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IN THE HIGH COURT OF MALAYA

AT GEORGETOWN PENANG

[CRIMINAL APPEAL NO: PA-42H-8-03/2019]

BETWEEN

GUNASEGARAN A/L NADARAJAN … APPELLANT

AND

PUBLIC PROSECUTOR … RESPONDENT

[In The Criminal Session Court (2) at Georgetown, Penang


Criminal Trial No: 62D-358-12/2018]

Between

Public Prosecutor

Gunasegaran A/L Nadarajan

GROUNDS OF JUDGMENT

MATTER BEFORE THIS COURT

[1] This an appeal by the Appellant against sentence that was passed
against him following a conviction resulting from a plea of
guilty before the Sessions Court of Georgetown, Pulau Pinang
for 2 offences under Section 15(1) (a) of the Dangerous Drugs
Act 1952 (ODA).

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BACKGROUND

[2] The Appellant was originally charged on 1ih December 2018


before the Sessions Court of Georgetown, Pulau Pinang (SC) for
2 offences under Section 15(1)(a) of the Dangerous Drugs Act
1952 (ODA) forthe self- administration of morphine in the first
charge and the self- administration of Amphetamine and
Metamphetamine in the second charge. Both charges was read
together with Section 39C(1) of the ODA where it was stated
that the Appellant had been convicted of two prior convictions
under Section 15(1)(a) of the same Act. The Appellant claimed
trial to both these charges.

[3] However, on 18 th February 2019, the Public Prosecutor offered


two alternative charges for offences under Section 15(1) (a)
without (i) stating the prior 2 convictions for the same offence,
and (ii) reading them together with Section 39C (1) of the ODA.
For the second charge specifically, the alternative charge was
confined only to the self-administration of Methamphetamine.
The SC Judge ordered the discharge not amounting to acquittal
on both the original charges against the Appellant before the
alternative charges were read to the Appellant.

[4] It is pertinent to refer to the charges. The original charges were


framed as follows:

Pertuduhan 1

Bahawa kamu pada 19/05/2017, jam lebih kurang 2.15 petang, di


Pejabat Cawangan Narkotik IPD Timur Laut, Pulau Pinang,
dalam Daerah Timur Laut, dalam negeri Pulau Pinang telah
didapati memasukkan dadah ke dalam tubuh badan kamu sendiri
Morphine dengan itu kamu telah melakukan satu kesalahan di
bawah Seksyen 15(1)(a) Akta Dadah Berbahaya 1952.

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Dan bahawa kamu sebelum melakukan kesalahan seperti yang di


atas pada 24/01/2017 telah disabitkan dengan dua kesalahan di
bawah Seksyen yang sama oleh Mahkamah Majistret dalam
Daerah Timur Laut, dalam negeri Pulau Pinang yang mana
sabitan itu masih berjalan dan mempunyai kuatkuasanya dan
dengan itu kamu boleh dikenakan hukuman di bawah Seksyen 39
C akta yang sama.

Pertuduhan 2

Bahawa kamu pada 19/5/2017 jam lebih kurang 2.15 petang, di


Pejabat Cawangan Narkotik IPD Timur Laut Pulau Pinang,
dalam Daerah Timur Laut, dalam negeri Pulau Pinang telah
didapati memasukkan dadah ke dalam tubuh badan kamu sendiri
Amphetamine dan Methamphetamine, dengan itu kamu telah
melakukan kesalahan di bawah Seksyen 15(1)(a) Akta Dadah
Berbahaya 1952.

Dan bahawa kamu sebelum melakukan kesalahan seperti yang di


atas pada 24/1/2017 telah disabitkan dengan dua kesalahan di
bawah seksyen yang sama oleh Mahkamah Majistret dalam
Daerah Timur Laut, dalam negeri Pulau Pinang yang mana
sabitan itu masih berjalan dan mempunyai kuatkuasanya dan
dengan itu kamu boleh dikenakan hukuman di bawah Seksyen
39C(1) akta yang sama.

[5] The alternative charges are then stated as follows:

Pertuduhan Pilihan 1

Bahawa kamu pada 19/5/2017, jam lebih kurang 2.15 petang, di


Pejabat Sahagian Siasatan Jenayah Narkotik Daerah Timur Laut,
di dalam negeri Pulau Pinang, telah didapati memberikan kepada
diri kamu sendiri dadah berbahaya jenis Morphine, dengan itu

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telah melakukan kesalahan di bawah Seksyen 15(1)(a) Akta


Dadah Serbahaya 1952 yang boleh dihukum di bawah Seksyen
15(1) akta yang sama.

Pertuduhan Pilihan 2

Sahawa kamu pada 19/5/2017, jam lebih kurang 2.15 petang,


diPejabat Sahagian Siasatan Jenayah Narkotik Daerah Timur
Laut, dalam negeri Pulau Pinang, telah didapati memberikan
kepada diri kamu sendiri dadah berbahaya jenis
Methamphetamine , dengan itu telah melakukan kesalahan di
bawah Seksyen 15(1)(a) Akta Dadah Serbahaya 1952 yang boleh
dihukum di bawah Seksyen 15(1) akta yang sama.

[6] The Appellant was not represented by counsel before the SC.
The Appellant pleaded guilty to both the alternative charges
when it was read to him. Having satisfied himself that the
Appellant understood the charges and the consequences of his
plea of guilt the Learned SC Judge accepted and recorded the
Appellant’s plea of guilt. The Appellant admitted to the facts of
the case as read to him and they were tendered as Exhibit P1.

[7] The Learned SC Judge after considering the plea for leniency by
the Appellant and after hearing the Public Prosecutor, sentenced
the Appellant for each of the offences the maximum 2 years
imprisonment under Section 15(1) and a 3 years supervision
pursuant to Section 38B of ODA following his release. The
imprisonment terms were to run concurrently from the date of
conviction on 18 th February 2019.

THE APPEAL

[8] The Appellant being dissatisfied with the sentence now appeals
to this Court.

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[9] There is no cross appeal by the Public Prosecutor.

THE LAW RELATING TO APPEALS AGAINST SENTENCE

[10] It is trite law that as set out by the Supreme Court in the case of
Public Prosecutor v. Mohamed Nor & Ors [1985] 2 MLJ that the
appellate court should be slow to interfere with a sentence
passed by the court below unless it is manifestly wrong. Later in
the case of Dato’ Seri Anwar bin Ibrahim v. Public Prosecutor
[2002] 3 MLJ, the Federal Court had clearly stated that the
appellate court will not normally alter the sentence unless it is
satisfied that the sentence passed by the lower court is
manifestly inadequate or excessive or illegal or the court erred
in applying the correct principles in the assessment of sentence.

THE GROUNDS OF APPEAL.

[11] In his Petition for Appeal the Appellant set out 4 grounds for
mitigation. They are:

(i) He seeks to have a lenient and reduced sentence from the


date of his arrest;

(ii) By pleading guilty he had saved the court’s time and costs;

(iii) By pleading guilty at the early stage of the case he has


demonstrated remorse for his past acts; and

(iv) He desires to be given a chance to return to society as a


responsible and useful citizen.

[12] Before the Learned SC Judge, the Appellant had pleaded for a
lenient sentence to run from the date of his arrest. From the
Notes of Proceedings in the SC, the Appellant did not present to

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the SC any grounds of mitigation to support his plea for


leniency.

THE ALTERNATIVE CHARGES

[13] As stated earlier, the Public Prosecutor had offered alternative


charges against the Appellant by omitting (i) the reading of
Section 39C(1) together with Section 15(1)(a) of the ODA and
(ii) the references to the previous 2 convictions.

[14] No reasons are apparent in the Notes of Proceedings as to why


the Public Prosecutor offered the new charges. However, the
alternative charges were framed to exclude the application of the
increased penalty under Section 39C (1). After the new charges
were read to the Appellant he pleaded guilty to both the
alternative charges.

[15] Now here is the crucial part relevant to this Appeal. After the
plea of guilt was recorded by the Learned SC Judge, the Public
Prosecutor tendered as Exhibit P4, the report from the Pusat
Pendaftaran Penjenayah setting out the various convictions and
sentences that the Appellant had been punished with.

[16] Exhibit P4 showed that the Appellant had committed 2 prior


offences under Section 15(1)(a) ODA. On 24 th January 2017 he
was sentenced to 10 months imprisonment for each of the
offences to run concurrently from his date of arrest and 2 years
supervision under Section 388 of DDA.

[17] Therefore, when P4 was tendered as exhibit against the


Appellant, the Appellant’s two prior convictions under Section
15(1)(a) ODA then became evidence in the proceedings before
the Learned SC Judge.

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[18] It would appear from the Notes of Proceedings that when the
alternative charges were read to the Appellant and the plea of
guilty were accepted and recorded the Learned SC Judge did not
consider whether or not if Section 39C (1) ODA became
mandatorily applicable because of the two prior convictions
against the Appellant.

[19] It followed that when the Learned SC Judge considered the


sentence to be passed against the Appellant he confined his
attention only to the punishment under Section 15 (1) ODA and
ignored the increased penalty under Section 39C (1) ODA.
Hence the sentence of 2 years imprisonment and 3 years
supervision.

ISSUES BEFORE THIS COURT

[20] When this Appeal is brought before this Court, the primary
attention of this Court is brought to the issue of sentence that
was passed against the Appellant and the matter to be considered
and decided upon hearing the Appellant is whether there are any
factors that could cause this Court to reduce the punishment
under Section 15 (1)(a) ODA in favor of the Appellant.

[21] However, upon closer study of the background facts of this


Appeal as stated above, this Court drew its attention to a more
fundamental issue that goes, in this Court’s view, to the
correctness of the sentence with regards to the applicable
provisions of the ODA.

[22] The questions that have arisen are:

(a) Were the alternative charges capable of excluding the


application of Section 39C (1) ODA in light of the
Appellant’s prior 2 convictions for the same offence?;

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(b) Was the Learned SC Judge correct in not directing his


mind to the application of Section 39C (1) ODA to the
alternative charges when accepting the plea of guilty by
the Appellant?; and

(c) Was the Learned SC Judge correct in passing sentence


under Section 15(1) (a) ODA and not under the increased
penalty provisions of Section 39C (1) ODA which applies
to persons found guilty of an offence under Section 15(1)
(a) ODA and having had 2 prior convictions for the same
offence?

MANDATORY EFFECT OF SECTION 39C (1) of the DDA

[23] Section 39C (1) (b) ODA clearly states that when a person who
has not less than 2 previous convictions under paragraph 15(1)
(a) ODA is found guilty (Emphasis added) of an offence under
paragraph 15(1) (a) he shall (Emphasis added), instead of being
liable to the punishment provided for that offence under the
section under which he has been found guilty, be punished
(Emphasis added) with imprisonment for a term which shall not
be less than 5 years but shall not exceed 7 years, and he shall
also be punished with whipping of not more than 3 strokes.

[24] It is settled law that where a provision of the law states that
upon conviction a person “shall be punished” with the
prescribed offence, then the Court has no discretion to consider
any other punishment.

This Court is bound by the decision of the Court of Appeal in


Antonia Marleen Yarendra v. Chai Wei Chung [2017] 4 MLJ 359
wherein the distinction between the meaning of the phrases
“shall be liable for” and “shall be punished with” were

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discussed. The Court of Appeal referred with approval to the


cases of Public Prosecutor v. Man bin Ismail [1939] 1 MLJ 207
and Public Prosecutor v. Hew Yew [1972] 1 MLJ 164 and
concluded that it is the position under criminal law that only
where the punishment provides that the offender “shall be
liable” for a punishment would the Court be accorded with a
discretion. Otherwise, where the punishment is stated as “shall
be punished” with the prescribed punishment then that
punishment is mandatory.

[25] This Court is satisfied that based on the evidence of Exhibit P4,
the Appellant has 2 prior convictions under Section 15 (1) and
therefore this fact comes within the scope of Section 39C of the
ODA.

FRAMING OF THE ALTERNATIVE CHARGES

[26] Section 152 of the Criminal Procedure Code (CPC) sets out the
requirements of how a charge shall be framed. Whilst Section
154 (4) CPC states that the law and section of the law against
which the offence is said to have been committed shall be
mentioned in the charge, the section is silent on any requirement
to mention any section of the law where a special or specific
provision on enhanced penalty is relevant and applicable.

[27] It is relevant to then refer to Section 172 (1) CPC that states that
“All charges upon which persons are tried shall be...as nearly as
possible in accordance with the forms in the Second Schedule...”
Part (111) of the Second Schedule gives a format of a charge for
theft after a previous conviction and the liability for enhance
punishment is included as part of the charge.

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(111)-CHARGE FOR THEFT AFTER A PREVIOUS


CONVICTION

That you, on or about the .......................... day of


......................... , at, committed theft, and thereby committed an
offence punishable undersection 379 of the Penal Code.

And further that you, before the committing of the said offence,
that is to say, on the ................. day of .............................. ,
had been convicted by the........................... at
................................ of an offence punishable under Chapter
XVII of the Penal Code with imprisonment for a term of three
years, that is to say, the offence of housebreaking by night
(describe the offence in the words used in the section under
which the accused was convicted) which conviction is still in
full force and effect, and that you are thereby liable to enhanced
punishment under section 75 of the Penal Code.

[28] Guided by Part (111) of the Second Schedule, it would seem


therefore that where an enhanced punishment provision of the
law is applicable then that law shall be referred to in the charge.
If that law is absent in the charge, then that absence will become
an omission.

[29] Based on the above therefore, I find that the alternative charges
that was framed against the Appellant contained 2 omissions,
which are:

(i) the 2 previous convictions and (ii) the enhanced penalty


under Section 39C ODA.

HEARING OF THE APPEAL

[30] At the hearing of this Appeal the Respondent argued that:

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(i) the Public Prosecutor had the discretion to prefer the


charges against the Appellant when offering the alternative
charges;

(ii) Section 39C ODA did not apply when the alternative
charges that were brought against the Appellant were only
based on Section 15 (1) DDA;

(iii) When the alternative charges omitted the reference to the


Appellant’s 2 previous convictions and the application of
39C ODA, the fact of the 2 previous convictions which
were then introduced as Exhibit P4 were only tendered for
the purposes of aggravating factors in sentencing; and

(iv) The Learned SC Judge was right in passing the sentence


and based on the Respondents Written Submissions, prayed
that the sentence be affirmed.

[31] The Appellant briefly appealed for the sentence to be reduced


from the date of his arrest.

[32] On the matter of his plea of guilt the Appellant had admitted
upon inquiry from this Court that he had pleaded guilty to the
alternative charges because in his mind he thought that the
sentence he was punishable with were lesser compared to the
original charges. It can be inferred therefore that the alternative
charges had induced him to plead guilty to the same.

DECISION

[33] Having considered the Appellant’s appeal, the submissions of


the Learned Deputy Public Prosecutor, the analysis of the facts
and the law this Court holds as follows.

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[34] Section 39C (1) ODA obligates without discretion on the Court
to apply the increased penalty as provided against any person
who is found guilty of an offence under Section 15 (1) (a) ODA
and who has 2 prior convictions under the same provision.

[35] Although the Public Prosecutor has the discretion to institute


proceedings and prefer whatever charge he deemed fit and the
Court will not interfere with the exercise of that discretion, the
case on Appeal is not a case where the Public Prosecutor has the
discretion to disregard the application of 39C of the DDA.

[36] The case of Khiru/ /hsan Hussain v. PP [1999] 3 MLJ 309 is


particularly instructive and relevant to this Appeal. In an appeal
against sentencing, it was held that when there is a specific
provision for punishment determined by the weight of the drugs,
then that provision must be applied. The Learned High Court
Judge, Segara J stated:

Now, when a person is charged for an offence under s. 12(2) of


the Act relating to certain dangerous drugs of the prescribed
amount referred to in s. 39A, then the punishable section under
the Act which shall be invoked if he is found guilty of the
offence and convicted is determined by the amount (weight) of
the subject matter of the charge. For example, if the subject
matter of the charge is heroin and its weight is 2 gm or more but
less than 5 gm, then the punishable section would be s. 39A(1)
of the Act. However, if its weight is 5 gm or more, then the
punishable section is s. 39A(2) of the Act.

In this appeal before me, the subject matter of the charge was
5.95 gm of heroin. Therefore, any sentence passed under the
provisions of s. 39A(1) of the Act would be patently wrong and
unlawful. A valid sentence, in the circumstances, shall only be
one meted out under the provisions of s. 39A(2) of the Act.

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Neither the court nor the Public Prosecutor has any discretion to
invoke s. 39A(1) if the subject matter of the charge is not within
the prescribed amount under s. 39A(1) of the Act.

The learned sessions court judge sentenced the appellant to four


years imprisonment and three strokes of the rotan under s.
39A(1) of the Act. The sentence under s. 39A(1) of the Act is
wrong in law because the subject matter of the charge is 5.95 gm
of heroin. The appellant should be sentenced under s. 39A(2) of
the Act.

[37] Another instructive case is the decision of Mani Maran all


Athigharee v. Public Prosecutor [2017] MLJU 849, where the
High Court found that Section 326A of the Penal Code that
provides for enhanced punishment for the offence of causing
hurt to a spouse was mandatory in nature and therefore held that
the lower court had erred in meting punishment of a lower
imprisonment term under Section 323 of the Penal Code.
Learned JC Ahmad Shahrir Mohd Salleh (as he then was) held
that:

In interpreting Section 326A of the Penal Code, I find that the


first part of that section describes the nature of the penalty. The
words, “... shall be punished with imprisonment ... “ clearly
means that imprisonment under Section 326A of the Penal Code
is mandatory. I am fortified in my view based on the aforesaid
reasons.

[38] Additionally, the principle of statutory interpretation that a


special provision derogates from the general provision and the
former must be interpreted strictly and a general provision
cannot remove a special provision applies to this Appeal. This
principle of generalibus speci/ia derogate was referred to in the
case of Pakas Rao all Applanaidoo (as public officer of the

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Malaysian Indian Congress (MIC) pursuant to Section 9 (c) of


the Societies Act 1966) & Ors v. Pendaftar Pertubuhan Malaysia
& Ors [2015] 5 MLJ 500 where the Court of Appeal said:

The maxim generalibus specialia derogant is a legal principle


which implies that the special provision is one that derogates
from the general provision and the special provision must be
interpreted strictly in the case; and that a general provision
cannot remove a special provision. It is a basic principle of
statutory interpretation. It was referred to in Public Prosecutor
v. Chew Siew Luan [1982] 2 MLJ 119 (FC), wherein Raja Azlan
Shah CJ (Malaya) (as HRH then was) said:

... Generalibus specialia derogant is a cardinal principle of


interpretation. It means that where a special provision is made in
a special statute, that special provision excludes the operation of
a general provision in the general law. (See also Public
Prosecutor v. Chua Boew Hin).

[39] It is clear that Section 39C (1) (b) is a special provision that
deals with increased penalties against persons found guilty of,
inter-alia, Section 15 (1) (a) and who have had not less than two
prior convictions for the same offence. It must have been the
intention of the legislators that when inserting this provision
into the ODA the law intended to severely punish repeat
offenders of Section 15 (1) ODA so as to serve public interest in
deterring rampant drug abuse.

[40] The Federal Court in Public Prosecutor v. Tan Tatt Eek &
Others [2005] 1 CLJ 713 had clearly affirmed the primary duty
of the Court to give effect to the intention of Legislature in the
words used by it. When the words of a statute are clear, plain
and unambiguous, the Courts are bound to give effect to that
meaning.

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[41] Therefore, I hold that the answers to all the questions


enumerated in Paragraph 22 above to be in the negative. The
alternative charges were not capable of excluding the operation
of Section 39C (1) ODA after the Appellant’s two prior
convictions for the same offence became an evidence before the
SC.

[42] In my view the Learned SC Judge had misdirect himself when he


confined his mind to the sentence under Section 15 (1) ODA
notwithstanding the evidence of the Appellant’s prior 2
convictions for the same offence which attracted the mandatory
application of Section 39C (1) ODA.

[43] With regards to the omissions in the charges, albeit deliberate, I


do not consider the same to be defects that substratum affected
the validity of the charges and causing failure or miscarriage of
justice.

[44] The charges clearly stated the ingredients of the offences. The
Appellant was not misled as to the nature and facts of the
offences he committed.

[45] The Federal Court in the case of Ravindran all Ramasamy v.


Public Prosecutor [2015] 6 509 MLJ referred to a string of cases
in discussing the question of errors and omissions in a charge
and the application of Section 156 and 422 of the CPC. The
Learned Jeffrey Tan FCJ in delivering the Judgment of the
Federal Court said:

Pursuant to s. 156 of the CPC, ‘no error in stating the offence or


the particulars required to be stated in the charge, and no
omission to state the offence or those particulars shall be
regarded, at any stage of the case, as material unless the accused
was in fact misled by that error or omission’ (the Indian

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equivalent, s. 215 of the Indian Criminal Procedure Code, ends


with the words ‘and it has occasioned a failure of justice’).
However, in view of s. 422, for an error or omission to be
material, it is not enough that the accused has been misled; there
must also be a failure of justice. ‘Whether any court should
apply s. 422 aforesaid will depend, among other things, on
whether the irregularity involves the breach of a principle of
general importance to the administration of criminal justice. If it
does, the court would not apply s. 422, as this appears to us to
be the same thing as the irregularity having occasioned a failure
of justice’ (Yap Sing Hock & Anor v. Public Prosecutor [1992] 2
MLJ 714 at p 725 per Peh Swee Chin SCJ, later fCJ, delivering
the judgment of the court).

It could also be noted that the ‘error’ alluded to in s. 156 of the


CPC is the error in stating the offence or the particulars required
to be stated in the charge, and not the error in stating the
ingredients of an offence. That important distinction, whether an
error in stating the particulars or an error in stating the
ingredients, must be drawn for the purposes of ss. 156 and/or
422 of the CPC. This is because where it was an error or
omission in stating the ingredients of an offence, it had been
consistently held by the courts that the accused would have been
misled and that there must have been a failure of justice. Low
Seng Wah v. Public Prosecutor [1962] 1 MLJ 107, was the
exceptional case, where Neal J held that the omission of an
essential ingredient in the charge was not fatal, because of the
unique provisions of s. 321 of the CPC (since repealed) which
provided that ‘No judgment, sentence or order of magistrate
court shall be reversed or set aside unless it is shown to the
satisfaction of the court of a judge that such judgment, sentence
or order was either wrong in law or against the weight of the

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evidence’. Low Seng Wah v. Public Prosecutor, which was


primarily decided under s. 321, is no precedent on s. 156 of the
CPC.

[46] Applying the above decisions and Sections 156 and 422 of the
CPC, I hold that the omission did not result in any failure of
justice. The omission misled the Appellant only to believe that
he was entitled to a lesser punishment when in law he was
punishable with a heavier one. The injustice, if at all, is against
public interest where the intent of Section 39C ODA had
escaped the proper consideration that it required and therefore
the intent of the legislature was not served.

[47] As stated in the High Court decision case of Yu Kim Seng v.


Public Prosecutor [2008] 8 MLJ 378:

The test which covers all errors and omission in a charge is not
whether the error or omission is substantial or not. It is a
question of fact and each case must depend on its own facts and
circumstances.

APPELLANT’S PLEA OF GUilTY

[48] Finally, the summation of all the above brings us back to the
Appellant’s plea of guilty. Whilst this Court holds that the
alternative charges are not a nullity, the Appellant’s plea of
guilty however, cannot be accepted as the omissions in the
charges had caused a serious misapprehension on the part of the
Appellant. His attention was not brought to operation of Section
39C (1) ODA and the severity of punishment that came with it.
He cannot, therefore, be said to have understood the
consequences of his plea. The plea cannot, therefore, be taken as
being unreserved, unqualified, unequivocal and unconditional.

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In the case of Seah Ah Chiew v. Public Prosecutor [2007] 1 MLJ


377, the Court stated:

In the instant case, this court is of the view that the plea of
guilty by the accused was not unreserved, unqualified,
unequivocal and unconditional (see Munandu v. Public
Prosecutor [1984] 2 MLJ 82) and the plea ought to have been
rejected. At the point when the accused stated that she had
consumed only beer and that she was a diabetic and receiving
medical treatment, it should have been clear to the learned
magistrate that the accused did not understand the nature of her
plea, neither did she intend to admit without qualification the
offence alleged against her (see Lau Eng Teck v. Public
Prosecutor [1965] 31 MLJ 34 at para 35)... The learned
magistrate must explain to the accused the full consequences of
her plea of guilty especially when the accused was not
represented by counsel at the material time. Unfortunately, it is
not shown in the record of proceedings that this mandatory
provision was explained to the accused (see Petrus a/k Belaka v.
Public Prosecutor [1998] 3 MLJ 894 at pp 895-896).

[49] See further, the case of Mohammad bin Hassan v. PP [1998] 5


MLJ 65:

A plea of guilty is recorded when the accused pleads guilty after


the charge has been read and explained to him. The court
accepts the plea when it is satisfied that the accused understands
the nature and consequences of his plea. This will be done after
the accused has admitted the facts (see Public Prosecutor v.
Abdul Aziz and Lian Kian Boon v. Public Prosecutor). The court
is not bound to accept a plea of guilty in all cases. The accused
is not to be taken at his word when he pleads guilty unless the
plea is expressed in unmistakable terms with full appreciation of

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the essential ingredients of the offence. This rule of law is


applied with all the greater stringency when the offence charged
is complicated or serious (see Heng Keng Khoon v. Public
Prosecutor and Munandu v. Public Prosecutor [1984] 2 MLJ 82
(HC)).

Having considered the applicable law in the light of what


appears in the record, I am satisfied that the accused pleaded
guilty personally after he understood the charge which was read
and explained to him. The record also shows that he understood
the nature and consequences of his plea at that stage. However,
the learned magistrate did not follow the prescribed procedure in
sentencing the accused. Exhibit P2 is the written statement of
facts tendered by the prosecution. The law that I have adverted
to makes it manifestly patent that the facts must be explained to
the accused to enable the magistrate to satisfy himself that the
accused intends to admit, without qualification, the offence
alleged against him. The record does not show that the facts
were explained to the accused. As I mentioned in the early part
of this judgment, there is also no certainty that the facts as
contained in exh P2 were admitted by the accused. These
breaches violates 173(b) of the CPC.The record also does not
disclose that the plea was accepted by the learned magistrate.
This failure violates s. 173(m)(2) of the CPC.

As I said earlier, a confession of guilt does not become a plea of


guilty till it is accepted. It is a cardinal principle of law that a
plea of guilty must be completely unreserved, unqualified and
unequivocal (see PP v. Cheah Chooi Chuan [1972] 1 MLJ 215
(HC)). The breaches in this appeal revolt against arriving at
such a finding. It follows that the conviction and sentence of the
accused cannot be sustained in law.

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[50] Therefore, the Appeal is disallowed. The plea of guilty is


substituted to a plea of not guilty. The conviction and sentence
is set aside and the case is remitted back to SC for retrial before
a different Judge. Mention before SC Judge is fixed on 24 th May
2019 as the Appellant is present in Court.

Dated: 24 MAY 2019

(MOHD RADZI ABDUL HAMID)


Judicial Commissioner
High Court Georgetown Penang

COUNSEL:

For the appellant - Appearing without counsel

For the respondent - Mohd Nazri Abdul Rahim

Case(s) referred to:

Public Prosecutor v. Mohamed Nor & Ors [1985] 2 MLJ

Dato' Seri Anwar bin Ibrahim v. Public Prosecutor [2002] 3 MLJ

Antonia Marleen Yarendra v. Chai Wei Chung [2017] 4 MLJ 359

Public Prosecutor v. Man bin Ismail [1939] 1 MLJ 207

Public Prosecutor v. Hew Yew [1972] 1 MLJ 164

Khiru/ /hsan Hussain v. PP [1999] 3 MLJ 309

Mani Maran all Athigharee v. Public Prosecutor [2017] MLJU 849

Public Prosecutor v. Tan Tatt Eek & Others [2005] 1 CLJ 713

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Ravindran all Ramasamy v. Public Prosecutor [2015] 6 509 MLJ

Yap Sing Hock & Anor v. Public Prosecutor [1992] 2 MLJ 714

Yu Kim Seng v. Public Prosecutor [2008] 8 MLJ 378

Seah Ah Chiew v. Public Prosecutor [2007] 1 MLJ 377

Mohammad bin Hassan v. PP [1998] 5 MLJ 65

Legislation referred to:

Dangerous Drugs Act 1952, ss. 15(1)(a), 38B, 39C(1) (b)

Criminal Procedure Code, ss. 152, 154 (4), 156, 172 (1), 422

Penal Code, ss. 323, 326A

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