PUTRAJAYA (Aug 21): The High Court, when functioning as an appellate court, cannot decide on an appeal solely on errors of a lower court without considering the merits of the appeal, Court of Appeal (COA) judge Datuk Wong Kian Kheong reminded.

As an appellate court, the High Court has a judicial duty under Section 316 of the Criminal Procedure Code to consider the merits of the appeal, Wong wrote in his 66-page grounds of judgement on the appeal against the acquittal of former Malaysian Merchant Marine Bhd executive deputy chairman Datuk Ramesh Rajaratnam.

“Otherwise, there would have been an abdication of the High Court judge’s judicial duty,” Wong said. “The High Court’s judicial duty entails the following judicial functions on the part of the High Court in deciding an appeal against a subordinate court’s decision after a trial.”

In that case, Wong allowed the Securities Commission Malaysia’s (SC) appeal against Ramesh’s acquittal, and ordered Rajesh’s appeal be reheard in the High Court before another judge.

“The fulfilment of both the High Court’s judicial duty and in handling appeals against subordinate courts' decisions is essential in the administration of criminal justice,” he stressed. “Otherwise, an accused person may be wrongly acquitted or erroneously convicted on an appeal to the High Court against a lower court’s decision. “

Wong further listed the duties of a High Court judge, when it sits as an appellate court in criminal appeals:

Wong said High Court Judge Datuk Azhar Abdul Hamid did not fulfil his judicial duties when he acquitted and discharged Rajesh due to the errors or omissions of the trial Sessions Court judge.

“This is an error of law on the part of the High Court, which warrants appellate intervention by this court,” he said.

The three-member bench - led by Datuk Vazeer Alam Mydin Meera, now a Federal Court judge, along with Datuk Ahmad Zaidi Ibrahim and Wong - ordered that Rajesh’s appeal for the single charge of insider trading be heard before another High Court judge.

Ramesh was first charged with three counts of insider trading in the Kuala Lumpur Sessions Court in April 2015. He was later sentenced to five years’ jail and fined RM3 million for each charge. If he fails to pay the fine, he would be imprisoned for another three years.

He is accused of selling five million Malaysian Merchant Marine shares in January 2010, while possessing inside information on a proposed downgrade by Malaysian Rating Corp Bhd of its credit rating on the company’s RM120 million Al-Bai’ Bithaman Ajil Islamic Debt Securities from A-ID to BB+ID.

Under the second and third charges, Ramesh is accused of selling 5.2 million shares in February 2010, while possessing inside information regarding the classification of Malaysian Merchant Marine as a Practice Note 17 company.

In he High Court, Azhar allowed the acquittal and discharge of Ramesh on the grounds of omissions or errors in the Sessions Court judgement - while quoting the prosecution’s written submissions, disregarding the defence's submissions - and that the Sessions Court judge's grounds lacked any reasoning or analysis.

However, Azhar was said not to have considered the merits of the case, and decided solely on the purported omissions and errors of the Sessions Court judge, resulting in the SC’s appeal.

Appealing to the COA in May, the prosecution from the SC said it was dropping its appeal over the second and third charges, but maintained its appeal against the acquittal and discharge. The appellate court ordered that the appeal over the first charge be heard again in the High Court before another judge.

Last week, when the case was called before High Court judge K Muniandy, he allowed a stay of the hearing of Ramesh’s appeal, pending a decision on an unrelated outcome of lawyer Datuk Sreesanthan Eliathamby’s appeal in the Federal Court. 

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