Public Prosecutor v Mohd Nor Khairi Bin Nosoha & Anor and Another Appeal

Appellant(s):

• Pendakwa Raya
• [Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara]

Respondent(s):

• Mohd Nor Khairi Bin Nosoha
• Azizan Bin Abu Kasim

• YA Datuk Wong Kian Kheong
• YA Datuk Hayatul Akmal binti Abdul Aziz
• YA Tuan Muniandy a/l Kannyappan

• Two separate criminal appeals filed by the Public Prosecutor were heard together as they raised common legal questions; in each case, one or more accused persons could not be traced or served with the notice of appeal despite numerous case managements and mentions over an extended period.
• In the first appeal, two respondents were acquitted at the end of the prosecution case on drug trafficking charges, and the Public Prosecutor's notice of appeal could not be served on one respondent despite multiple mentions.
• In the second appeal, four respondents were convicted on various dangerous drugs charges; despite nine case managements and multiple hearing dates, the Public Prosecutor was unable to secure the presence of all respondents or serve them with hearing notices, with warrants of arrest proving unexecutable against two of them.

• Whether the Court has an inherent discretion under the second limb of rule 105 of the Rules of the Court of Appeal 1994 (RCA) to strike out a Public Prosecutor's appeal to prevent abuse of process, where a co-accused cannot be traced despite the Prosecutor having discretion to proceed against the present accused alone.
• Whether, following such a striking out, the Public Prosecutor may subsequently apply to reinstate the appeal under the first limb of rule 105 RCA (to prevent injustice) read with rule 1A RCA, either to proceed against the traced respondent alone or against all respondents if later traced.
• Whether a Court of Appeal decision striking out an appeal constitutes an appealable "decision" under section 3 and section 87(1) of the Courts of Judicature Act 1964, entitling the Public Prosecutor to appeal such striking out to the Federal Court.

• The Court held that it possesses an inherent discretionary power under the second limb of rule 105 RCA to strike out a criminal appeal where a respondent cannot be traced despite repeated attempts, as retaining such an appeal indefinitely on the docket without reasonable prospect of hearing constitutes an abuse of process; both appeals were accordingly struck out.
• The Court affirmed that the Public Prosecutor retains a discretion to apply for reinstatement of a struck-out appeal under the first limb of rule 105 RCA (to prevent injustice) read with rule 1A RCA, either to proceed against only the respondent who has been traced, or against all respondents if subsequently located, since no limitation period bars reinstatement of criminal appeals and no fresh evidence is required.
• The Court ruled that its decisions striking out the two appeals were not appealable "decisions" under section 87(1) read with section 3 of the Courts of Judicature Act 1964, as they did not finally dispose of the parties' rights (given the availability of reinstatement) and were not made in the exercise of appellate jurisdiction over a matter decided by the High Court in its original jurisdiction; consequently, the Public Prosecutor's appeals to the Federal Court against the striking out orders were incompetent.