A conviction based on a defective charge is illegal, and the lack of legal representation for the accused necessitates careful judicial scrutiny to prevent miscarriages of justice.

Introduction

[1] At the core of this case is the right of an accused person who is without legal representation and the care the court ought to exercise in dealing with such accused person.

[2] This matter was initially brought before this court by way of an appeal against sentence by the accused who was without legal representation.

[3] Having perused the records, this court came to the conclusion that the amended charge which the accused had pleaded guilty to, convicted and sentenced of was defective and consequently exercised its powers on revision under s 325 of the Criminal Procedure Code (" CPC ") and quashed and set them aside.

[4] The prosecution has appealed against this court's said decision.

The Amended Charge

[5] The amended charge read as follows:

"Bahawa kamu, pada 19 April 2023 jam lebih kurang 3.30 petang, bertempat di Pejabat Bahagian Siasatan Jenayah Narkotik (BSJN) Ibu Pejabat Polis Daerah (IPD) Sandakan, di dalam Negeri Sabah, Malaysia, didapati menggunakan dadah berbahaya iaitu dadah jenis Amphetamine dan Methamphetamine, dan oleh itu kamu telah melakukan suatu kesalahan di bawah s 15(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah s 39C(2) Akta Dadah Berbahaya 1952 di mana kamu ada sabitan terdahulu di bawah s 39C(1)(b) ADB 1952 sebagaimana dalam kes seperti di bawah:

i. No. Kes Mahkamah Majistret: SDK-83D-1090/11- 2018

Hukuman

Seksyen 39C(2) ADB 1952

Jika disabitkan dengan kesalahan, penjara selama tempoh tidak kurang daripada tujuh tahun tetapi tidak melebihi tiga belas tahun dan hendaklah juga dikenakan dengan hukuman sebat tidak kurang daripada tiga sebatan dan tidak lebih daripada enam sebatan."

Proceedings Before The Sessions court

[6] As noted earlier, the accused was not represented by counsel in the court below. Upon being explained of the amended charge, the accused pleaded guilty and maintained his plea even after being informed of his rights and the consequences of his guilty plea. The accused was further shown the exhibits tendered by the prosecution, which exhibits he admitted to be true. This included exhibit "P8" which listed a record of his previous convictions.

[7] Upon being satisfied that the accused understood the nature and consequences of his guilty plea and that it was given unequivocally and without reservation, the learned Sessions court Judge ("LSCJ") entered a conviction against the accused under s 39C(2) of the Dangerous Drugs Act 1952 ("DDA") and sentenced him to 7 years imprisonment with effect from 19 April 2023 and 3 strokes of whipping.

This court's Decision

[8] Let me first start with the court's powers under s 325 of the CPC . It is provided that:

"(1) A Judge may, in any case the record of the proceedings of which has been called for by himself or which otherwise comes to his knowledge, in his discretion, exercise any of the powers conferred by ss 311, 315, 316 and 317 of this Code.

(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard, either personally or by advocate, in his own defence.

(3) Nothing in this section shall be deemed to authorise a Judge to convert a finding of acquittal into one of conviction."

[9] Under s 316 of the CPC , it is provided that:

"At the hearing of the appeal the Judge may, if he considers there is no sufficient ground for interfering, dismiss the appeal, or may:

(a) in an a