Wong Too Sang (MC-83-290-06/2023)

This judgment pertains to this court’s decision to release the accused who pleaded guilty to the charge of committing an offence under section 427 of the Penal Code, after an admonition or a caution to the accused.

The counsel on behalf of the accused requested the assistant of a Chinese (Mandarin) interpreter. The official qualified interpreter of the court conversed with the accused to confirm that he fluent in Mandarin (Nguyen Van Cuong & Ors v PP [2018] MLJU 114). It is imperative for this court to ensure that the accused fully understands the gravity of the offence and the consequence of his plea, which entails that the accused is aware of the potential sentence he may face upon pleading guilty (Seah Ah Chiew v PP [2005] 4 MLRH 372; Heng Kim Khoon v PP [1972] 1 MLJ 30).

This court has a duty to carefully assess whether the accused fully comprehends the charge to which he pleads guily, ensuring his plea is unequivocal, unreserved and unqualified, with the presence of his counsel (Abdul Kadir bin Abdul Rahman v PP [1984] 1 MLJ 80). As a result, the court accepted the accused’s plea since the charge was explained to him in a language that he fully understood. Once this court has determined that it is safe to accept the accused’s plea, the court recorded in writing that the accused wishes to plea by himself without qualification (Chen Chong & Ors v PP [1967] 2 MLJ 130; Hajar binti Ishak v PP [2000] 1 MLRH 608; [2000] 4 CLJ 46).

However, this court pronounced not to record the accused’s conviction in the proceeding and reserved until after hearing the parties’submissions. The court decided such because in the considered view of this court that the offence committed against the family member’s vehicle is of a trivial nature.

The charge against the accused in the Magistrates’ Court of Alor Gajah reads as follows:- Bahawa kamu pada 3.6.2023 jam lebih kurang 11.30 pagi, semasa berada di kebun kelapa sawit di Lot 2965, Mukim Durian Tunggal di dalam Daerah Alor Gajah di dalam Negeri Melaka telah melakukan khianat terhadap kereta jenis Ford Ranger berwarna hitam no. Pendaftaran VKC 8988 milk syarikat penama Wong Nyong Khoon dengan niat untuk menyebabkan kerosakan kepada harta itu yang nilainya RM10,203.50. Oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 427 Kanun Keseksaan.

Regarding the statement of the fact of the case (P1) tendered by the prosecution, the admission was made in response to the counsel’s request for the addition of particulars provided by the accused. However, the prosecution argued that these particulars should be considered as mitigation since the prosecution’s statement of the fact was based on information provided by the complainant. The court interpreter clarified the situation to the accused in Mandarin, and both the accused and his counsel confirmed that they understood the situation and had no objections. It must be emphasised that, this court then asked the accused again through the court interpreter for confirmation and the accused himself confirmed that he accepted and admitted the facts as stated in P1.

The facts were as follows. The complainant is a 56-years-old farmer or manager of ACE Reality Management Sdn Bhd. On 3.6.2023, around 11.30am, while at the complainant’s farm at lot 2965, Mukim Durian Tunggal, Alor Gajah, a verbal altercation occurred between the complainant and the accused. During the altercation, the complainant and his wife were inside a car. Suddenly, the accused attacked the complainant with a “machete” (parang). Since the complainant’s car was locked, the accused could not physically harm the complainant. Instead, the accused proceeded to strike the complanant’s black Ford Ranger vehicle bearing registration number VKC 8988, causing damage as a result of the “machete” blows. The complainant left the scene out of concern for his and his wife’s safety. The complainant incurred a loss of RM10,203.50 due to the damage inflicted by the accused on the said company-owned vehicle.

8.

Learned counsel for the accused, Mr. Kent Tan submitted, by way of mitigation, that the accused is 59-years-old unmarried farmer earning a monthly wage of RM1,500.00. The accused has admitted to the charge against him. During the incident, he had proposed to pay for the damages caused to the complainant’s car and even followed up with the complainant via WhatsApp to arrange for the repair. The accused and the complainant are relatives, and they had attempted to amicably settle the matter, but unfortunately, the complainant still went ahead and lodged a police report. The accused’s action was a result of his intention to defend himself from the complainant, who was driving at the time of the incident.

Learned counsel sought to persuade this court to exercise its discretion under section 173A(2)(a) of the Criminal Procedure Code (“CPC”) to discharge the accused without recording a conviction. Learned counsel cited the case of PP v Muhammad Fiqry Jafri & Anor [2021] 4 CLJ 552 to support his argument. Learned counsel further submitted that the accused took the initiative to resolve the matter, accepted responsibility for the damage incurred, and learnt a valuable lesson from the incident. Therefore, learned counsel moved the court to grant an order under section 173A(2)(a) of the CPC against the accused.

PROSECUTION’S REPLY The learned Deputy Public Prosecutor, Puan Sharina Farhana vehemently objected to the prayer of the learned counsel for an order under section 173A(2)(a) of the CPC. Regarding the damages suffered by the complainant as stated in the quotation price (exhibit P13) amounting to RM10,203.50, it is the complainant’s right to repair at any workshop of his choice. Furthermore, in response to the defence counsel’s argument in relation to the accused’s offer of settlement to the complainant, the prosecution maintained her stance and emphasized to this court that the complainant should be given the right to repair the vehicle wherever he desires.

This court has taken into consideration the accused’s plea of guilt at the earliest opportunity, which does give rise to public advantage and avoids the expense and nuisance of a lengthy trial (Mohamed Abdullah Ang Swee Kang v PP [1987] 1 MLRA 43; [1988] 1 MLJ 167; [1987] CLJ (Rep) 209). The court has carefully examined the facts of the case and both aspects of the parties’arguments to strike a possible fair balance in dispensing justice (Raja Izzuddin Shah v PP [1978] 1 MLRH 248; [1979] 1 MLJ 270).

The accused of the instant case is not a hardened criminal, and his guilty plea should be considered as a mitigating factor as it saves the country from incurring significant costs and inconvenience, especially for the witnesses, given the fact involved family disputes between the accused and the complainant (Sau Soo Kim v PP [1975] 1 MLRA 176; [1975] 2 MLJ 134). It is also worth noting that the accused is the nephew (anak saudara) of the complainant, as stated in the police report P2.

Learned counsel suggested an order under section 173A(2)(a) of the CPC for the offence committed under section 427 of the Penal Code, which involves causing mischief and resulting in a loss or damage of RM25 or upwards. The prosecution objected to this suggestion. After considering both submissions, this court has accepted the learned counsel’s suggestion as the offence in th e instant case is considered trivial in nature and there are extenuating circumstances under which the offence was committed. It is important to note that the application of section 173A of the CPC is not restricted only to offenders who had pleaded guilty at the beginning of the trial and the court retains discretion to consider the facts and circumstances of each case, particulary in cases involving extenuating circumstances (Ramely bin Hussain v PP [2005] MLJU 565). In other words, section 173A of the CPC grants the court discretion to make order at any stage of the proceedings if it deems fit.

This court is satisfied that extenuating circumstances, including the age of the accused who is nearly 60 years old, are pertinent. Particularly, an accused, who is older than the complainant, with his extent of strength, used a tool that caused a degree of loss to the complainant’s vehicle, as stated in the charge. The dispute in the instant case is very much a family disputes amongst the accused and the complainant on the farm, as P1 clearly pointed out the verbal altercation initiated, leading to the accused’s action of damaging the complainant’s vehicle.

Furthermore, learned counsel submitted that the accused acted in self-defence from the moving vehicle driven by the complainant at that material time. This court considered both perspectives and only required common sense for understanding, as a man who is attacked may defend himself. Hence, this court deems it sensible that the accused may do what is reasonably necessary from a moving vehicle for his safety. At the same time, the complainant claimed that he was in his vehicle and locked it due to wo rry for his safety from the accused who had a saw with him. At this point, both are deemed dangerous to each other. However, this court is very clear in its mind that, upon the particular facts and circumstances of the instant case, it involves criminal mischief to a family member, but not to someone who is a complete stranger.

This court takes guidance from the case of PP v Nhizam bin Jalar (Criminal Revision Application No. JA-43-7-02/2024) by YA Dato’ Abu Bakar, HCJ, where the statement of the facts of that case did not state the exact amount of loss for the purpose of section 427 of the Penal Code. YA HCJ, in the judgment, found it peculiar how the amount of RM29.90 was stated in the charge against the accused as there was no basis or document supporting the amount. Hence, the accused was said to be unaware of the value of the loss suffered by the complainant in that case if it amounted to RM25 and upwards; the charge was then amended by YA HCJ to an offence under section 426 of the Penal Code. The judgment in Nhizam case (supra) was issued on 19.3.2024, whilst the decision in the instant case was delivered on 7.3.2024.

However, with due respect, this court has made the following observations which differentiate the two cases:-

There is no basis for learned counsel to suggest any prejudice in the accused’s mitigation or that the accused had any difficulty in understanding the charge (Dato’ Sri Mohd Najib bin Hj Abd Razak v PP [2022] 1 MLJ 137). Furthermore, the court interpreter had explained and clarified the charge with the accused in Mandarin before the court recorded the accused’s plea;

The statement of the fact of the case (P1) disclosed the amount of loss as suffered by the complainant. This court carefully examined the quotation of repair costs (Exhibit P13) issued by a workshop to the complainant, which was contingent upon the complainant’s approval, amounting to RM10,203.50. In the considered view of this court, Exhibit P13 was shown to the accused and admitted by the accused as evidence in court. Therefore, the existence of the quotation was not disputed;

This court is also aware that a receipt is the required documentation issued as proof of payment for repair works. However, according to learned counsel, the accused had attempted to amicably settle the matter with the complainant, indicating that the accused was aware of the negotiated repair costs. The accused or his counsel should have raised objections in court if the loss amount of RM25 or upwards, or as specified in the charge was incorrect, but neither did so; and

In addition, the prosecution submitted to this court that the complainant should have the right to repair his vehicle wherever he desires. However, this court is of the view that the choice lies solely with the complainant, and there are appropriate channels for the complainant to pursue civil suit to claim damages for the repair costs, if any. In these circumstances, this court is mindful that the criminal mischief committed by the accused should be emphasised, and the extent of loss, starting from a minimum threshold of RM25 only, should be the primary concern in exercising proper judgment. This court also considered the provision of section 173A(3) of the CPC relating to compensation for loss (not exceeding the sum of RM50) and decided to make no order. It is noteworthy that this court took into account the absence of a receipt as proof of payment and the attempt made by the accused with good faith to settle with the complainant, which was refused by the complainant.

Upon a careful review of the instant facts, this court is of considered view that section 173A order is mainly aimed at addressing leniency and specifically intended for the individuals who are guilty of non-serious offence, much like the accused herein (Muhammad Fiqry Jafri case (supra); Re Badri Abas [1970] 1 LNS 133; [1971] 1 MLJ 202). By granting a section 173A order through the exercise of this court’s discretionary power, it can provide the accused with an opportunity for rehabilitation. It is crucial to highlight that the issuance of an order under section 173A(2)(a) of the CPC is appropriate under the specific circumstances of this case.

It must be remembered that, when an admonition or caution order is granted, it does not reduce the severity of the situation for the accused. Instead, it is a way for the court to reprimand and advise the accused during a public court proceeding, which can be embarassing and disgrace to the accused, particularly for the accused of a certain age. In the instant case, the court cautioned the accused to exercise patience when confronting with such situation and to seek peaceful means of resolution, rather than resorting to destruct the property (vehicle) of his family member.

It is evident that the matter at hand concerns a family dispute rooted in personal interests, rather than a concern of public interest. Therefore, the court is of the view that the admonition or caution order can urge the accused to always find a solution that prioritize family harmony and emphasises the importance of maintaining respect within the family members.

Having heard the parties and based on the aforementioned reasons, this court agrees with learned counsel’s suggestion and issues an order under section 173A(2)(a) of the CPC, releasing the accused by dismissing the charge, after the admonition or caution given to the accused, as this court deems the order adequate and appropriate for this case. Dated this 29 March 2024 ----------------------------------- (TEOH SHU YEE) MAGISTRATE MAGISTRATES’ COURT AT ALOR GAJAH PROSECUTION : DPP Puan Sharina Farhana THE ACCUSED :