Judgment

Gopal Sri Ram JCA

(delivering the judgment of the court)

1. The appellant in this case was first produced before the Sessions Court at Temerloh on January 26, 1997 and charged as follows:

   That you, early in December 1996, at about 8.30 p.m., in a oil palm estate at Jalan Highway Mentakab – Temerloh, District of Temerloh, Pahang raped a girl named SURIA KPT: xxxxxx-06-5246, aged 15 years and you have thereby committed an offence punishable under s.376 of the Penal Code.

2. The appellant claimed trial to the charge and the court fixed January 8, 1998 for hearing. However, when the case was called on for trial on that date, the appellant applied for legal aid. The record shows that the matter was then postponed to June 24, 1998. On the appointed day the appellant who was present applied for an adjournment as his counsel who was apparently supposed to come from Raub had not arrived. The court refused the adjournment and proceeded with the trial. The accused did not therefore have the benefit of representation by a lawyer. In this context we pause to observe two matters. First, the appellant had been in police custody from the date of his arrest and in judicial custody from the date of his first production in court. Second, from the appellant's submission at the close of the prosecution case it appears that he was seen in prison by one Mr. Phillip Loh, counsel assigned by the Legal Aid Bureau. The significance of these matters will appear later in this judgment.

3. The principal witness for the prosecution (PW2) was the appellant's daughter, a 15 year old child. She gave evidence-in-chief of the incident that formed the subject matter of the charge. We must pause at this juncture to say that the notes of evidence have been poorly recorded. We have therefore encountered considerable difficulty in discerning portions of the evidence, particularly the cross-examination of PW2 by the appellant. However, it appears that in the course of her evidence-in-chief, the officer prosecuting the case must have asked her whether there had been previous incidents of sexual intercourse because we see from the record PW2 saying that there had been other incidents. She then referred to an incident in her grandmother's house in or about 1995, and other earlier incidents going back to 1991.

4. This method of adducing evidence is most unsatisfactory. It reflects poorly upon the way in which the case was handled in its pre-trial stages. It points to the original complaint by PW2 not having been thoroughly investigated by the police. Alternatively, the deputy public prosecutor entrusted with giving directions in the matter had completely overlooked the reference to other incidents in PW2's statement recorded under s 112 of the Criminal Procedure Code (the Code). Were it otherwise, we are quite certain that the prosecution would have framed a charge in respect of each of the alleged incidents of rape. But the impression – and it is an adverse impression – that has been created by the way in which the trial proceeded is that the case was being investigated into for the very first time in the course of the hearing. We cannot deprecate in terms too strong the unsatisfactory and amateurish way in which this case was handled by both the investigating agency and those in conduct of the prosecution.

5. To return to the narrative, at the conclusion of the prosecution's case, in consequence of the matters arising from PW2's evidence, four charges were framed against the appellant. This included the original charge marked as exh P11 which had been amended as to the time of the alleged incident. The four charges (marked from exhs P11 through P14) are as follows:

   The First Amended Charge (P11) That you early in December, 1996, at about 2.30 p.m., in a oil palm estate at Jalan Highway Mentakab – Temerloh, in the District of Temerloh, Pahang raped a girl named SURIA KPT: xxxxxx-06-5246, age 15 years. You have thereby committed an offence punishable under s.376 of the Penal Code. The Second Charge (P12) That you, on one Sunday in the year 1994, in the house No. 137, Desa Murni, Sanggang in the District of Temerloh, Pahang, committed an offence of rape on SURIA (KP No. xxxxxx-06-5246) age 13 years. You have thereby committed an offence punishable under s.376 of the Penal Code. The Third Charge (P13) That you, on one Friday in the year 1996, at about 1.30 p.m., in a palm oil estate, at KM22, Jalan Temerloh-Jerantut, in the District of Temerloh, Pahang, committed an offence of rape on SURIA (KP No. xxxxxx-06-5246) age 15 years. You have thereby committed an offence punishable under s.376 of the Penal Code. The Fourth Charge (P14) That you, in 1991, in house No.32, Kampung Baru Sanggang, in the District of Temerloh, committed an offence of rape on SURIA (KP No. xxxxxx-06-5246) age 10 years. You have thereby committed an offence punishable under s.376 of the Penal Code.

6. The record shows that these charges were read out to the appellant. However there is nothing to show that the prosecution's evidence was explained to the appellant as required by s 257 of the Code.

7. To complete the narrative, when the court called on him to make his defence to the charge, the appellant elected to make an unsworn statement from the dock. In that statement he appears to have said that the case had been hoisted on him by his adulterous wife who had put the complainant up against him. We say "appears" advisedly because the appellant's statement as recorded by the court is fragmented and rather brief. It also appears from the notes recorded by the court that it summarily rejected the appellant's unsworn statement as a bare denial. The court then convicted the appellant on all 4 charges and sentenced him to 18 years imprisonment and 2 strokes of the rattan on each charge. The appellant appealed to the High Court which merely endorsed the Sessions Court's findings and held that there had been no procedural error by the trial court.

8. Before us, learned counsel for the appellant argued several grounds on which he said the conviction should be quashed. We find it unnecessary to deal with all of them.

9. The main question in the present instance is whether the (4) charges were regularly tried. On this point s 164(1) of the Code is relevant. It reads:

   164.

   (1)

   When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with and tried at one trial for any number of them not exceeding three.

10. The complaint here is that the appellant was tried for more than (3) offences of the same kind allegedly committed within the space of more than (12) months. The complaint is justified because the appellant was charged with committing 4 separate acts of rape over a period of 5 years. There has therefore been a violation of s 164(1) of the Code. The question that arises is this. What is the consequence of the breach? It is the unanimous view of the several decisions on the Indian equipollent of the section that the trial is a nullity. We find it unnecessary to discuss all the authorities here. Suffice that we mention two.

11. In Subramania lyer v King Emperor LR 28 IA 257, the appellant was charged with 41 acts extending over a period of 2 years. The Privy Council quashed the convictions and held that a breach of s 234(1) of the Indian Criminal Procedure Code 1898, (which is ipsissima verba our s 164(1)) is an illegality and not curable under s 537 (our s 422). Lord Halsbury LC said:

    Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity. Such a phrase as irregularity is not appropriate to the illegality of trying an accused person for many different offences at the same time, and those offences being spread over a longer period than by law could have been joined together in one indictment. The illustration of the section itself sufficiently shows what was meant.

12. Subramania lyer v King Emperor was applied in Chin Choy v PP [1955] MLJ 236. In that case, the accused was charged with two offences of consorting contrary to reg 5(1) of the Emergency Regulations 1948, one offence of being in possession of a revolver contrary to reg 4(1)(a) of the Emergency Regulations 1951 and one offence of being in possession of ammunition contrary to reg 4(1)(b) of the Emergency Regulations 1951. The period which these offences covered was from 1948 to 1955. The accused pleaded guilty to 2 charges of consorting. Yet, the Court of Appeal of Malaya quashed the convictions on the possession charges and ordered a re-trial. Matthew CJ rejected the prosecution's contention that there had been a regular trial in the following passage:

    The learned deputy public prosecutor has submitted that, as a plea or guilty to the charges relating to consorting was accepted and a conviction recorded, the trial took place only as to the charges of possession, and to this joinder no exception can be taken. We do not agree. The appellant was required to plead to four charges which were wrongly joined, and the fact that he pleaded guilty to two of them does not cure the original illegality. Support for this view is to be found in Krishmaswami Pillai v King-Emperor 26 Mad 125. We accordingly quash the convictions, and order a re-trial as to the charges relating to possession contrary to reg 4(1)(a) and 4(1)(b) of the Emergency Regulations 1951.

13. Applying these authorities to the present case, we are constrained to hold that the trial of the appellant was a nullity and must be quashed. The only question is whether a re-trial should be ordered.

14. Strictly speaking, that should be the end of the matter. However, there are other aspects of this case, special to its facts that need to be addressed. One of these has to do with the failure of the Sessions Court to act in accordance with s 257(1) of the Code. The section is most relevant to this case because, as we have already pointed out in paragraph 2 of this judgment the appellant was undefended by counsel. The section reads:

    At every trial before the court of a magistrate if and when the court calls upon the accused for his defence it shall, if he is not represented by an advocate, inform him of his right to give evidence on his own behalf, and if he elects to give evidence on his own behalf shall call his attention to the principal points in the evidence for the prosecution which tell against him in order that he may have an opportunity of explaining them.

15. The first point to note about the section is that it has no parallel in either the Indian or the Singapore Criminal Procedure Codes. The second is that the section only casts a burden on the court if the accused – to quote the section – "elects to give evidence". The critical question at issue here is whether the appellant who elected to make an unsworn statement from the dock "elected to give evidence".

16. Without going into the matter in any detail, it suffices for us to say that there is a conflict among the High Courts as to whether an unsworn statement from the dock is evidence. Wong Heng Fatt v PP [1959] MLJ 20; PP v Sanassi [1970] 2 MLJ 198 and Low Thim Fatt v PP [1989] 1 MLJ 304 say that it is not evidence. By contrast, MT Chang J in Ng Hoi Cheu v PP [1968] 1 MLJ 53 held that it is evidence. And there are dicta in many other cases, Malaysian, Australian and at least one decided by the Privy Council which say quite emphatically that such an unsworn statement is evidence for the purposes of a trial. All the relevant cases may be found in two articles published in the Malayan Law Journal. The first is that by that very learned scholar Professor Ahmad lbrahim in [1975] 2 MLJ vi. The other is by Professor Mohd Akram in [2003] 1 MLJ cixix.

17. In our judgment, in the context of s 257(1) the critical phrase is "elects to give evidence" and not "elects to give evidence on oath". The former is much wider than the latter and must ex necessitae rei include the making of an unsworn statement from the dock. We are therefore persuaded that the reasoning of MT Chang J in Ng Hoi Cheu v PP is correct. Accordingly, the fact that the appellant elected to make an unsworn statement from the dock did not exclude the operation of s 257(1).

18. The section has been considered by the High Court in a number of cases including, Shaari v PP [1963] MLJ22; Awaluddin Suratman v PP [1992] 1 MLJ 416; Por Choo Aik v PP [1993] 2 MLJ 131 and by this court in Lokhman Abu v PP [2001] 1 AMR 512; [2001] 1 MLJ 311. In the last of these cases, we had the opportunity to observe that the failure to comply with s 257(1) "would attract different consequences in each case, according to its own facts." That is a view to which we adhere. The question is whether on the facts of the present case, the failure by the Sessions Court to comply with the section has seriously prejudiced the appellant. We think it has.

19. This is a most serious case where the appellant was facing 4 charges at the end of the prosecution's case. Three of those charges came at the end of the case for the prosecution. In respect of some of these charges, there was, as we have already observed, insufficient particulars as to the date of the offence thereby wholly or substantially removing any possibility of a defence of alibi being raised by the appellant. In these circumstances, it was, in our view, incumbent upon the Sessions Court to discharge the function mandated by s 257(1).

20. Further, this was a case where the appellant had come into court prepared to face a single charge. However, the prosecution in the course of the trial had, without seeking the leave of the court, adduced highly prejudicial similar fact evidence of previous acts of sexual intercourse. Once the question was put as to previous acts, the normal course for the Sessions Court to have taken is to have intervened at once and asked the prosecuting officer to justify the course he proposed to embark upon. This was especially necessary since the accused, a layman, was unrepresented by counsel. We find this to be a most unsatisfactory feature of this case.

21. A court when deciding whether to admit similar fact evidence must carry out a balancing exercise by weighing the probative value of such evidence against its prejudicial effect as impliedly required by ss 14 and 15 of the Evidence Act 1950. The court would be justified in admitting the evidence where its probative value is outweighed by its prejudicial effect. See Boardman v Director of Public Prosecutions [1975] AC 421; Director of Public Prosecutions v PP [1991] 2 AC 447; Junaidi Abdullah v PP [1993] 2 AMR 2209; [1993] 3 MLJ 217; PP v Teo Ai Nee [1995] 2 SLR 69; Tan Meng Jee v PP [1996] 2 SLR 422; Lee Kwang Peng v PP [1997] 3 SLR 278.

22. In Tan Meng Jee v PP, P.H. Yong CJ when delivering the judgment of the Singapore Court of Appeal said of the equipollent provisions in the Singapore Evidence Act:

    Be that as it may, we are of the opinion that the admission of similar fact evidence, at least for the purposes identified in ss 14 and 15 of the Evidence Act, should be governed by the balancing test adopted by the House of Lords in Boardman's case. Such an approach is warranted both in principle as well as on the wording of the legislation itself. As to the former, it has been argued above that the rationale of the rule excluding similar fact evidence is so that every person charged with an offence may only be convicted upon being proved to have committed the acts within the charge. It would be subverting established jurisprudence to allow a conviction based on the particular disposition of the accused – based on the contention that the accused is that type of person who would commit such an offence. On the other hand, there may be cases where the interest of justice clearly outweigh any prejudicial dangers inherent in the evidence.

23. With respect we entirely agree with the aforesaid dictum, coming as it does from so authoritative a source as His Honour the Chief Justice of Singapore. Further, like His Honour, we also find illustration (o) to s 14 of the Evidence Act 1950 to be relevant. That illustration reads:

    A is tried for the murder of B by intentionally shooting him dead. The fact that A on other occasions shot at B is relevant as showing his intention to shoot B. The fact that A was in the habit of shooting at people with intent to murder them is irrelevant.

24. So, here too, PW2's evidence as to the appellant's previous acts of intercourse with her was relevant, that is to say, admissible. But that does not, on the authorities we have cited, relieve the court of determining whether the probative value of her evidence outweighed its prejudicial effect. We have carefully examined the record and nowhere in the judgment of the Sessions Court is there the kind of balancing exercise dictated by ss 14 and 15 of the Evidence Act. This is a serious misdirection. It occasioned a serious miscarriage of justice as the Sessions Court acted on the similar fact evidence to add three further charges against the appellant.

25. In the context of the similar fact evidence in this case we find it useful to recall the words of Scarman LJ in PP v Scarrott [1978] QB 1016:

    Positive probative value is what the law requires, if similar fact evidence is to be admissible. Such probative value is not provided by the mere repetition of similar facts; there has to be some feature or features in the evidence sought to be adduced which provides a link, an underlying link as it has been called in some of the cases. The existence of such a link is not to be inferred from mere similarity of facts which are themselves so commonplace that they can provide no sure ground for saying that they point to the commission by the accused of the offence under consideration.

26. There is another unsatisfactory feature in this case. As we have said earlier, the appellant was unrepresented at the trial. The case had been adjourned only once before to enable him to engage counsel. On the second occasion he had asked for a postponement of the case once again to enable him to obtain legal representation. Considering the serious nature of the charge framed against him, we do not see what injury the justice system would have suffered if the Sessions Court had granted his request. As Raja Azlan Shah J (as he then was) said in Tan Foo Su v PP [1967] 2 MLJ 19, albeit in the context of granting an adjournment of a trial to enable the calling of a witness:

    Every latitude must be given to an accused person to defend his case and to call witnesses, more so when the accused person is not represented.

27. When we put some of the several unsatisfactory features in this case to the learned deputy, he was unable to advance any argument in reply. His only response was that he left the matter to the court, a response described by Abdoolcader J in Manokaran v PP [1979] 1 MLJ 262 as:

    .... a supplication or formula or call it what you will which, with respect, has since become the stock answer and the standard and perhaps last refuge of the desperate.

28. In the light of all the serious errors we have adumbrated it was clear that the appellant's conviction was unsafe and that that there had been occasioned a failure or miscarriage or Justice. We pause now to remind ourselves or the approach of our courts to cases as the present by quoting the following passage from the judgment of Hegde J in Krishna Murthy v Abdul Subban [1965] 1 Cr LJ 565, which was applied with approval by the High Court in Mohamed Din v PP [1985] 2 MLJ 251 and the Federal Court in Kiew Foo Mui v PP [1995] 3 AMR 3111:

    The expression "a failure of justice has in fact occasioned thereby" found in s 535(1), Cr PC [which is s 422 of the Code] does not connote that the court should be of the opinion that an innocent person has been convicted or the case against the accused person is not made out beyond reasonable doubt. An accused person is entitled to be acquitted whether there was a fair trial or not if no case is made out against him. For that purpose the legislature need not have introduced the conception of "failure of justice" in ss 535 and 537, Cr PC. The "failure of justice" mentioned therein is that occasioned by the contravention of the provisions in Chapter XIX, Cr PC. In law the expression "justice" comprehends not merely a just decision but also a fair trial. Sections 535 and 537, Cr PC have primarily in view a fair trial. For the purpose of those sections a denial of fair trial is denial of justice. One of the contents of natural justice, which is so much valued, is the guarantee of a fair trial to an accused person. A fair trial is as important as a just decision. Neither the one nor the other can be sacrificed. Sacrifice of the one, in the generality of cases, is bound to lead to the sacrifice of the other. The two are closely interlinked.

29. To sum-up, this is a case riddled with serious errors because of poor investigation and prosecution. Additionally, the Sessions Court failed to observe provisions of the Code and the Evidence Act. No suggestion was made by the learned deputy that a re-trial should be ordered. In any event, we do not consider this to be a proper case to order a re-trial. The appellant had already served 7 years imprisonment. In accordance with the settled practice of appellate courts, re-trials are generally not ordered in cases where the case has been pending against an accused for about 4 years. See R v Sounders (1974) 58 Cr App R 248. The original charge was in respect of an offence allegedly committed 8 years ago. A re-trial is therefore not appropriate on the facts of this case.

30. We would add this postscript. This judgment does not break new ground. It merely applies settled principles of law to the particular and peculiar facts of this case. It certainly does not establish the proposition that a charge wanting of a specific date is bad and warrants an acquittal. This court is certainly not responsible for any erroneous misapprehension to the contrary in the minds of persons who have not read this judgment. As members of an independent judiciary it does not behove us to answer each and every unwarranted or misinformed criticism of our decisions or judgments. We must by the very nature of our office remain silent at any and all brickbats hurled at us. We may only seek vindication for our decisions through our reasoned judgments. As the great Lord Denning MR. said in R v Police Commissioner of the Metropolis Exparte Blackburn (No 2) [1968] 2 QB 150:

    All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.

31. For the reasons already given the appeal was allowed, the conviction quashed and the sentence set aside.

Cases

Awaluddin Suratman v PP [1992] 1 MLJ 416, HC; Boardman v Director of Public Prosecutions [1973] AC 421, HL; Chin Choy v PP [1955] MLJ 236, CA; Director of Public Prosecutions v PP [1991] 1 AC 447, HL; Junaidi Abdullah v PP [1993] 2 AMR 2209; [1993] 3 MLJ 217, SC; Kiew Foo Mui v PP [1995] 3 AMR 3111, SC; Krishna Murthy v Abdul Subban [1965] 1 Cr LJ 565; Lee Kwang Peng v PP [1997] 3 SLR 278, HC; Lokhman Abu v PP [2001] 1 AMR 512; [2001] 1 MLJ 311, CA; Low Thim Fatt v PP [1989] 1 MLJ 304, HC; Manokaran v PP [1979] 1 MLJ 262, HC; Mohamed Din v PP [1985] 2 MLJ 251, HC; Ng Hoi Cheu v PP [1968] 1 MLJ 53, HC; Par Choo Aik v PP [1993] 2 MLJ 131, HC; PP v Sanassi [1970] 2 MLJ 198, HC; PP v Teo Ai Nee [1995] 2 SLR 69; R v Police Commissioner of the Metropolis Ex parte Blackburn (No 2) [1968] 2 QB 150, CA; R v Sounders (1974) 58 Cr App R 248, CA; R v Scarrott [1978] QB 1016, CA; Shaari v PP [1963] MLJ 22, HC; Subramania lyer v King Emperor LR 28 IA 257, PC; Tan Foo Su v PP [1967] 2 MLJ 19, HC; Tan Meng Jee v PP [1996] 2 SLR 422, CA; Wong Heng Fatt v PP [1959] MLJ 20, HC

Legislations

Criminal Procedure Code 1898 [India]: s.234(1), s.537

Criminal Procedure Code: s.112, s.164, s.257, s.257, s.422

Emergency Regulations 1948: reg 5

Emergency Regulations 1951: reg 4

Evidence Act 1950: s.14, s.15

Singapore

Criminal Procedure Code

Evidence Act

Representations

Mura Raja (Mura Raju & Co) for appellant

Tengku Amir Zaki Tengku Abdul Rahman, DPP (AG's Chambers) for respondent

Notes:–

The identity of the child victim has been anonymised.

This decision is also reported at [2004] 6 AMR 810.