2.

APPEAL
____________________________________________________________________

INTRODUCTION
- If you initiated/ le/commence a case at a subordinate court, appeal is made to a court
with appellate jurisdiction.

- Any SC > HC. (Cannot go beyond COA - can only appeal twice)

- FC - matters originated from the HC

STAGES & TYPES

1. SB > HC

- appeals after full trial (calling witnesses etc)

- from interlocutory proceedings - exp: by NOA

2. Appeals to HC under written law

3. Appeals from Registrar/deputy registrar/senior assistant registrar of HC to a JIC

- non contentious matters

4. HC > COA

5. COA > FC

*** General law, cannot skip the hierarchy except in certain situations; election laws,
decision of the disciplinary proceedings etc.

1
0
fi
 1. SB > HC
LAW
1. 27 CJA 1984 - appellate power of the HC to hear civil appeals

2. 28 CJA - amount of the claim of a dispute is less than RM10k, does not fall under the
jurisdiction of HC. The case will cease at the SC. Kannaya v The Swee Eng - RM9000
(dismissed). EXCEPTION - appeal relates to the question of law & maintenance of
wives or children whereby the amount is unlimited

3. O55 ROC - procedure

A. AFTER FULL TRIAL

PROCEDURE
1. Filing of Notice of Appeal
- Form 111 @ Registry of the court the case originated from (not led at the AC) within
14 days from the date of the decision [O55 R2 R3(1)] - important for service also

- Notice must state whether the appeal is in respect of the whole or part of the
judgement/order - quantum cases sahaja . Must specify - O55 R(3)

- Service of notice - by parties a ected by the appeal or their solicitors 14 days from
the date of the decision - O55 R3(2)

*** Do we serve a sealed notice of appeal upon the other side or an unsealed version?
Initially, must be the one endorsed however there is a dissenting decision that allows
otherwise. Therefore, an amendment was made in 2012 regarding the wordings. The
practice nowadays is that you serve the unsealed copy. When you receive the sealed
copy, it is to be then served on the corresponding party too. If sempat serve the sealed
copy during the 14 days, then do so. Not fatal matter as as long as they have knowledge
and are aware of the matter.

2. Payment of Fee
- RM400 - time of the ling of the NOA - 14 days from the date of the decision

- O55 R3(3) - before 2018, the RM400 was only a deposit and refundable (was not a
fee), if the app wins, it can be refunded. whatever outcome of the appeal, it won't be
returned to the winning party

- Look at cases before 2018, decision of the judge may include returning of the RM400

3. Application for Notes of Proceedings & Grounds of Judgment from SC

- O55 R3(5) - 14 days from the DOD. after ling appeal, by formal letter request;

- notes of proceedings/notes of evidence - for the purpose of studying the case.

what actually transpired throughout the case.

- grounds of judgment of the subordinate court (rationals/written decision/

justi cations of the court) - used to nd out whether there is an error of the
subordinate court. application of the law/facts.

2


fi
fi
ff
fi
fi
fi
 - In general, mere irregularity. Non-compliance of making an application can be a
ground to objection for the other party but in the end it is the discretion of the
court to accept or not and deciding whether it is fatal or mere irregularity.

*** CRT recordings are available to the parties and use them to draft their own NOP
Before the existence of the CRT system, judge and court would prepare them and if
requested, must be paid.

*** Alternatively, scribe synergy sdn bhd or other service - upload the recording/send
over the CD. Price depends on the length of the proceedings. Time frame, requested
faster, more expensive.

*** Addressing the judges of the courts; Magistrate - Puan/Tuan. Sessions - Tuan/
Puan Hakim. HC - Yang Arif. COA - Yang Arif (but if Chief Judge is part of the bench,
address them as Yang Amat Arif, if the President of the COA - Yang Amat Arif - My Lord/
My Lady/Your Lordship/Your Ladyship).

*** Mandatory Requirements to be made within 14 days of the of the DOD (fatal - case
won't go into merit, will be a valid ground to dismiss the appeal)

a. Notice of Appeal

b. Service of Notice

c. Payment of fee

d. Application for notes of proceedings

4. Filing of Memorandum of Appeal

- Form 112 - 1 month from the ling of the NOA [O55 R4(3)]

- contains the grounds + details of appeal. YOUR grounds. On what case are you
appealing (law/facts) - as speci cally as you can

- shall be bound by the MOA

- issue - requires the grounds of judgement to e ectively draft a MOA which is to be

made within one month. so solicitors are to assume where the court went wrong.

- safe to include everything that is foreseeable to be disputed on

***if the decision is in regards to both interlocutory and decision after trial, do we le an
appeal in one application or separately? - will not happen. if an interlocutory decision
goes for full trial, yes the appeals must be made separately. you cannot combine more
than one decision in a single application. example; stay of execution and decision
regarding judgment/order.

***in regards to the objections that can be made by the other party, is it by way of
preliminary objections to the appellate court judge? - yes, to be made to the appellate
court. however, preliminary objections must satisfy certain elements and it can only be
made by notice of application [O1A & O2]. cannot simply object.

3
fi
fi
ff
fi
 5. Filing of Record of Appeal
- The bundles of documents

- File record of appeal within 1 month from ling of NOA

- O55 R4(1)

- Documents to be led - refer to Slide 13

- Steps before preparing ROA [O55 R4(4)]

- prepare a draft index of the documents included - Slide 13 + PD

- forward draft index to the resp's solicitors - within 48 hours has to respond by
accepting or objecting to the inclusion/exclusion of any docs - no need to
include pages

- what sequence? - PD (each court has their own) - can follow the one sir bagi

- color coding - part IV - PD

- if unable to agree on draft index, refer to HC registrar - [O55 44(5)] - example; a

document insisted to be included but has never been tendered as evidence in
the previous trial. if registrar cannot decide, refer to HC judge. - write in to the
registrar stating that there is a dispute an requiring an appointment to meet with
the registrar/judge

- must be led within stipulated time - even if notes of evidence/grounds of

judgment/sealed copy of judgement/order is not available to be extracted

- once ready, le a supplementary record of appeal containing the docs - do not

require leave from the court [O55 R4(2)]

- supplementary ROA also includes amended MOA w/o leave of court [same
provision ☝ ]

- because previous MOA may have been made based on assumptions but
now it can be made with certainty.

6. Notice of Cross Appeal (for Respondents)

- O55 R8

- basically a counterclaim

- example; P wins the case and has been awarded RM20k from the initial 50k prayed
for. D appeals denying liability but P then counterclaims that the full amount should
have been paid.

- 14 days from the date of the service on him of the record of appeal, le a NOCA in
form 113 in the HC and serve a duplicate on the A. - contains alasan2 that would
normally be included if a fresh appeal was made.

- not all appeals falls under CA

- it has to be linked to the A's appeal, otherwise it is recommended to le a fresh

appeal. cross appeal may be dismissed.

- Leisure Farm Corporation Sdn Bhd v Kabushiki Kaisha Ngu & Ors [2015] 3 CLJ
489 (CA)

- Kabushiki Kaisha Ngu v Leisure Farm Corporation Sdn Bhd [2016] 8 CLJ 149
(FC)
4
fi
fi
fi
fi
fi
fi
 B. INTERLOCUTORY PROCEEDINGS
- O55 R5

- amendments, stay of execution, injunction, interim orders, discovery of documents,

striking-out of pleadings, summary judgment etc

- one minor di erence with appeals after full trial -

PROCEDURE
1. Filing of NOA
- Form 111A @ Registry of SC within 14 days from DOD + copy extended to HC
Registry [O55 R5(2)]

- O55 R5(2) - service

2. Payment of fee - RM400

3. Filing of ROA
- O55 R5(2) - 1 month from ling of NOA

- Documents - Slide 21

- ROA shall not include notes of evidence, grounds of judgment or MOA

- Reason why the above documents do not need to be included

- Worldwide Laser Service v Excel Electronics (1998) 1 AMR 554 - summary and
speedy

- Kwong Yik Bank v Ansonia Management Association Sdn Bhd (1999) 1 CLJ 337
- upholds worldwide laser's case + will cause delay and is in contrary with
interlocutory proceedings in general. main suit ada lagi

- O55 R5 - same practice is applied as after full trial despite no speci c statutory
requirements has been set. this provision is also silent on serving the ROA on the
respondent but it is implicit that the ROA is to be served. [O55 R8 & R13]

4. Notice of Cross Appeal

- O55 R8 - within 14 days from service of ROA le a NOCA in Form 113

- Leisure Farm Corporation Sdn Bhd v Kabushiki Kaisha Ngu & Ors [2015] 3 CLJ
489 (CA)
- Kabushiki Kaisha Ngu v Leisure Farm Corporation Sdn Bhd [2016] 8 CLJ 149 (FC)

RELEVANT ISSUES
1. Amendment
- MOA, NOCA and other parts of the ROA can be amended at any time as the court
thinks t

- if a supplementary ROA is required, does not require leave

5

fi
ff
fi
fi
fi
2. Extension of time
- may apply if he had failed to le/serve within time ; NOA, MOA, ROA, NOCA

- application is by notice of application + a davit - power has the right to grant

- Development & Commercial Bank Bhd v Tan Ong Hwa & Anor [1992] 2 MLJ 764: the
court will consider the following factors:

- Length of the delay

- Reasons for the delay

- The chances to win on appeal if the application to extend granted

- The degree of prejudice to the respondent if the application is granted (most

important)

3. Stay of execution
- it is not automatic

- must be applied

4. Hearing of the appeal

- in chambers for interlocutory and open court for decision after full trial (still upon the
decision of the court)

- pandemic - all proceedings in open court

- O55 R7 - general rule - no fresh evidence shall be admitted as all evidences are
included in the ROA however:

- at SC, new evidence was not available

- fresh evidence would have a determining in uence upon the decision of the court

5. Absence of parties during appeal

- O55 R10

- If the A/solicitors is not there - dismiss

- if there is a cross appeal - may proceed to hear the CA

- if R is not there - proceed because everything is provided

- adjourn

- if dismissed or allowed in absence of the party, aggrieved party may apply for
rehearing of the appeal in which it will be restored upon satisfaction (reinstatement -
no need to appeal to higher court)

- similar procedure towards cross appeal

6. Withdrawal of appeal
- prior to the hearing by ling notice of discontinuance/notice of withdrawal + service

- other parties must consent - appeal shall be struck out upon A ling a document
signifying the consent of the withdrawal

- if not consented (previous decision shall remain as it is and usually not consented due
to the costs involved - probably have paid their lawyer, have led document), the
appeal remains in list and any outstanding issues shall be heard

6
fi
fi
ffi
fl
fi
fi
 2 APPEAL TO HC UNDER WRITTEN LAW
INTRODUCTION
- s77 employment act 1955 - appeal from decision of the director general of labour
(labour court) - jabatan tenaga kerja/mahkamah buruh despite no such term o cially
given - normally relating to dismissal

- s91 employees social security act 1969 - decision of the social security appellate board

- s145 local government act 1976 - decisions of the local authority - majlis daerah, majlis
perbandaran etc

PROCEDURES
- if the Act provides for a procedure, must be complied with

- otherwise, appeal shall be by OS (sets out the grounds of appeal) + a davit (and oral
evidence if so directed by the court)

- OS must be served upon the R

- appeal must be made within 1 month from DOD or the date the decision was noti ed to
the A because some of the tribunals do not pronounce decisions like courts, instead
noti ed/communicated through letters (whichever is the latter)

- A davit must include the following as exhibits

- notes of evidence

- grounds of decision

- the decision appealed from

- all documentary exhibits considered relevant

- must be led despite some documents are not ready. further documents shall be led
by way of a davit, w/o leave of the court

7
.
ffi
fi
fi
ffi
ffi
ffi
fi
fi
 3 REGISTRAR OF HC TO JUDGE IN CHAMBERS OF HC
INTRODUCTION
- O56

- Notice of appeal - form 114

- 14 days from DOD - RM40

- Service to be made not less than 5 days before the hearing of the appeal

HEARING OF THE APPEAL

- no fresh evidence is allowed unless - not available at previous hearing + determining
in uence

OTHER ISSUES
- shall not operate as stay of execution

- decision of the HC judge in chambers may then be appealable to the Court Appeal

- instead of 2 stages allowed, its allowed 3

- no ROA etc. - everything led in the HC is already made ready for the judge

- no need to prepare other than notice of appeal

8
.
fl
fi
 4. HC > COA
INTRODUCTION
- originally tried in the HC or originated from the SC or other statutory body

- section 67 CJA

- right is not absolute, conditions that must be ful lled rst

- S68 (shall not fall under the appellate jurisdiction of COA)

- the amount is less than 250k except leave from the COA

- judgment/order is made by consent - parties consent to the terms of the judgment -

record a consent judgment/order (there are exceptions - fraud/misrepresentation/etc)

- judgement relates to cost only except with leave from the COA

- judgment of the HC is expressly declared to be nal under any written law

TYPES OF APPEAL TO COA

Appeal as of right

- amount is or more 250k [liquidated damages only] OR judgment of interpleader issue is

given after trial - Chapter 5

Appeal with leave

- less than 250k OR judgment relate to costs only OR interpleader proceedings decided
summarily OR injunction order originated from the sessions court

No appeal allowed

- against consent judgment OR against judgment declared to be nal by any written law

Appeals for non-monetary values matters

- PD to be referred to

- relate to matter in slide 45 that does not need leave of court

- cases in slide 46 - illustrating the monetary threshold where no requirement for leave

PROCEDURES
RULES of COA 1994

Step 1A (Appeal as of right)

- ling to the COA is by ling 4 copies of NOA in form 1 @ registry of HC (not

relevant since we are using e- ling so only 1 copy is required)

- a copy must be sent to COA by registered post or by hand (now is automatic

through e- ling)

- ling + serving must be made within 30 days from the date of judgment/order
was pronounced (just to be safe, include the day of the decision within the 30
days)

9
fi
fi

fi
fi
fi
fi
fi
fi
fi
 Step 1B (Appeal with leave)

- application for leave must be made within 30 days from the date of J/O was
pronounced (kebenaran untuk le NOA)

- shall be made to the COA by motion (notice of application - function is the same
and the format is di erent) + a davit

- must include matters in Slide 48

- must be served on all parties concerned not less than 7 days before the return
day (hearing day) unless court otherwise direct

- procedures for leave under R28A RCOA 199A

- refer to Slide 49

- if not unanimous, shall x hearing for the leave

- if granted, NOA must be led 14 days from the date of the leave being
granted

- thereafter, procedure is similar to :appeal as of right" - refer to slide 46

***Appeal with leave

- pre 2018 amendment

- post 2018 amendment - parties may le motion for the review of the decision to

refuse leave to appeal and the decision of the review shall be nal and binding

2. Payment of Fee
- RM1000

- no more requirement for payment of deposit

3. Request for NOP & grounds of judgment

- after ling of NOA - A shall apply for Notes of evidence and Grounds of judgment
in order to prepare memorandum of appeal

4. Filing of MOA and ROA

- to be made within 90 days after the date of decision appealed was given. 4 copies
of the MOA and attach the following documents (refer to slide 54)

- MOA + documents = ROA

- if NOP and GOJ are not available within 90 days, documents shall be led together
with MOA as the supplementary ROA within 3 weeks after being noti ed of the
documents' availability

- MOA - it will come together with GOJ

- post 2018 - court may order for the appeal to proceed even with absence of the
notes of the proceedings and grounds of judgment

- Contents of MOA - refer to slide 56

- Steps before preparing the ROA

- draft index to be included and sent to R's solicitors may object/accept to the
inclusion or exclusion

- if cannot agree - registrar of HC

10
fi
ff
fi
fi
ffi
fi
fi
fi
fi
fi
5. Notice of Cross Appeal
- R, not more than 10 day after the service of ROA

- Form 2

- if appeal is withdrawn, R may give notice of appeal and proceed in manner set in
R10 RCOA

- If appeal involves leave, court may give leave to R to le CO at any time after entry
of appeal but not later than 10 days after service of ROA

*** The 1st PD is most relevant

*** 1B > 1A > 2, 3, 4

11
fi
 5. COA > FC
INTRODUCTION
- it is not automatic in which there is a ltering system

- S96 CJA - requires leave and granted in accordance with S97 CJA (to be read
disjunctively)

- HC in its original jurisdiction (civil matters) involving a question of importance for

public advantage. or needs to be revisited for public advantage - example:
bonsoon boonyanit. no decision was made previously on that issue.

- e ect of any provisions of Constitution including validity of law relating to such

provision - main jurisdiction of FC (interpret the federal constitution). involves a
serious legal question which must be argued and decided

PROCEDURE
- S97(1) CJA - application for leave to appeal shall be made @ FC within 1 month from
the date of the decision of COA and another copy led at COA within the 1 month
[R107(2) RFC 1995]

- application is made by motion + a davit exhibiting a copy of the grounds of

judgment of the HC and COA if available + any relevant documents. FCJ will not be
bothered with the exhibits and look whether the leave complies section 97. shall not
look into the merits of the case.

- copy of motion shall be served by applicant to the respondent no less than 7 days
before the return date (hearing date)

- payment RM1500 - deposit as security (rule has been deleted)

- if leave is refused, end of the matter but can still have it reviewed but review can be
held not in your favour.

- Possible review against decision of refusing leave to appeal to the FC

- Post 2018 amendment - introduced a procedure allowing parties may le a
motion for review of the decision to refuse leave to appeal

- R3 RFC - the procedure and practice in RCOA and ROC shall apply where there
is no provision made by any written law/RFC

- if leave granted, FC shall make the following orders

- x time for the notice of appeal to be led

- resp leave to le cross appeal

- determine the questions or issues to be heard - when preparing the motion,

you are required to also include 'leave questions' are legal questions which you
wish the FC to decide on. relates to S97 CJA (@ introduction rst point under
S97) - sample of leave question in samples 'notis usul' - no speci c steps and is
case-to-case basis and must be a question of law. must be certain that the leave
questions has never been determined by the FC before OR the previous
decision must be revisited - why is to be stated in a davit. not compulsory to
provide translation and in general court documents are to be in malay.
translation/english version is reasonable to explain technical cases and has

12
fi
ff

fi
fi
fi
ffi
fi
ffi
fi
fi
fi
 certain terminologies untuk 'sampai maksud' and would serve justice in any sort
of way

- other directions

RULES of FC 1995
(once obtained leave which is to be heard by the FC judge. when motion is led, it will be
heard by FCJ. if interlocutory proceedings, will normally be heard by 1 judge. if decision
after full trial, will require 3 judges) - YAA applies to 4 types of judges

1. Filing of Notice of Appeal

- in form 3

- 30 days from the date the decision appeal against was given

- OR 14 days from the date leave to appeal was granted

- OR such further time as the court orders - refer to R108 (court may direct a
speci ed time when required to le NOA)

*** normally 2nd and 3rd choice (whichever is latter)

- must be served on all parties directly a ected bu the appeal within the time
limited for the ling of NOA

- notice of cross appeal - form 4 within the time ordered by the FC

2. Filing of MOA & ROA (Appeal as of right)

- form 5

- must:

- similar to MOA of COA

- refer to slide 67

- 'leave questions' (refer to (c) under R108) - normally they will not decide on all
questions depending on which one ful ls S97 CJA then you will proceed only
these issues

- documents to be attached - slide 98

- MOA = ROA

- shall be served within 90 days from the date leave to appeal/decision appeal OR
any time directed by the court

13
fi
fi
fi
fi
ff
fi
 RELEVANT ISSUES RELATING TO APPEALS IN THE COA & FC
- Hearing of the appeal

- con ned to the grounds raised in MOA

- in deciding the appeal, appeal court shall not be con ned to the grounds and go
beyond whatever is stated by the appellant. can be addressed if views to be
relevant

- Amendment

- may allow in any part when relevant

- normally done by way of motion

- Extension of time

- may apply for any act/proceeding

- OR can be in consent in writing from both parties - but may allow mutual
agreement once throughout the proceedings and shall not exceed 14 days

- Stay of execution

- shall not operate unless ordered or upon application

- apply at the trial court and if not allowed, apply at appellate court

- Absence of parties during appeal

- slide 74

- if app is absent - may assume that they are not interesting in proceeding,
dismissed

- must be done by way of motion - why should the appeal be restored

- ***if solicitor has legal fee issues - should formally withdraw because they are still
solicitors on record. can be a ground for professional negligence

- Withdrawal of appeal - COA

- before called on for hearing, serve a notice on other parties a notice of withdrawal

- copy shall be sent by the app to the HC

- if all parties consented to the withdrawal of the appeal, app may le a document
signifying the consent of the withdrawal, the appeal shall then be struck out

- however, if there is not consent, appeal remains in list and outstanding issues
between the parties will be heard.

- Withdrawal of appeal - FC

- app, at any time before hearing, he may do so w/o leave of the court by ling
notice in form 13

- upon ling - to be dismissed by the court

MATTERS RELATING TO APPEALS

- Raising a fresh point of fact and/or law

- in general, if not raised in pleadings (in original jurisdiction), is not available and
point if not raised in court below is not allowed in appeal - letchumanan v central
malaysian nance bhd

- HOWEVER luggage distribution sdn bhd's case - must be interest of justice. this
rule is not de nite. can still be raised upon the discretion of the appellate court.

14
fi
fi
fi
fi
fi
fi
fi
 - Allowance of fresh evidence

- S69 CJA - app court has full discretion by oral/a davit/deposition

- without leave - if leave if interlocutory OR matters which occurred after the date of
the appeal decision

- when the appeal is after full trial

- with leave of the COA

- special grounds - Lau Foo Sun's case (Slide 80)

- Interference with nding of facts

- in general will not interfere - exp: demeanour of witnesses etc.

- siti aisha btw ibrahim's case

- will interfere where

- slide 82

- salah application of facts - misapprehension

- Credibility of witness

- generally, will not interfere since the trial judge has seen the demeanour of the
witnesses

- unless there are con icts with written documentary evidence or a nding of a fact
depends upon inference drawn from other facts

ORDERS BY APPELLATE COURTS

- Possible order

- dismiss the appeal - a rm decision of the lower court

- allow + reverse the decision

- con rm certain parts and vary parts of the decision of the lower court if the award
of damages 500k by app court 250k

- order for re-trial (rarely happens and is normally for interlocutory proceedings) -
example order 14 for summary judgment where there is a triable issue OR when
there was an error by the trial judge (rarely occurs)

- Order for re-trial

- no retrial on mere grounds

- only when there is substantial wrong or miscarriage of justice

- if the wrong or miscarriage is only part of the judgment/decision, may grant retrial
to the a ected part only and then give a nal judgment on the other part.

- if federal court, will go back to lower court

15
fi
ff
fi
fl
ffi
fi
ffi
fi