GAN BOON AUN [ ]

GAN BOON AUN [ ]

Notice of appeal was not personally served on appellant and s.314(1) was not complied with; s.314(2) cannot be used to justify making an order adverse to an absent respondent; High Court erred in enhancing sentence to 24 months in appellant's absence; High Court order of 25.1.2022 is null and void and is set aside; Sessions Court sentence restored.

Citation
W-09(H)-26-02/2022 (Mahkamah Rayuan)
Parties
Appellant: Gan Boon Aun; Respondent: Public Prosecutor
Court
H
Jurisdiction
Malaysia
Judgment Date
10 July 2023
Case Number
W-09(H)-26-02/2022 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal / Court of Appeal Judgment on Appeal From High Court Order Dated 25.1.2022
Outcome
Appeal allowed. High Court order dated 25.1.2022 set aside and Sessions Court sentence restored.
Legal Topics
Service of Process, Section 314 CPC, Audi Alteram Partem, Sentence Enhancement, Ancillary and Inherent Powers of Appellate Court
Source Language
Malay/English
Criminal Law Criminal Procedure Securities Law Service of Process Section 314 CPC Audi Alteram Partem Sentence Enhancement Ancillary and Inherent Powers of Appellate Court

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Parties

Gan Boon Aun

Appellant

Public Prosecutor

Respondent

Procedural Posture

Criminal Appeal / Court of Appeal Judgment on Appeal From High Court Order Dated 25.1.2022

Legal Issues

  1. 1 Whether the respondent's notice of appeal was duly served on the appellant in compliance with s.314(1) CPC
  2. 2 Whether the High Court contravened s.314(1) CPC by enhancing sentence in absence of appellant
  3. 3 Whether the High Court order dated 25.1.2022 is null, void and liable to be set aside

Ratio Decidendi

Notice of appeal was not personally served on appellant and s.314(1) was not complied with; s.314(2) cannot be used to justify making an order adverse to an absent respondent; High Court erred in enhancing sentence to 24 months in appellant's absence; High Court order of 25.1.2022 is null and void and is set aside; Sessions Court sentence restored.

Court Disposition

Appeal allowed. High Court order dated 25.1.2022 set aside and Sessions Court sentence restored.

Orders

  • High Court order dated 25.1.2022 enhancing imprisonment to 24 months is set aside
  • Restore Sessions Court sentence of one day imprisonment and fine of RM2,500,000 in default 18 months imprisonment