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Mohamad Amri Alfikri bin Mohamad Dasuki

Shaharul bin Othman

Muhammad Nor Sollihin Bin Salleh
Muhammad Zaidi bin Izman Murugan
Mohamad Azri bin Zokarnini
 Federal Court is not bound by its own
previous decision –Peh Swee Chin F.C.J
 May depart from its own decision.
 However, it should be used sparingly.
 Depends on its consequences that is when
previous decisions were wrong, uncertain,
unjust or obsolete in the modern conditions.
Dalip Bhagwan Singh v Public Prosecutor
 Issue
 Conflicting decisions of the Federal Court -
Whether lower court may refuse to apply latest
decision of Federal Court on a point of law and
adopt an earlier decision.
 The court held that when two decisions of the
Federal Court conflict on a point of law, the later
decision prevails over the earlier decision.
Doctrine of stare decisis
 One of sources of Malaysian Law.
 In Malaysia, the law is to be found not only in
legislation, but also in cases decided by the
 The courts referred to are the superior courts;
Federal Court, the Court of Appeal, and the
High Court.
 Stare decisis- let the decision stand
 In a legal context, this is understood to mean
that courts should generally abide by
precedents and not disturb settled matters.
 Must abide the doctrine in cases where they
are pari materia, i.e material facts are similar.
 In general, the doctrine is stating that cases
heard in Superior Courts lay down legal
principles which are unwritten law and must
be followed by later lower level court
 Once a precedent is made, it remains binding
no matter how old it is, unless overruled by a
later decision.
 When there is no existing precedent, the court
will “declare” the law and the case will become
an original precedent.
How does the doctrine of precedent
 It works in 2 ways: vertically and horizontally.
 Vertically: when superior courts decisions
bind all subordinate courts.
 For example, magistrate court has to follow
principles in previous decision of high court
when there are similar facts.
 Horizontally: when superior court is bound to
follow either:-
1. Its own previous decision
2. Decisions of its predecessor
3. Decisions of courts of co-ordinate jurisdiction.
 In order to decide whether precedent is binding
or not, judge is influenced by 2 main factors:

1. The origin of the precedent

2. The contents of the precedent
The origin
 To be binding, the precedent must originate from a court
of appropriate rank in the same hierarchy

 If the precedent comes from a court superior in the

hierarchy to the court currently trying the case, the
precedent must be followed, vice versa
 Example:

 Present case (2008) –High Court

 Precedent (2000) – Federal Court

 High court in 2008 must follow the decision

made by FC in 2000 if material fact are similar.
Contents of Precedents

 Divided into 2:
i) ratio decidendi
(legal reasoning) principle/reason of judgment.

ii) obiter dictum/dicta

(things said by the way/opinion)
comment/opinion by judge but is not a direct
reason to the decision given.
 However, the only binding part to the case is
ratio decidendi whereby obiter dictum is not
binding but merely persuasive.
The Civil Courts in England
House of Lords

The Court of Appeal (Civil Division

Court of

The High Court of Justice

Chancery Family
Division Division

Appeals shown thus
Hierachy of the Superior Courts From 1963 -
Judical Committee of the
Privy Council

Federal Court

High Court
(Malaya) High Court (Borneo)
Hierachy of The Superior Courts 1985-1994


High Court
(Malaya) High Court (Borneo)
Hierachy of the Malaysia Court Post -

Federal Court

Court of

High Court in High Court in Sabah

Malaya and Sarawak
Federal Court

Court of

High Court in Superior

High Court in Sabah
Malaya Courts
and Sarawak

Sessions Court
Sessions Court Subordinate

Penghulu‟s Court
Vertical Operation
 Courts of lower rank are bound to follow the
decisions of the courts of higher ranks.

Court of
High Court

Subordinate Courts
 Subordinate Courts‟ decision are not binding
in any court, including them.
 They are bound by precedents laid down by
the Superior Courts.
Vertical Operation
 In Dhalip Bhagwan Singh V Public Prosecutor
[1998] the Federal Court laid down two
 While a court may not refuse to follow a decision
of a higher court, it may choose between two
conflicting decisions;
 1) In the case of two conflicting decisions of the
Court of Appeal, courts lower in the hierarchy
may choose to follow either decision irrespective
of whether it is the earlier or later decision (the
dates do not matter to the Court of Appeal itself).
 This was illustrated in Ablemerge v Emville [2000],
which the High Court faced with two conflicting
authorities from the Court of Appeal which are
Accounting Publications v Ho Soo Furniture [1998]
and Interscope Versicherung v Sime Axa Assurance
 The High Court choose to follow the earlier decision.
 2) In the case of two conflicting decisions of the
Federal Court, all courts below must choose to
follow the later decisions (because the later
decisions represents the existing state of the
 This was illustrated in Datuk Tan Leng Teck V Sarjana
Sdn Bhd & Ors [1997], the High Court faced with two
conflicting decisions of Federal Court which are Ah Mee v
Public Prosecutor [1967] and Public Prosecutor v
Datuk Haji Harun bin Idris [1977].
 The High court chooses to follow the later decision.
 The vertical operation in Malaysian courts are
not straightforward?
 Reasons?
 1)Status of decisions of the Privy Council.
 2)Status of decisions of predecessors courts
of the present Federal Courts.
Status of decisions of the Privy Council

 When Privy Council was the apex of the

Malaysian judicial hierarchy its decision were
binding in Malaysian courts in two
 1) Where the decision was in a case of appeal from

 In Wong See Leng v Saraswathy Amal [1954], counsel

for the respondent argued that the Court of Appeal of
Federation of Malaya was bound by its own prior decision
in Yaakob bin Lebai Jusoh v Hamisah binti Saad
 The court of Appeal rejected that submission because the
prior decision was contrary to the Privy Council decision
in Haji Abdul Rahman & Anor v Mahomed Hassan
[1917], which the Board categorically stated that English
rules of equity do not apply to a system of registration of
titles to land.
 2) Where the decision was in a case on appeal from
another common law country and the law in point was
same as in Malaysia.

 In Khalid Panjang & Ors v Public Prosecutor

[1964] it was laid down by the Federal Court that a Privy
Council decision in an appeal from another country was
binding on courts in Malaysia, where the statutory
provision in point was in pari materia with statutory
provisions in Malaysia.
Status of decisions of predecessors courts of
the present Federal Courts.

 The predecessors of the Federal Court

identified as the former Federal Court (1963-
1985) and the Supreme Court (1985-1994).
 It follows that decisions of these
predecessors courts are binding and
continue to be binding until overruled by the
present Federal Court.
 In the High Court case of Anchorage Mall Sdn Bhd v
Irama Team (M) Sdn Bhd & Anor [2001] the counsel
urged the court not to follow authority decided by the
Supreme Court in Alor Janggus Soon Seng Trading &
Ors v Seng Hoe Sdn Bhd & Ors [1995] on the ground
that was said in the case was not the ratio.
 The court rejected the submission of the counsel.
Under section 2 of the Constitution (amendment) Act
1994 (Act A885) and section 5 (c) of the Courts of
Judicature (Amendment) Act 1994 (Act A886) have
renamed the supreme court as the Federal Court.
 So, Federal Court shall have same
jurisdiction as the previous Supreme Court.
 But, the issue is whether the Federal Court is
bound by the practice and precedent of
Supreme Court?
 Regarding to civil matter, the Federal Court
does not regard itself bound by the decision of
the Supreme Court.
 Case involve: Malaysia National Insurance Sdn
Bhd v Lim Tiok [1997] 2 MLJ 165. (concerned
the extent of liability of insurers against third
party risks under a compulsory insurance policy
in a direct action brought by a third party)
 Supreme court case: Tan Chik bin Ibrahim v
Safety Life and General Insurance Sdn Bhd
[1987] 1 MLJ 217. ( the case stated that had
decided that in a situation involving independent
tortfeasors, insurers are liable only to the extent
to which their insured is adjudged responsible
for the accident)
 The issue is, should the Federal Court follow the
decision in Supreme Court or the Federal Court
should review the case to determine whether it was
wrongly decided and should be overruled?
 So, The Federal Court with full bench of five judges
decided to reviewed Tan Chick, decided it was
wrongly decided and should not be followed. The
Federal Court adopted the criteria laid down by
House of Lords in the case of Food Corporation of
India v Antclizo Shipping Corporation [1988] 2 All
ER 513
1) They feel free, if necessary to depart from the
reasoning and the decision
2) They satisfied that it would be of relevance to the
resolution of the dispute in the case before them
Thus, the Federal Court overruled a decision of the
Supreme Court.
 Whereas in Criminal matters, the Federal
Court holds itself bound by the decisions of
the Supreme Court.
 There is a case in Tan Boon Kean v Public
Prosecutor [1995] 3 MLJ 514, the Federal
Constitution was faced with the issue of the
standard of proof to be satisfied by the
prosecution at the close of the prosecutions
case in a non-jury trial under section 180 of
the Criminal Procedure Code (Act 593).
 Before this, in the case of Khoo HI Chiang v
Public Prosecutor & Another Appeal [1994] 1
MLJ 265, the Supreme Court had decided
that duty of the court at the close of the
prosecution‟s case was to undertake a
maximum evaluation of the prosecution‟s
case was to undertake a maximum
evaluation of the evidence to determine
whether or not the prosecution had
established the charge against the accused
beyond reasonable doubt.
 Thus, the Federal Court unanimously held
itself bound by the Supreme Court Decision.
 Besides that, the present Federal Court is
not bound by its own previous decisions.
 Its practice is summarized by Peh Swee
Chin FCJ in Dalip Bhagwan Singh v Public
Prosecutor [1998] 1 MLJ 1, 14.
 The suggestion by Peh Swee Chin FCJ that
the Federal Court should use its power to
depart from its previous decisions sparingly
was put to practice in Tunde Apartira & Ors v
Public Prosecutor [2001] 1 MLJ 259.
(overruled the previous decision in the case
Muhammed Bin Hassan v PP [1998] 2 MLJ
 It also stated that the practice of the present
Federal Court in civil matters is the same as
in criminal matters. For example, treating
previous decisions as normally binding, the
Federal Court will depart from a previous
decision when it appears right to do so.
 Although there is a little bit argument that
regarding to civil case, it little bit hazy.
 Thus in the case of Koperasi Rakyat Sdn Bhd v
Harta Empat Sdn Bhd [2000] 2 AMR 2311 had
helped and reveal the policy of the Federal
Court in clearer light.
• Gopal Sri Ram JCA stated that
• “but I am not to be taken as saying we should
never depart from an earlier decision of this
court. Departure may be warranted in a case
where it appear patently clear that the earlier
decision was given in defiance of an express
statutory provision that was overlooked by this
court. Equally where a serious error is
embodied in a decision of this court that has
distorted the law, in which case the sooner it is
corrected the better.”

 In case of horizontal operation of binding

precedent, the Court of Appeal is bound by its
own decision.

 It would bound by its own decision but subject to

limitation stated in Young v Bristol Aeroplane Co.

 It binds in both civil and criminal cases.

 Kesultanan Pahang v Sathask Realty Sdn. Bhd

Fact: the appellant submitted in the Court of Appeal that the

law as laid down by the Privy Council in the South East Asia
Fire Bricks Sdn. Bhd v Non-Metallic Mineral Products
Manufacturers Employee Union & Ors is still binding on
Malaysian Court. The appellant urged the Court of Appeal in the
instant case to reject its earlier decision in Syarikat Kenderaan
Melayu Kelantan Sdn. Bhd. v Transport Workers Union.
Held: The court held that the invitation was rejected
on the ground that the Court Of Appeal was bound by
its own decision. It refers to the quotation as authority
the dictum by Gopal Sri Ram JCA in federal court in
case of Kumpulan Perangsang Selangor Bhd v Zaid
bin Haji Mohd Noh that „we are bound by our own
decision‟. The judge, Abdul Malik Ahmad JCA said,
forlike reasons, the Court of Appeal is bound by its
 In Malaysia there are two High Courts of equal
jurisdiction and status which been stated under
Article 121 (1) of the Federal Constitution.

 The mention courts are the High Court of Malaya

and High Court Borneo

 In case of horizontal operation of binding

precedent, one High Court judge does not bind to
another High Court judge, although he may do
 Sundralingam v Ramanathan Chettiar

fact: the counsel for the plaintiff, cited Narayanan v

Alagappa, a decision of High Court, as authority for
asserting the validity of a promissory note despite
non-attestation as requires. During the appeal at
the High Court, MacIntyre J who expressed the view
that he was bound to follow the decision of the
previous High Court judge, being a decision of a
court of equal jurisdiction sitting on appeal.
Held: Azmi CJ in the Federal Court said, „we
may properly follow the practice of England
where a High Court Judge, though he
cannot overrule one of his brethren,
could disapprove his decision
and decline to follow him.
 Joginder Singh v Public Prosecutor

Fact: the High Court held that it was not bound to

follow a decision of High Court of co-ordinate
jurisdiction in Hassan bin Isahak v Public
Prosecutor. The fact that Hassan‟s case was
decided by three judges‟ empanelled under
section 306(3) of the Criminal Procedure Code
would not make it a decision of a higher authority.
In addition, the court reiterated the well-
established principle of the doctrine of binding
precedent which states that an opinion of
Superior Court in deciding a case is not binding
as precedent unless it forms part of the ratio