584 Nanta Ak Ilong v.

PP [2005] 4 MLRH

NANTA AK ILONG
v.
PP

High Court Sabah & Sarawak, Kuching

JUDGMENT
RULING
Re: Application for stay of execution pending
Appeal and release on bail by the Applicant
Vide Notice of Motion dated 27.5.2005 (Encl 3)
The Court has heard the written cum oral submissions of both Mr. Louis Jarau
representing the Applicant and Ms. Siti Rafidah bte. Zainuddin representing the
Respondent. The Court's findings and evaluation are as follows:
(1) Premised on the authorities submitted by both parties, it is undisputed that:-
(a) the grant of application for stay of execution pending appeal is a
discretionary exercise of power by the Court of first instance pursuant to s. 311
of the CPC ;
(b) the relevant factors to be taken into account and which serve as a guide
have been spelled out in the case of Re Kwan Wah Yip & Anor [1954] 1 MLRH
214 ; [1954] MLJ 146 which was followed by Mohamed Dzaiddin J (as he
then was) in Ganesan P. Awanthan v. PP [1983] 1 MLRH 121; [1983] CLJ
(Rep) 567; [1983] 1 CLJ 300 . These factors which serve as a guide in granting
or refusing bail pending appeal in cases where a term of imprisonment has
been imposed are:-
(i) gravity or otherwise of the offence;
(ii) the length of the term of imprisonment in comparison with the length
of time which is likely to take for the appeal to be heard;
(iii) whether there are difficult points of law involved;
(iv) whether the accused is a first offender or has previous conviction;
(v) whether the accused would become involved again in another offence
whilst at liberty; and
[2005] 4 MLRH Nanta Ak Ilong v. PP 585

(vi) whether the security imposed will ensure the attendance of the appellant before
the appellate Court.

(c) The aforesaid factors are not exhaustive (see Yusof bin Mohamed v. PP
[1995] 4 MLRH 792 ; [1995] 3 MLJ 66) and are to be considered
cumulatively.

(2) Since the issue at hand impinges on the discretionary exercise of power of the
learned Sessions Court Judge, I have cautioned myself that it is trite law that in
cases of such a nature, the appellate court will be slow to interfere unless it appears
that the Court of first instance has erred in law.
(3) In the Notes of Proceeding which I had requested from the Court below, I find
that the learned Sessions Court Judge has cited the correct authorities namely,
Ganesan v. PP (supra) , Re Kwan Wah Yip & Anor (supra) and Ralph v. PP [1972] 1
MLRH 110 ; [1972] 1 MLJ 242 and therefore she had borne in mind the correct
legal principles. The only question which remains for my determination is whether
the learned Sessions Court Judge has weighed the aforesaid relevant factors in
exercising her discretion to grant a stay of execution and bail or otherwise.
(4) Perusing the learned Sessions Court Judge's grounds for dismissing the
application of the Applicant (Accused in the Court below), I find that she has not
erred in respect of factors No. (1) to (5) at pages 86 - 87 of Notes of Proceeding
which is reproduced:-
"In our present case the offence committed by the accused is a serious offence of rape.
With regard (2) above, rape cases are designated as priority cases. Hence there is a time
limit to compile the record of appeal and for the appeal to be heard. In my view the
length of the term of the imprisonment imposed stands little chance of elapsing long
before the appeal is heard. On point (3) above, there is no difficult point of law involved
that would probably cause a protraction of the appeal. On (4) and (5) above, the fact of
clean record of the accused is negated by the serious crime he has committed and should
not be given exaggerated importance. On (6) above, experience tells us accused persons
do abscond and become untraceable while awaiting appeals in the High Court".

With regard to factor (3), I wish to state that the learned Sessions Court Judge
having heard the case would personally know whether there are difficult points of
law involved; hence when she stated there are none which would probably protract
the appeal, I would treat the matter as prima facie correct unless there is evidence
to the contrary. I find that what Mr. Louis Jarau submitted as there being flaws in
the Prosecution's case are ordinary matters which would be argued in due course
during the hearing of the appeal.
In respect of factors (4) and (5), I wish to add that the Court cannot ignore the
evidence that it is undisputed that the Complainant (victim) is a girl of tender age
586 Nanta Ak Ilong v. PP [2005] 4 MLRH

(15 years 1 month at the time of the commission of the offence as per the charge)
and is the sister-in-law of the Applicant. In addition it is undisputed that the
Complainant has been kept in detention and is under the supervision of the
Welfare Officer after the lodging of the police report.
The learned DPP has highlighted to the Court the strenuous objection of the DPP
in Sabudin Kassim v. PP [1990] 3 MLRH 88; [1991] 2 CLJ (Rep) 165; [1991] 1 CLJ
292 on the ground that it is improper to release the accused on bail whilst his two
(2) innocent children who was raped by the accused (father) be detained at a
Protection Centre ("Pusat Perlindungan") The Court in the aforesaid case
considered this ground and refused the application for stay of execution and bail. I
am incline to agree that this factor weighs heavily in the disfavour of the Applicant
in this instant case as indeed it would be sheer injustice and a mockery of the law
to release the Applicant whilst the victim herself is being detained at a Protection
Centre.
(5) The only factor if at all that the learned Sessions Court Judge can be argued to
have erred would in my view, be in relation to factor (6) ie, whether the security
imposed will ensure the attendance of the appellant before the appellate court (see
Notes of Proceeding at pages 86 - 88) basing on her prior experience in respect of
two (2) rape cases where the accused person who were released on bail pending
appeal absconded and were untraceable to this day. As pointed out by Mr. Jarau in
this context the learned Sessions Court Judge may be unduly swayed by her
previous perusal knowledge and experience without giving due regard as to the
conduct of the Applicant in the instant case. There is no evidence to show that the
Applicant has failed to turn up in the lower Court for trial.
I am mindful that Mr. Jarau has assured the Court that the family members are
willing to stand as sureties and to ensure the attendance of the Applicant at the
hearing of the appeal. However, as pointed out earlier, all the relevant factors have
to be considered cumulatively. Balancing all the factors together I find that factors
(1) to (3), the tender age of the victim and that she is the sister-in-law of the
Applicant, it would be a travesty of justice to release the Applicant whilst the
victim (Complainant) is under detention would far outweigh factors (4), (5) and (6)
(see Notes of Proceeding at page 86).
(6) Learned Counsel for the Applicant has urged the Court to consider the
fundamental liberty of a person and the time the Applicant would spend in prison
would never be given back to him if he is acquitted by the appellate Court. In
response, I wish to state that it is critical and of material importance to distinguish
between an application for bail after trial and after a finding of guilt and conviction
has been made against an applicant and an application for bail before trial. I
wholly agree with the views of Spenser Wilkinson J in Re Kwan Wah Yip (supra)when
the counsel for the applicant in that case referred His Lordship to the decision of
Regina v. Ooi Ah Kow [1952] 1 MLRA 318 ; [1952] MLJ 95 and His Lordship
stated:-
[2005] 4 MLRH Nanta Ak Ilong v. PP 587

"That case, however, dealt with the admission to bail of persons awaiting trial. Entirely
different considerations arise after trial and in my opinion once a person has been convicted
by a Court of competent jurisdiction it must be assumed, in the absence of any obvious defect
on the face of the record, that he has been rightly convicted unless and until the conviction is
set aside"

This view was similarly shared by Peh Swee Chin J (as then was) in Sabudin Kassim
(supra) when His Lordship opined:-
"Pada pendapat saya, terdapatlah suatu perbezaan yang mustahak antara jaminan
(bail) sebelum sabitan dan jaminan selepas sabitan sementara menanti keputusan
rayuan.
Pada peringkat kedua, hanya alasan-alasan istimewa sahaja yang mencukupi untuk
mendapat jaminan, kerana anggapan tidak bersalah (presumption of innocence) yang
wujud di peringkat pertama tidak wujud lagi selepas sabitan. Sila lihat kes Re Kwan
Wah Yip [1954] 1 MLRH 214 ; [1954] MLJ 46"

(7) As for the Applicant's reliance on Sulfee Alias v. PP [2004] 2 MLRH 807; [2005]
5 CLJ 132 and Iah Sin Seng v. PP Criminal ApplicationNo. 44-2-2003-II (unreported)
wherein the Applicant has urged me to follow my previous decisions and to allow
stay of execution pending appeal and bail, I wish to state that both these cases have
to be distinguished on the facts.
In Sulfee bin Alias' case, it involved an application by the applicant under s. 311 of
the Criminal Procedure Code for an order that execution of part of the judgment of
the learned Sessions Court Judge wherein the applicant was imposed a fine of
RM25,000.00 in default a further six (6) months imprisonment be stayed, pending
the outcome of an appeal he had lodged against both conviction and sentence.
Prior to this criminal application, the learned Sessions Court Judge had apart from
the fine of RM25,000.00 or in default a further six (6) months' imprisonment, also
imposed one (1) year imprisonment when she found the accused guilty and
convicted him for an offence under s. 11(c) of the Anti-Corruption Act 1997 (Act
575) . Although the learned Sessions Court Judge was prepared to allow a stay of
the imprisonment part of the sentence, she had ruled that she had no discretion in
the light of established precedents to stay that part of the sentence pertaining to the
imposition of the fine.
In Iah Sin Seng's case, the applicant was upon conviction after trial imposed a
sentence of 3 years' imprisonment, whipping of 2 strokes and fine of RM30,000.00
in default 1 year's imprisonment for an offence under s. 372A of the Penal Code ie,
persons living on or trading in prostitution where the punishment under the law
was imprisonment for a term which may extend to fifteen (15) years and with
whipping and shall also be liable to a fine. In the said criminal application before
me, there was no mention in the Affidavit in Support of the Notice of Motion that
 588 Nanta Ak Ilong v. PP [2005] 4 MLRH

a stay for execution and for bail was applied in the Sessions Court and was
rejected. However, Counsel representing the applicant replied to a query from the
Court that he had made such an application and even said that he had told the
learned Sessions Court Judge that the purpose of the bail is only to secure the
attendance of the applicant. Further, no grounds were given as to why the learned
Sessions Court Judge had rejected the said application save for a statement from
the Counsel for the applicant that his application was rejected because the
prosecuting officer objected on the ground that a sentence of imprisonment and a
heavy fine was imposed by the Court.
In the circumstances, I find there are no reason for me to interfere with the order of
the learned Sessions Court Judge made on 25.5.2005. Hence, I hereby dismiss the
application of the Applicant for a stay of execution of sentence and bail pending
appeal.

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