December 2016, Part B, Q1

The doctrine of stare decisis or the rule of judicial precedent dictates that a
court other than the highest court is obliged generally to follow the decisions of
the courts at a higher or the same level in the court structure subject to certain
exceptions.. Dalip Bhagwan Singh v PP [1998]1 MLJ 1.

With reference to relevant authorities, discuss the application of the doctrine

judicial precedent in Malaysia. ( 20 marks)

In Malaysia, as in other common law countries, the law is to be found not only
in the legislation, but also in cases decided by the courts. The doctrine of stare decisis,
being a fundamental doctrine in the common law system, applies in Malaysia. Chang
Min Tat FJ in PP v Datuk Tan Cheng Swee & Anor affirms the court to follow the
doctrine of judicial precedent. However, decisions of courts in other common law
country are only persuasive and subject to the reception of English law under certain
provisions of the Civil Law Act 1956.

The strict application of precedents in the common law system is known as the
doctrine of binding precedents or stare decisis. This doctrine means that in cases
where the material facts are the same, a court must follow the prior decisions of a
higher court, and in the case of same courts its own prior decisions and prior decisions
of a court of the same level whether past or present, in the same hierarchy. Ratio
decidenci is the legal principle or principles underlying the decision. It is a source of
law that binds future courts in other cases with similar facts. The practice of following
precedents in similar fact situations is a feature of all major legal system.

The doctrine of judicial precedents has a two-way operation, which are vertical
and horizontal operation. For the vertical operation a court is bound by the prior
decisions of all courts higher than itself in the same hierarchy. The hierarchy of courts
of any common law country will immediately make obvious the precedents of which
court bind the other courts. Briefly, decisions of the Federal Court bind all courts. The
Court of Appeal is bound by the decisions of the Federal Court, and its decisions bind
the two High Courts and the subordinate courts. The High Courts are bound by
decisions of the Federal Court and the Court of Appeal, and their decisions bind the
subordinate courts. Decisions of the subordinate courts are, of course, not binding.

Every court in the hierarchy must follow the prior decisions of courts higher
than itself even if the decision is wrong. It may not decline to follow the higher courts
decision on any ground. In the case of Harris Solid State, counsel for the appellants
tried to argue before the Court of Appeal that the majority decision of the Federal Court
in Rama Chandran was wrong and ought not to be followed. It was held that the court
is bound to follow and apply the law as stated by the majority in Rama Chandran, even
it suffers from any infirmity. It is a decision of the apex court and constitutes binding
precedent.

While a court may not refuse to follow a decision of a higher court, it may choose
between two conflicting decisions. 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. However, in the case of two
conflicting decisions of the Federal Court, all court must follow the later decision
because the later decisions represents the existing state of law and therefore, prevails
over the earlier decisions. These principles were laid down by the Federal Court in the
case of Dalip Bhagwan Singh v PP.

The vertical operation is not sraightforward in Malaysia because of the status

of decisions of the Privy Council and status of decisions of predecessor courts of the
present Federal Court. The decision of the Privy Council were binding on Malaysian
Courts in two circumstances; where the decision was in the case of appeal from
Malaysia and where the decision was in a case on appeal from another common law
country and the law in point was the same as in Malaysia. Such circumstances can be
seen form the case of Wong See Leng v Saraswathy Amal, where counsel for
respondent argued that the Court of Appeal was bound by its own previous decision
in Yaacob bin Lebai Jusoh v Hamisah binti Saad. The court rejected that submission
because it was contrary with the decision in Privy Council decision in Haji Abdul
Rahman.

For the horizontal operation of the doctrine of stare decisis, some courts are
bound by their own prior decisions and prior decisions of a court of the same level,
whether past or present. Three phases need to be looked at in order to learn about
horizontal operation in Malaysia. However, the important phase for horizontal
operation is post 1994. Section 2 of the Constitution (Amendment) Act 1994 and s 5(c)
of the Courts of Judicature (Amendment) Act 1994 renamed the Supreme Court as
the Federal Court. After the three-tier structure of the superior court which existed
before 1 January 1985 is reinstated, a few issues arise.

The first issue in horizontal operation is whether the federal court is bound by
the decision of the Supreme court. In civil matters, the Federal Court does not regard
itself bound by decisions of the Supreme court. This can be seen in Malaysian National
Insurance Sdn Bhd v Lim Tiok where the case 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. The Supreme Court, in Tan Chik bin Ibrahim v Safety Life and
General Insurance 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 in the instant case was whether the Supreme Court decision
in Tan Chik should be reviewed to determine whether it was wrongly decided and if
so, whether it should be overruled. By applying the principles in Food Corporation of
India v Antclizo Shiping Corporatio, the Federal Court reviewed Tan Chik, decided that
it was wrongly decided and should not be followed. In effect, the Federal Court
overruled a decision of the Supreme Court.

On the other hand, in criminal matters, the Federal Court holds itself bound by
the decisions of the Supreme Court. In Tan Boon Kean v PP, the Federal Court was
faced by 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. Earlier, the Supreme Court, in Khoo Hi Chiang v PP and Another
Appeal, had decided that the duty of the court at the close of the prosecutions case
was to undertake a maximum evaluation of the evidence to determine whether or not
the prosecutor had established the charge against the accused beyond reasonable
doubt. The Federal Court unanimously held itself bound by the Supreme Court
decision.

The second issue in the horizontal operation is whether the Federal Court is
bound by its own previous decisions. The present Federal Court is not bound by its
own previous decisions. This is illustrated in the case of Dhalip Bhagwan Singh v PP
where the judge stated that the practice of following precedent is not binding on us. In
this case, the federal Court has power to depart from its previous decision. According
to the case, in the case of two conflicting decisions of the Federal Court on a point of
law, the later decision prevails over the earlier decision because the later decision
represents the existing state of the law. For instance, the case of Arulpragasan a/l
Sandaraju v PP illustrates the departure of the Federal Court from its previous decision
on the issue of burden of proof at the close of the prosecutions case.

In civil matters, the policy of the present Federal Court was initially hazy. Its
policy was formulated in Kumpulan Perangsang Selangor Bhd v Zaid bin Haji Mohd
Noh, where the Federal Court is bound by its previous decision when the appellant
invited the Federal Court to depart from its majority decision in Rama Chandran. This
case is concerned with the application for certiori to quash a decision of the Industrial
Court. However, the judgement of the Federal Court in later case of Koperasi Rakyat
Sdn Bhd v Harta Empat, had helped to dispel the haze and reveal the policy of the
Federal Court in clearer light.

In Harta Empat, the defendant cooperative society appealed to the federal court
against a decision of the court of Appeal to the effect that a charge created in
contravention of section 133 of the Companies Act 1965 was void and unforceable.
The court of Appeal reached that decision in Co-operative Central Bank Ltd v Feyen
Development and used it as binding precedence. In the light of above judgement, it is
submitted that the practice of the present Federal Court in civil matters is the same as
in criminal matters, which is, while treating the previous decisions as normally binding,
the Federal Court will depart from a previous decision when it appears right to do so.

The third issue in the horizontal operation is whether the Court of Appeal is
bound by its own previous decision and the circumstances where Court of Appeal may
depart from its own previous decision. In Kesultanan Pahang v Sathask Realty Sdn
Bhd, the Court of Appeal was urged by counsel for the appellant to reject its earlier
decision in Syarikat Kenderaan Melayu Kelantan Sdn Bhd v Transport Workers Union,
which, in the counsels opinion, had wrongfully refused to follow the Privy Council
decision in South East Asia Bricks. The judge rejected the invitation as the court of
Appeal is bound by its own decision, quoting the dictum by Gopal Sri Ram in the
Federal Court in Kumpulan Perangsang Selangor Bhd.
 There is also circumstance where the Court of Appeal may depart from its own
previous decision. In the case of Kwong Yik Bank Berhad v Ansonia Management
Associates Sdn Bhd, where it concerned about the decisions of the subordinate courts
in interlocutory proceedings to the High Court. The Court of Appeal was faced with two
lines of conflicting authorities, the High Court decision in Syarikat Kayu Bersatu Sdn
Bhd and Yupaporn Seangarthit. The Court of Appeal overruled the High Court
decision in Syarikat Kayu Bersatu and the cases which followed it. In doing so, the
Court of Appeal justified its departure from a previous decision in Yupaporn through
the justification made by Gopal Sri Ram JCA.

The fourth issue in horizontal operation is whether the High Court is bound by
the decision of another High Courts decision. In practice, Malaysian High Court
judges have acted on the assumption that one High Court judge whether exercising
original or appellate jurisdiction is not bound by a decision made by another High Court
judge. For instance, in Joginder Singh v PP, the High Court exercising appellate
jurisdiction held that it was not bound to follow a decision of the High Court in an appeal
presided over by three judges empanelled under s 306(3) of the Criminal Procedure
Code in Hassan bin Isahak v PP. The practice of the High Courts described above
has continued unchanged until today.

In conclusion, doctrine of judicial precedence operates in two ways, which is

the vertical operation and horizontal operation. Over the years, Malaysian court has
applied the doctrine of judicial precedent in our legal system