MAY 4 — Upon the conviction of former prime minister Mohd Najib Razak on the seven charges against him, Najib’s counsel informed the court that he would be appealing against the conviction and sentence. Defence counsel applied for a stay of execution of the sentences of imprisonment and fine.

The trial judge allowed the application.

On Wednesday, upon conviction of Rumah Bonda founder Siti Bainun Ahd Razali on the two charges against her, Bainun’s counsel too informed the court that she would be appealing against the conviction and sentence. Defence counsel then applied for a stay of execution of the sentence of imprisonment.

The trial judge dismissed the application.

Was Bainun treated differently and unfairly in respect of the application for a stay of execution?

Under Section 311 of the Criminal Procedure Code (CPC) no appeal shall operate as a stay of execution, but the court may exercise its discretion to grant a stay of execution in accordance with well-established judicial principles and be based on the facts and circumstances of each individual case.

The grant of a stay is only an exception to the general rule. Hence — and it is settled law — special or exceptional circumstances must be shown to exist before the discretion can be exercised in favour of a convicted accused.

There are many decisions which are leading authorities on the matter. The first oft-cited decision is in the case of KWK (A Child) v Public Prosecutor where Augustine Paul JCA (as he then was) set out the following factors that may constitute special circumstances to justify the grant of a stay of execution after conviction:

(a) the gravity or otherwise of the offence;

(b) the length of the term of imprisonment; in comparison with the length of time which is likely to take for the appeal to be heard;

(c) whether there are difficult points of law involved;

(d) whether the accused is a first offender or has previous convictions;

(e) whether the accused would become involved again in another offence whilst at liberty;

(f) whether the security imposed will ensure the attendance of the appellant before the Appellate Court.

The above is not exhaustive. No single factor can have a determinative effect on the decision to be made. It is the cumulative effect of all the factors that matters.

In another Court of Appeal decision in Dato’ Seri Anwar Ibrahim v Public Prosecutor, Federal Court Judge Pajan Singh Gill stated that it was crucial for the convicted accused to show the presence of exceptional circumstance and where reliance was placed on proposed grounds of appeal, they must be prima facie very strong or extraordinarily high prospect of success.

Public confidence in the administration of justice requires that judgment should be enforced, hence a person convicted of a serious offence should serve the sentence passed. If a stay of execution of sentence is readily available after conviction, it will encourage the proliferation of unmeritorious appeals.

It was based on the above that the trial judge in Najib’s case found, on the facts of the case, that he had successfully established the presence of special or exceptional circumstances, namely:

(a) First, there were novel points of law involved, which had probably never been judicially considered before. The defence counsel submitted on a long list, a few of which the trial judge accepted as quite new.

(b) Second, courts should also ensure in evaluating the cases before them that Article 8 of the Federal Constitution on the principle that everyone is equal before the law is applied strictly. This also must mean the accused should not have a basis to feel that he is unfairly treated when compared to others in respect of stay applications.

The second is interesting. Should Bainun have the basis to feel that she was unfairly treated when compared to others in respect of her stay application?

The trial Sessions Court judge in her case was reported to have said that he found no reason to allow the application for a stay of execution of the sentence since she failed to provide a valid reason to support her application for stay of execution.

The learned judge rightly said that an appeal did not constitute special circumstances.

"In my view, the factors argued by the accused’s counsel have failed to show extraordinary reasoning.”

"Therefore, there is no reason for me to further delay the execution of the jail sentence imposed as no special circumstances have been shown to justify the application,” the learned judge ruled.

Bainun may be aggrieved with the decision, but as explained above, no single factor can have a determinative effect on the decision to be made. It is the cumulative effect of all the factors that matters.

Be that as it may, Bainun has the right to apply to the High Court for a stay of execution of her sentence under Section 57 of the Courts of Judicature Act 1964.

* This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail