Kota Kinabalu: A 35-year-old man, who was jailed six years and ordered one stroke of the cane for taking syabu the third time, succeeded in his appeal against his conviction and sentence.
High Court Judicial Commissioner Datuk Duncan Sikodol allowed Mohd Faizal Mohd Yatim’s appeal after hearing arguments from his counsel and the prosecution as respondent.
Duncan held that since the chemist report was tendered and confirmed that Faizal was positive for drugs, the court substituted the offence to one under Section 15(1)(a) of the Dangerous Drugs Act (DDA) 1952, which provides for a fine of up to RM5,000 or a jail term of up to two years, on conviction.
The court sentenced Faizal to two years jail from the date of his arrest on May 24, 2019.
Faizal was on Jan 22, 2020 jailed six years and ordered caned once by the Sessions Court after he was found guilty at the end of his defence of taking syabu on May 24, 2019 in Beaufort in which the charge stated that he had two previous conviction records on similar offence.
The charge under Section 15 (1)(a) of the DDA 1952 and punishable under Section 39C (1) of the DDA 1952 which carries a jail term of up to seven years and whipping on conviction.
Earlier, counsel Azhier Farhan Arisin, who represented Faizal on pro bono basis, submitted that the trial judge had erred in law when admitting the appellant’s previous conviction records (PCR) into evidence and as a basis that triggered the application of Section 39C(1) of the DDA 1952 when it was abundantly clear that the said PCR failed to comply with the strict requirement of Section 400 of the Criminal Procedure Code (CPC) and Section 10 of the Registration of the Criminals and Undesirable Persons Act.
Azhier submitted that Section 10 (1) (b) of the Registration of the Criminals and Undesirable Persons Act 1969 (Act 7) specifies that proof of previous convictions can only be admitted as evidence if: the extract is based on entries from the register, and certified by the Registrar to be so extracted.
“In the present case, as evidenced from the PCR, it is merely a record prepared by a Registrar of subordinate court,” said Azhier and submitting further that Section 2 of Act 7 did not include Registrar of subordinate court within the meaning of “Registrar”.
He added that Registrar for the purpose of the Act 7 refers to officers appointed by the Yang Di-Pertuan Agong and published in a Federal Gazette under Section 3 of the Act 7.
He further submitted that perusal of Federal Gazette P. U (B) 581/2020 did not specify that the said Registrar of subordinate court has been appointed as Registrar or Assistant Registrar of Criminals.
Accordingly, the extract prepared by the said Registrar cannot be taken as an extract retrieved from "the register" within the meaning of Section 10 of the Act 7, he said.
“On this ground alone, there is insufficiency of evidence to convict the appellant under Section 15(1)(a) of the DDA and punished under Section 39C(1) of the DDA for it is not established that the appellant had two previous convictions under Section 15(1)(a) of the DDA,” submitted Azhier.
He also submitted that the application of the said Section 10(1)(b) of Act 7 overrides the application under Section 400 of the CPC.
Meanwhile, the prosecution submitted that the copy of the PCR was admissible and had complied with the legal requirements set out in Section 400 of the CPC.
The prosecution submitted that during the trial stage, there was no challenge as to whether the said copy was indeed not the appellant's previous convictions record and that there was no evidence to dispute the identity of the appellant as stated in the said document.
The prosecution further submitted that the failure of the defence to cross-examine the prosecution's witnesses could only mean that the defence had accepted their evidence.
The fact that the defence only brought up the issues at present stage went to show that they were an afterthought, which should be rejected by the court said the prosecution.
In another court, a 48-year-old woman was fined RM1,200 or two months jail by the Magistrate’s Court here for having illegal gambling paraphernalia.
Beda Peter pleaded guilty before Magistrate Lovely Natasha Charles to having two pieces of lottery tickets without licence at 4.30pm on Dec 12, 2020 in unit at Taman Jaya Diri, Manggatal.
The court heard that Beda was detained by a police team based on tip-off on gambling activity at the area and that the said tickets and RM220 cash were seized from her.
Duty counsel Lim Ming Zoong @ Lawrence representing Beda, applied for a lower fine on the grounds that Beda, a housewife, she was married with three children and that the reason she committed the offence because it was very hard to find a job now and that she needed to earn money fast.
Beda was charged under Section 9(1) of the Common Gaming House Act carries a jail term of up to six months, or fine of up to RM3,000, or both, on conviction.
Inspector Kelvan Elson Maik prosecuted.
.jpg)
