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2025 MarsdenLR 6086
HIGH COURT SABAH & SARAWAK SIBU
TOU LEH BEE (F) – Appellant
Versus
PP – Respondent
[Criminal Appeal No: SBW-41S-2-4/2024 (HC)]
The court emphasized the necessity for a clear understanding of charges and implications of a guilty plea to prevent miscarriages of justice, balancing public interest with personal circumstances in sentencing.
Headnote:(A) Minor Offences Ordinance 1958 (Sarawak Cap 56) - Section 37(1) - Appellant charged with possession of goods reasonably suspected to be unlawfully obtained - Appellant pleaded guilty and was convicted with maximum penalty of 3 months imprisonment and a fine of RM500.00 - Court found that the Magistrate failed to ensure the Appellant understood the charge and the nature of the guilty plea, leading to potential miscarriage of justice. (Paras 3, 5, 10, 11, 46, 66)
(B) Criminal Procedure Code - Section 323 - Court's revisionary power to examine proceedings of subordinate courts - Appellant sought to challenge conviction and sentence based on claims of misunderstanding and failure to explain the charge adequately. (Paras 8, 9, 11, 12, 66)
(C) Sentencing principles - The Court emphasized the need to balance public interest with the personal circumstances of the accused, particularly as a first-time offender with mitigating factors. (Paras 60, 66, 70)
Facts of the case:
Appellant was charged with possession of a large quantity of uncustomed cigarettes. She pleaded guilty but later appealed against her conviction and sentence, claiming she did not fully understand the charge and the consequences of her plea.
Findings of Court:
The Court found that the Magistrate did not adequately ensure the Appellant's understanding of the charge, leading to a potential miscarriage of justice. The sentence was upheld but suspended under probation conditions.
Issues: The main issues were whether the Appellant understood the charge and the implications of her guilty plea, and whether the sentence imposed was appropriate given her circumstances.
Ratio Decidendi: The Court held that the Magistrate's failure to ensure comprehension of the charge and plea could invalidate the conviction. It also determined that while deterrence is important, the personal circumstances of the Appellant should be considered to avoid undue hardship.
Result: Appeal allowed in part; imprisonment sentence suspended and bond for good conduct ordered.
Introduction
[1] On 28 March 2024, the Appellant/Accused was charged in the Magistrates' Court under s 37(1) of the Minor Offences Ordinance 1958 (Sarawak Cap 56).
[2] Section 37(1) of the Minor Offences Ordinance 1958 provides:
Other Offences
Fraudulent possession of property
37. - (1). Any person who has in his possession or conveys in any manner anything which may be reasonably suspected of being stolen or unlawfully obtained shall, if he fails to account satisfactorily how he came by such thing, be guilty of an offence: Penalty, imprisonment for three months and a fine of five hundred dollars.
[Amended by Ordinance 16 of 1957]
[3] The charge against the Appellant/Accused is reproduced as follows:
THAT YOU ON 21 SEPTEMBER 2023 AT ABOUT 0800HRS LOCATED AT LOT 26981, SEBERANG ENSURAI, IN THE DISTRICT OF SIBU, IN THE STATE OF SARAWAK, HAS IN YOUR POSSESSION;
I. 13 packs x 80 carton cigarettes brand L.A Menthol
II. 15 packs x 80 carton cigarettes brand L.A Ice Plus
III. 32 packs x 80 carton cigarettes brand Freshness Blue
IV. 72 packs x 50 carton cigarettes brand Vess(red)
V. 55 packs x 50 carton cigarettes brand Vess(green)
VI. 34 packs x 50 carton cigarettes brand Era Ice Plus
VII. 66 packs x 50 carton cigarettes brand Era Full Flavour
VIII. 57 packs x 50 carton cigarettes brand Era Black Menthol
IX. 3 packs x 50 carton cigarettes brand Premiur(red)
WHICH MAY BE REASONABLY SUSPECTED OF BEING UNLAWFULLY OBTAINED, THEREBY YOU HAD COMMITTED AN OFFENCE UNDER SECTION 37 (1) OF MINOR OFFENCES ORDINANCE CHAPTER 56 LAWS OF SARAWAK 1958 AND PUNISHABLE UNDER THE SAME SECTION.
Hukuman:
SHALL, IF HE FAILS TO ACCOUNT SATISFACTORILY HOW HE CAME BY SUCH THING, BE GUILTY OF AN OFFENCE: PENALTY, IMPRISONMENT FOR THREE MONTHS AND A FINE OF FIVE HUNDRED RINGGIT.
(See: page 2 and 2 of the Record of Appeal Volume 1 (R/A, v. 1)
[4] The Appellant/Accused pleaded guilty to the charge.
[5] Following the guilty plea and admission of facts and exhibits, the Magistrates' Court convicted the Appellant/Accused and imposed the maximum penalty under s 37(1) of the Ordinance:
(a). Three (3) months imprisonment; and
(b). A fine of RM500.00, in default, one (1) month imprisonment
[6] However, on 1 April 2024, the Magistrates' Court granted a stay of the execution of the imprisonment sentence pending appeal by the Appellant/Accused.
[7] The Appellant/Accused filed her Notice of Appeal on 5 April 2024. The appeal is against both the conviction and sentence, notwithstanding s 305 of the Criminal Procedure Code ( CPC ) which provides that an accused who pleads guilty and is convicted by a Magistrate may only appeal on the extent or legality of the sentence, not the conviction itself.
(See: page 2 to 3 of R/A, v. 1)
[8] The Appellant/Accused sought the Court to exercise is revisionary power under s 323.
[9] Section 323 (1) of the CPC provides:
323. Power to call for records of subordinate Courts
(1) A Judge may call for and examine the record of any proceeding before any subordinate Criminal Court for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of that subordinate Court.
(2)...
>Petition Of Appeal (p 4 to 5 R/A, V. 1)
[10] The Appellant/Accused's grounds of appeal are summarised as follows:
(a). The Magistrate failed to explain each ingredient of the offence in a language the unrepresented appellant understood, leading to a potential miscarriage of justice.
(b). The Magistrate did not explain the nature and consequences of pleading guilty in a language the appellant understood, causing a potential miscarriage of justice.
(c). The Magistrate did not ensure that the appellant's guilty plea was unqualified, unreserved, and unequivocal, leading to a potential miscarriage of justice.
(d). The Magistrate did not consider the mitigating factors sufficiently, resulting in a potential miscarriage of justice.
(e). The sentence imposed was harsh, excessive
