THE duty lies with the high court to see the criminal law is properly administered by the lower courts.
A high court judge has a duty to satisfy himself as to the correctness, legality and propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of the lower courts.
Which is why section 31 of the Courts of Judicature Act 1964 confers on the high court the powers of revision in respect of criminal proceedings and matters in the subordinate courts.
The object of revisionary powers is to confer upon the high court some kind of paternal or supervisory jurisdiction in order to correct or prevent a miscarriage of justice.
Hence, section 323(i) Criminal Procedure Code (the Code) empowers a high court judge to call for and examine the record of any proceeding before any inferior criminal court for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence, or order recorded or passed.
Where, for instance, an accused person who has been convicted but has scrupulous objection to the legality of the conviction or that there is an error of law concerning the conviction or sentence, the high court judge ought to call for and examine the record with a view to exercising the revisionary power to correct a miscarriage of justice.
Similarly, if an accused person has been discharged but the discharge raises questions of law or error of law concerning the discharge, the high court judge ought to do the same.
The high court judge may call for the record on its own volition or upon the application of any person including a third party who has no locus standi in the proceedings.
Which is why lawyer Shaharudin Ali has every right to apply to the high court judge to review Riza Aziz’s discharge not amounting to an acquittal granted last week in the latter’s case for receiving 1MDB-linked funds.
He is not being a busy body – “sibuk-sibuk”. His application is a call to the judge’s duty as stated above.
Be that as it may, it must be said that the power to call for the record of proceedings of the subordinate court is at the discretion of the high court, which must be exercised judicially and within the limits and in the spirit of the legislation.
This is because “when it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law, and not humour.
It is to be, not arbitrary, vague, but legal and regular. And it must be exercised within the limit to which an honest man competent to the discharge of his office ought to confine himself.” (see Words and Phrases Legally Defined quoted with approval by the Supreme Court in Liaw Kwai Wah & Anor v Public Prosecutor  2 MLJ 69)
The exercise of discretion must also be reasonable. “It is true,” said Lord Greene M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223 at p 229), “the discretion must be exercised reasonably.”
Which why it raises more questions than answers that a Kuala Lumpur High Court judge has declined to hear Shaharudin Ali’s application without reasons provided by his lordship. – May 23, 2020.
* Hafiz Hassan reads The Malaysian Insight.
* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight.