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AT GEORGETOWN PENANG
BETWEEN
AND
Between
Public Prosecutor
GROUNDS OF JUDGMENT
[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
Pertuduhan 1
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Pertuduhan 2
Pertuduhan Pilihan 1
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Pertuduhan Pilihan 2
[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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[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.
[11] In his Petition for Appeal the Appellant set out 4 grounds for
mitigation. They are:
(ii) By pleading guilty he had saved the court’s time and costs;
[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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[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.
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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.
[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.
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[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.
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[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.
[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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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.
[29] Based on the above therefore, I find that the alternative charges
that was framed against the Appellant contained 2 omissions,
which are:
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(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;
[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
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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.
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.
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[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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[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.
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[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.
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.
[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 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).
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COUNSEL:
Public Prosecutor v. Tan Tatt Eek & Others [2005] 1 CLJ 713
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Yap Sing Hock & Anor v. Public Prosecutor [1992] 2 MLJ 714
Criminal Procedure Code, ss. 152, 154 (4), 156, 172 (1), 422
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