SECTION 323 of the Criminal Procedure Code (CPC) allows the High Court to call for records of subordinate courts. A High Court judge may call for and examine the record of any proceeding before any subordinate criminal court for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of that subordinate court.

It is said that section 323 confers upon the High Court a kind of paternal or supervisory jurisdiction to correct miscarriage of justice arising from misconception in law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment, which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some undeserved hardship to individuals.

The powers of revision are exercisable at the discretion of the court. The discretionary power is untrammelled and free, so as to be fairly exercised according to the exigencies of each case. Like any discretion, it must be exercised judicially and within the limits and in the spirit of the legislation. It is primarily exercised for the purposes of correcting any miscarriage of justice.

The proceedings of all subordinate courts, including juvenile proceedings and the record of coroner’s inquiries, fall within the scope of the revisionary jurisdiction.

The words “finding, sentence or order” are three separate matters and are separated by the disjunctive conjunction “or”. There are therefore three matters in regard to which the revision may be heard. One is the finding, another is sentence and the third is an order. They cover everything which may be remedied in revision. Findings, convictions, sentences and orders from which no appeal lies to the High Court is capable of revision. Thus, a finding of a prima facie case at the end of the prosecution case, from which no appeal lies to the High Court, is capable of revision.

In carrying the task under section 323 and if necessary and for the correction of any miscarriage of justice, a High Court judge is empowered to exercise any of the powers as conferred by sections 324 and 325 subject to any limitations therein. For example, as in section 325(3), to convert a finding of acquittal into one of conviction.

On revision, section 325 also confers on the High Court all the powers under section 315 (issuance of warrant of arrest of the accused), section 316 (decision on appeal) and section 317 (taking of further evidence) of the CPC as conferred in its appellate jurisdiction.

Section 326 disallows any party a right to be heard, either personally or by advocate, before the High Court judge exercising powers of revision. However, the judge may, if he thinks fit, hear any party, either personally or by advocate.

The judge in a revision will not make a final order to the prejudice of any party without giving that party an opportunity of being heard. He usually hears counsel in matters of importance although what are matters of importance must be left to the discretion of the judge hearing the matter of revision.

It needs to be emphasised that there must be some miscarriage of justice or violation of some principle of law or procedure. In the Privy Council case of Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy (1946), Lord Thankerton explained as follows:

“The violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the courts could arrive at their finding is such a question of law.”

In another case of Sheo Swarup v The King-Emperor, the Privy Council cases in which miscarriage of justice might occur, namely that the lower court had ‘absolutely blundered,’ or had ‘through incompetence, stupidity, or perversity’ reached ‘such distorted conclusions as to produce a position of miscarriage of justice,’ or had in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice.

In short, a miscarriage of justice occurs where by reason of a mistake, omission or irregularity in the trial, the accused loses a chance of acquittal which is fairly open to him.

In the Bung Moktar Radin and wife case, High Court judge Azhar Abdul Hamid ruled that it was fit and proper to exercise revisionary power under section 323. After examining the records of proceedings, the judge acquitted and discharged the Kinabatangan MP and his wife of all three corruption charges.

“The decision of the Sessions Court to call for defence is a miscarriage of justice. I hereby invoke section 325 of the CPC to acquit and discharge both of them,” said the judge.

In anticipation of a backlash after Deputy Prime Minister Ahmad Zahid Hamdi’s discharge not amounting to an acquittal, Bung Moktar has insisted that his acquittal was based on merit.

Were there “hidden hands” behind the decision as alleged by Perikatan Nasional (PN) election director Muhammad Sanusi Md Nor?

To be fair, Bung’s legal team fought a good legal battle. The principle of law in a criminal revision is trite.

It remains to be seen if the prosecution appeals against the acquittal decision. Was there a miscarriage of justice? – September 9, 2023.

* Hafiz Hassan reads The Malaysian Insight.