IN THE COURT OF APPEAL, MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: Q-06A-2-03/2015
1. MOHD EZRI AZMAR BIN PAVEL
2. MOHD HAZRIL BIN MOHAMED YUSOF … RESPONDENTS
(In the Matter of High Court of Sabah & Sarawak at Kuching Criminal Trial No: KCH-45-302-1/2-2013
Public Prosecutor And
1. Mohd Ezri Azmar bin Pavel
2. Mohd Hazril bin Mohamed Yusof
DAVID WONG DAK WAH, JCA ABDUL RAHMAN SEBLI, JCA ZAMANI A. RAHIM, JCA
 The respondents, Mohd Ezri Azmar bin Pavel and Mohd Hazril bin Mohamed Yusof, were police inspectors with the Royal Malaysian Police Force attached at Jabatan Siasatan Jenayah, Ibu Pejabat Polis Kontinjen, Sarawak. The respondents, were jointly charged with the murder of Kamarul Zamrizal bin Kamaruzaman (deceased), an offence punishable under section 302 of the Penal Code, read together with section 34 of the same Code. The charge reads as follows:
“That you, on the 4th November 2012 at about 7.00 pm, at D7 Office, Bangunan Jabatan Siasatan Jenayah, Ibu Pejabat Polis Kontinjen Sarawak, Jalan Nagor, Kuching, in the district of Kuching in the state of Sarawak, in furtherance of common intention of you all committee murder by causing the death of one Kamarul Zamrizal bin Kamaruzaman (Identity Card No: 831031-13-5715) and that you have thereby committed an offence punishable under section 302 of the Penal Code and read with section 34 of the same Code.”
 At the close of the prosecution’s case, the respondents were acquitted and discharged without calling them to enter their defence. They were set at liberty.
 Dissatisfied with the decision of the High Court to acquit and discharge the respondents, the prosecutor had filed an appeal to the Court of Appeal.
 Having regard to the short legal issue hereinunder mentioned, the narrative of the prosecution’s case is quite unnecessary.
 We heard the appeal at our sitting in Kuching, Sarawak on 11.12.2015. We set aside the order of acquittal by the High Court. We allowed the appeal and ordered the respondents to enter their defence on a reduced charge for an offence of voluntarily causing grievous hurt under section 325 of the Penal Code, read together with section 34 of the same Code.
 Dissatisfied with our decision, the prosecutor on 17.12.2015 appealed to the Federal Court.
 This is a second criminal case at our sitting in Kuching, Sarawak where our decision to amend and reduce the charge at the close of the prosecution’s case was appealed against. The question is: whether our ruling or decision to reduce the charge has the effect of finally disposing the right of the prosecution? In Dato’ Seri Anwar Ibrahim v PP  6 MLJ 585, learned trial judge made a ruling or decision and dismissed the appellant’s application to examine the complainant’s statement recorded under section 112 of the CPC. The Federal Court at p.592 said inter alia,
 The word “decision” appearing in sub-s(1) of s50 is defined in s3 of the CJA as follows:
“decision” means judgment, sentence or order, but does not include any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties.
The apex court went on to conclude at p.595 as follows:
“ For the above reasons, we agree with the Court of Appeal that the ruling of the trial court in this case is not a “decision” as defined in s3 of the CJA and hence it is not appealable.”
On the same issue, in the earlier case of Saad Abas & Anor v PP  4 CLJ 575, the Court of Appeal had said as follows:
The facts in Saad Abas & Anor’s case, supra is this. The accused were acquitted by the Magistrate’s Court at the close of the prosecution case on a charge under section 354 of the Penal Code. On appeal to the High Court, the accused were ordered to enter their defence on the said charge. The accused being dissatisfied with the High Court decision, applied for leave under section 50(2) CJA to appeal to the Court of Appeal.
Lamin Mohd Yunus, PCA (as he then was) said “………for the purpose of
section 50(2), this court has first to ascertain whether the “decision” of the High Court in ordering the applicants before us to enter on their defence was a ruling that had the effect of finally disposing of their rights. Certainly not and it would only happen after a decision had been made at the close of the defence.
His Lordship held inter alia, “there was consequently no finding in the order of the High Court ordering the applicants to enter their defence as a result of that order would there be finality. And only after the close of the defence would there be a decision to “affect event of appeal” i.e. that the defence story would finally determine the result of the whole case which was the purpose of the appeal. It would thus be premature to question the propriety of the decision at this stage.”
 In our decision in PP v Jarau Anak Kerukar & 3 Ors, Criminal Appeal No. Q-05-172-07/2013, we have considered identical issue. In Jarau Anak Kerukar’s case, supra the prosecutor filed the appeal to the Federal Court when we affirmed the decision of the High Court at the close of the prosecution’s case to amend and reduce the charge of murder to culpable homicide not amounting to murder under section 304(a) of the Penal Code. We too ordered that the case to be remitted to the High Court to continue with the respondents’ defence. On that occasion, we agreed with Balia Yusof JCA who delivered the judgment in the earlier panel of this court. We took the position as follows:
“ We take the stand that the decision of the High Court to reduce the Principal Charge (i.e. murder under s 302) to the Amended Charge (i.e. culpable homicide under s 304(a)) against the 2nd and 3rd respondents at the close of the prosecution’s case, is not a decision within the meaning of section 3 of CJA. In our judgment, the decision of the High Court is non appealable.”
 Likewise in the present case, the appeal filed by the prosecution is premature to question the correctness or propriety of the decision at this intermediate stage, that is, at the prima facie stage at the close of the case for the prosecution.
 Having regard to the above, we allowed the prosecutor’s appeal. The charge was to be reduced to an offence of causing grievous hurt punishable under section 325 of the Penal Code read with section 34 of the same Code. We ordered that the case to be remitted back to the High Court to call for the respondents’ defence.
Date: 23 February 2016 (ZAMANI A. RAHIM)
Court of Appeal Malaysia
For the appellant : Puan Iswa binti Tonie
Deputy Public Prosecutor The Attorney General’s Chambers No. 45 Persiaran Perdana 62100 Putrajaya
For the respondent : Encik Shankar R.P. Asnani &
Encik Daniel C. L. Ling
Thomas, Shankar Ram & Co
First Floor, Sub Lot 8