A short guide to applying for leave to appeal
This is an approach to preparing an application for leave to appeal. An appeal is a request to a higher court to rehear and review the court below’s decision (‘the original decision’). An appeal can happen from the subordinate courts, comprised of the magistrates and sessions courts, to the High Court (Scenario 1) and subsequently from the High Court to the Court of Appeal (Scenario 2). It can also happen from the High Court to the Court of Appeal (Scenario 3) and subsequently the Court of Appeal to the Federal Court (Scenario 4). For civil matters, there is only one right of appeal. Suppose a litigant wants to appeal in a Scenario 2 or 4 situation. In those cases, the appellant (person appealing) requires the higher court’s leave to appeal i.e., ‘permission to appeal’, before he may file his appeal. For criminal matters, the situation is different. There are two rights of appeal: the appeal against the original decision and the appeal against the appeal. There is no need to obtain the higher court’s permission to appeal against the appeal. It is as of right. This guide is only concerned with civil matters and only for Scenarios 2 and 4 i.e., applying for leave to appeal to a higher court. I wrote earlier about how to approach appeals for Scenarios 1 and 3. Scenario 2 is applying for leave to appeal from the Court of Appeal (CA). Scenario 4 is applying for leave to appeal from the Federal Court (FC). Different legal tests apply even though they are both about obtaining leave to appeal. This guide considers the test for leave for Scenario 2 and then Scenario 4. Applying for leave at the Court of Appeal Firstly, it should be understood that not all matters are appealable. Section 68(1) of the Courts of Judicature Act 1964 (‘CJA64’) prohibits appeals to the CA for a limited class of matters. For example, there is an absolute prohibition against appealing a consent judgment (section 68(1)(b) CJA64), a decision which the law says the High Court’s decision is final (section 68(1)(d) CJA64), or against a High Court’s decision dismissing an application for summary judgment (section 68(1)e CJA64), or to strike out a claim (section 68(1)(f) CJA64), or allowing a judgment in default to be set aside (section 68(1)(g) CJA64). Secondly, some matters are not appealable but they can be appealed with the court’s leave or permission. For example, there is a conditional prohibition against an appeal where the value of the subject matter of the claim is less than RM 250,000 (section 68(1)(a)) or the appeal is only about the costs awarded by the High Court (section 68(1)(c)). Conditional prohibition because we can appeal these matters if we obtain the Court of Appeal’s leave. Where the value of the claim is concerned, the determining factor is the amount claimed in the statement of claim, not the amount determined by the court: Yai Yen Hon v Teng Ah Kok & Sim Huat Sdn Bhd & Anor [1997] 2 CLJ 68, FC. Thirdly, if an appeal requires the court’s leave to appeal and the appellant fails to apply for leave before filing its appeal, the appeal is a nullity. The court will strike out the appeal: see Yai Yen Hon (supra). To apply for CA leave to appeal, we need to understand and appreciate the threshold the CA must meet for it to grant leave. The CA decisions seem ambiguous because they use different terminologies and do not set clear standards. Three CA decisions consider the threshold for leave to appeal under section 68(1)(a) CJA64. The first is Yai Yen Hon v Teng Ah Kok & Sim Huat Sdn Bhd & Anor [1997] 2 CLJ 68. Here, Abu Mansor Ali JCA held the applicable test was the one laid down in the High Court decision of Pang Hon Chin v Nahar Singh [1986] 2 MLJ 145 by Edgar Joseph Jr J, which decided that ‘leave can only be given “where the applicant can demonstrate a prima facie case of error.” This is the ‘Prima facie error’ test. The second is Golden Hope Plantations (Peninsular) Sdn Bhd (Ladang Sungei Senarut) v Sarawathy Kathan [2009] 3 CLJ 335. Low Hop Bing JCA gave leave to appeal for a matter where the value of the appeal was RM 250.08 because an appeal against ‘the decision of the High Court was immensely important and had far-reaching consequences.’ This is the ‘Immensely Important’ test. The third is the most recent of the trilogy of cases, Harcharan Singh Sohan Singh v Ranjit Kaur S Gean Singh [2010] 3 CLJ 29. Tengku Baharudin Shah JCA held that the applicant must provide good and compelling reasons for its exercise. This is the ‘Good and Cogent Reasons’ test. The ambiguity arises because section 68(1)(a) and (c) CJA64 are not clear about what the applicable test is. It is, therefore, the CA’s task to work out what that test is. I believe the generally applicable test is the Good and Cogent Reasons, as stated in Harcharan Singh Sohan Singh, and should be decided on a case-to-case basis. It is appropriately ambiguous in its scope. The Prima Facie Error test in United Oriental Assurance Sdn Bhd is or should not be the only applicable test. A Prima Facie Error is a Good and Cogent Reason to give leave to appeal. A Prima Facie Error should be treated as a ground, not a standard. The same goes for the Immensely Important test in Golden Hope Plantations (Peninsular) Sdn Bhd. That an issue of law is Immensely Important and has far-reaching consequences is a Good and Cogent Reason to give leave to appeal. That means to obtain leave to appeal, we must show Good and Cogent Reasons. That is a bit like unfairness – we know it when we see or feel it. What is clear is that if we can show a prima facie error of law or that the issue of law is important and has broad applicability, the chances
