JUDGMENT

Zainun Ali J:

The appellant, in exercising her legal right to appeal the decision of the learned Sessions Court judge, had unwittingly raised several points of law which merit scrutiny, and deliberation.

The Facts

In a macabre turn of events, the appellant who was then at Pusat Serenti and who was originally a witness in her husband's trial in the Sessions Court on 3 June 1998, suddenly admitted to the charge which was preferred against her husband. The appellant also stated in this case that her husband is blameless. However, nowhere in the notes of evidence before this court was it explained what was the charge preferred against the appellant's husband.

The appellant was then arrested and detained the same day (3 June 1998), while her husband was released on 8 July 1998.

On the following day, ie, 4 June 1998, a charge was prepared against the appellant and on the same day, the appellant was charged in the Sessions Court, Johor Bahru. The appellant pleaded guilty and was sentenced to eight years imprisonment with effect from that day. It was alleged that the prosecution case against the appellant was based on a chemist report dated 8 February 1996. This chemist report was apparently not served on the appellant but was served on the appellant's husband when he was charged earlier. It was alleged that the prosecution had erroneously caused the Sessions Court Judge to admit the said chemist report as evidence and have it marked as P2 in the case against the appellant.

It should also be noted that the appellant was not represented in the Sessions Court.

On 13 June 1998, the appellant filed a notice of appeal against the sentence imposed on her by the Sessions Court. This was done with the aid of the prison authorities presumably under the apprehension that the appellant only had a legal right to appeal against her sentence as she had pleaded guilty. She engaged solicitors to represent her in mitigating her sentence during the said appeal.

On 10 September 1999, the appellant filed an application to amend the notice of appeal to read "Rayuan terhadap sabitan dan hukuman" from the original "Rayuan terhadap hukuman". This was supported by the affidavit of her counsel, the late Encik Mohamad Elyas Majeed affirmed on 10 September 1999. This, in effect amended the appeal from one against sentence to one of both conviction and sentence.

The Deputy Public Prosecutor (DPP), Puan Haslinda bt Abu Bakar, filed an affidavit in reply affirmed on 26 October 1999 which states categorically that the appellant's said application was filed late by eleven months and one day from the date the court allowed extension of time to file the notice of appeal. The learned DPP also submitted that since the appellant had pleaded guilty she was precluded from appealing against the conviction and that she could only appeal as to the extent or legality of the sentence.

The learned DPP also submitted that in the event the appellant was allowed to appeal against conviction, such notice of appeal was filed out of time. Learned counsel for the appellant however argued that this preclusion was not an absolute bar and did not fetter the court's discretion to allow such an appeal.

Among others, the appellant's application turns on the question of both enlargement of time and whether s. 305 Criminal Procedure Code (CPC) would apply. Dealing firstly with the extent or legality of the sentence, s. 305 CPC reads:

305. When plea of guilty limited right of appeal.

When an accused person has pleaded guilty and being convicted by a Magistrate on such plea, there shall be no appeal except as to the extent or legality of the sentence.

In Low Hiong Boon v. PP [1948-49] MLJ Supp, Spenser Wilkinson J observed that:

The appellant appealed both against conviction and sentence. At the hearing before me the DPP pointed out that as she had pleaded guilty the appeal could only be against the sentence and he cited section 305 of the Criminal Procedure Code.

This prov