Mohd. Azmi SCJ:

We have allowed this appeal and now proceed to give reasons.

The appeal was against the refusal of the learned trial Judge to permit the withdrawal of plea of guilty by the two appellants who were the 2nd and 3rd accused in the High Court. They were jointly charged with one Ooi Lam Chin ("Ooi" for short) who was the 1st accused, for trafficking in dangerous drugs in furtherance of a common intention on the following terms:

That you jointly on 18 March 1983 at about 6 a.m. at Badak Mati, Mukim 4, Sungai Bakap in the District of Nibong Tebal, in the State of Penang, in furtherance of the common intention of you all, did on your own behalf traffic in dangerous drugs, to wit, 5,253 grammes of Heroin, in contravention of s. 39B(1)(a) of the Dangerous Drugs Act 1952 (Revised 1980) thereby committed an offence punishable under s. 39B(2) of the same Act, read with s. 34 of the Penal Code.

Both the appellants were convicted and sentenced to death. It should be noted at this stage that the Dangerous Drugs Act 1952 was amended by Act A553 on 14 April 1983 which inter alia made offences under s. 39B punishable with mandatory death sentence. Since the offence alleged to have been committed by the appellants and Ooi was prior to the amendment, they were liable on conviction either to life imprisonment or death.

At all relevant times, the appellants and Ooi were represented by Counsel, and when hearing commenced on 5 April 1988 all the three of them had pleaded not guilty. But, after recording evidence-in-chief of Inspector Ng Eng Hoi (PW1), the two appellants through their Counsel had indicated to the Court that they wished to change their plea. The learned trial Judge could have refused to entertain the change of plea and proceeded with the trial to its conclusion.

Alternatively, he could have accepted their plea of guilty but adjourned the sentence until after the trial of Ooi, the co-accused, unless of course they were required to give evidence as witness (see Toh Ah Loh & Mak Thim V. Rex [1948] and See Ah Ann v. PP [1950] MLJ 293). In exercise of his discretion, the learned Judge had however decided to deal with the appellants first and adjourned the trial of Ooi.

The appeal record showed that the defence Counsel and the DPP saw the learned Judge - in - chambers at about 2.45 p.m., and there was a request by defence Counsel for time to consider a change of plea by the two appellants. The learned Judge quite properly adjourned the hearing to the following day. When the case resumed on 6 April, the notes of proceeding recorded by the learned Judge read as follows:

Charge read to the 2nd and 3rd accused separately. Understands the charge.

Both accused plead guilty to the charge.

Understand the consequences and nature of their plea of guilty.

DPP submits facts of the case.

Facts explained and admitted by both the 1st and 2nd accused.

Plea of guilty accepted.

Accordingly, I convict them.

During the plea in mitigation Dr. Rajkumar of the Psychiatric Department, General Hospital Penang, was called and gave evidence on the mental state of the appellant. The doctor testified that the 1st appellant was a dull person with below average intelligence. The learned Judge then made an order under s. 342(ii) and (iii) CPC remanding the 1st appellant for two weeks in a mental hospital for observation, and adjourned the case to 18 April, for sentence.

When the case resumed on 18 April, the 1st appellant was certified fit to plead, but Ms. Mahadevi informed the Court that both the appellants now wished to retract their plea of guilty on the following grounds:

1. 2nd accused (1st appellant) when he instructed Counsel did not understand the charge when read to him. He was feeling giddy and wanted to sit down. He did not realise that he was pleading guilty to a charge which might carry a death sentence.

2. 3rd accused (2nd appellant) wanted to withdraw and to proceed with the trial because he was surprised by the statement of facts