05(L)-23-02/2020(B)

I have read the judgment of my learned sister, Mary Lim Thiam Suan, FCJ on the appeal herein. Essentially the appeal deals with the issue of when should an order for discharge amounting to an acquittal under section 254 of the Criminal Procedure Code [CPC] be granted.

I agree with the ultimate decision as stated in the said judgment that the facts in this case warranted for a direction of discharge amounting to an acquittal (DAA).

However, I differ with my learned sister on the interpretation to be accorded to section 254(3) of the CPC with specific reference to paragraph [37] of the judgment, which reads as follows: “[37] But, section 254 does not stop there. Section 254(3) goes on to provide for the effect of the discharge; it expressly states that “such discharge shall not amount to an acquittal unless the Court so directs”; and it is the meaning and operation of section 254(3) which lies at the heart of this appeal. In my view, the Court has to specifically direct that the discharge does not amount to an acquittal. Otherwise, the default position is that the discharge amounts to an acquittal. This is the plain and clear meaning of section 254(3), that the Court has to so direct that the discharge does not amount to an acquittal, otherwise, the discharge amounts to an acquittal.” 3

The same interpretation was also applied by Her Ladyship in paragraphs [39], [50] until [55] and [65] in the judgment.

For ease of reference, I reproduced section 254(3) of the CPC hereunder: “254 (1) At any stage of any trial, before delivery of judgment, the Public Prosecutor may, if he thinks fit, inform the Court that he will not further prosecute the accused upon the charge and thereupon all proceedings on the charge against the accused shall be stayed and the accused shall be discharged of and from the same.

At any stage of any trial before a Sessions Court or a Magistrate’s Court before the delivery of judgment, the officer conducting the prosecution may, if he thinks fit, inform the Court that he does not propose further to prosecute the accused upon the charge, and thereupon all proceedings on the charge against the accused may be stayed by leave of the court and, if so stayed, the accused shall be discharged of and from the same.

such discharge shall not amount to an acquittal unless the Court so directs”. [Emphasis added] [6] It is my view that, a plain and literal reading of section 254(3) of the CPC means that any discharge granted by the Court under section 254, is a discharge not amounting to an acquittal. But for a discharge amounting to an acquittal, it must be specifically directed by the Court. The opening wordings of the section are clear and unambiguous, hence the Court must give effect to its plain and literal meaning. In this regard the remarks by Suffian LP in PP v Sihabduin bin Haji Salleh & Anor [1980] 2 MLJ 273 are relevant when His Lordship said: 4 “the words of Lord Diplock in an authority cited by my Lord President, Duport Steels Ltd v Sirs seems to me to be particularly apt, for the role of the judiciary is confined to ascertaining from the words that parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral.” [Emphasis added] [7] I have read and examined the authorities and cases referred to, in the judgment and found that, they never ruled on the interpretation to be accorded to section 254(3) CPC to the effect that “the Court has to specifically direct that the discharge does not amount to an acquittal. Otherwise, the default position is that the discharge amounts to an acquittal.” In my view, what those cases held were that, the Court is vested with the discretionary power to direct an acquittal of an accused person pursuant to section 254(3) of the CPC and that such discretion is to be exercise judiciously. In other words, section 254(3) CPC does not fetter the discretion of the Court in directing that the discharge to amount to an acquittal, if circumstances warrant it. The following cases support this proposition:

PP v Ambika a/p Shanmugam [2021] 2 MLJ 723;

(ii) Muhamed bin Kanathi Meerah Mydin v PP [2019] 2 MLJ 194;

(iii) Goh Cheng Chuan v PP [1990] 3 MLJ 401; 5

(iv) Koh Teck Chai v PP [1968] 1 MLJ 166;

Seet Ah Ann v PP [1950] MLJ 293;

(vi) Goh Oon Keow & Anor v Rex [1949] MLJ 35; and

(vii) Tan Ah Chan v Regina [1955] NLJ 218. [8] The case of Goh Cheng Chuan v PP (a Singapore case) & PP v Ambika a/p Shanmugam are 2 cases which dealt specifically with the phrase “unless the Court so directs” which appears in section 254(3) CPC which is in pari materia with section 184(2) of the Singapore Criminal Procedure Code. PP v Ambika relied on Goh Cheng Chuan v PP, which agreed with the decision of Lai Kew Chai J in K Abdul Rasheed v PP [1985] 1MLJ 193, at page 195 which states: “Subsection [184(2)] begins with the proposition of law that such discharge shall not amount to an acquittal, followed by the crucial words “unless the court so directs…”…These crucial words plainly confer on the court the discretionary power to direct an acquittal and the power arises the moment the prosecution informs the court that it is not going on with the prosecution of the defendant upon the charge, whether or not the prosecution has decided forever to withdraw the charge. If an accused applies for a discharge amounting to an acquittal, a court must bear in mind that the legislature has in the opening words of sub-s [184(2)] set down the principle that the discharge ‘shall not’ amount to an acquittal. There must be circumstances in the proceedings so far on record or the accused must show sufficient reasons to displace the principle that the discharge shall not amount to an acquittal. In exercising its power under sub-s [184(2)] of the Code, a court must bear in mind and give due regard to the right of the prosecution to proceed at a later 6 stage; Seet Ah Ann v PP [1950] MLJ 293. On the other hand, there is ample persuasive authority for the proposition that unless some good ground is shown it would not be right to leave an individual saddled with a charge in which proceedings are stayed for an indefinite period: Goh Oon Keow v Rex [1949] MLJ 35, the dicta of Mr Justice Spencer-Wilkinson in PP v Suppiah Pather reported in the Editorial Note to Ariffin bin Cassim Jayne v PP [1953] MLJ 126 which were approved in Koh Teck Chai v PP [1968] 1 MLJ 166, 167, by Ong Hock Sim J (as he then was). It is not desirable to set down any principle which a court must follow when acting under sub-s [184(2)] of the Code as if it is writ in stone and thereby fetter the discretion of the court which has to be judicially exercised. Circumstances do vary from case to case. Each case has to be dealt with on its merits, with the court bearing in mind the public interest and the right of the individual to which I have alluded.” [Emphasis added] [9] In addition, a perusal of the written submissions by the appellant’s counsel never alluded to the proposition that section 254(3) CPC means that “the Court has to specifically direct that the discharge does not amount to an acquittal. Otherwise, the default position is that the discharge amounts to an acquittal.” It is limited to the concern that the Court has the discretion/power/jurisdiction to order a discharge amounting to an acquittal to an accused person when the facts warrant it under section 254 CPC. [10] Save as aforesaid, I agreed that in the present appeal, the facts and circumstances herein justified for an order of a discharge amounting to an acquittal. The appeal was allowed. The orders of the High Court and the Court of Appeal were set aside. 7 [11] My learned brother Mohd Zawawi Salleh, FCJ has read this judgment in draft and agreed with its contents. -signed-Zabariah Mohd Yusof, Judge of the Federal Court Malaysia, Putrajaya. Date: 7.7.2022 Counsel/Solicitors For the appellant: Kamarul Hisham bin Kamaruddin, Tiara Katrina binti Fuad & Ho Cheng En [The Chambers of Kamarul Hisham & Hasnal Rezua] For the respondent: Abdul Ghafar bin Ab. Latif Timbalan Pendakwa Raya Bahagian Perbicaraan dan Rayuan Jabatan Peguam Negara (P4)