Zamri Bin Maizan Yap (MC-83-619-11/2023)

This judgment is addressing the preliminary objection raised by the defence counsel in his earlier letter, which notified both this court and the prosecution that the charge under Section 419 of the Penal Code framed against the accused is groundless. The charge against the accused reads as follows: “Bahawa kamu dari tarikh 16.6.2022 hingga 24.2.2023 semasa berada di alamat Lot Batu 12 Kampung Sg, Petai dalam daerah Alor Gajah di negeri Melaka telah memperdayakan Abdul Rahim bin Yusuff K/P: 810516-04-5483 bagi kerja-kerja pembinaan rumah baru milik beliau sehingga mendorong beliau memasukkan wang ke dalam akaun BSN 0499541100092263 milik isteri kamu berjumlah RM124,050 yang mana beliau tidak akan berbuat sedemikian sekiranya tidak diperdayakan sedemikian rupa. Oleh yang demikian kamu telah melakukan suatu kesalahan yang dihukum di bawah seksyen 419 Kanun Keseksaan.”

This court allowed both parties to submit oral arguments on the preliminary objection on the date already fixed for this case, in open court on 13.11.2024.

In brief, the defence submitted that, first of all, this case was brought before the Sessions Court, where the accused was charged and granted a good behaviour bond for carrying out construction work without a license. This indicates that he is qualified to build houses; he can build the house, but the issue S/N mEaTxHRCUaruRkuckjg6g here is that he did not have a license. Since he did not have a license, he admitted his guilt. However, in this case, the complainant claims to have been deceived. What does 'impersonation' mean, and how does it relate to the accused allegedly giving money?

The defence argued that the house has been built, meaning the accused had already constructed the house; the only issue is that he did not complete it. The same issue was raised in the Sessions Court, and he cannot be charged again for the same issue in this Magistrates' Court. Furthermore, there was insufficient evidence to charge the accused under this offence. In this case, the only documents the defence has received are the bank statement and police report where there is nothing else to suggest impersonation.

The defence also referred to a newspaper article from FMT, written by reporter Mr. V. Anbalagan, dated 8.4.2024, which reported that the learned magistrate in Bentong Court had acquitted a man of allegedly outraging the modesty of his victim without the case going to trial, as the elements of the offence were not sufficiently stated. The defence argued that they were unable to prepare their case because they did not know the elements of the offence of impersonation alleged against the accused. S/N mEaTxHRCUaruRkuckjg6g

The prosecution submitted that, in essence, the elements of the offence can only be proven during the course of a full trial. Therefore, the prosecution believes it is premature to address the elements of the offence at this stage, as they can only be proven through the trial process. To the defence’s submission, based on section 173(g) of the Criminal Procedure Code (CPC), which argues that the subordinate court can discharge the accused if the charge is found to be groundless. However, there are three specific instances where a charge can be deemed groundless: - a) If the charge is for an offence not provided by law; b) If the charge is based on incomplete investigation; or c) If the prosecution requests a postponement on the grounds that the investigation is incomplete. The prosecution submitted that none of these situations apply in this case.

The prosecution thereafter referred to the case of PP v Ling Leong Kong [2008] 8 MLJ 236 (HC), where it was highlighted that before invoking section 173(g) of the CPC to dismiss a charge as groundless, the court must allow the prosecution to proceed with the case. The court must hear at least portion of the prosecution’s case before considering whether the charge is groundless. It was held in the case of Ling Leong Kong (supra) that without hearing even a portion of the prosecution’s case, the trial judge cannot S/N mEaTxHRCUaruRkuckjg6g conclude that the charge is groundless and to do so would effectively mean the trial judge is stepping into the role of the Public Prosecutor.

Use of newspaper report as authority 8. It is crucial to remember that counsels for any parties, above all, are officers of the court before they serve as advocates for their clients. Consequently, it is imperative that counsels assist the Court in resolving matters with the highest level of efficiency. This assistance should ideally involve presenting cases in a manner that is reasonable, precise, succinct and concise (Davanam Constructions Sdn Bhd v THP Enstek Development Sdn Bhd (formerly known as TH-NSTC Sdn Bhd) [2024] MLJU 1280, HC).

The objective of a litigator is to persuade the judge. From the foundation of legal education, lawyers are taught to support their arguments through case law, to highlight the unique circumstances of each case, and to use authoritative sources effectively. It was therefore surprising to this Court when a senior defence lawyer presented a newspaper article as an “authority” in support of his argument. This article even mentioned uncertainty regarding whether the prosecution had filed an appeal. S/N mEaTxHRCUaruRkuckjg6g

If, as stated, the judgment in question was released in a 23-page document, it would have been more appropriate, as an officer of the Court and a member of the esteemed legal profession, for the defence to present this formal judgment rather than relying on a newspaper report. Newspaper report provides the public with general information about incidents, but it does not serve as a formal case report to be openly used in persuading the court.

In a common law system like ours, case law plays a vital role in interpreting statutes, structuring arguments, organizing analysis, and conveying viewpoints. Precedent and the logical development of the law are essential, particularly if the case is on appeal, and such details must be clearly communicated to the court. Despite the defence's confounding reliance on a newspaper report as an “authority” for reference and submission, this court remains duty-bound to thoroughly examine and assess the arguments presented, including the oral submissions of both parties.

(ii) Groundless Charge 12. After hearing the oral submissions of both parties upon the defence’s preliminary objection, this court found no basis to consider the charge groundless and provide the reasons as follows.

First and foremost, it is established law holding that the prosecution's failure to provide certain requested documents to the S/N mEaTxHRCUaruRkuckjg6g defence does not constitute sufficient grounds for a magistrate to discharge the accused (Public Prosecutor v Au Seh Chun [1998] 6 MLJ 179, HC). Therefore, this Court did not accept the defensce's submission regarding the bank account documentation issue, arguing that the evidence received was insufficient to support the charge against the accused. This is because it is the magistrate's duty under section 173(c) of the CPC to consider all available evidence presented by the prosecution in support of their case. If no evidence is forthcoming or if the evidence presented is insufficient to establish a prima facie case against the accused, the magistrate is entitled to record an order of acquittal under section 173(f) of the CPC. It warrants a trial to make such findings.

Next, the correct interpretation of sections 173(g) and 173(f) of the CPC is set out in Public Prosecutor v Mohamed Said [1984] 1 MLJ 50 (ARCJ), where the learned judge held that under section 173(c), if the accused claims trial and the prosecution is unable to proceed due to a lack of available evidence on the scheduled date, the court may determine that no case has been established. Consequently, the court should record an order of acquittal under section 173(f), unless the prosecution can provide valid reasons for their inability to present evidence, in which case a postponement may be granted. However, if the prosecution has evidence and is prepared to proceed, the court may discharge the accused if it considers the charge to be groundless under section 173(g). S/N mEaTxHRCUaruRkuckjg6g

In the case of Mohamed Said (supra), the court clarified that the term “groundless” as defined in the Shorter Oxford English Dictionary means “destitute of foundation, authority, or support; having no real cause or reason; unfounded.” In connection to the prosecution’s failure to exercise due diligence in locating certain material witnesses, it does not render a charge groundless.

Additionally, section 376 of the CPC establishes that the Attorney General, as the Public Prosecutor, has the authority to direct and control all criminal prosecutions and proceedings under the Code. Where a complainant indicates a lack of desire to continue a matter, it remains the Attorney General’s decision whether to withdraw or proceed the charge (PP v Zalili Binti Mustapha [2010] 1 MLJ 666, HC). Hence, the court does not possess the power to override the Public Prosecutor’s discretion. In this situation, the prosecution retains the authority to proceed with the charge, especially as defence counsel in the instant case has demonstrated a clear understanding of the nature of the charge against the accused.

In the considered view of this court, a charge is considered groundless if it does not disclose any offence under the Penal Code or any other written law, leading the magistrate to conclude they lack jurisdiction to hear the case. In such situation, subordinate S/N mEaTxHRCUaruRkuckjg6g courts can acquit the accused under section 173(g) on the ground the charge as framed was one not known to the law being groundless (PP v Abdul Rahman [1958 1 MLJ 24, ARCJ).

That said, in the case of Vigny Alfred Raj v PP [2022] 5 MLJ 639 (Federal Court), it was held that section 254(3) CPC recognizes the presumption of innocence until proven guilty, emphasizing that a charge should not hang over an individual indefinitely. Any accused person is entitled to due process, justice and equal protection of the law. If there is ambiguity in section 254(3), it should be resolved in favour of the individual's liberty. Thus, where the Attorney General/Public Prosecutor has decided not to proceed with prosecution, the accused must be discharged and acquitted. In determining the appropriate order, no one, including the AG/PP, may dictate the terms. Where the AG is no longer interested in prosecuting and has not withdrawn the charge, it is the court's judgment to determine the suitable order because the AG cannot determine guilt or order a discharge or acquittal.

In the instant case, this court found that the defence and the accused have a sufficient understanding of the proceedings. As to the impersonation charge, the elements under section 419 of the Penal Code focus on "cheating by personation." Here, the accused was charged with impersonating a licensed contractor to secure funds from the complainant for house construction, which were S/N mEaTxHRCUaruRkuckjg6g transferred to the accused's wife's bank account. The prosecution argued that there is a separate charge in the Sessions Court, where the accused is charged under section 25(1) of Lembaga Pembangunan Industri Pembinaan Malaysia Act 1994 (Act 520) for undertaking construction work without a valid registration certificate, a violation punishable under section 29 of the same Act (Sessions Court case no.MC-62K-6-11/2023).

It is imperative to refer to the case PP v Mahaiddian bin Md Yasin [2024] 6 MLJ 1 (Court of Appeal), the distinction between an error in stating the ingredients of the offence and an error in the particulars was clarified. A defective charge regarding the offence ingredients is not curable under section 422 of the CPC. The defence here argued that riding a motorbike without a license does not bar one from riding entirely, likening it to the accused's separate Sessions Court conviction for operating as a contractor without a license. However, it is evident that the accused fully understood the impersonation charge under section 419 of the Penal Code concerning deception in construction work. This Court found no omission in stating the offence's ingredients related to cheating by promising construction work without authority, thus establishing that the accused was not misled.

For the completeness of the charge, under sections 156 and 422 of the CPC, errors in stating the particulars of the offence are S/N mEaTxHRCUaruRkuckjg6g curable and could be corrected by specifying the deception particulars, such as claiming to be a licensed contractor when the accused held no such license. The Court emphasizes its duty to prevent any injustice to the accused and notes that the defence’s analogy with motorbike licensing is misplaced. A more relevant comparison might be an advocate practicing without a current practicing certificate under the Legal Profession Act 1976, which impacts the profession's integrity.

Here, the court is satisfied with the element of section 419 of the Penal Code as it appears in the charge leading to the said charge does not fall under the one not known to the law and clearly understood by the accused. The defence’s argument pertains to the accused’s qualifications and skill in construction but without licence does not address the impersonation charge's central issue, is found no basis as that is the description of impersonation charge as submitted by the prosecution. Other than that, there is no issue that investigations had not been completed in this case. This clarification had been part of the record in these proceedings.

(iii) Judicial Review of Prosecutorial Discretion 23. In the instant case, after considering the defence’s oral submissions, the court found that it is about a complaint against the Attorney General's exercise of discretion that should be pursued through proper legal avenue. Generally, the law and the S/N mEaTxHRCUaruRkuckjg6g Federal Constitution grant the Attorney General exclusive authority over criminal matters, expecting this power to be exercised with honesty and professionalism. This authority is recognized as exclusive, and ordinarily the Attorney General’s decisions are not open to judicial review, as established in Public Prosecutor v Zainuddin & Anor [1986] 2 MLJ 100 (SC).

However, legal developments have clarified that, in rare and exceptional cases, the Attorney General's discretion under Article 145(3) of the Federal Constitution may be subject to judicial review. In the case of Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ 209 (FC), it was established that the Attorney General/Public Prosecutor does not possess absolute or unfettered discretion under Article 145(3). Where appropriate, the court may intervene if judicial review is the only avenue for redress available to a litigant. The Attorney General then bears the burden of justifying his actions or omissions, assessed in light of the unique circumstances of each case and the doctrine of separation of powers.

It is worth mentioning that, this court notes that while the judiciary exercises caution in extending judicial review over prosecutorial decisions, provides indication to show a positive shift towards greater transparency, especially given that decisions made in secrecy can affect public confidence in the Attorney General's S/N mEaTxHRCUaruRkuckjg6g office. The judiciary’s power of judicial review is enshrined in Articles 4(1), 75, 128, and 162(2) of the Federal Constitution, enabling judges to protect the Constitution from any improper exercise of discretionary power of the Attorney General.

Here, the defence seems to be more appropriate to suggest that prosecutorial discretion should be open to judicial review through a formal application, particularly regarding the decision to prosecute the accused under the said charge of section 419 Penal Code. To put it simply, judicial review is more likely when the discretion exercised involves a decision not to prosecute or to discontinue a prosecution. In this instance, this court observe that the accused allegedly received funds to construct a house for the complainant, which the defence argued the work may remain incomplete.

Given these circumstances, if the case at the early stage had been classified as "Refer to Magistrate" (RTM) for the court to suggest the case is appropriate to be handled as a civil matter rather than a criminal one. It is to advise the complainant to pursue the matter in the magistrate's court for potential breach of an oral building contract. At that aspect, the complainant could seek damages if there is photographic or other evidence indicating the extent of work completed by the accused, the unfinished portions, and the S/N mEaTxHRCUaruRkuckjg6g corresponding amount that should be adjusted or counterclaimed. This factual case would be preferable to civil action.

Given the aforesaid, this court dismissed the preliminary objection raised by the defence counsel. The case is to be fixed for trial. Dated this 14 November 2024 SGD ----------------------------------- (TEOH SHU YEE) MAGISTRATE MAGISTRATES’ COURT AT ALOR GAJAH PROSECUTION : DPP Tuan Ehsan and Tuan Fiqri ACCUSED : Represented by COUNSEL Mr. Andrew and Mr. Shareveen, Tetuan Andrew & Associates, Melaka. S/N mEaTxHRCUaruRkuckjg6g