Edgar Joseph Jr J

This was a sentence appeal by the Public Prosecutor.

The Respondent was prosecuted in the Magistrate's Court at Lumut on the following charge:

"That you on 27th day of April, 1983, at about 10.45 a.m. at Shop No. 203, Sungai Pinang Kecil, Pangkor, in the District of Manjung, in the State of Perak, were found in possession of films, to wit, 1095 Video-tapes (as annexure attached), which had not been marked under the Provision of Section 9(2) or 9A(2) of the Films (Censorship) Act 1952, and that you have thereby committed an offence punishable under section 15(1) of the Films (Censorship) Act 1952 (Revised 1971)".

He pleaded guilty thereto, and was sentenced to pay a fine of $2,000/-, in default, to four months' imprisonment.

When the matter came up before me, counsel for the Respondent sought an adjournment, which I was not prepared to grant. I did, however, stand the case down for a short while, and, when hearing resumed, I took two points upon which I invited arguments. They were, firstly, whether the charge upon which the Respondent had been convicted disclosed an offence known to the Law; secondly, whether the plea in mitigation made by the Respondent in person rendered his plea a qualified plea so that the Court ought to have rejected it and entered a plea of "Not Guilty."

The learned Deputy conceded, in my opinion rightly, that both questions should be answered in favour of the Respondent.

Section 12 sub-section (1) of the Films (Censorship) Act, 1952 ("the Act") as amended vide Act A 490/1980) reads as follows:

"Any person who exhibits, sells, hires or distributes or causes to be exhibited, sold, hired or distributed any film —

(a) in respect of which a certificate has not been issued under section 9(2) or 9A(2);

(b) in respect of which the certificate issued under section 9(2) or 9A(2) has ceased to be valid under section 13 or 14;

(c) which, since the certificate was issued in respect thereof, has been altered or tampered with in any way; or

(d) in breach of a condition imposed under section 25(2),

shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit."

Clearly, therefore, possession of the offending video tapes per se did not constitute an offence within the meaning of the sub-section.

By the same token, when the Respondent said in mitigation that the tapes were not meant for hire, as they were put in the cabinet lockers, the Respondent was in fact making a qualified plea which ought to have led the Magistrate to reject the plea of guilty and enter instead a plea of "Not Guilty."

It is well settled law that even when an accused person is convicted by a Magistrate on his own plea of guilty and is precluded from appealing under section 305 of the Criminal Procedure Code, the Appellate Court can always in a proper case exercise its powers of revision: Lee Yu Fah v Public Prosecutor [1937] MLJ 179. Moreover, a plea of guilty to an offence unknown to the law is no plea at all: R v Lim Soh Chwee Braddell's Common Gaming Houses 178. In this context, the cases of Municipal Commissioners v Chuah Seng & Ors 3 Ky 140, Deya Singh v de Cruz 1 SSLR 147 and Khor Swee Khim v Public Prosecutor [1953] MLJ 117, also merit reading.

In these circumstances, acting in revision, I quashed the conviction and directed a retrial on a proper charge in contravention of section 15 sub-section (1) of the Act. I also ordered that the fine, if paid, was to be refunded to the Respondent and the exhibits, to be returned to the police for necessary action.

The Public Prosecutor's appeal was, in consequence, dismissed.

Before departing I would respectfully remind the prosecution that it is essential when proceeding de novo to use the language of the relevant section under which the accused is charged and of the salutary advice of Thomson, J. (as he then was) in Public Prosecutor v Leong Yoon Meow [1953] MLJ xxxv that it is a very good working rule to hold that where what an accuse