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You can make an appeal if you lose your case in Malaysian courts. Here's how it works

19 days ago Tanusha Sharma

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This article is for general informational purposes only and is not meant to be used or construed as legal advice in any manner whatsoever. All articles have been scrutinized by a practicing lawyer to ensure accuracy.

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Let’s say you went to Subway to get the 6 inch sub sandwich but when you measured it, it was actually only 5 inches long (!!!). So you decide to sue Subway and initiate a law suit against them. But what happens if at the end of case, the judge didn’t decide in your favour and you lost your case? But court decisions, at least the first time, is not the absolute final judgement. If you think that the decision could be wrong or unfair, there’s one thing you can do, which is to file an appeal against that decision.

Appealing against the decision basically means making a request that the court review the decision, and hopefully decide that you’re right. But if you want to get your case reviewed, there are a few requirements you have to meet to file an appeal. This is because the Malaysian court has a hierarchy, and where your case was heard will determine where your appeal would go to. But the very basic thing to keep in mind is...

 

You have to ask a higher court to review your case

Image from Reading Law

Now from the court’s hierarchy above, only 3 of the highest courts has appellate powers. Which means that they have the power to hear appeal cases and change the decision if necessary. These courts are the High Court, the Court of Appeal and the highest of them all, the Federal Court—which is like the Godfather of courts. 

The two lowest courts, the Magistrates’ and Sessions cannot hear appeal cases, you can only start cases here. Which means if you lose your court case here, you have to get an appeal at a higher court.

But the High Court, the one in the middle, is different. It has a dual function, as you can start cases here, and you can also appeal cases initiated in the lower courts, which is the Magistrates’ and the Sessions Court.

Let’s see how the appeal process works, based on where you started your case. 

[READ MORE: Why does Malaysia have different courts and what do they do?]

 

Appealing from the lower courts to the High Court

If you’re appealing from the Magistrate or Sessions Court, your appeal would go to the High Court. Under Section 27 of the Courts of Judicature Act 1964 (CJA 1964), the High Court is allowed to hear appeals from these two lower courts.

There is also a limit on the claim amount to see if you can appeal or not. Under Section 28 of the CJA 1964, if the amount claimed is RM10,000 or less, there can be no appeal. But there are two exceptions, which are

  1. Appeal on questions of law, which means you’re appealing on how the law was applied in your case.
  2. Child support and alimony payments in divorce cases, regardless of the amount.

In order to begin the appeal process, you have to file a notice of appeal within 14 days from the date of the decision. In this notice, you have to state whether you’re appealing the whole decision from your case, or only part of it.

 

Appealing from the High Court to the Court of Appeal

Appealing to the Court of Appeal from the High Court has a different set of requirement, compared to appealing from the lower courts. Under Section 68 of the CJA 1964, there are three different types of appeal in this case being:

  1. Appeal as of right
  2. Appeal with leave of court
  3. No appeal
1. Appeal as of right

This means that you do not have to apply for leave— which basically means asking permission from the court to appeal your case. You are automatically entitled to appeal to the Court of Appeal, but only if:

  •  the amount claimed is more than RM250,000 as provided under Section 68(1)(a) CJA 1964 or
  • It’s an interpleader issue that went through a full trial as provided under Section 68(3) of the CJA 1964. 

What is an interpleader issue? The most basic, simplistic example of this is say you found a phone, and you put a message on Facebook asking for the owner to come forward. But TWO people came forward and claim that it’s theirs. The problem is, you don’t know who the real owner is. This, is an interpleader issue. 

2. Appeal with leave of court

This is where you have to ask for permission from the Court of Appeal first. If the Court of Appeal approves your request, then you can bring your appeal there.

This applies to cases where:

  • The amount that is being claimed is RM250,000 or less.
  • The judgment is on costs only, which are extra expenses spent for your court case, e.g. filing fees, which is the fee you have to pay the court to file a case in the first place. 
  • If it’s a summary judgment of an interpleader proceeding instead of a full trial (a summary judgment is a judgment entered by a court without a full trial)

But if your request for an appeal is not granted, that would be the end of the matter, as you can’t appeal this refusal to the Federal Court.

3. No appeal

This is where you have no right to appeal to the Court of Appeal and these are in circumstances where:

  • There was a consent judgment recorded between the parties. (A consent judgment is where two parties agree to a settlement to end a lawsuit and the terms of the settlement would be in a consent judgment)
  • The judgment of the High Court is declared final in any written law.

So if your case was under appeal as of right or appeal with leave of court, your notice of appeal must be filed within one month of the High Court decision.

 

Appealing from the Court of Appeal to Federal Court

For this stage of appeal, it involves even more requirements since you are appealing to the highest court in the country. There’s a two stage process under this type of appeal as you cannot appeal directly to the Federal Court right away. First, have to obtain a leave of court—which is asking for permission from the Federal Court to hear your appeal. If they do give you permission, only then would they hear your appeal in full. However, if they refuse your leave application, that’s that and it would be the end of the matter.

Section 96(a) of the CJA 1964 sets out the requirements to be able to appeal to the Federal Court. An example is in the case of Terengganu Forest Products Sdn Bhd v Cosco Container Lines Co Ltd [2011], where the basic prerequisites was that:

  1. The cause or matter must have been decided by the High Court in exercise of its original jurisdiction
  2. The appeal must be against the decision of the Court of Appeal
  3. The appeal must involve a question of law of general principle that has not been previously decided by the Federal Court before
  4. There is a good prospect of success in the appeal. 

The time limit to apply for leave to appeal to the Federal Court must be within 1 month from the decision of the Court of Appeal. And if the Federal Court grants the leave or permission for your appeal to be heard by the Federal Court, then the notice of appeal must be filed within the time period given by the Federal Court.

So, appealing your case isn’t as straight forward as it sounds. It depends on many factors such as the amount being claimed in the law suit, which court you’re appealing to or from, and even whether your appeal is on a point of law. 

 

Tags:
appeal
court hierarchy
high court
federal court
court of appeal
lose case
leave of court
courts judicature act 1964
magistrates'
sessions

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