Do the Young & Gould Exceptions apply in Malaysia?

If you have not already, you can read the entry on judicial decisions here. As usual, I then shared the post on my social media including Facebook.

There I got an interesting question:-

Does the Young v Bristol Aeroplane and R v Gould exceptions apply to the Court of Appeal in Malaysia?

Julius Diong-Jian (Link)

Introducing the Court of Appeal

Malaysia’s Court of Appeal (Mahkamah Rayuan) comes after the Federal Court of Malaysia. In the hierarchy, it is the highest court in the Federation.

Unlike the Federal Court and the High Court, it is purely an appellate court without original jurisdiction. This means you cannot initiate a legal action beginning in the Court of Appeal. If you or the other party believes that the High Court made an error in its judgement, you may file an appeal at the Court of Appeal. When a case was heard first at a subordinate court (either the Sessions Court or the Magistrates Court), the Court of Appeal becomes the final court to hear an appeal.

The Court of Appeal is established by Art. 121(1B), Federal Constitution.

Art. 122A sets out the composition of the Court of Appeal:

1. President of the Court of Appeal as the chairperson of the Court. The President of the Court of Appeal is ex officio a member of the Federal Court. The Right Honourable Tan Sri Rohana binti Yusuf holds the role from December 5th, 2019; and
2. Thirty-two (32) other Judges of the Court of Appeal (JCA).

Court of Appeal within the Doctrine of Stare Decisis

Vertical Operation: Top-Down Approach

The Court of Appeal is bound by past decisions of the Federal Court. This is because the Court of Appeal, though superior, is still subordinate to the Federation’s apex court.

Past decisions of the Court of Appeal binds the courts below:

• Both the High Court in Malaya and the High Court in Sabah and Sarawak;
• The Sessions Court; and
• The Magistrates Court.

Horizontal Operation

Is the Court of Appeal bound by its own decisions?

The short answer, and general rule, is it is. The case law I referred to in my previous entry is Kumpulan Perangsang Selangor Bhd v Zaid bin Haji Mohd Noh [1997] 1 MLJ 789.

Like any legal principle: for every general rule, there are bound to be exceptions.

This is where Julius’ question enters into the picture.

Young v Bristol Aeroplane Co Ltd [1944] KB 718

I. Facts of the Case

The plaintiff (Young), who was employed at the defendants’ (Bristol Aeroplane Co Ltd’s) workshops, met with an injury in an accident while he was working. He received compensation as prescribed by the Workmen’s Compensation Acts. He also sought to claim damages for the same accident. Young alleged that Bristol Aeroplane Co Ltd breached their statutory duty by failing to fence one of their machines which he was using.

Bristol Aeroplane Co Ltd, in their defence, pleaded: ” In the further alternative the defendants say that the plaintiff before the commencement of this action claimed and received compensation under the Workmen’s Compensation Acts in respect of [the accident]. The plaintiff is thereby barred from recovering damages in respect of the said accident. ” They base their plea on s. 29, sub-s. 1, of the Workmen’s Compensation Act, 1925.

On the authority of a decision of the Court of Appeal in Perkins v. Hugh Stevenson & Sons, Ld. (1), the commissioner gave effect to the plea in favour of the defendants. The plaintiff appealed.

II. Judgement

To anyone unacquainted with the rare cases in which it has been suggested or asserted that this court is not bound to follow its own decisions or those of a court of co-ordinate jurisdiction the question would, we think, appear to be beyond controversy. Cases in which this court has expressed its regret at finding itself bound by previous decisions of its own and has stated in the clearest terms that the only remedy of the unsuccessful party is to appeal to the House of Lords are within the recollection of all of us and numerous examples are to be found in the reports. When in such cases the matter has been carried to the House of Lords it has never, so far as we know, been suggested by the House that this view was wrong and that this court could itself have done justice by declining to follow a previous decision of its own which it considered to be erroneous. On the contrary, the House has, so far as we are aware, invariably assumed and in many cases expressly stated that this court was bound by its own previous decision to act as it did. The attitude both of this court and of the House of Lords is so well-known that citations are scarcely necessary, but we take three modern examples at random.

Lord Greene MR in Young v Bristol Aeroplane Co Ltd [1944] KB 718 (Emphasis added)

Sometimes the Court of Appeal may find itself disagreeing with its past decisions. Lord Greene MR remarked that the only way to correct that is to have the House of Lords – UK’s apex court at the time – make a ruling in the appeal from the Court of Appeal.

The Court notes that there are three exceptions to the rule:

1. When there are two or more conflicting Court of Appeal decisions;
2. Where the Court of Appeal’s previous decision is inconsistent with a later decision by the House of Lords (even though its decision was never overruled); and
3. Where the Court of Appeal concludes that its past decision was derived from legal mistake (“per incuriam“).

III. Takeaway and Application in Malaysia

The Federal Court of Malaysia referred to the Young v Bristol Aeroplane Co Ltd case in Dalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1.

Malaysia’s Court of Appeal, like its UK counterpart, may depart from its past decisions where any of these three exceptions are present. Needless to say, it is bound by its past decisions where any of these three are absent. Likewise, Malaysia’s Federal Court substitutes the House of Lords (now Supreme Court) in the Malaysian context.

What is “per incuriam”?

A few words need be said about a decision of Court of Appeal made per incuriam as mentioned above. The words ‘per incuriam’ are to be interpreted narrowly to mean as per Sir Raymond Evershed MR in Morelle v Wakeling [1955] 2 QB 379 at p 406 as a ‘decision given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding in the court concerned so that in such cases, some part of the decision or some step in the reasoning on which it is based, is found on that account to be demonstrably wrong’. It should be borne in mind that the year of Morelle’s case is 1955 whereas our s 3 of the Civil Law Act was enacted in 1956. The ratio in Morelle’s case is also part of the common law applicable to us.

Peh Swee Chin FCJ in Dalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1

What happens in the lower courts when a Court of Appeal’s decision is per incuriam?

In this connection, it is interesting to refer to Cassell & Co v Broome [1972] AC 1027 at p 1054. It was held that courts in the lower tiers below the Court of Appeal could not rely on the per incuriam rule applied by the Court of Appeal for itself, but could choose between two conflicting decisions. We may add that they may so choose, whatever the dates of the conflicting decisions, as such dates do not matter to the Court of Appeal itself.

Peh Swee Chin FCJ in Dalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1

If the Court of Appeal’s decision is per incuriam, the lower courts cannot apply the per incuriam rule. Instead, the Bench may choose between the two conflicting decisions.

Regina v Gould [1968] 2 QB 65

I. Facts of the Case

John Arthur Charles Gould, the defendant, was charged with bigamy under s. 57, Offences against the Person Act, 1861. He pleaded guilty during the arraignment. Gould’s counsel was not present at the time. When he did arrive, Gould’s counsel applied for leave to withdraw the plea to defend on the grounds that at the time of his second marriage the defendant had honestly and reasonably held the mistaken belief that a decree absolute dissolving his previous marriage had been granted.

The deputy chairman, regarding himself bound by the decision of the Court of Criminal Appeal in Rex v. Wheat refused to allow the plea to be withdrawn because he considered that if the mistaken belief was established it would not be a defence to the charge. The defendant was convicted and conditionally discharged. He appealed against conviction on the grounds that Rex v. Wheat had been wrongly decided and should be overruled, and that the deputy chairman’s ruling was wrong in law.

(Note: yes, the 1861 act was still a valid and enforceable law over a hundred years after that in the 1960s.)

II. Judgement

Diplock LJ, who sat with Widgery and Blain JJ, delivered the judgement.

In its criminal jurisdiction, which it has inherited from the Court of Criminal Appeal, the Court of Appeal does not apply the doctrine of stare decisis with the same rigidity as in its civil jurisdiction. If upon due consideration we were to be of opinion that the law had been either misapplied or misunderstood in an earlier decision of this court or its predecessor, the Court of Criminal Appeal, we should be entitled to depart from the view as to the law expressed in the earlier decision notwithstanding that the case could not be brought within any of the exceptions laid down in Young v. Bristol Aeroplane Co. Ltd. as justifying the Court of Appeal in refusing to follow one of its own decisions in a civil case (Rex v. Taylor). A fortiori, we are bound to give effect to the law as we think it is if the previous decision to the contrary effect is one of which the ratio decidendi conflicts with that of other decisions of this court or its predecessors of co-ordinate jurisdiction.

Diplock LJ in Regina v Gould [1968] 2 QB 65 (Emphasis added)

In simple terms, the UK’s Court of Appeal does not have to be as rigid over criminal matters compared to civil matters. The Court of Appeal should be able to revisit its own decision when it believes the law was either misapplied or misunderstood in its earlier decision.

III. Takeaway & Application in Malaysia

The Gould case was only referred to in Public Prosecutor v Ishak bin Hj Shaari [2011] 3 MLJ 595.

Mohd Hishamudin JCA, who delivered the sole dissenting judgement, said:

In criminal matters, however, because a person’s liberty may be at stake, the Court of Appeal, apart from [three exceptions in Young v Bristol Aeroplane Co Ltd], may also depart from its own previous decision if satisfied that the law was misapplied or misunderstood in the previous decision. That the position in the criminal jurisdiction of the Court of Appeal should be different from that in the civil is derived from the judgment of Diplock LJ in Regina v Gould [1968] 2 QB 65 at pp 68-89.

What does it mean in practice? While the exceptions in Young were accepted, the decision in Regina v Gould is not. It does not bind Malaysian courts – or the Court of Appeal – for now. However, it can be deemed persuasive.

My Reply on Facebook

Let me reproduce my Facebook reply here:

[T]he exceptions for civil matters in Young v Bristol Aeroplane Co Ltd [1944] KB 718 were accepted (Dalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1, Kejuruteraan Bintai Kindenko Sdn Bhd v Fong Soon Leong [2021] 2 MLJ 234, Lim Kian Aik v Public Prosecutor [2021] 9 MLJ 633).

The exceptions for criminal matters in Regina v Gould [1968] 2 QB 65 still needs some looking into. Mohd Hishamudin JCA (Public Prosecutor v Ishak bin Hj Shaari [2011] 3 MLJ 595) was in the minority. It was the sole Malaysian case to refer to R v Gould.

So, as a key takeaway to this whole entry:

• Our Mahkamah Rayuan is bound by its past decisions;
• However, the Mahkamah Rayuan may depart from its own decisions only when one of the three exceptions laid out in Young v Bristol Areoplane is met;
• These exceptions are: (1) there are two or more conflicting Court of Appeals decision, (2) it’s past decision is inconsistent with the Federal Court’s (Mahkamah Persekutuan) later decision, and (3) the Court of Appeal’s decision was per incuriam;
• Regina v Gould [1968] 2 QB 65 is still persuasive, though not binding.