SIBU: The High Court here has allowed the appeal filed by a 47-year-old man today (Jan 23) against convictions and sentences imposed by the Magistrates’ Court for two charges of dangerous drugs possession.
Justice Wong Siong Tung set aside the convictions and ordered retrial before a different magistrate.
Chan Meng Sang was sentenced to nine months’ imprisonment on March 26, 2025 for each separate charge of possessing 1.28 grammes of ketamine and 1.41 grammes of methampetamine wthout lawful authorisation, with sentences to run concurrently.
In his ruling, Justice Wong pointed out that upon review of the notes of proceedings (NOP) and record of appeal (ROA), though the charge sheet included in the ROA showed that there were two charges preferred upon the accused, there was no indication in the NOP that the charge sheet was referred to and admitted as exhibit.
Despite the existence of two distinct charges, he said the record merely stated the interpreter “read and explained the charge” in the singular.
There is, he noted, no indication that the two charges were read, explained, and admitted separately and distinctly by the accused.
“The failure to explain the charges separately, particularly where the accused was unrepresented, constitutes a serious procedural irregularity and has occasioned a miscarriage of justice,” he stated.
“Where the NOP are silent or ambiguous on whether each charge was separately explained and admitted by the accused, the guilty plea cannot be said to be unequivocal. An equivocal plea is no plea in law.
“Although the case facts was later read and admitted by the accused, this does not cure the earlier procedural defect. The validity of a guilty plea of the accused must be determined at the time the plea is recorded, not retrospectively,” he clarified.
He further pointed out that the case facts merely supported a plea that had already been validly and unequivocally entered; it cannot replace the court’s duty to ensure that the accused understands each charge and admits each offence without qualification.
Accordingly, although an appeal against conviction is barred under section 305 of the Criminal Procedure Code, he explained that the Court exercises its revisional jurisdiction under section 325 of the Criminal Procedure Code, and hereby set aside the convictions and sentences imposed by the Magistrates’ Court on Mar 26, 2025.
“The case is remitted to the Magistrates’ Court for retrial by a different magistrate, and the accused is to be produced before the relevant Magistrates’ Court within one week for the purpose of fixing a new hearing date,” Justice Wong concluded.
The case was represented by Deputy Public Prosecutor, Mark Kenneth Netto, for the respondent while the appellant was represented by legal counsel, Daren Ling.
