JUDGMENT

David Wong Dak Wah J:

Proceedings

[1] Mr. Alex Yeo (Mr. Yeo), counsel for the applicants, wrote to this court via a letter dated 16 October 2008, urging it to call up the records of the magistrate's court in respect of the convictions of the applicants for revision. Various grounds were put forth by Mr. Yeo but after hearing the submissions, the determinative issues for my consideration are as follows:-

1. Whether there is a duty on the part of the magistrate to inform the applicants, who at the material time were unrepresented by counsel, that they had the right to engage legal representations?

2. If so, whether the failure to do so vitiates the whole proceeding?

The Law

[2] This is clearly stated in the case of Hashim Yeop Sani J in PP v. Kulasingam referred to by Mr. Yeo in his submission which reads as follows:-

The powers of the High court in revision are amply provided under section 325 of the Criminal Procedure Code subject only to sub-sections (ii) and (iii) thereof. The object of revisionary powers of the High court is to confer upon the High court a kind of "paternal or supervisory jurisdiction" in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice.

Brief Facts

[3] All the applicants are of Vietnamese origin and were apprehended by the Marine police on 15 September 2008. The applicants were crew of two fishing vessels both of which had Malaysian registration, making them local vessels. The applicants were jointly charged in the Kuching Magistrate court on 30 September 2008 for an offence under Regulation 2 Schedule 1 of the Fisheries (Prohibition Of Method of Fishing) Regulations 1980 read together with s. 26(1) of the Fisheries Act 1985 and s. 34 of Penal Code and punishable under s. 25(a) of the Fisheries Act 1985 . In short they were found fishing using the "pair trawl net" method which is illegal. However two case dockets were opened and the applicants of each individual vessel were charged separately.

[4] All the applicants pleaded guilty to the charges. The masters of both vessels were fined RM300,000 each, in default six months imprisonment and the crews of both vessels were fined RM60,000 each and in default four months imprisonment.

Issue No. 1:-

Whether There Is A Duty On The Part Of The Magistrate To Inform The Applicants, Who At The Material Time Were Unrepresented By Counsel, That They Had The Right To Engage Legal Representations?

[5] It is not disputed by the learned DPP that the learned magistrate, prior to taking the plea, had not inquired or informed the applicants that they can engage legal representation should they so wish. However it is the submission of the learned DPP that there is no such duty on the magistrate to do so and relied on the Privy Council case of Kong Siew Yap v. R [1950] SCR 41 (PC) which held that there is no duty on the judge or anybody to appoint anyone to represent an accused, and omission to provide the accused with legal assistance cannot be a ground for challenging a conviction. With respect to the learned DPP, the just cited case is not relevant to the present case as in that case it concerned a duty to appoint legal representation whereas in this case we are concerned with the duty to inform the accused of their rights to legal representation.

[6] The counsel for the applicants and the learned DPP both conceded that there is no legal provision in law which requires the magistrate to inform the applicants that they are entitled to legal representation. They also concede that they have not found any case which is relevant to the issue at hand. Be that as it may, the starting point in determining this issue must be art. 5(3) of the Federal Constitution and s. 255 of the Criminal Procedure Code which respectively provides as follows:-

Where a person is arrested he sh