Alan Soh Heng Liang v Public Prosecutor [2020] MLJU 2151

Case: Alan Soh Heng Liang v Public Prosecutor [2020] MLJU 2151

Court: Court of Appeal (Putrajaya)

Topic: Defective Charge

Facts 1.     Alan Soh Heng Liang (“the Appellant”) was charged of trafficking in a dangerous drug under Section 39B (2) of Dangerous Drugs Act 1952 (“Act 234”).  The charge read at the Shah Alam High Court as follows:

“Bahawa kamu pada 14 Mei 2015 jam lebih kurang 2.45 petang bertempat di Kawasan Balai Pelepasan Domestik, Aras 3, KLIA 2, di dalam Daerah Sepang dalam Negeri Selangor Darul Ehsan telah di dapati mengedar dadah berbahaya iaitu 2,313.9 gram Methamphetamine dan dengan itu, kamu telah melakukan suatu kesalahan di bawah Seksyen 39B (1) (a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B (2) Akta yang sama.”

2.     As for the material facts of the case, the Appellant was initially at KLIA2 airport in Selangor, Malaysia on 14 February 2015.

3.     On the same date, a surveillance team led by an officer known as SP5 was also present at KLIA2 airport.

4.     SP5 noticed a suspicious Chinese man who was pulling a black trolley bag in suspicious manner.

5.     This suspicious individual, later identified as Alan Soh Heng Liang (“the Appellant”) was instructed to have his bag scanned at the airport.

6.     The Malaysia Airport Berhad had informed the surveillance team that the scan indicated something suspicious, leading to further investigation by the Narcotics Department in the airport.

7.     While nothing suspicious was found on the Appellant, his bag unfortunately revealed a green towel containing 6 silver packages.

8.      Inside these packages were clear plastic packets filled with white powder, suspected to be dangerous drugs.

9.      A chemist identified as SP3 in the trial confirmed that the substance was indeed 2,313.9 grams of methamphetamine, a substance listed in the First Schedule of the Dangerous Drugs Act 1952 (“Act 234”).

10.    The Appellant was called to enter his defence and he gave a sworn statement that he did not have any knowledge of the existence of the drugs in his bag which he further claimed that he was used as a mule to carry the drugs.

11.     At the end of the defence case, the trial judge ruled that the defence raised by the Appellant was an afterthought.

12.     Following the trial, the Appellant was found guilty where he was convicted and sentenced to death penalty for the offence as per the charge.

13.    Aggrieved with such decision, the Appellant brought the matter to the Court of Appeal and raised four (4) issues.

14.     However, for the purpose of this case review, only one (1) issue will be discussed and highlighted below.

Issue 1.      Whether the charge complained of by the Appellant relating to the date of commission of the offence is defective?
Ratios 1.     It was material for the Court of Appeal to look into the issue of defective charge since the charge mentioned that the offence happened on 14 May 2015.

2.     However, the Court of Appeal found that a police report from SP5 had affirmed that the Appellant was arrested on 14 February 2015 instead of 14 May 2015.

3.     The Respondent did not amend the charge or consent to match the police report.   The Appellant argued that this discrepancy rendered the charge defective and damaging to the prosecution’s case, as it was a critical part to be proven against the Appellant.

4.     Since there was an error in a charge, the Court of Appeal referred to both of Section 156 and 422 of Criminal Procedure Code (“Act 593”) as follows:

Section 156 of Act 593

No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars shall be regarded, at any stage of the case, as material unless the accused was in fact misled by that error or omission.”

“Section 422 of Act 593

Subject to the provisions contained in this Chapter no finding, sentence or order passed 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 proceeding under this Code;

(b) 

(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.”   [Emphasis Added]

5.     The Court of Appeal had deliberated the relevant case of Ravindran a/l Ramasamy v Public Prosecutor [2015] 3 CLJ 421 where the Federal Court ruled that, according to Section 156 of Act 593, for an error or omission to be material, it is insufficient for the accused to be misled; there must also be a failure of justice as per Section 422 of Act 593.

6.     Occasioned by the case of Ravindran, the Court of Appeal held that the error of the date in the charge had not resulted in a failure of justice.   It was solely an error related to the specifics of the offence and can be corrected under Section 422 of Act 593.

Decision 1.      The Court of Appeal dismissed the Appellant’s submission on the issue of defective charge.

2.     The appeal however was allowed and the Appellant’s conviction was set aside after the Court found that the trial judge failed to consider the defence case for the other three (3) remaining issues.

Key Take Away 1.     A mistake in a charge is not significant unless it leads to a failure of justice, as outlined in Section 422 of Act 593.

2.     Thus, an error of the date of the commission of the offence in the charge does not cause a failure of justice but is a detail correctable under Section 422 of Act 593.

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