JUDGMENT

Wong Siong Tung J:

Introduction

[1] On 28 March 2024, the Appellant/Accused was charged in the Magistrates' Court under s 37(1) of the Minor Offences Ordinance 1958 (Sarawak Cap 56).

[2] Section 37(1) of the Minor Offences Ordinance 1958 provides:

Other Offences

Fraudulent possession of property

37. - (1). Any person who has in his possession or conveys in any manner anything which may be reasonably suspected of being stolen or unlawfully obtained shall, if he fails to account satisfactorily how he came by such thing, be guilty of an offence: Penalty, imprisonment for three months and a fine of five hundred dollars.

[Amended by Ordinance 16 of 1957]

[3] The charge against the Appellant/Accused is reproduced as follows:

THAT YOU ON 21 SEPTEMBER 2023 AT ABOUT 0800HRS LOCATED AT LOT 26981, SEBERANG ENSURAI, IN THE DISTRICT OF SIBU, IN THE STATE OF SARAWAK, HAS IN YOUR POSSESSION;

I. 13 packs x 80 carton cigarettes brand L.A Menthol

II. 15 packs x 80 carton cigarettes brand L.A Ice Plus

III. 32 packs x 80 carton cigarettes brand Freshness Blue

IV. 72 packs x 50 carton cigarettes brand Vess(red)

V. 55 packs x 50 carton cigarettes brand Vess(green)

VI. 34 packs x 50 carton cigarettes brand Era Ice Plus

VII. 66 packs x 50 carton cigarettes brand Era Full Flavour

VIII. 57 packs x 50 carton cigarettes brand Era Black Menthol

IX. 3 packs x 50 carton cigarettes brand Premiur(red)

WHICH MAY BE REASONABLY SUSPECTED OF BEING UNLAWFULLY OBTAINED, THEREBY YOU HAD COMMITTED AN OFFENCE UNDER SECTION 37 (1) OF MINOR OFFENCES ORDINANCE CHAPTER 56 LAWS OF SARAWAK 1958 AND PUNISHABLE UNDER THE SAME SECTION.

Hukuman:

SHALL, IF HE FAILS TO ACCOUNT SATISFACTORILY HOW HE CAME BY SUCH THING, BE GUILTY OF AN OFFENCE: PENALTY, IMPRISONMENT FOR THREE MONTHS AND A FINE OF FIVE HUNDRED RINGGIT.

(See: page 2 and 2 of the Record of Appeal Volume 1 (R/A, v. 1)

[4] The Appellant/Accused pleaded guilty to the charge.

[5] Following the guilty plea and admission of facts and exhibits, the Magistrates' Court convicted the Appellant/Accused and imposed the maximum penalty under s 37(1) of the Ordinance:

(a). Three (3) months imprisonment; and

(b). A fine of RM500.00, in default, one (1) month imprisonment

[6] However, on 1 April 2024, the Magistrates' Court granted a stay of the execution of the imprisonment sentence pending appeal by the Appellant/Accused.

[7] The Appellant/Accused filed her Notice of Appeal on 5 April 2024. The appeal is against both the conviction and sentence, notwithstanding s 305 of the Criminal Procedure Code (CPC) which provides that an accused who pleads guilty and is convicted by a Magistrate may only appeal on the extent or legality of the sentence, not the conviction itself.

(See: page 2 to 3 of R/A, v. 1)

[8] The Appellant/Accused sought the Court to exercise is revisionary power under s 323.

[9] Section 323(1) of the CPC provides:

323. Power to call for records of subordinate Courts

(1) A Judge may call for and examine the record of any proceeding before any subordinate Criminal Court for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of that subordinate Court .

(2)...

>Petition Of Appeal (p 4 to 5 R/A, V. 1)

[10] The Appellant/Accused's grounds of appeal are summarised as follows:

(a). The Magistrate failed to explain each ingredient of the offence in a language the unrepresented appellant understood, leading to a potential miscarriage of justice.

(b). The Magistrate did not explain the nature and consequences of pleading guilty in a language the appellant understood, causing a potential miscarriage of justice.

(c). The Magistrate did not ensure that the appellant's guilty plea was unqualified, unreserved, and unequivocal, leading to a potential miscarriage of justice.

(d). The Magistrate did not consider the mitigating factors sufficiently, resulting in a potential miscarriage of justice.

(e). The sentence imposed was harsh, exc