GROUP 3JUDICIAL

PRECEDENTS

Mohamad Amri Alfikri bin Mohamad Dasuki

Shaharul bin Othman

Muhammad Nor Sollihin Bin Salleh

Muhammad Zaidi bin Izman Murugan

Mohamad Azri bin Zokarnini

PREAMBLE

Federal Court is not bound by its own previous decision –Peh Swee Chin F.C.J

May depart from its own decision. However, it should be used sparingly. Depends on its consequences that is when

previous decisions were wrong, uncertain, unjust or obsolete in the modern conditions.

Dalip Bhagwan Singh v Public Prosecutor [1998]

IssueConflicting decisions of the Federal Court -

Whether lower court may refuse to apply latest decision of Federal Court on a point of law and adopt an earlier decision.

The court held that when two decisions of the Federal Court conflict on a point of law, the later decision prevails over the earlier decision.

Doctrine of stare decisis

One of sources of Malaysian Law. In Malaysia, the law is to be found not only in

legislation, but also in cases decided by the courts.

The courts referred to are the superior courts; Federal Court, the Court of Appeal, and the High Court.

Stare decisis- let the decision stand In a legal context, this is understood to mean

that courts should generally abide by precedents and not disturb settled matters.

Must abide the doctrine in cases where they are pari materia, i.e material facts are similar.

In general, the doctrine is stating that cases heard in Superior Courts lay down legal principles which are unwritten law and must be followed by later lower level court decisions.

Once a precedent is made, it remains binding no matter how old it is, unless overruled by a later decision.

When there is no existing precedent, the court will “declare” the law and the case will become an original precedent.

How does the doctrine of precedent work?

It works in 2 ways: vertically and horizontally. Vertically: when superior courts decisions

bind all subordinate courts. For example, magistrate court has to follow

principles in previous decision of high court when there are similar facts.

Horizontally: when superior court is bound to follow either:-

1. Its own previous decision

2. Decisions of its predecessor

3. Decisions of courts of co-ordinate jurisdiction.

In order to decide whether precedent is binding or not, judge is influenced by 2 main factors:

1. The origin of the precedent

2. The contents of the precedent

The origin To be binding, the precedent must originate from a court

of appropriate rank in the same hierarchy

If the precedent comes from a court superior in the hierarchy to the court currently trying the case, the precedent must be followed, vice versa

Example:

Present case (2008) –High Court

Precedent (2000) – Federal Court

High court in 2008 must follow the decision made by FC in 2000 if material fact are similar.

Contents of Precedents

Divided into 2: i) ratio decidendi (legal reasoning) principle/reason of judgment.

ii) obiter dictum/dicta (things said by the way/opinion)comment/opinion by judge but is not a direct reason to the decision given.

However, the only binding part to the case is ratio decidendi whereby obiter dictum is not binding but merely persuasive.

The Civil Courts in England

House of Lords

Court of Appeal (Civil Division

The High Court of Justice

Queen’s Bench

Division

Chancery Division

Family Division

County Courts

Appeals shown thus

The supreme Court ofJudicature

Hierachy of the Superior Courts From 1963 - 1985

Federal Court

Judical Committee of the Privy Council

High Court (Malaya)High Court (Borneo)

Supreme Court

High Court (Malaya)High Court (Borneo)

Hierachy of The Superior Courts 1985-1994

Hierachy of the Malaysia Court Post -1994

Court of Appeal

Federal Court

High Court in Malaya

High Court in Sabah and Sarawak

PRESENT HIERARCHY OF COURTS IN MALAYSIA

Court of Appeal

Federal Court

High Court in Malaya

Sessions Court

Magistrate’s Court

Penghulu’s Court

High Court in Sabah and Sarawak

Sessions Court

Magistrates’ Court

Superior Courts

SubordinateCourts

VERTICAL OPERATION

Vertical Operation

Courts of lower rank are bound to follow the decisions of the courts of higher ranks.

Federal Court

Court of Appeal

High Court

Subordinate Courts

Exception

Subordinate Courts’ decision are not binding in any court, including them.

They are bound by precedents laid down by the Superior Courts.

Vertical Operation In Dhalip Bhagwan Singh V Public Prosecutor

[1998] the Federal Court laid down two principles.

While a court may not refuse to follow a decision of a higher court, it may choose between two conflicting decisions;

1) In the case of two conflicting decisions of the Court of Appeal, courts lower in the hierarchy may choose to follow either decision irrespective of whether it is the earlier or later decision (the dates do not matter to the Court of Appeal itself).

This was illustrated in Ablemerge v Emville [2000], which the High Court faced with two conflicting authorities from the Court of Appeal which are Accounting Publications v Ho Soo Furniture [1998] and Interscope Versicherung v Sime Axa Assurance [1999].

The High Court choose to follow the earlier decision.

2) In the case of two conflicting decisions of the Federal Court, all courts below must choose to follow the later decisions (because the later decisions represents the existing state of the law).

This was illustrated in Datuk Tan Leng Teck V Sarjana Sdn Bhd & Ors [1997], the High Court faced with two conflicting decisions of Federal Court which are Ah Mee v Public Prosecutor [1967] and Public Prosecutor v Datuk Haji Harun bin Idris [1977].

The High court chooses to follow the later decision.

The vertical operation in Malaysian courts are not straightforward?

Reasons? 1)Status of decisions of the Privy Council. 2)Status of decisions of predecessors courts

of the present Federal Courts.

Status of decisions of the Privy Council

When Privy Council was the apex of the Malaysian judicial hierarchy its decision were binding in Malaysian courts in two circumstances;

1) Where the decision was in a case of appeal from Malaysia.

In Wong See Leng v Saraswathy Amal [1954], counsel for the respondent argued that the Court of Appeal of Federation of Malaya was bound by its own prior decision in Yaakob bin Lebai Jusoh v Hamisah binti Saad [1950].

The court of Appeal rejected that submission because the prior decision was contrary to the Privy Council decision in Haji Abdul Rahman & Anor v Mahomed Hassan [1917], which the Board categorically stated that English rules of equity do not apply to a system of registration of titles to land.

2) Where the decision was in a case on appeal from another common law country and the law in point was same as in Malaysia.

In Khalid Panjang & Ors v Public Prosecutor [1964] it was laid down by the Federal Court that a Privy Council decision in an appeal from another country was binding on courts in Malaysia, where the statutory provision in point was in pari materia with statutory provisions in Malaysia.

Status of decisions of predecessors courts of the present Federal Courts.

The predecessors of the Federal Court identified as the former Federal Court (1963-1985) and the Supreme Court (1985-1994).

It follows that decisions of these predecessors courts are binding and continue to be binding until overruled by the present Federal Court.

In the High Court case of Anchorage Mall Sdn Bhd v Irama Team (M) Sdn Bhd & Anor [2001] the counsel urged the court not to follow authority decided by the Supreme Court in Alor Janggus Soon Seng Trading & Ors v Seng Hoe Sdn Bhd & Ors [1995] on the ground that was said in the case was not the ratio.

The court rejected the submission of the counsel.

HORIZONTAL OPERATION

FEDERAL COURT (PRESENT)

Under section 2 of the Constitution (amendment) Act 1994 (Act A885) and section 5 (c) of the Courts of Judicature (Amendment) Act 1994 (Act A886) have renamed the supreme court as the Federal Court.

So, Federal Court shall have same jurisdiction as the previous Supreme Court.

But, the issue is whether the Federal Court is bound by the practice and precedent of Supreme Court?

Regarding to civil matter, the Federal Court does not regard itself bound by the decision of the Supreme Court.

Case involve: Malaysia National Insurance Sdn Bhd v Lim Tiok [1997] 2 MLJ 165. (concerned the extent of liability of insurers against third party risks under a compulsory insurance policy in a direct action brought by a third party)

Supreme court case: Tan Chik bin Ibrahim v Safety Life and General Insurance Sdn Bhd [1987] 1 MLJ 217. ( the case stated that had decided that in a situation involving independent tortfeasors, insurers are liable only to the extent to which their insured is adjudged responsible for the accident)

The issue is, should the Federal Court follow the decision in Supreme Court or the Federal Court should review the case to determine whether it was wrongly decided and should be overruled?

So, The Federal Court with full bench of five judges decided to reviewed Tan Chick, decided it was wrongly decided and should not be followed. The Federal Court adopted the criteria laid down by House of Lords in the case of Food Corporation of India v Antclizo Shipping Corporation [1988] 2 All ER 513

1) They feel free, if necessary to depart from the reasoning and the decision

2) They satisfied that it would be of relevance to the resolution of the dispute in the case before them

Thus, the Federal Court overruled a decision of the Supreme Court.

Whereas in Criminal matters, the Federal Court holds itself bound by the decisions of the Supreme Court.

There is a case in Tan Boon Kean v Public Prosecutor [1995] 3 MLJ 514, the Federal Constitution was faced with the issue of the standard of proof to be satisfied by the prosecution at the close of the prosecutions case in a non-jury trial under section 180 of the Criminal Procedure Code (Act 593).

Before this, in the case of Khoo HI Chiang v Public Prosecutor & Another Appeal [1994] 1 MLJ 265, the Supreme Court had decided that duty of the court at the close of the prosecution’s case was to undertake a maximum evaluation of the prosecution’s case was to undertake a maximum evaluation of the evidence to determine whether or not the prosecution had established the charge against the accused beyond reasonable doubt.

Thus, the Federal Court unanimously held itself bound by the Supreme Court Decision.

Besides that, the present Federal Court is not bound by its own previous decisions.

Its practice is summarized by Peh Swee Chin FCJ in Dalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1, 14.

The suggestion by Peh Swee Chin FCJ that the Federal Court should use its power to depart from its previous decisions sparingly was put to practice in Tunde Apartira & Ors v Public Prosecutor [2001] 1 MLJ 259. (overruled the previous decision in the case Muhammed Bin Hassan v PP [1998] 2 MLJ 273)

It also stated that the practice of the present Federal Court in civil matters is the same as in criminal matters. For example, treating previous decisions as normally binding, the Federal Court will depart from a previous decision when it appears right to do so.

Although there is a little bit argument that regarding to civil case, it little bit hazy.

Thus in the case of Koperasi Rakyat Sdn Bhd v Harta Empat Sdn Bhd [2000] 2 AMR 2311 had helped and reveal the policy of the Federal Court in clearer light.

• Gopal Sri Ram JCA stated that

• “but I am not to be taken as saying we should never depart from an earlier decision of this court. Departure may be warranted in a case where it appear patently clear that the earlier decision was given in defiance of an express statutory provision that was overlooked by this court. Equally where a serious error is embodied in a decision of this court that has distorted the law, in which case the sooner it is corrected the better.”

COURT OF APPEAL

In case of horizontal operation of binding precedent, the Court of Appeal is bound by its own decision.

It would bound by its own decision but subject to limitation stated in Young v Bristol Aeroplane Co. Ltd.

It binds in both civil and criminal cases.

Continue… Kesultanan Pahang v Sathask Realty Sdn. Bhd

Fact: the appellant submitted in the Court of Appeal that the law as laid down by the Privy Council in the South East Asia Fire Bricks Sdn. Bhd v Non-Metallic Mineral Products Manufacturers Employee Union & Ors is still binding on Malaysian Court. The appellant urged the Court of Appeal in the instant case to reject its earlier decision in Syarikat Kenderaan Melayu Kelantan Sdn. Bhd. v Transport Workers Union.

Continue…

Held: The court held that the invitation was rejected on the ground that the Court Of Appeal was bound by its own decision. It refers to the quotation as authority the dictum by Gopal Sri Ram JCA in federal court in case of Kumpulan Perangsang Selangor Bhd v Zaid bin Haji Mohd Noh that ‘we are bound by our own decision’. The judge, Abdul Malik Ahmad JCA said, forlike reasons, the Court of Appeal is bound by its decision.

HIGH COURT In Malaysia there are two High Courts of equal

jurisdiction and status which been stated under Article 121 (1) of the Federal Constitution.

The mention courts are the High Court of Malaya and High Court Borneo

In case of horizontal operation of binding precedent, one High Court judge does not bind to another High Court judge, although he may do so.

Continue… Sundralingam v Ramanathan Chettiar

fact: the counsel for the plaintiff, cited Narayanan v Alagappa, a decision of High Court, as authority for

asserting the validity of a promissory note despite non-attestation as requires. During the appeal at the High Court, MacIntyre J who expressed the view that he was bound to follow the decision of the previous High Court judge, being a decision of a court of equal jurisdiction sitting on appeal.

Continue…

Held: Azmi CJ in the Federal Court said, ‘we may properly follow the practice of England where a High Court Judge, though he cannot overrule one of his brethren, could

disapprove his decision and decline to follow him.

Continue… Joginder Singh v Public Prosecutor

Fact: the High Court held that it was not bound to follow a decision of High Court of co-ordinate jurisdiction in Hassan bin Isahak v Public Prosecutor. The fact that Hassan’s case was decided by three judges’ empanelled under section 306(3) of the Criminal Procedure Code would not make it a decision of a higher authority. In addition, the court reiterated the well-established principle of the doctrine of binding precedent which states that an opinion of Superior Court in deciding a case is not binding as precedent unless it forms part of the ratio decidendi.