Augustine Paul J:

Maung Min Aung and Abdul Razak bin Kamaruddin, Myanmar nationals, were jointly charged in the magistrates' court at Kuala Lumpur on 30 May 2000 with three offences under the Immigration Act 1959and one under the Passports Act 1966. They pleaded guilty to the four charges against them and were sentenced to seven years' imprisonment and ordered to be given five strokes of the rotan each in respect of the first charge and three years' imprisonment in respect of the second, third and fourth charges. They appealed against the sentence imposed.

When the appeal came up for hearing before me, learned counsel for the accused invited me to exercise my powers of revision to review the convictions recorded by the learned magistrate against the two accused persons as they were wrong in law. He said that the convictions had been recorded improperly and that the charges were not read to the accused persons individually. As the matters raised were of considerable importance I agreed to review the convictions recorded.

Recording Of The Conviction

The learned magistrate had convicted both the accused persons after they had made their plea in mitigation and just prior to the imposition of sentence. This, according to learned counsel, is wrong in law as a conviction refers to a finding of guilt and it must therefore be recorded upon acceptance of the plea of guilt and, thus, before the plea in mitigation is made.

In order to consider the validity of the objection raised by learned counsel it is necessary to delve into the meaning of the word "conviction". The question of what constitutes a "conviction" has been the subject matter of deliberation in several cases. It has been used with two different meanings. Lord Reid said in S (An Infant) v. Recorder of Manchester[1970] 2 WLR 21 at p. 25:

Much of the difficulty has arisen from the fact that 'conviction' is commonly used with two different meanings.

It often is used to mean final disposal of a case and it is not uncommon for it to be used as meaning a finding of guilt.

In R v. Tonks and Goss[1963] VR 121 the full court of the Supreme Court of Victoria (Herring CJ and Sholl and Little JJ) reviewed the authorities and said at pp. 127 - 128:

The review of the authorities which we have made satisfied us that a plea of guilty does not of its own force constitute a conviction. In our opinion it amounts to no more than a solemn confession of the ingredients of the crime alleged. A conviction is a determination of guilt, and a determination of guilt

must be the act of the court or the arm of the court charged with deciding the guilt of the accused. It may be that even a determination of guilt will not in all cases amount to a 'conviction', for the latter term may be used in a particular context as meaning not merely conviction by verdict where no judgment is given, but conviction by judgment (vide, Burgess v. Boetefeur[1844] 7 Mann & G 481 and Hale's Pleas of the Crown, Vol 1 p 686)' but there must at least be a determination of guilt before there can be a conviction.

There can accordingly be no conviction on a count to which an accused pleads guilty until by some act on the part of the court it has indicated a determination of the question of guilt.

It is therefore clear that a plea of guilty does not of its own force constitute a conviction. It is a further act of the court that will result in one. Even then the word "conviction" is used in two senses; one in a narrow sense and the other in a wider sense. In the narrower sense a conviction does not occur until there is an acceptance of the plea of guilty which will amount to a determination of guilt by the court (see Griffiths v. R[1977] 137 CLR 293; Maxwell v. R[1996] 135 ALR 1). The acceptance of the plea by the court amounts to a determination of guilt because it means that the court is satisfied that the accused has pleaded guilty to an offence known to law with full appreciation of the nature and consequences of the pl