case the record of the proceedings of which has been called for by himself or which otherwise comes to his knowledge, in his discretion, exercise any of the powers conferred by sections 311, 315, 316 and 317 of this Code."

Note the phrase "or which otherwise comes to his knowledge". That is the hinge. The power is not triggered by an application; it is triggered by the matter coming to the judge's attention, by whatever route.

He also relied on s 35(1) of the Courts of Judicature Act 1964, which gives the High Court "general supervisory and revisionary jurisdiction over all subordinate courts" and allows it, "if it appears desirable in the interests of justice, either of its own motion or at the instance of any party or persons interested", to call for the record at any stage of any matter.

On the scope of the power the court observed that both parties were agreed the High Court's revisionary powers are discretionary, and that the discretion "is untrammelled and free so as to be fairly exercised according to the exigencies of each case" (Re Soo Leot [1956] MLJ 54) — but that being discretionary it must be exercised judicially, within the limits and in the spirit of the legislation, and for the purpose of correcting a miscarriage of justice (Liaw Kwai Wah & Anor v PP [1987] 2 MLJ 69). In revision, the main question is whether substantial justice has been done and whether the court should interfere in the interests of justice; in an appeal, by contrast, an appellant is entitled to adjudication on every question of fact and law raised.

What the judge found, and what he did

The prosecution's case was that the respondent had been avoiding the jurisdiction. The court was shown newspaper cuttings from as early as May 2011 recording that the police were looking for him — before he left Malaysia for Dubai — which undercut his account that every notice and warrant post-dated his departure. It examined his passport endorsements, listing travel to Thailand, London, Tanzania, Sri Lanka and, twice in 2015, Singapore — on 14 July and 1 September. The respondent's own answer, and the deputy public prosecutor's submission, both had him in Singapore visiting his ailing father in hospital and again for Hari Raya, without entering Malaysia; that account appears in the judgment as the parties put it, not as a finding of the court. The court's conclusion from the endorsements was the opposite of exculpatory: they "showed contrary to his averment that he was not trying to evade and abscond from the jurisdiction". The court also noted there is no extradition treaty between Malaysia and the United Arab Emirates, where he was a permanent resident.

His explanation was that he feared for his life if he returned. The court found that allegation "was without any basis and dismissed it as an unfounded fear."

On health, he argued he suffered high blood pressure, diabetes and hypertension, and had fainted outside the courtroom and been taken to hospital. The court held that "bail on medical ground should not be granted by the Court unless it is satisfied that the illness is such as would not be properly treated while the respondent was under detention" — and that the very fact he had been rushed to hospital by the prison authority showed he was receiving due medical treatment.

On his ailing father, the court held the need to be at his bedside was "not a compelling factor to be taken into account when considering whether he should be granted bail". It then added something else. It would, in the circumstances, "temper justice with mercy" — and allowed him reasonable access to visit his father, with escort.

The finding that decided the matter was about the Sessions Court judges themselves: they "had not alluded their mind to the relevant factors especially the likelihood of the respondent absconding or leaving the jurisdiction to United Arab Emirates cannot be ruled out." The bail was revoked and he was ordered remanded at Ayer Molek Prison — with the visits to his father preserved. A notice of appeal to the Court of Appeal was subsequently filed.

These are three unrelated cases. A foreign national acquitted of trafficking; a former Prime Minister convicted of offences concerning RM42 million; a lawyer extradited from a Singapore hotel. Different courts, different decades, different statutes.

What they share is a structural fact about Malaysian criminal procedure that almost nobody outside it knows. The verdict is treated in ordinary conversation as the end of the story about liberty. In law it is the point at which a second set of rules takes over — and those rules are less familiar, less discussed, and in some respects considerably less intuitive than the ones that govern bail before trial.

An acquittal can be followed by an arrest. A twelve-year sentence can be followed by walking out of the building. A bail order nobody has challenged can be revoked because a judge read the paper. Each of those outcomes was reached lawfully, under a clearly identified provision, by a court applying a test. The tests are simply not the ones people expect.