Chong Siew Fai K

In the magistrate's court at Kuching the appellant pleaded guilty to the theft of a refrigerator, a radio cassette and an electric fan in a handicraft factory used for the custody of property, an offence punishable under s 380 of the Penal Code (FMS Cap 45) He was convicted, sentenced to one year's imprisonment and a fine of $2,000 in default six months' imprisonment.

He appeals against the conviction and the sentence. Alternatively, he asks for a revision of his case.

Respecting the appeal against conviction, this is precluded by s 305 of the Criminal Procedure Code (FMS Cap 6) since the appellant pleaded guilty unequivocally in the court below.

Counsel for the appellant referred to Tang Kee Chie v PP 1 which, incidentally, was my decision. There were two charges in that case based on acts so connected as forming one transaction. Dealing with the first charge, counsel for the appellant therein submitted a short point of law that it was wrong to charge and convict the appellant on the two offences based on acts forming one transaction. The dismissal of the appeal on that point of law would appear to have given the impression that I allowed the appeal to be heard despite the plea of guilty — a situation permissible under s 2(1) of the Criminal Appeal Act 1968 in England. I would take this opportunity to point out that the main feature in Tang Kee Chie's case1 was that the facts as presented by the prosecution failed to disclose an offence having been committed in respect of the second charge. An essential ingredient constituting the offence charged was lacking. It was on that basis that the case proceeded.

The appeal against conviction in the instant case is struck out.

I shall now consider the alternative application for revision in respect of the conviction. In this connection, counsel for the appellant relied on grounds (ii) and (iii) of appeal. The arguments of counsel, I am compelled to point out, drastically departed from the grounds stated in the petition of appeal. In the circumstances, I would only deal with the arguments as advanced though, strictly, they should conform to the grounds formulated.

Under ground (ii), it was pointed out that there had been a breach of s 28(iii) of the Criminal Procedure Code (FMS Cap 6) in that the appellant was detained for more than 24 hours without an order of a magistrate under s 117 of the said Code. It was not disputed before me that the appellant was arrested by the police on 28 April 1991 at about 2am and was not brought before a magistrate until the morning of 30 April 1991 — detention of some 34 hours in excess. Counsel stated that in her opinion a breach of s 28(iii) could not be cured by s 422 of the said Code. I take the submission to mean that the breach would render the subsequent proceedings bad. She was, however, unable to cite any authority in support. I am not persuaded by the view. It was not shown, and I fail to see, how the detention in contravention of the said s 28(iii), even if true, would, in itself, vitiate or render illegal the subsequent proceedings in the magistrate's court in which the appellant pleaded guilty to the offence charged. If the appellant considers himself aggrieved by the detention, it is for him, if he so wishes, to seek appropriate legal redress.

It has not been suggested, nor do I find, the appellant in any way materially prejudiced by the breach of s 28(iii) so far concerning the court proceedings on 6 May 1991 in which he was convicted on his own plea of guilty and consequently sentenced. No failure of justice has been shown to have occasioned.

Under ground (iii), it was firstly contended for the appellant that s 173(a) of the Criminal Procedure Code (FMS Cap 6) had not been complied with in that the charge was not read and explained to him and that there was nothing saying that the appellant understood the charge. Section 173(a) requires, inter alia, a charge containing the particulars of the offence of which an