Chiew Poh Kiong v Public Prosecutor, 27-07-2001

JudgeJustice Datuk Ian H.C. Chin
Judgment Date27 July 2001
CourtHigh Court (Malaysia)
AppellantCHIEW POH KIONG
Record NumberCRIMINAL APPEAL NO: 41-03-2001-III(I)
RespondentPUBLIC PROSECUTOR

MALAYSIA

IN THE HIGH COURT IN SABAH & SARAWAK AT KUCHING

CRIMINAL APPEAL NO 41-03-2001-III(I)


BETWEEN


CHIEW POH KIONG … APPELLANT


AND


PUBLIC PROSECUTOR … RESPONDENT



IN OPEN COURT

THE 27TH DAY OF AUGUST 2001



J U D G M E N T


Introduction

1. Following the quashing on 27 July 1996 of the conviction and sentence of the accused Chiew Poh Kiong and following an order for his retrial, the sanction of the Deputy Public Prosecutor was given on 2 September 1996 to prosecute for an offence of giving false information under s 182 of the Penal Code. The accused was brought to court on 7 October 1996 to face a charge that was subsequently before the trial commenced amended on 20 November 1997. The charge under which the trial proceeded reads:



That you on 21.1.1995 at about 10.15 am, at Anti Corruption Agency Office, Kuching, in the District of Kuching, First Division in the State of Sarawak being legally bound to furnish information in course of police investigation vide Kuching Central Police Report Station Report No:518/95 did give to a public servant, to wit, En. Mohd Yunus bin Sukimin attached to Anti Corruption Agency Sarawak an information in your statement dated 21.1.95 herewith marked as Lampiran "A" which you knew to be false and you have thereby committed an offence punishable under Section 177 of the Penal Code.



2. The words of the underlined part of the statement marked as Lampiran "A" and referred to in the charge reads:


..Saya lihat isteri saya membuka beg tangannya sambil mengeluarkan sampul surat Borneo Hotel yang mengandungi wang bertanda berjumlah RM1,000.00 dan terus menyerahkan kepada Ah Lek (B1) dengan kedua-kedua tangan isteri saya Ah Lek (B1) terus menyambut sampul berisi wang itu dengan tangan kanan dan pada masa yang sama juga tangan kirinya membuka laci meja beliau sebelah kiri atas dan memasukkan sampul surat berisi wang bertanda RM1,000.00 ke dalam laci mejanya. Setelah wang dimasukkan ke dalam laci tersebut dengan pantas tangan kirinya menutup laci tersebut semula.


The gist of that statement is that the accused said he saw his wife open her bag, took out a Borneo Hotel envelope containing marked RM1,000 and gave it to Ah Lek who quickly unlocked his drawer to put the envelope containing the money in.


3. The trial was fixed for 13 July 1998 but regrettably was adjourned from time to time for the most parts for no good reason. The trial finally commenced (before a Deputy Registrar sitting as a magistrate) on 20 March 2000, that is almost three and half years after the accused was first brought to the court. The trial was staggered because the Deputy Registrar apart from his own duties as such had also to sit as the presiding magistrate for the case. Judgment was delivered on 11 October 2000 where the accused was convicted and sentenced to 4 months imprisonment and fined RM500 with a one month default imprisonment. I turn now to the grounds of appeal.


No Sanction for the amended charge

4. It will be recalled that the sanction was for an offence under s 182 of the Penal Code and the original charge related to an offence under that section but it was amended to one under s 177. No further sanction was issued. Though it was mentioned that the complaint talks of an offence under s 181 there is nothing on this point as what is relevant is what the sanction and the charge which finally proceeded are all about. Mr Anthony Tai, learned counsel for the accused, argued that there was no sanction for the amended charge for an offence under s 177, which is common ground, and that is an illegality that cannot be cured under s 422 of the Criminal Procedure Code (CPC).


5. Section 177 talks of furnishing false information to any public servant while s 181 talks of making a false statement on oath to a public servant or person authorised to administer oath. As for s 182 it talks of giving false information to a public servant with intent to cause him to use his lawful power to the injury of another person.


6. The provision concerning sanction is s 129 of the CPC and the relevant part reads:


129. Sanction required for prosecution for certain offences.

  1. Except in the case of complaints laid by the Public Prosecutor no Court shall take cognisance --

  1. of any offence punishable under sections 172 to 188….except with the previous sanction of the Public Prosecutor or on the complaint of the public servant concerned or of some public servant to whom he is subordinate;


(2)….(3)….(4)….(5)…..


7. Since Mr. Masri bin Mohd Daud, learned Deputy Public Prosecutor, is of the contention that the lack of sanction can be cured under s 422 of the CPC, it is to that contention I turn to first. That section (though it is in the form after the amendment made in 1998 is in substance the same before its amendment) reads:


422. Irregularities not to vitiate proceedings.


Subject to the provisions contained in this Chapter no finding, sentence or order passed proceed or made by a Court of competent jurisdiction shall be reversed or altered on account of—

(a) any error, omission or irregularity in the complaint, sanction, consent, summons, warrant, charge, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code;

(b) the want of any sanction; or

(c) the improper admission or rejection of any evidence,

unless such error, omission, irregularity, want, or improper admission or rejection of evidence has occasioned a failure of justice.



8. The original section was the subject (among other matters) of decision in the case of Joginder Singh v PP [1984] 2 MLJ 133 where Ajaib Singh J held that by virtue of s 422 a conviction should not be set aside on account of the want of sanction unless it has occasioned a failure of justice. In coming to that decision the judge refused to follow Hassan bin Isahak v PP [1948-49] MLJ Supp. 179 which held that the absence of sanction renders the proceedings null and void and Pitchaykutty v PP [1961] MLJ 293 which similarly held proceedings without sanction to be null and void. He disagreed with the two decisions for various reasons. One is that they did not take into consideration the earlier case of Salleh & Anor v Rex [1908] SSLR 27 which held that the want of sanction does not vitiate a conviction unless there is evidence of a failure of justice. Another reason is that the judge in Pichaykutty v PP though he followed Hassan bin Isahak v PP had questioned its correctness. Yet another reason was because a host of Indian decisions had decided otherwise. I would respectfully follow Joginder Singh v PP to say that the lack of a sanction can be cured since there is an express provision for doing that in s 422 of the CPC. There was no failure of justice occasioned in this case. Furthermore, the accused was defended by Mr. Tai and he did not raise any objection during the trial as regards the want of sanction, a matter which this court took into consideration as did the court in Salleh & Anor v Rex. In so far as Harun bin Abdullah v PP [1998] 3 MLJ 1 CA is concerned where it was held that s 422 of the CPC cannot be invoked to cure a breach where it involves the breach of an explicit provision of the CPC or where the breach involves a principle of general importance in the administration of justice, that case involves the question of the standard of proof, that is, whether prima facie or beyond reasonable doubt, for establishing a case for an accused to answer and there was a failure to apply the proper standard and that failure could not be cured by invoking s 422 of the CPC. The present case is not concerned with the standard of proof but with the question of sanction. Furthermore, the matter of sanction, in my view, does not involve any principle of general importance in the administration of justice. In any event, as correctly pointed out by Mr. Masri, s 161 of the CPC allows the court to continue with the amended charge without the need for further sanction. Section 161 says:


161. Stay of proceedings if prosecution of offence in altered charge requires previous sanction


If the offence stated in the new or altered or added charge is for prosecution of which previous sanction is necessary the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the new or altered charged is founded.


9. It will be recalled that sanction was obtained for a charge under s 182 of the Penal Code and the charge was amended to one under s 177 both of which relates to the same facts surrounding the furnishing of false information. Therefore, as provided in s 161, no further sanction is required.


Accused was convicted on a plea of not guilty

10. The prosecution concluded its case after calling five witnesses and the court after hearing submissions ruled on 27 July 2000 that the accused has a case to answer. The court then sat on 25 August 2000 to hear the defence but on that day learned counsel for the accused told the court that the accused wishes to remain silent, and the prosecution and the defence then stated that they adopt the submissions already made as their final address. Learned defence counsel also said this:


If there is a maximum evaluation of the prosecution case at the end of the prosecution then the silence on the part of the accused would entail a conviction. If,...

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