Pendakwa Raya v AZFAIZ BIN JAMIL (J-09-168-05/2021)

This is the Appellant’s appeal against the decision of the learned Judicial Commissioner (the learned JC) in dismissing the Appellant’s appeal against the Session Court Judge’s (the SCJ) decision for failing to sentence the Respondent under section 39C of the Dangerous Act 1952 (“the DDA”). The SCJ sentenced the Respondent with a fine of RM 5,000.00 in default 6 months imprisonment under section 15(1)(a) and 3 years supervision under section 38B of the DDA.

Section 39C of the DDA carries punishment of imprisonment for a term which shall not be less than five years but shall not exceed seven years, and shall also be punished with whipping of not more than three strokes.

The charge against the Respondent at the Session Court reads as follows- “Bahawa kamu pada 31.07.2019 jam lebih kurang 0530 petang, di Pejabat Bahagian Siasatan Jenayah Narkotik IPD Kulai Johor, di dalam daerah Kulai, dalam Negeri Johor Darul Takzim, telah memasukkan dadah berbahaya jenis Amphetamine dan Methamphetamine kepada diri sendiri ke dalam badan kamu, oleh yang demikian itu kamu telah melakukan satu kesalahan di bawah seksyen 15(1)(a) ADB 1952 dan boleh dihukum di bawah di bawah seksyen 39C(1)(b) Akta Dadah Berbahaya 1952.” S/N ByAxf0f/y0e153nEkWpShg The undisputed facts

The finding of facts by the SCJ leading to the conviction of the Respondent is not disputed. The Respondent is found guilty for an offence under section 15 (1) (a) of the DDA.

At the Session Court, the Registrar of the Surbodinate Court of Johore Bahru (SP2) tendered two (2) sealed Orders of the Court which clearly show the Respondent’s had been convicted on the same offence under section 15(1)(a) of the DDA by two different Magistrates’ Court of Johore Bahru. SP2 gave evidence under section 400 of the Criminal Procedure Code (“CPC”) for such purpose. The Orders of the Court were then marked as exhibits P7

and (b).

It is the Appellant’s case that Respondent who was convicted under section 15(1)(a) of the DDA shall be sentenced under section 39C(1) of the DDA based on his past convictions on the same offence as shown in the exhibits P7 (a) and (b) tendered through SP2 as mode of proving the same under section 400 of the CPC.

The SCJ rejected SP2’s evidence and the exhibits on reason that SP2 lacks authority and not competent to give evidence under section 400 of the CPC. The SCJ held that SP2 is not the appropriate officer under section 400 of the CPC. The approppriate officer in her view is the Registrar of Criminal under Registration of Criminals and Undesirable Persons Act 1969 (“RCUPA”).

On appeal, the learned JC agreed with the SCJ and affirmed the S/N ByAxf0f/y0e153nEkWpShg SCJ’s decision. It was decided inter alia that past records of criminals must be proved under RCUPA since RCUPA is specific legislation dealing with registrations of criminals.

The learned JC was of the view that CPC is a general legislation. Since the words, “Registrar” under section 2 of RCUPA is defined as the Registrar of Criminals under section 3 and the registers are maintained by Registrar of Criminal under section 7 therefore, RCUPA overides the CPC. She held that SP2 is not a qualified person and had no authority to prove past convictions records of the Respondent under section 400 of the CPC. The main issue

The Appellant raised several issues pertaining to the decision of the learned JC. However, in our view, the main issue is whether the Respondent’s past convictions records under section 15 (1) (a) of the DDA may be proved through SP2 under section 400 of the CPC for purpose of punishment under section 39C of the DDA. In other words, whether SP2 is a qualified or relevant officer to prove past convictions records of the Respondent by way of section 400 of the CPC. The Appellant’s submission

The Appellant submitted that the evidence by SP2 and the past convictions records of the Respondent i.e. exhibits P7 (a) & (b) tendered during the trial must be accepted as admissible evidence under section 400 of the CPC. The words “may be proved in addition S/N ByAxf0f/y0e153nEkWpShg to any other mode provided by any law for the time being in force” under section 400 of the CPC means the law allows such evidence to be given in order to prove the past convictions records of the Respondent.

Further, the words “the officer having the custody of the records of the Court” in section 400 of the the CPC in the presence context must necessarily refer to SP2, the officer who keeps the records of the court. It is very clear that the words does not refer to or alternatively not restricted to the Registrar of Criminals under section 7 of RCUPA. Such words have not been defined in the CPC. It is clearly not the intention of Legislature for purpose of section 400 of the CPC to require the Registrar of Criminals to prove the past convictions of the Respondent. In defining the words, the Court needs to also refer to other sections in the CPC for example, in the context of report under section 399 of the CPC, it uses the words “Registrar of Criminals”. Accordingly, the duty of the court is limited to interpreting the words used by the Legislature and to give effect to the words used by it. The court will not read words into a statute unless clear reason for it is to be found in the statute itself (Tebin Mostapa v Hulba-Danyal Bali & Anor [2020] 7 CLJ 561).

The Appellant also submitted that the words “which that conviction or acquittal was had to be a copy of the sentence or order” in section 400 of the CPC must necessarily mean document to prove the conviction or acquittal. It raises a question whether the “Registrar of Criminals” is able to confirm a conviction or acquittal when he is not the “officer having the custody of the records of the Court” i.e. the copy of the sentence or order.

Section 2 (a) of RCUPA defines registrable particulars means “the particulars of any conviction or sentence in respect of a registrable offence” therefore,it is clear the particulars do not include “an acquittal”. It fortifies the view that the words “officer having the custody of the records of the Court” in section 400 of the CPC does not refer to “Registrar of Criminals”. It follows that RCUPA being a specific legislation does not overide CPC. In other words, the maxim of generalia specialibus derogant does not apply.

In the instance case, the oral evidence by SP2 who is the Registrar of the Surbodinate Court must be accepted as mode of proving the past convictions of the Respondent under section 400 of the CPC. SP2 is a qualified person under the CPC to give evidence for this purpose. This is consistent with section 59 of the Evidence Act 1950 (“EA”) that provide all facts, except the contents of documents, may be proved by oral evidence (Dato’ Sukri Hj Mohamed v Wan Muhammad Azri Wan Deris [2016] 4 CLJ 654 (CA)). SP2 had tendered exhibit P6 i.e. a letter dated 04.09.2019 which enclosed two

past or previous convictions of the Respondent under section 15(1)(a) of the DDA which were marked as exhibits P7 (a) and P7(b). These exhibits are the sealed Orders of the Court. The Court must take judicial notice of the seals of Courts and the officers acting in execution of its process as provided under section 57 of the EA.

In conclusion, the Appellant submitted that if this Court agrees with the Appellant, the appeal must be allowed and the Court may set aside the sentence imposed by the lower Courts and sentence the Respondent under section 39C of the DDA which provides S/N ByAxf0f/y0e153nEkWpShg mandatory punishment of imprisonment for a term which shall not be less than five years but shall not exceed seven years, and he shall also be punished with whipping of not more than three strokes.

It is settled law that where a provision of the law states that upon conviction a person “shall be punished” with the prescribed offence, then the Court has no discretion to consider any other punishment. This Court is bound by the decision of the Court of Appeal in Antonia Marleen Yarendra v. Chai Wei Chung [2017] 4 MLJ 359 wherein the distinction between the meaning of the phrases “shall be liable for” and “shall be punished with” were discussed. The Court of Appeal referred with approval to the cases of Public Prosecutor v. Man bin Ismail [1939] 1 MLJ 207 and Public Prosecutor v. Hew Yew [1972] 1 MLJ 164 and concluded that it is the position under criminal law that only where the punishment provides that the offender “shall be liable” for a punishment would the Court be accorded with a discretion. Otherwise, where the punishment is stated as “shall be punished” with the prescribed punishment then that punishment is mandatory. The Respondent’s submission

The Respondent submitted that the Appellant merely called SP2 whlch was a registrar of the lower court in Johor Bahru and tendered exhibits P6, P7(a) and P7(b) as evidence to prove the past convictions records of the Respondent. The learned JC had considered all the issues raised by the Appellant and infact possed the relevant question on the proper mode applicable to prove previous convictions of the Respondent. Having referred to section S/N ByAxf0f/y0e153nEkWpShg 400 of the CPC and RCUPA, the learned JC is of the view that SP2 is not an officer as defined by both statutes to prove the Respondent’s previous convictions records. (at para 31- 46 of of the grounds).

It was also submitted that section 7 of RCUPA merely states the official functions of the “officer” whereas section 400 of CPC states on how a previous conviction records is to be proved. However in section 400 of the CPC, the same word “officer” is used. The learned JC was only trying to ascertain who is the ‘officer’ as mentioned in section 400 of the CPC and section 7 of RCUPA. The learned JC went on to make a finding that CPC does not have a definition for the phrase “officer having custody of the records of the court”. The learned JC also finds that the CPC is a piece of legislature that is general in nature.

The determinig issue is the words “officer” and the correct law applicable. The learned JC referred to the First Schedule of RCUPA which says that all offences under section 15 (1) (a) of the DDA (of which the Respondent was charged) is listed under RCUPA (at para 38 of the grounds). Having considered the definition, the correct law applicable and mode to be applied in proving previous convictions records in court, the learned JC is of the view that section 7 of RCUPA is the specific law and CPC is the general law. Therefore, section 7 of RCUPA overides the provision in the CPC (at para 39- 40 of the grounds). The learned JC was correct in ascertaining the correct legal principles to be obtained and applied.

The learned JC also posed a question in the grounds of judgment S/N ByAxf0f/y0e153nEkWpShg whether SP2 is the Registrar of Criminal who keeps the particulars of conviction and acquittal of registrable offences under the First Schedule of RCUPA (at para 45 of the grounds). As SP2 is not a recognised officer as mention in RCUPA the learned JC was of the opinion that SP2 is not a qualified person to prove the Respondents previous convictions records. Therein lies the reasoned decision of the learned JC as to why the prosecution failed to prove the legal requirements pursuant to section 400 of the CPC and why section 39C (1) of the DDA was inapplicable.

The Respondent submitted that the learned JC’s reasoned judgment as to why SP2 is not recognised in law to prove the Respondent’s previous convictions, is also fortified by section 399 of the CPC which relate to report of certain person. Section 399 (3) of the CPC clearly provides for particular reference to the “Registrar of Criminal”, which is also a term defined in the RCUPA. Hence, the CPC has made specific reference to the RCUPA. It is also observed that both section 399 and 400 of the CPC are in Chapter XXXIX (Special Provisions Relating to Evidence). Further, the definition of a ‘Registrar’ in the CPC only refers to the Chief Registrar, Deputy Registrar or any Assistant Registrar of the Federal Court, of the Court of Appeal or of the High Court. There is no mention of a Registrar with respect to a subordinate court.

The Respondent submitted that what the learned JC was saying in her ground of judgments is that RCUPA is actually to be read together with the CPC, where the specific provisions are to be utilised in order to ascertain how to prove a previous conviction records for example the use of section 10 of RCUPA in how to prove S/N ByAxf0f/y0e153nEkWpShg previous convictions which involves fingerprint evidence ascertained and what is needed to satisfy the court as sufficient proof to enable the piece evidence to be admissible. This is highly relevant, as section 400(l) of the CPC contains the words such as “.. together with, in each of those cases, evidence as to the identity of an accused person with the person so convicted or person with the person so convicted acquitted.” Section 10 of RCUPA is the mode of proof to prove a previous convictions record. Hence, a harmonious reading of section 400 of the CPC, together with RCUPA affords a proper method of proving the Respondents previous convictions records which the prosecution failed to do.

In conclusion, the Respondent submitted that the prosecution had the burden of proof, to prove the Respondent’s previous convictions pursuant to S.39C(1)(b) of the DDA, where in that there were previous convictions under S.10(2)(b) or S.15(1)(a) of the DDA. The learned JC had found that the prosecution failed to adhere to the abovementioned statutory requirements. Since SP2 is found not the appropriate person to testify as to the Respondent’s previous convictions, exhibits P6, P7(a) and P7(b) tendered by SP2 do not serve any purpose.

The Respondent was charged under section 15 (1) (a) of the DDA and if found guilty can be punished under section 39C (1) (b) of the same Act. Section 15 (1) of the DDA provides as follows-S/N ByAxf0f/y0e153nEkWpShg “Section 15. Self Administration

Any person who-

Consumes, administers to himself ir suffers any person, contrary to section 14 to administer to him any dangerous drug specified in Parts 111 and 1V of the First Schedule; or

Is found in any premises kept or used for any purposes specified in section 13 in order that such dangerous drug may be administered to or smoked or otherwise consumes by him; shall be guilty of an offence against this Act and shall be on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding two years.

For purpose of this section, “consumes” includes eat, chew, smoke, swallow, drink, inhale or introduce into the body in any manner or by any means whatsoever,”

Section 39C(1)(b) provides as follows- “Increased penalty where person has prior admissions or convictions

(1) Where a person who has not less than —

two previous admissions;

two previous convictions under paragraph 10(2)(b) or paragraph 15(1)(a) or any combination of the sections;

one previous admission and one previous conviction under paragraph 10(2)(b) or paragraph 15(1)(a);

one previous admission and two previous convictions under section 31A; or

one previous conviction under paragraph 10(2)(b) or S/N ByAxf0f/y0e153nEkWpShg paragraph 15(1)(a) and two previous convictions under section 31A, is found guilty of an offence under paragraph 10(2)(b), paragraph 15(1)(a) or section 31A, he shall, instead of being liable to the punishment provided for that offence under the section under which he has been found guilty, be punished with imprisonment for a term which shall not be less than five years but shall not exceed seven years, and he shall also be punished with whipping of not more than three strokes.”

The fact shows that the prosecution’s witness SP2 gave evidence in the Session Court to prove that the Respondent had two (2) past convictions records under section 15(1)(a) of the DDA for purpose of sentence under section 39C of the DDA. She produced the letter marked as exhibit P6 showing the status of two (2) convictions as follows-BIL. NAMA NO.KES & PERUDUHAN

Azfaiz bin Jamil (Kp : 950526-08- 6451) JA-83D-123- 01/2018 (MMJ3) Sek 15(1)(a) ADBJH 08/01/2018 Denda RM 1000 jika gagal bayar 5 bulan penjara, PS 2 tahun 2. Azfaiz bin Jamil (Kp : 950526-08- 6451) JA-83D-125- 01/2018 (MMJ2) Sek 15(1)(a) ADBJH 08/01/2018 Denda RM 1000 jika gagal bayar 5 bulan penjara, PS 2 tahun

Exhbit P6 enclosed together with the Orders of the Court (exhibits P7 (a) and P7 (b) which show that the Respondent had been previously convicted under section 15 (1) (a) of the DDA. SP2 is the Registrar or the officer who issued and signed the Orders and keeps the record of the Court. SP2 had also confirmed and identified the said Orders dated 8.1.2018 respectively. The genuinity of the Orders are not disputed. Based on the two (2) Orders of Court, we are of the view that there should not be any doubt that Respondent had been convicted and sentence twice for the same offence in 2018 by two (2) different Magistrates’ Court of Johor Bahru. By the said previous convictions records, the sentence against the Respondent should have been dealt with under section 39C (1) (b) of the DDA that he be punished with imprisonment for a term which shall not be less than five years but shall not exceed seven years, and he shall also be punished with whipping of not more than three strokes.

Section 400 of the CPC provides as follows- “How previous conviction or acquittal may be proved

(1) In any inquiry, trial or other proceeding under this Code a previous conviction or acquittal or an order directing any person to be under the supervision of the police may be proved in addition to any other mode provided by any law for the time being in force ―

by an extract certified under the hand of the officer having the custody of the records of the Court whether of Malaysia or the Republic of Singapore in which that conviction or acquittal was had to be a copy S/N ByAxf0f/y0e153nEkWpShg of the sentence or order; or

in case of a conviction either by a certificate signed by the officer in charge of the prison in Malaysia or the Republic of Singapore in which the punishment or any part of it was inflicted, or by production of the warrant of commitment under which the punishment was suffered, together with, in each of those cases, evidence as to the identity of the accused person with the person so convicted or acquitted.”

It is not diputed that section 400 of the CPC provides for mode of proving past convictions records and prove by an extract certified under the hand of the officer having the custody of the records of the Court. It is also our view that past convictions records may also be proved by extract of particuars of the register under RCUPA. Although the register is kept by the Registar of Criminal under RCUPA, it does not mean that prove of past convictions cannot be proved by the officer having the custody of the records of the Court under section 400 of the CPC.

Section 400 of CPC recognises mode of prove past convictions by an extract certified under the hand of the officer having the custody of the records of the Court. As long as the officer or keeper of the records of the Court can prove past convictions records of the Respondent by extract certified records kept by her and the court is satisfied that the records are the Court’s records, such evidence is sufficient. The words in section 400 of the CPC “which that conviction or acquittal was had to be a copy of the sentence or S/N ByAxf0f/y0e153nEkWpShg order” must necessarily mean Orders from the competent court or warrant of committment or acquittal. Since section 400 of the CPC is a mode of proving past convictions records, it does not exclude the officer having the custody of the records of the Court to produce a copy of the sentence or order. In the presence context it must necessarily refers to SP2, the Registrar who has the custody of the copy of sentence or order.

In our view the words “officer” under section 400 of CPC must be read in its original context of “officer having the custody of the records of the Court”. Such words cannot be taken out and read separately or substituted with the words “Registrar of Criminals”. If the intention of Parliament is to require the Registar of Criminals as the appropriate officer, the words “officer” would have been define to refer to the Registar of Criminals. The words “officer having the custody of the records of the Court” must be given a literal interpretation. It is very plain and clear devoid of any uncertainty or suffer from any vagueness.

In Tebin Mostapa v Hulba-Danyal Bali & Anor [2020] 7 CLJ 561, Justice Vernon Ong Lam Kiat FCJ held that- “[30] In our opinion, the rules governing statutory interpretation may be summarised as follows. First, in construing a statute, effect must be given to the object and intent of the Legislature in enacting the statute. Accordingly, the duty of the court is limited to interpreting the words used by the Legislature and to give effect to the words used by it. The court will not read words into a statute unless clear reason for it is to be found in the statute itself. Therefore, in construing any statute, the court will look at the words in the S/N ByAxf0f/y0e153nEkWpShg statute and apply the plain and ordinary meaning of the words in the statute. Second, if, however the words employed are not clear, then the court may adopt the purposive approach in construing the meaning of the words used. Section 17A of the Interpretation Acts 1948 and 1967 provides for a purposive approach in the interpretation of statutes. Therefore, where the words of a statute are unambiguous, plain and clear, they must be given their natural and ordinary meaning. The statute should be construed as a whole and the words used in a section must be given their plain grammatical meaning. It is not the province of the court to add or subtract any word; the duty of the court is limited to interpreting the words used by the Legislature and it has no power to fill in the gaps disclosed. Even if the words in a statute may be ambiguous, the power and duty of the court “to travel outside them on a voyage of discovery are strictly limited.” Third, the relevant provisions of an enactment must be read in accordance with the legislative purpose and applies especially where the literal meaning is clear and reflects the purposes of the enactment. This is done by reference to the words used in the provision; where it becomes necessary to consider every word in each section and give its widest significance. An interpretation which would advance the object and purpose of the enactment must be the prime consideration of the court, so as to give full meaning and effect to it in the achievement to the declared objective. As such, in taking a purposive approach, the court is prepared to look at much extraneous materials that bears on the background against which the legislation was enacted. It follows that a statute has to be read in the correct context and that as such the court is permitted to read additional words into a statutory provision where clear reasons for doing so are to be found in the statute itself.”

The learned JC was of the view that there is a conflict between section 400 of the CPC and RCUPA. Since RCUPA is the specific S/N ByAxf0f/y0e153nEkWpShg Act, the maxim generalia specialibus derogant applies. The finding is based on the principles found in Abdullah Atan v. PP & Anor [2020] 9 CLJ 151; [2020] MLJU 1244. The second case referred to is Suresh Kumar Velayuthan v. Public Prosecutor [2020] 4 CLJ 270, which held that there are certain specific pieces of legislation designed to prevail over the more general provisions of law and these must be given full effect and the maxim must not be ignored as mere surplusage.

The learned JC was of the view that the provisions of RCUPA overides the provisions in the CPC. In determining who is the rightful officer to prove the past convictions records, section 7 of RCUPA is applicable i.e the Registrar of Criminal and not SP2. We find the learned JC had misapplied the law in the context of this instance case. Her decision is plainly wrong.

The Respondent’s counsel in his submission submitted that there is no conflict between CPC and RCUPA. However, his submission is that a harmonious reading of section 400 of the CPC, together with RCUPA affords a proper method of proving the Respondents previous convictions records. The learned JC by applying the maxim of ‘generalia specialibus non derogant’ had taken the stand that there is a conflict between CPC and RCUPA and the later being the specific law should prevail.

We find the learned JC failed to appreciate the decision of the Federal Court in Abdullah Atan v. PP (supra). It s important to read and understand the full argument and the decision in that case. The issue in Abdullah Atan v. PP (supra) is different. It was argued by S/N ByAxf0f/y0e153nEkWpShg the Appellant’s counsel that the presumption in s. 37(da) cannot be invoked to establish a prima facie case under s. 180 of the CPC, because that presumption is not evidence. Hence, it was argued that in relying on such presumption, it cannot be said that the prosecution has “adduced credible evidence proving each ingredient of the offence” under s. 180(4) of the CPC. The argument is premised purely on semantics. The Federal Court answered by saying that the presumptions in s. 37(a) to (j) of the DDA have been in place since the promulgation of the Dangerous Drugs Ordinance

The presumption of trafficking in s. 37(da) of the DDA was inserted in 1997. These statutory presumptions long pre-date the insertion of s. 180(4) of the CPC in 2006. Therefore, when s. 180(4) of the CPC was introduced, Parliament is presumed to be aware of the existing law and of the specific manner and method in which trafficking cases are proved ie, on a presumption basis upon a finding of fact of possession. Had Parliament intended the drastic consequence of effectively repealing a long-established statutory provision, one would expect Parliament to have said so in clear terms (see Takako Sakao v. Ng Pek Yuen & Anor [2010] 1 CLJ 381; [2009] 6 MLJ 751 at para. [34] (CLJ); para. [33] (MLJ)).

In the instance case, section 400 of CPC was introduced in 1976 by Act A324 which was subsequently repealed by Act A593 and come into force on 4.4.1999. The Registration of Criminals and Undesirable Persons Act 1969 had been there much longger period, Parliament is presumed to be aware of the existing law and of the specific manner and method in which previous convictions or acquittals may be proved. It is the reason why the words “in addition to any other mode provided by any law for the time being in force” S/N ByAxf0f/y0e153nEkWpShg in section 400 of the CPC is expressly stated to recognise that RCUPA is the existing law in force for that purpose. Parliament has said this in clear terms.

When the legislature has given its attention to a separate subject, and made provisions for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms (See: Bindra's Interpretation of Statutes (Tenth Edition) at page 649).

We would agree without the words ‘in addition to any other mode” section 400 of the CPC would be in conflict with RCUPA which is the specific law. Therefore, it is our considered view that section 400 of the CPC may be used as another mode to prove convictions or acquittals. There is no conflict between CPC and RCUPA therefore, the issue of RCUPA being specific law and the maxim of ‘generalia specialibus non derogant’ applies does not arise.

The law relating to the admissibility of evidence is governed by the Evidence Act 1950 (“EA”). In the presence case, the Appellant called witness in SP2 to prove the Respondent’s past convictions records for the purpose of sentencing under section 39C of the DDA. SP2 has produced two (2) sealed Orders of the Court as prove of Respondent’s past convictions records on the same offence.

The oral evidence by SP2 who is the Registrar of the Surbodinate S/N ByAxf0f/y0e153nEkWpShg Court should have been admitted or admissible as mode of proving the past convictions records of the Respondent under section 400 of the CPC. SP2 is a qualified person under the CPC to give evidence for this purpose. This is consistent with section 59 of the EA that provide all facts, except the contents of documents, may be proved by oral evidence. Section 60 of the EA also provides that oral evidence shall in all cases whatsoever be direct (Dato’ Sukri Hj Mohamed v Wan Muhammad Azri Wan Deris [2016] 4 CLJ 654). SP2 has tendered exhibit P6 i.e. a letter dated 04.09.2019 which enclosed two (2) past or previous convictions records of the Respondent under section 15(1)(a) of DDA which were marked as exhibits P7a and P7b. These exhibits are the sealed Orders of the Court. The Court can also take judicial notice of all the seals of Courts of Malaysia which any person is authorised to use and SP2 is the officer acting in execution of its process as provided under section 57 of the EA (see: s.57 (1) (g) and (m)).

The next question is whether exhibits 7(a) and 7(b) fulfill the requirement as an an extract certified under the hand of the officer having the custody of the records of the Court under section 400 (1)

of the CPC or is it the Court’s proper records. It is very clear that record of any previous conviction(s) may be proved by way of an extract by an officer in charge of the Court records, be it in Malaysia or Singapore, or a certificate signed by an officer in charge of a prison in either country or by the production of the warrant of commitment under which the punishment was imputed.

It is not disputed that SP2 in her evidence in court stated that she is the Registrar of the Subordinate Court of Johor Bahru. Her duty is S/N ByAxf0f/y0e153nEkWpShg to administer the registration of new cases and completed cases and to ensure all records and files are being kept in proper and systematic manner. Part II of the Subordinate Court Act 1948 (Act 92) provides the Subordinate Courts for the administration of civil and criminal law in Peninsular Malaysia are the Session Courts and the Magistrates’’ Courts (s.3). Each court shall have and use as occasion may require a seal of such nature and pattern as the Chief Judge may, by notification in the gazette, prescribed (s.4). All summonses, warrants, orders, rules, notices and mandatory processes whatsoever, whether civil or criminal shall be issued or made by a Sessions Court, be signed by the Sessions Court Judge, or be signed, on behalf of the Sessions Court Judge, by a Magistrate of either class within the local limits of whose jurisdiction the Sessions Court situate or by the Registrar of the Subordinate Courts. If issued or made by a Magistrates' Court, be signed by a Magistrate of either class within the local limits of whose jurisdiction the Court is situate, or be signed by a Registrar of the Subordinate Courts situate in the same town or place as the Magistrates' Court, and every such summons, warrant, order, rule, notice and mandatory process shall be sealed with the seal of the court issuing or making the same. Finally, all summonses, warrants, orders, rules, notices and other processes whatsoever, whether civil or criminal, issued or made by or by the authority of any court respecting any cause or matter within its jurisdiction shall have full force and effect and may be served or executed anywhere within Peninsular Malaysia (s.5 (1) and (2)).

It is not disputed that both P7 (a) and P7 (b) are Orders of the Subordinate Court of Johor Bahru. Both documents show that the Respondent’s previous cases was registered at the Magistrate’s Court (2) and (3) of Johor Bahru. The Orders say that he was sentenced by the Magistrates’ Court on 8.1.2018 respectively. The Orders were prepared, signed and issued by SP2 as the Registrar of the Subordinate Court of Johor Bahru in accordance with the process in section 5 of the Subordinate Court Act 1948. The seal of Subordinate Court of Johor Bahru is placed on both of the Orders. The genuiness of two (2) Orders of the Magistrates’ court are not disputed. Hence, they can be admitted as record of evidence (see: s.80 of EA).

Coming back to section 400 of the CPC where it says, previous conviction or acquittal or an order directing any person to be under the supervision of the police may be proved by an extract certified. Reading paragraph (a) of section 400 (1) carefully, the extract certified documents is referred to a copy of sentence or order. In Oxford Dictionary of Law Enforcement by Graham Gooch and Michael William (1Ed) the words, “certified extract” is defined as extract from the register of a magistrates court authenticated by the court or clerk of the justices.

We have alluded to earlier that SP2 is the custodian of the record of the Court. The documents produced are the Orders on past convictions record that was kept in Case Management System of the Court (CMS). SP2 had produced the documents upon the request from Investigating Officer Sarjan Rohashima Binti Hamzah via the system dated 29.8.2019. The letter is dated 4.9.2019. The S/N ByAxf0f/y0e153nEkWpShg system online is based on the IC of the person. From there it can see the past convictions of the person in the Johor Bahru Magistrate’s Courts. The two (2) Orders dated 8.1.2018 were issued and signed by SP2, with sealed of the Magistrates Court Johore Bahru placed on both the Orders.

Based on the said Orders which are produced and marked as exhibits 7(a) and 7 (b), we are satisfied that the documents are the extracts from the CMS certified by SP2 who is the Registar of the Surbodinate Court at Johor Bahru. We are satisfied that the exhibits are the copy of the sentence or order under section 400 of the CPC to prove past convictions records of the Respondent and and SP2 is a qualified person to prove those documents.

In any event, the Court has the duty to verify any documents produced purportedly to prove past conviction records under section 400 of the CPC are extract certified documents by the officer who keeps the records of the Court or by the Registrar of the Subordinate Courts within the local limits of jurisdiction. Conclusion 50. Having considered the contents of exhibits P7 (a) & (b), we are satisfied that exhibits P7 (a) & (b) are the Orders of the Court which showed the past convictions and sentences against the Respondent under section 15 (1) of the DDA issued by SP2 and SP2 is the appropriate officer to prove past convictions records of the Respondent. S/N ByAxf0f/y0e153nEkWpShg Sentence 51. In this instance case the SCJ failed to take into account the past conviction records of the Respondent for purpose of sentencing under section 39C of the DDA but sentenced the Respondent with a fine of RM 5,000.00 in default 6 months imprisonment under section 15(1)(a) and 3 years supervision under section 38B of the DDA. The sentence under section 39C of the DDA carries punishment of imprisonment for a term which shall not be less than five years but shall not exceed seven years, and shall also be punished with whipping of not more than three strokes.

We agree with the Appellant that the word used in section 39C of the DDA is “shall be punished with” which connotes mandatory punishment. This Court of Appeal in Antonia Marleen Yarendra v. Chai Wei Chung [2017] 4 MLJ 359 made the distinction between the meaning of the phrases “shall be liable for” and “shall be punished with”. The position under criminal law that only where the punishment provides that the offender “shall be liable” for a punishment would the Court be accorded with a discretion. Otherwise, where the punishment is stated as “shall be punished” with the prescribed punishment then that punishment is mandatory (See: Public Prosecutor v. Man bin Ismail [1939] 1 MLJ 207 and Public Prosecutor v. Hew Yew [1972] 1 MLJ 164).

Based on our judgment, the sentence imposed by the SCJ is plainly wrong. The charge against the Respondent is for an offence under section 15 (1) (a) which can be punished under section 39C of the S/N ByAxf0f/y0e153nEkWpShg DDA. We therefore, set aside the sentence imposed by the SCJ and substitute with imprisonment of five (5) years and whipping of one

stroke against the Respondent.

The appeal is allowed. Dated this 25 July 2022 sgd KAMALUDIN MD. SAID JUDGE COURT OF APPEAL MALAYSIA

Fauziah binti Daud, Deputy Public Prosecutor for the Appellant (Attorney General Chambers)

Shaik Saleem bin S.M Daud for the Respondent (Messrs Shaik Adam & Co.)