1:23pm
Appealing From Subordinate Courts to the High Courts in Malaysia
Today we will treat a specific issue.
If you have just lost a case in a subordinate court, and it was a full case (after a full trial of the original matter) and you don’t think that the learned trial judge was correct in his findings, and you’d like to appeal, what do you do?
More specifically, this post will be addressing the issue of whether a Memorandum of Appeal is needed to be filed with the High Court if you are appealing from a subordinate court.
It’s quite interesting to note that a confusion has arisen due to the fact that the SCR is silent on it while the RHC specifically requires it to be filed. So, let’s look at the relevant provisions:
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SUBORDINATE COURTS RULES 1980
PU(A) 328/1980
Order 49
APPEALS TO HIGH COURT
49. Appeals to High Court.
[Substituted by P.U.(A) 127/1981]
1. Definitions
In this Order “decision” includes “judgment”, “order” and.”decree”
2. Notice of appeal.
[Am. P.U.(A) 67/1988]
(1) Appeals to the High Court shall be brought by giving notice of appeal in Form 140. A copy of such notice of appeal with the date filed endorsed thereon shall be sent by the Registrar to the Registrar of the High Court.
(2) An appellant may appeal from the whole or any part of a decision and the notice of appeal shall state whether the whole or part only, and what part, of the decision is complained of.
(3) The notice of appeal shall be filed within 14 days from the day on which the decision was pronounced. The Court appealed from shall thereupon supply to the appellant, upon payment of the fee therefor a certified copy of the notes of evidence, a certified copy of the judgment, or, in case no written judgment has been delivered, of the grounds of decision.
[Am. P.U.(A) 460/1990]
(4) As soon as the certified copy is ready, the Court shall notify the appellant in Form 141.
(5) Within 14 days from the receipt of the notification, the appellant shall, unless the Court for sufficient cause otherwise orders -
(a) deposit in the Court appealed from a sum which in the opinion of the Registrar will cover the costs of preparing a sufficient number of copies of the appeal record for the use of the High Court and the parties to the appeal; and
(b) lodge in the Court appealed from a sum of two hundred and fifty ringgit, or such lesser sum as the Court may in any case direct, by way of security for the costs of the appeal.
(6) The notice of appeal shall be served by the appellant within the time limited for the filing of appeal on all parties directly affected by the appeal or their respective solicitors. It shall not be necessary to serve parties not so affected.
[Am. P.U.(A) 460/90]
3. Appeal record where the appellant is not represented or appeals as a poor person
[Am. P.U.(A) 67/1998]
(1) When the appellant has complied with the requirements of rule 2 of the Order, and the appellant is not represented by a solicitor of the High Court has allowed the appellant to appeal as a poor person, the Court appealed from shall prepare the requisite number of copies of the appeal record and the record shall contain copies of-
(a) the relevant pleadings;
(b) the notes of evidence;
(c) the grounds of judgment, provided that the absence of the grounds of judgment shall not prevent the appellant from proceeding with his appeal;
(d) the decision;
(e) the notice of appeal;
(f) all such documentary exhibits and other documents the parties shall consider relevant for the purposes of appeal.
(2) As soon as the appeal record is ready the Court appealed from shall serve the appellant with a notice in Form 141.
(3) If the appellant shall consider that any documentary exhibit used need not be included in the record he shall obtain the consent in writing of all parties to the appeal to the omission of the document from the record. The written consent shall be produced to the Registrar.
(4) Upon request by the appellant and, if the deposit mentioned in paragraph (5) of rule 2 of this Order is insufficient, upon payment by the appellant of a further sum sufficient to defray the cost of preparing the appeal record the Registrar shall -
(a) supply the appellant with a copy of the appeal record and sufficient additional copies for service on the respondent or respondents; and
(b) forward to the appropriate Registrar of the High Court the remaining copies of the record, having endorsed on one of the copies the date of service of the notice mentioned in paragraph (2) of this rule.
3A. Appeal record where appellant is represented
[Ins. P.U.(A) 67/1988]
(1) When the appellant who is represented by a solicitor has complied with the requirements of rule 2 of this Order, the appellant shall prepare the requisite number of copies of the appeal record and the record shall contain copies of -
(a) the relevant pleadings;
(b) the notes of evidence;
(c) the grounds of judgement, provided that the absence of the grounds of judgement shall not prevent the appellant from proceeding with his appeal;
(d) the decision;
(e) the notice of appeal;
(f) all such documentary exhibits and other documents the parties shall consider relevant for the purposes of appeal.
(2) If the appellant shall consider that any documentary exhibit used need not be included in the record he shall obtain the consent in writing of all parties to the appeal to the omission of the document from the record. Such written consent shall be included in the appeal record.
(3) Two copies of the appeal record shall be filed in the High Court within six weeks of the receipt of the notification from the Court appealed from that the certified copies of the notes of evidence and the grounds of judgement are ready.
(4) The appellant shall within the period limited for the filing of the record serve a copy thereof on each party who has been served with the notice of appeal.
4. Stay of execution pending appeal.
The filing of a notice of appeal shall not operate as a stay of execution, but the Court may on application and on sufficient cause being shown stay execution on such terms as it may think fit.
5 Execution of judgment on appeal
When either party has extracted the order of the High Court on any appeal and has produced the order to the Subordinate Court appealed from, the Subordinate Court shall execute the order in accordance with the provisions of these Orders and Rules.
6. Appeal to Judge in Chambers of the High Court. (O. 49, r. 6).
[Subs. PU(A) 343/2000]
(1) Notwithstanding anything contained in this Order, an appeal from any decision other than a decision made after trial by the Court shall lie to a Judge in Chambers of the High Court.
(2) The appeal shall be brought by filing a notice of appeal in Form 140 in the registry of the relevant subordinate court, with a copy extended to the registry of the High Court, within 14 days from the date on which the decision was pronounced and serving a copy of the notice on every other party to the proceedings.
(3) Within three weeks after the filing of the notice of appeal, the appellant shall file the record of appeal in the High Court, and the record shall contain copies of-
(a) the application for the decision;
(b) all pleadings filed;
(c) all affidavits filed in support of or in opposition to the application; and
(d) the order or draft order of the decision appealed from:
Provided that the record of appeal shall not include the notes of evidence, the grounds of judgment or any memorandum of appeal.
(4) At the hearing of the appeal fresh evidence shall not be admitted unless the Judge is satisfied that-
(a) at the hearing in the subordinate court the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available; and
(b) the fresh evidence, if true, would have had or would have been likely to have a determining influence upon the decision of the subordinate court.
(5) Except so far as the Court may otherwise direct, an appeal under this rule shall not operate as a stay of the proceedings in the subordinate court.
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In the High Court Rules, the relevant provision is:
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RULES OF THE HIGH COURT 1980
PU(A) 50/1980
Order 55.
Appeals to High Court from Subordinate Courts and Statutory Bodies.
Rule 1. Entry of Appeal. (O. 55 r. 1)
On receiving an appeal record under Order 49 of the Subordinate Courts Rules, 1980, the Registrar shall enter the appeal in a list of appeals from Subordinate Courts.
Rule 2. Memorandum of Appeal. (O. 55 r. 2) [Sub. PU(A) 462/90]
(1) The appellant shall, within fourteen days from the date of service on him of the notice in Form 141 under Order 49, rule 2 sub-rule (4) or rule 3 sub-rule (2) of the Subordinate Courts Rules 1980 (as the case may be), file in the High Court in duplicate a memorandum of appeal in Form 113A.
(2) The appellant shall within the like period serve each respondent with a copy of such memorandum and a copy of the appeal record.
Rule 3. Notice of Cross-appeal. (O. 55 r. 3)
A respondent to an appeal may, within seven days from the date of service on him of the memorandum of appeal, file in the High Court and serve upon the appellant a notice in Form 113B that he intends to contend on the hearing of the appeal that the decision of the Court below should be varied.
Rule 4. Amendments. (O. 55 r. 4)
(1) The High Court may at any time allow amendment of the memorandum of appeal or notice of cross-appeal or other part of the record of appeal on such terms as it thinks fit.
(2) If the memorandum of appeal is not drawn up in the prescribed manner, the appeal may be dismissed.
(3) If the memorandum of appeal is not filed or is not served within the prescribed time and no sufficient ground is shown for the delay the appeal may be dismissed.
Rule 5. Appellant not appearing. (O. 55 r. 5)
(1) If, on any day fixed for the hearing of an appeal, the appellant does not appear in person or by an advocate, the appeal may be dismissed but any cross-appeal may be hear.
Respondent not appearing.
(2) If the appellant appears, and any respondent fails to appear either in person or by an advocate, the appeal shall proceed in the absence of such respondent, unless the High Court for any sufficient reason sees fit to adjourn the hearing thereof.
(3) Where any appeal is dismissed or allowed under the provisions of sub-rule (1) or (2) of this rule the party who was absent may apply to the High Court for the re-hearing of the appeal and where it is proved that there was sufficient reason for the absence of such party the High Court may order that the appeal be restored for hearing upon such terms as to costs or otherwise as it thinks fit.
(4) The provisions of sub-rule (3) of this rule shall apply mutatis mutandis to the hearing of any cross-appeal.
Rule 5A.Restriction on fresh evidence. (O. 55, r. 5A) .
At the hearing of the appeal fresh evidence shall not be admitted unless the Judge is satisfied that-
(a) at the hearing before the subordinate court the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available; and
(b) the fresh evidence; if true, would have had or would have been likely to have had a determining influence upon the decision of the subordinate court.
[Ins. PU(A)342/2000]
Rule 6. Withdrawal of appeal. (O. 55 r. 6)
(1) An appellant may at any time before his appeal is called on for hearing serve on the parties to the appeal a notice to the effect that he does not intend further to prosecute the said appeal.
(2) A copy of such notice shall at the same time be filed by the appellant in the Registry of the High Court.
(3) If all parties to the appeal consent to the intended withdrawal of the appeal, the appellant may file in the Registry the document or documents signifying such consent and signed by the parties or by their solicitors, and the appeal shall thereupon be deemed to have been withdrawn and shall be struck out of the list of appeals by the Registrar. In such event any sum lodged in Court as security for costs of the appeal shall be paid out to the appellant.
(4) If all the parties do not consent to the intended withdrawal of the appeal, the appeal shall remain on the list, and shall come on for hearing of any issue as to costs or otherwise remaining outstanding between the parties, and for the making of an order as to the disposal of any sum lodged in Court as security for the costs of the appeal.
Rule 7. Notice of appeal by respondent where notice of appeal, withdrawn of appeal not entered. (O. 55 r. 7)
Where an appeal is withdrawn under the preceding rule, or where an appeal of which notice has been given is not entered within the time limited, any respondent who has not given notice of cross-appeal may give notice of appeal and proceed therewith in the manner prescribed by the foregoing rules; but in any such case the time limited for giving notice of appeal, entering the appeal furnishing security for costs, and filing and serving the record of appeal and the memorandum of appeal may, on application to the High Court or, if the appeal has not been entered, to the Court appealed from, be extended so far as is reasonably necessary in all the circumstances of the case.
Rule 8. High Court may direct service of notice on person not served. (O. 55 r. 8)
When an appeal is called on for hearing or at any previous time on the application of any person interested, the High Court may direct that the record of appeal, or any notice of cross-appeal, be served on any party to the cause or matter who has not been served therewith, or on any person not already a party to the cause or matter, and may, for the purpose of such service, adjourn the hearing upon such terms as are just, and may give such judgment and make such order as might have been given or made if the parties served with such record or notice had been originally parties.
Rule 9. Interest. (O. 55 r. 9)
On any appeal, interest, for such time as execution has been delayed by the appeal, shall be allowed, unless the High Court otherwise orders.
Rule 10. Pronouncement of judgment. (O. 55 r. 10)
The judgment of the High Court shall be pronounced in open Court, either on the hearing of the appeal or at any subsequent time of which notice shall be give to the parties to the appeal.
Rule 11. Decision on appeal to be sent to Court below. (O. 55 r. 11)
A certified copy of the judgment of the High Court on the appeal shall be sent to the Court from whose decision the appeal was brought.
Rule 12. Stay of execution. (O. 55 r. 12)
An appeal shall not operate as a stay of execution under the decision appealed against except in so far as the Court appealed from or the High Court may order, and any application for stay shall be made in the first instance to the Court appealed from.
Rule 13. Appeal from person or body of persons. (O. 55 r. 13)
(1) Where under any written law an appeal lies from any decision of any person or body of person to the High Court such appeal shall be made to the High Court in the State where the decision was given by motion setting out the grounds of appeal, supported by affidavit and, if the Court so directs at the hearing, by oral evidence.
(2) Unless otherwise provided by any written law, such appeal shall be made within one month from the date on which the decision was given or the date on which such decision was notified to the person appealing, whichever is the later date.
(3) Unless otherwise provided by any written law, notice of the motion shall be served on the respondent in such appeal or where the respondent is a body of person, on the secretary, registrar or such other officer of that body of persons.
Rule 14. (Deleted) [PU(A) 12/81]
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So in order for you to appeal, you have to read these 2 provisions in full first. Especially - Order 49 Rule 3A(1) of SCR and Order 55 Rule 1-4 of RHC.
I have made the mistake of not filing memorandum of appeal when appealing from the Sessions Court to the High Court. This can be fatal because if the MOA is not filed / served in time and no sufficient ground is shown for the delay, the appeal may be dismissed.
As you can see, there are 2 requirements for the appeal to be dismissed -
1. not filed or not served in time (14 days after Form 141 is given to the lawyer from the court - more on this later)
AND
2. no sufficient ground is shown for the delay.
The question now is, if I, the lawyer made the mistake of not filing the MOA (at all, because I thought it was not needed) then is the ‘mistake of lawyer’ argument a sufficient ground for the ‘delay’?
The answer is NO.
A lawyer’s mistake is not sufficient ground - Haji Abdul Ghani bin Kesah v Tuan Ahmad bin Tuan Man [1990] 3 MLJ 45.
If you have no other reason but for your mistake then you’re doomed - Mansor bin Sulaiman & Anor v Liaw Ket Sang [1992] 3 CLJ 172 (where failure to give any explanation on the delay will result in the application for EOT (extension of time) being disallowed).
You would think that it is totally unfair to the client: just because the lawyer messed up, the client is now gonna have his appeal struck out.
You may be right. In Lim Lau Kian v Syarikat Kgt Semarak Sdn Bhd [2003] MLJU 309, His Honour Judge Nik Hashim held that just because the lawyer messed up, it does not mean that the Appellant (client) should be deprived of his right to appeal.
Hope this helped. That’s all for now.
