UPON the conviction of former prime minister Najib Razak on the seven charges against him, his counsel informed the court that he would be appealing against the conviction and sentence. The defence counsel applied for a stay of execution of the imprisonment and fine. The judge allowed the application.

Yesterday, upon the conviction of Rumah Bonda founder Siti Bainun Ahd Razali on charges of child neglect and abuse, her counsel informed the court that she would be appealing against the conviction and sentence. The defence counsel applied for a stay of execution of imprisonment. The judge dismissed the application.

Was Bainun treated differently and unfairly by the court?

Under section 311 of the criminal procedure code (CPC) no appeal shall operate as a stay of execution, but the court may exercise its discretion to grant a stay of execution in accordance with well-established judicial principles and be based on the facts and circumstances of each individual case.

The grant of a stay is only an exception to the general rule. Hence – and it is settled law – special or exceptional circumstances must be shown to exist before the discretion can be exercised in favour of a convicted accused.

There are many decisions which are leading authorities on the matter. The first oft-cited decision is in the case of KWK (a child) v Public Prosecutor in which Augustine Paul JCA set out the following factors that may constitute special circumstances to justify the grant of a stay of execution after conviction:

1. The gravity of the offence;

2. 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;

3. Whether difficult points of law are involved;

4. Whether the accused is a first offender;

5. Whether the accused would become involved in another offence while at liberty;

6. Whether the security imposed will ensure the attendance of the appellant before the appellate court.

The above list is not exhaustive. No single factor can have a determinative effect on the decision to be made. It is the cumulative effect of all the factors that matters.

In another Court of Appeal decision in Dato’ Seri Anwar Ibrahim v Public Prosecutor, Federal Court judge Pajan Singh Gill stated it was crucial for the convicted accused to show the presence of exceptional circumstance and where reliance was placed on proposed grounds of appeal, they must be prima facie very strong or extraordinarily high prospect of success.

Public confidence in the administration of justice requires that judgment should be enforced, hence a person convicted of a serious offence should serve the sentence passed. If a stay of execution of sentence is readily available after conviction, it will encourage the proliferation of unmeritorious appeals.

It was based on the above that the judge in Najib’s case found, on the facts of the case, that he had successfully established the presence of special or exceptional circumstances, namely:

1. Novel points of law were nvolved, which had probably never been judicially considered before. The defence counsel submitted on a long list, a few of which the judge accepted as quite new.

2. Courts should also ensure in evaluating the cases before them that article 8 of the Federal Constitution on the principle that everyone is equal before the law is applied strictly. This also must mean the accused should not have a basis to feel that he is unfairly treated when compared to others in respect of stay applications.

The second is interesting. Should Bainun have the basis to feel that she was unfairly treated when compared to others in respect of her stay application?

The Sessions Court judge in her case was reported to have said that he found no reason to allow the application for a stay of execution of the sentence since she failed to provide a valid reason to support her application for stay of execution.

The learned judge rightly said that an appeal did not constitute special circumstances. He further said that the factors argued by the accused’s counsel had failed to show extraordinary or special circumstances. There was therefore no reason to allow a stay of execution of the sentence.

Bainun may be aggrieved by the decision but as explained above, no single factor can have a determinative effect on the decision to be made. It is the cumulative effect of all the factors that matters.

Be that as it may, Bainun has the right to apply to the High Court for a stay of execution of her sentence under section 57 of the Courts of Judicature Act 1964. – May 4, 2023.

* Hafiz Hassan reads The Malaysian Insight.