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Case Update: Court decision that is delivered without written grounds has no value as precedents

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15 March 2023

CRIMINAL PROCEDURE
Law Firm - Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 – Seizing Order – Forfeiture – Legitimate Interest – Legal Fees – Decision – No written Judgement

Tetuan Wan Shahrizal, Hari & Co v Pendakwa Raya
Criminal Appeal No. 05(L)-101-09/2020(C) | Federal Court
- see the grounds of judgment here

Facts This appeal concerns a claim by a law firm, Tetuan Wan Sharizal, Hari & Co (the ‘Appellant’) for its legal fees to be paid from money that has been seized under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001. In 2016, the Police carried out investigation on an individual named Amar Asyraf which uncovered that he possessed a computer software which enabled access to the MYIMM system of the Immigration Department without the need for a password or finger print. He then provided the software to a syndicate which used it to unlawfully approve the “Pas Penggajian Pengurusan Pegawai Dagang” and “Pas Penggajian Pegawai Dagang”. He would be paid RM1,000.00 for every such approval. The Public Prosecutor (the ‘Respondent’) then issued a seizing order on properties belonging to Amar which includes monies in several bank accounts, an apartment at Batu Caves, Selangor and a car. Subsequently, having satisfied that the properties were proceeds of an unlawful activity, the respondent applied to the High Court for forfeiture of the properties. The Appellant however argued that they had a legitimate interest in a sum of the money amounting to RM398,722.00, being legal fees for the legal services that it rendered to Amar from the day he was detained by the police up to the time of the forfeiture proceedings . The appellant’s claim was allowed by the Temerloh High Court but reversed by the Court of Appeal in a unanimous decision, hence the present appeal.

Issue Whether the Court of Appeal had erred in their finding in reversing the decision of the High Court?

Held In dismissing the appeal, the Federal Court held that none of the grounds by the Learned High Court Judge could constitute valid reasons for allowing the claim. The Federal Court held that the learned judge was wrong in holding that he was bound by stare decisis to follow the decision of the Court of Appeal in Md. Sukri bin Shahudin dan 10 yang lain [Rayuan Jenayah: W-09-432-11/2016]. As confirmed by the learned judge himself, no written grounds were delivered by the Court of Appeal in that case. The Federal Court held that without the benefit of the written grounds, there was no way that the learned judge could have known of the actual reason or reasons why the Court of Appeal decided the way it did in that case. Hence, it was wrong for the Learned Judge to have engaged in guesswork on the basis for the unwritten decision, which undoubtedly had weighed heavily in his mind in deciding whether or not to allow the Appellant’s claim. Further, the Federal Court held that a decision that is delivered without the written grounds does not establish any principle or rule of law on which the decision is founded. The decision is therefore devoid of any ratio decidendi (rationale for the decision) and has no value as precedent. In addition, there may be instances where the court, either in its original or appellate jurisdiction, delivers a reasoned oral decision immediately after the hearing of the matter, but in that situation, the reasons must be reduced into writing in order for the decision to have any binding effect on the lower courts. Therefore, the correct position of the law is that an unwritten decision of a higher court, whether sitting in its original or appellate jurisdiction, binds the parties to the action but is not authority for any principle or rule of law and does not bind the lower courts. Besides that, the Federal Court held that there is unquestionably a sum of money owing to the Appellant by Amar, which he is at liberty to pay using any property at his disposal but not from the seized property, which the Federal Court reiterated was  illegal property. Illegal property does not become legal property by using it to pay legal fees. Hence, the appeal was dismissed and the decision of the Court of Appeal was affirmed.

Zul Rafique & Partners
{15 March 2023}

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