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2021 MarsdenLR 1664
The court must ensure timely prosecution, and unnecessary delays can lead to the discharge of an accused amounting to acquittal.
Headnote:(A) Criminal Procedure Code (Act 593) – Section 323 – Discharge Not Amounting To An Acquittal – Court emphasized the necessity for the prosecution to proceed with due diligence and ensure timely trials as per statutory deadlines. An improper exercise of discretion occurred when the sessions court discharged the accused without acquitting him. The absence of prosecution witnesses without justification resulted in substantial delays in trial proceedings. (Paras 5, 10-14, 15-16)
(B) Courts of Judicature Act (Act 91) – Section 3 – The nature of the order of DNAA being not final, allows for recharging of the accused after the inability to continue prosecution. (Paras 9, 16)
Facts of the case: The accused faced charges of firearm possession and attempted murder dating back to July 2018, with delays in prosecution leading to a discharge not amounting to an acquittal from the sessions court.
Findings of Court: The sessions court's order was set aside; the accused was acquitted and discharged due to the prosecution's failure to present witnesses and a resulting miscarriage of justice.
Issues: The court evaluated the proper grounds for discharge vs. acquittal and the prosecution's obligations in presenting timely evidence.
Ratio Decidendi: The court held that unnecessary delays attributed to the prosecution should not unduly burden the accused, emphasizing public interest and the right to a speedy trial.
Result: Order of DNAA was set aside, and the accused was discharged amounting to acquittal.
JUDGMENT
Preface
[1] This matter stems from an application for criminal revision. The law as found in s 323 of the Criminal Procedure Code (Act 593; CPC) together with s 31 and 35 of the Courts of Judicature Act (Act 91; CJA) governs the exercise of revisionary jurisdiction by this court. Pursuant to s 323 CPC, it is duty of this court to see if an order made by the subordinate court is correct, legal or proper.
[2] If the order made is correct, legal or proper, it shall not be disturbed or altered. If otherwise, this court in its exercise of revisionary jurisdiction may alter or reverse the said order pursuant to s 316 (c) CPC read together with s 325 (1) CPC.
Discharge Not Amounting To An Acquittal
[3] The impugned order pertains discharge not amounting to an acquittal (DNAA) allowed by the sessions court judge (SCJ) in Taiping to the accused, Goh Hwa Kiang. He was charged on 29 July 2018 for two offences, allegedly committed on 19 July 2018, for possession of firearm under s 8 of the Firearms Increased Penalties Act 1971 (Act 37; FIPA) and attempted murder under s 307 of the Penal Code (Act 574; PC).
Case Chronology And Order Made By Sessions court
[4] Pending trial, the accused was remanded in custody as offence for possession of firearm is unbailable pursuant to s 12 FIPA. The case had proceeded for trial with testimony of only four witnesses for the prosecution, thus far. There were numerous postponements of the trial granted by the court. It ranges from 30 October 2018 till 13 July 2020. On record, the accused was charged in court on 27 September 2018. Case management went ahead on 30 October 2018, 7 December 2018 and 8 February 2019. Trial of the case was scheduled on 23 & 24 April 2019, 10 May 2019. 24 & 25 July 2019. However, it commenced only on 24 July 2019. SP1 testified and had tendered the first information report, followed by SP2 the officer in charge of police station. Continuation of the trial was on 25 July 2019. SP2 continued with his testimony followed by SP3, a photographer. Trial was to continue on 9 September 2019, 14 October 2019 and 7 November 2019 but as no prosecution witnesses had turned up in court, it was postponed to 12 November 2019 & 13 November 2019 when SP4, the Investigation officer testified. Case was to continue on 11 December 2019, 23 December 2019 and 8 January 2020 but again it was not proceeded with, hence fixed for case management on 11 February 2020. Trial was to continue on 11 & 12 June 2020 but again postponed due to Covid - 19 pandemic resulting in Conditional Movement Control Order. After which, trial of the case was to continue on 13 & 14 July 2020.
[5] Since the accused was charged in court on 27 September 2018, the trial shall commence not later than ninety days from that date. This is provided for in s 172B (4) CPC. But the first date of trial was fixed way after the ninety days on 23 & 24 April 2019. Although the trial did not commence according to the time period specified, it does not invalidate the charge or prosecution against the accused or could form as basis for post-trial procedures. (See s 172B (5) CPC). However, the sessions court is expected to follow the time period specified so as to accord a fair and speedy trial to the accused person. This is not done.
[6] After a period of two years, on 13 July 2020, the Deputy Public Prosecutor (DPP) conducting prosecution of the case had informed the SCJ the following:
Tiada saksi pendakwaan hadir pada hari ini. Sapina kepada saksi tidak dipohon oleh IO yang sudah bertukar. Tiada tindakan diambil. Pendakwaan akur tiada saksi hadir, pohon satu tarikh akhir jika diizinkan.
From her submission, it is apparent that the DPP did not intend not to prosecute the accused further on the charge, pursuant to s 254(2) CPC. If she had intimated so to the court, s 254(3) CPC would have been invoked by SCJ, who then would have either ordered a discharge not amounting to an acquittal (DNAA) or discharge amoun
