A guilty plea to a defective charge is invalid, as proper notification of the offence's ingredients is essential for adequate defense preparation.

JUDGMENT

Roz Mawar Rozain JC:

Introduction

[1] This is an appeal against sentence where upon a plea of guilty by the appellant (hereinafter referred to as the accused), he was sentenced on 16 July 2021 by the Magistrate to an imprisonment term of 3 months for an offence under s 29(1) Minor Offences Act 1955 (Act 336). The penalty provided by the section is a fine not exceeding RM1,000 or to imprisonment not exceeding 1 year, or to both.

[2] As recorded in the Appeal Records, the accused on 28 May 2021 was found to have in his possession the property of one Patrick Cheng Ther Wee (IC No 580911-05-5429) in the amount of RM124,202 and failed to account satisfactorily how he came by the same.

[3] On 13 August 2021, the High Court had granted a stay of execution pending this appeal, ordering him to be released on RM6,000.00 bail. He had by then served 1 month of the 3 months imprisonment sentence.

Charge

[4] However, before this Court proceeds to consider the submissions of the appeal against sentence put forth by parties on 10 February 2022 and decide on the appeal, the charge is examined. It is reproduced as follows:

"Bahawa kamu pada 28 May 2021 semasa berada di Bank HSBC cawangan Mont Kiara, di dalam daerah Brickfields, dalam Wilayah Persekutuan Kuala Lumpur, didapati telah memiliki harta milik Patrick Cheng Ther Wee, No KP:580911-05-5429 iaitu wang berjumlah RM124,202.00 tanpa memberi penjelasan yang memuaskan bagaimana ia mendapatkannya. Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah s 29(1) Akta Kesalahan-Kesalahan Kecil 1955 (Akta 336)."

[5] This Court now refers to the provision of the law that stipulates the offence - s 29(1) of the Act:

"Any person who has in his possession or conveys in any manner anything which may be reasonably suspected of being stolen or fraudulently obtained shall, if he fails to account satisfactorily how he came by the same, be liable to a fine not exceeding RM1,000 or to imprisonment for a term not exceeding 1 year, or to both."

[6] The ingredients of the offence convicted of the accused must surely be the following:

(i) that the accused had in his possession anything;

(ii) which may be reasonably suspected of being stolen OR fraudulently obtained; and

(iii) he had failed to satisfactorily account to how it came to his possession.

[7] Reading the charge, it is apparent that the limb of whether the subject matter was reasonably suspected of being stolen or fraudulently obtained is missing.

[8] So before this Court continues to consider and deliberate the appeal against the sentence, it is duty bound to address the issue on the charge.

[9] This Court then on 14 February 2022 communicated to the learned counsel of the accused and the learned Deputy Public Prosecutor (DPP) its concerns on the charge. Submissions was required to address whether:

(i) all the ingredients of the offence under s 29(1) had rightly been disclosed in the charge as required by law; and

(ii) the consequences of a guilty plea thereto.

[10] Submissions on this issue were heard on 17 February 2022.

[11] The learned Deputy Public Prosecutor for the Respondent contended that the charge is correctly framed as it appears to be positively imputing the ingredients of the offence under s 29(1) of the Act. Lord Norris' judgment in Lim Beh & Ors v. Opium Farmer [1843] 3 Ky 10 was quoted. There was no discussion whatsoever on the ingredients of the offence under s 29(1) of the Act. Mentioned cursorily were only the ingredients of 'possession of property not belonging to the accused and the accused had failed to provide reasonable explanation as to how he had obtained it.'.

[12] Although the case of PP v. Syed Bakri [1955] MLJ 17 was cited, the Respondent had failed to address the other ingredient of the offence before reasonable explanation is required from the accused - that is 'reasonably suspected to be stolen property or fraudulently obtained'.

Fraudulent Possession Of Property

[13] In studying the offences under s 29(1) of the Act, thi