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2022 MarsdenLR 2233
HIGH COURT MALAYA JOHOR BAHRU
LIM SEER HAO – Appellant
Versus
PP – Respondent
[Criminal Revision No: JA 43-16-05/2022]
The court upheld the validity of the charge against the accused, determining proper understanding of plea and legal representation existed, without procedural defects.
Headnote:(A) Criminal Procedure Code – Sections 323 and 173(b) – Revision application by the accused against conviction and sentencing by the Magistrate for causing injury due to negligence with respect to a pet dog and for owning the dog without a license – The High Court affirms the lower court's conviction, finding the charge valid and the accused understood the plea entered (Paras 12, 14, 24, 34).
(B)
The charge was adequately explicit and detailed, enabling the accused to comprehend the nature of the offence, thereby confirming the absence of vagueness (Paras 16, 19).
(C)
The accused's understanding of the proceedings, the competency of his legal representation, and the requirement of an interpreter were appropriately addressed, supporting the guilty plea's acceptance (Paras 20, 34).
Facts of the case:
The accused was convicted of negligence leading to injury and possession of an unlicensed dog. The primary claim was that the charge was vague and incomprehensible due to language barriers.
Findings of Court:
The High Court found that the charge was clear and the accused understood the proceedings, thus upholding the conviction.
Issues
: The key questions were whether the charge was defective and whether the accused adequately understood the guilty plea's implications.
Ratio Decidendi:
The court concluded that the charge met legal standards, providing sufficient clarity to the accused. His understanding, coupled with adequate legal representation, negated claims of procedural injustice.
Result:
Revision application dismissed.
(Application For Revision Under Sections 323 /325 Criminal Procedure Code )
The Application For Revision
[1] This is an application for revision under s 323 of the Criminal Procedure Code (" CPC ") by the learned counsel for the accused with regards an order made by the Magistrate in a criminal case, JJ-85-30-10/2019 on 15 July 2020.
[2] By letter dated 18 April 2022, Tetuan Raj & Sach wrote to this Court seeking revision of the Magistrate's decision accepting the accused guilty plea. The accused was fined RM1000 for the first charge and RM500 for the second charge.
[3] For ease of reference, the charges were as follows:
Pertuduhan pertama:
Bahawa kamu pada 27 June 2019 jam lebih kurang 7,30 petang bertempat di No 20, Jalan Pertama 3, Taman Pertama, 86900 Endau, dalam Daerah Mersing, di dalam Negeri Johor dengan cuai meninggalkan anjing peliharaan jenis "Mixed Bull" dalam milikan kamu telah mendatangkan bahaya kepada nyawa/cedera parah kepada Xuan Ng, No Kpt: 080902-010068 dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum dibawah s 289 Kanun Keseksaan.
Pertuduhan Kedua
Bahawa kamu pada 27 June 2019 jam lebih kurang 7.30 petang bertempat di No 20, Jalan Pertama 3, Taman Pertama, 86900 Endau, dalam Daerah Mersing, di dalam Negeri Johor, telah memiliki seekor anjing peliharaan jenis "Mixed Buir di dalam rumah kediaman tanpa lesen dan dengan itu telah melakukan kesalahan dibawah s 3(1) Akta Kerajaan Tempatan 1976 (Undang-Undang Kecil Pelesenan Anjing) (Majlis Daerah Mersing) 2003 yang boleh dihukum dibawah seksyen yang sama.
[4] I had requested the minutes and notes of the Magistrate's Court. Unfortunately, the original handwritten minutes were unavailable, as stated by the current Magistrate, Puan Rasidah Binti Baharom, in her letter dated 18 May 2022 ("the letter").
[5] In the letter, she explained that the original charge sheet and handwritten notes of the then-presiding Magistrate, Puan Mazana binti Sinin, were not in the physical file. The CCTS recording was corrupted and could not be retrieved by the technician. Moreover, this CCTS system was upgraded to a new recording system, Court Recording Transcription ("CRT"), in November 2021; as a result, the earlier recordings could no longer be retrieved.
[6] However, the Court interpreter, Puan Kavitha Devi a/p Batumalai, had prepared a typed transcript of the trial notes on 28 April 2022, based on a copy of the former Magistrate's handwritten notes, after being informed by counsel that a revision would be initiated.
[7] The typed written Notes of Proceeding on what transpired on 15 July 2020 are reproduced as follows:
**Intentionally left blank**
[8] Counsel for the accused, Mr Arun Ganesh, now seeks my intervention to revise the Magistrate's decision, accepting the accused's guilty plea on the grounds that the charges were defective and the accused was not adequately explained in Chinese the consequences of his guilty plea.
[9] My understanding of Mr Arun's submission was that the accused, who is Chinese, uneducated, and work as a fisherman in his neighbourhood, although represented by a lawyer, Mr Yen Heng Teng, did not understand the nature and consequences of his guilty plea when the matter was brought before the Magistrate. Mr Arun contended that the accused was not properly advised by his lawyer and should not be deprived of the opportunity to defend himself due to the alleged negligence of his lawyer.
[10] The charge was read and explained in Bahasa Malaysia, a language that Mr Arun said the accused did not seem conversant with. The charge was never read to the accused in Chinese. Since the original trial notes were not available and were not presented to the Court, Mr Arun claimed that there was nothing before me to prove that the Magistrate had explained to the accused in a language he understood before accepting his plea. In addition, Mr Arun claimed that the charge is flawed because it does not state what act of negligence was committed
