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Aca Vs Joseph Tambi [2010] MYSSHC 57 (9 April 2010)

Criminal Appeal No. 42A-06-2009

MALAYSIA

IN THE HIGH COURT AT SIBU [APPLICATION FOR REVISION] (MUKAH SESSION’S COURT

CRIMINAL CASE NO.: MKH-61-08-2005)

PUBLIC PROSECUTOR .. APPELLANT AGAINST
YAAINIE BIN RAMLEE .. RESPONDENT

RULING

[Revision under Section 35 Court of Judicature Act 1964 and

Section 232(1) Criminal Procedure Code]

1. The Appellant was charged with an offence under Section
11(c) of the Anti-Corruption Act 1997 (ACA 1997) and, after a full trial, was convicted and sentenced to four years imprisonment and fined of RM75,000.00 in default of six months imprisonment.
2. Vide letter dated 12 February 2010, the Appellant applied for revision under Section 35 of Courts Judicature Act 1964 and
Section 232 (1) of the Criminal Procedure Code (Revised 1999).

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3. The grounds of the application is that the trial proceeding or the persecution of the Appellant for an offence under Section
11(c) of the Anti Corruption Act 1997 (ACA 1997) in the Sessions Court was a nullity as the prosecution officer, Ms/ Katherine Nais (Ms Nais) conducted the prosecution without written authorization from the Public Prosecutor as required under Section 377(b) of the Criminal Procedure Code.
4. In support of the application, the Appellant relied on Ak Koh Enterprise Sdn. Bhd. V PP [2000] 1 LNS 200, PP v Jamil Jilap & Ors [ 2000] 5 CLJ, 368, Public Prosecutor v Lee Ming & Anor [1998] 1
LNS 43 and [2001] 1 CLJ 63. It is to be noted that the issues at hand in these cases are institution of criminal proceeding in contravention of Article 145(3) of the Federal Constitution which has vested in the Federal Attorney General the sole power to institute, conduct or discontinue any prosecution for an offence.
5. At the outmost it is pertinent to bear in mind the distinction between institution of criminal proceeding and conducting a criminal prosecution. In Ang Theam Choon v PP [2002] 4 CLJ
538, the Court of Appeal held that the “institution” of a criminal proceeding refers to the preliminary stages while the “conduct” of criminal proceeding refers to the actual “trial” stage wherein
witnesses will be called, and that it was sufficient if the authority

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to conduct the prosecution is given to the prosecuting officer before the commencement of the trial.
6. It goes on record that the Sanction to Prosecute was tendered to the court at the first mention on 1 August 2005. Thereafter the case was mentioned on numerous occasions and Ms Nais appeared on 7 March 2007, 9 August 2007, 19 September 2007 and 12 February 2008, the day trial proper commenced. In none of these occasions did Ms Nais tender the letter of authorization in court.
7. The record shows that the defense has not challenged the Consent to Prosecute that was tendered in court. Hence, it is unarguable that the institution of the criminal proceeding against the Appellant is proper and valid in accordance with Section 376 (1) Criminal Procedure Code which stipulated that the Attorney General shall be the Public Prosecutor and shall have the control and discretion of all criminal prosecution and proceedings under the same Code.
8. Section 377 Criminal Procedure Code states:

“Every criminal prosecution before any court and every inquiry before a

Magistrate shall, subject to the following sections, be conducted:

(a) by the Public Prosecutor, a Senior Deputy Public Prosecutor, a

Deputy Public Prosecutor or an Assistant Public Prosecutor;

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(b) “subject to the control and direction of the Public Prosecutor, by the following persons who are authorized in writing by the Public Prosecutor:

(1) an advocate;

(2) a police officer not below the rank of Inspector; (3) an officer of any Government department;

(4) an officer of any local authority;

(5) an officer of any statutory authority or body; or

(6) any person employed or retained by any local authority or any statutory authority or body:

(c) provided that in any district in which it may be impracticable, without an unreasonable amount of delay or expense, that such prosecutions or inquiries should be so conducted it shall be lawful for the Public Prosecutor from time to time, by notification in the Gazette, to direct that prosecutions may be conducted in that district by a police officer below the rank of Inspector.”

9. It was contended for the Respondent that Ms Nais is an officer of the then Anti-corruption Agency (ACA), which is a government department. Hence, the prosecuting officer within the ambit of subsection (3) of Section 377(b) Criminal
Procedure Code.

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10. Section 377(1) Criminal Procedure Code states the word “shall”.
Should the word be construed as mandatory or directory?
11. In Hee Nyuk Fook v PP [1988] 2 MLJ 360, a question of law was framed for determination by then Federal Court, which reads: Where in the course of trial a charge is amended, is it mandatory to read and explain the amended charge to an accused person pursuant to the provision of section 148(ii) of the Criminal Procedure Code? The Court, speaking through Syed Agil Barakbah Sessions Court Judge (as he then was), held:

“In our view, the word “shall” appearing therein, though generally taken as mandatory, does not mean to be so in every case. No hard and fast rule can be laid down because it depends on the facts and circumstances of a particular case, the purpose and object for which such provision is made, the intention of the legislature in making the provision and the serious inconvenience or injustice which may result in treating the provision one way or the other (See Interpretation of Statues by Bindra, 7th Ed. p 662]. We are of the view that the safest way is to look into the subject-matter of the case, consider the importance of the provision that has been disregarded, the relation of the provision to the object of the code and decide in that order whether the matter is imperative or only directory (see Howard v Dodington (1899) 2 PD 203 at p 211’

12. Although Hee Nyuk Fook’s case, supra, is in respect of section
158 of the Criminal Procedure Code, the test applied therein in

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construing the word “shall” is, in my opinion, equally applicable to section 377 of the same Code. To my mind, the word “shall” in Section 377 Criminal Procedure Code, in the context of the facts and circumstance of the case, should not be construed as imperative or mandatory but directory, for the following reasons.
13. Ms Nais is a government officer with the ACA and during the trial neither the court nor the defense had questioned or challenge her not having the authority to conduct the prosecution.
14. In absence of such challenge, I am of the opinion that there would be no necessity for Ms Nais to produce and tender her authorization letter. I find my support in PP v Lew Koy [2002] 1
CLJ 86, wherein V.T. Singham JC (as he then was) held at page
96:
"On the issue of the written authority from the public prosecutor pursuant to s. 377(b) of the Criminal Procedure Code, this court is of the view that the written authority need not be tendered or filed in court but is only required to show to the court if ever there is any challenge that the prosecuting officer who is having conduct of the prosecution did not have the authority in writing of the public prosecutor to appear in court and conduct the proceedings. In such a situation, the prosecuting officer is only required to show to the court that he has been issued

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with the written authority by the public prosecutor or the deputy public prosecutor and it need not be tendered as an exhibit or filed in court as it is not a document shown to a witness and referred to by him in his evidence or by an affidavit”
15. In Tara Singh v PP [1954] 1 LNS 113, the prosecution was conducted by the complainant herself instead of by any of the officers mentioned in Section 377 Criminal Procedure Code. Amongst the issues raised is whether the app suffered prejudice by reason of the prosecution being conducted by unauthorized person. The court held:
"..., can it be said in this case that the appellant has been prejudiced by the fact that the proceedings were conducted by the complainant and not by any of the officers mentioned in s.377 of the Criminal Procedure Code? It has been suggested that if the proceedings were conducted as laid down in s. 377 evidence might have been called which would have been favourable to the appellant, and that the fact that the Police did not take any action after the reports made by the complainant and the appellant shows that the Police considered that there was no ground to substantiate the charge. It was not shown, however, what evidence could have been called favourable to the appellant, and I do not consider that the appellant has been prejudiced by the disobedience to s. 377 of the Criminal Procedure Code. I hold, therefore, that there was an irregularity which is cured by the provision of s. 422 of the Criminal Procedure Code.”

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16. In my view, if prosecution by an unauthorized person can be cured by Section 422 Criminal Procedure Code, what more a prosecution by a government officer with none other than the ACA as in this case.
17. It must be highlighted that the Appellant has not shown that he has been prejudiced by conduct of prosecution by Ms Nais who did not show her authority to prosecute.
18. In PP v Ishak Hj Shaari & Other Appeals [2003] 3 CLJ 843 (CA), Mohd Noor Ahmad JCA (as he then was) held:
"That being the case, guided by the Indian cases, the question we should ask ourselves is whether the trials had been conducted in substantial compliance with the CPC or in a manner substantially different from that prescribed. If the trials were conducted in a manner or mode different from that prescribed by the CPC the trials were bad and the question of curing an irregularity did not arise, but if the trials were conducted substantially in the manner prescribed by the CPC, but some irregularities occurred in the course of such conduct the irregularity could be cured under s. 422 and nonetheless so because the irregularity involved, as must nearly always be the case, a breach of one or more of the very comprehensive
provisions of the CPC".

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19. There is substantial compliance with the Criminal Procedure Code in that the institution of the criminal proceeding was authorized by the Consent to Prosecute and to my mind, the conduct of prosecution by Ms Nais who failed to show her letter of authority is a irregularity which, in the absence of evidence of occurrence of miscarriage of justice, can be cured under Section 422 Criminal Procedure Code.
20. For all the reasons aforesaid, I dismiss the application.
Dated this 23rd day of April, 2010.
Decision given on 26th day of March 2010
Signed
..................................... (Puan Yew Jen Kie) High Court Judge
For Appellant: Mr. Mohamad Fairuz bin Masri Messrs. AriffinShahzad Advocates Kuching
For Respondent: Mr. Muhammad bin Sinti Timbalan Pendakwa Raya BPR Sarawak, Tingkat 12
Bangunan Sultan Iskandar
Jalan Simpang Tiga, Kuching

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