The decision of PP v Marwan Ismail [2007] 7 CLJ 243 is a good example of how an incompetent sitting Magistrate combined with archaic and bureaucratic procedural rules combine to create a potent brew of injustice.

The decision of PP v Marwan Ismail [2007] 7 CLJ 243 is a good example of how an incompetent sitting Magistrate combined with archaic and bureaucratic procedural rules combine to create a potent brew of injustice.

It is significant that this decision came about by review on the Judge’s own motion. Encik Marwan Ismail is fortunate that Justice KN Segara prowls the measly offerings of the local newspaper reports in search of injustice in his spare time. We should all celebrate that Justice KN Segara has shown that he is a judge of action. Not one that confronts the manifestations of injustice with mere wringing hands, futile curses to the heavens from the comforts of his chamber seat and perhaps in a fit of guilt, confesses to someone how he wished he could do something but was powerless to do so. His Lordship has not only taken the trouble to right the glaring wrongs. He has tried to entrench this occasion of injustice by writing a judgment explaining why what the Magistrate did was wrong and unjust, and why it is would be expensive and embarrassing if Magistrates proceeded in similar fashion. Let us now hope that the lesson takes root in the Magistrate’s courts.

The case concerns a legal technicality in respect of an accused (someone who has been formally charged with a crime). Marwan Ismail was charged under section 39B(1) of the Dangerous Drugs Act 1952 (‘DDA52’) which carries a death sentence. Section 41A of DDA52 has a curious provision that requires that a person charged under section 39B(1) of DDA52 to be brought first before a Magistrate to have the charge explained to him. That is all that is to be done in the Magistrates Court. After the charge is explained to him the accused is to be sent ‘as soon as may be practicable’ to the High Court and brought before the High Court Judge to tell the court how he wishes to plead (‘to plead’ in this context means to tell the court whether or not they wish to plead guilty). If the accused does not plead guilty then the High Court will proceed to fix a trial date.

I pause here to confess that I did not understand the purpose of this procedure and why it persists. My friend, Shanmuga, enlightened me that the purpose of being brought to the Magistrate’s Court was also, and I quote his eerie dictionary-like precise explanation, ‘because of the now defunct practice of committals, where the Magistrate decides whether or not to commit the accused for trial or not. A first threshold to ensure frivolous charges are not made. Committals have been, not surprisingly, abolished in Malaysia’. Well, if the practice has been abolished and lost to memory, why is it still around? Perhaps the Attorney General Chambers might want to take a peek at it (I hope they realize that I understate this by continent-sized proportions). After all what difference does it make where the charge is explained to the accused? Inevitably it is only the court interpreter that ‘explains’ the charge to the accused. The Judge or the Magistrate usually does the unnecessary post-explanation verification with the accused (‘Faham, ah? Faham, ah?’ or the equivalent in English). Might as well just do it all at one place – the High Court. Sending the accused from one court to another is unnecessarily bureaucratic. Delay is also inherent in this procedure because it takes time for his case to be called up in the Magistrates Court which is usually inundated with the mentions of fresh and old cases, part heard cases and fresh trials ready (or likelier, not ready) to proceed, like a morning market fruit stand filled to overflowing with both fresh, rotten and bruised fruit all bursting in their diversity of colours equal to their ripeness and kind. The accused, who is supposed to be in there for a moment to be explained the charge and whisked away thereafter to the High Court, has to wait his turn like any other case. There is then the delay of being ‘transmitted’ to the High Court.

All this waiting around, being transferred here and there reinforces the Kafkaesque environment of a criminal proceeding. Criminal procedures should be clinically efficient. Any procedure that causes delay, adds to the bureaucracy and widens the possibility of injustice should be removed. Section 41A DDA52 as this case illustrates is one of them.

In this case, after the charge was explained to Encik Marwan Ismail, instead of transmitting him to the High Court, the Magistrate adjourned his case and fixed it for mention 2 months later. An order that he be further remanded until the forthcoming mention date was also made. The reason noted by the Magistrate was because the prosecution did not have the chemist report with them at the time. The Judge understandably found this unsatisfactory and said as follows:

The record of proceedings do not show that there was any request from the DPP Samihah Ghazali not to transmit the case to the High Court because the chemist report was not available. The magistrate appears to have acted in a very mechanical manner in fixing a re-mention date. This is not a healthy judicial phenomenon and temperament. Magistrates should resist from such temptations, however busy and pressured they may be in carrying out their duties for the day. The charge sheet does not appear to even carry a signature of the DPP or police officer who framed the charge!

In deciding whether to transmit the case to the High Court, the magistrate should not be concerned with the chemist report. It is for the police and the Public Prosecutor to put their act together when charging an accused, after the police have completed their investigations, pursuant to any remand under s 117 CPC. If the chemist report was not available to the police, how the accused have been charged, in the first place, for an offence under the DDA, without knowing the nature of the substance in his possession? The accused ought to have been released under s. 29 CPC.

What the learned judge has rightly pointed out in the highlighted portions above is not just correct but significant. From my experience with drug offence cases, it is almost the practise written in stone in the subordinate courts that an accused is charged and brought to court for a plea even before the prosecution has completed gathering all its evidence.

Another method the prosecution and/or police I have seen used is to charge the accused first with the weightier charge under section 39B(1) of DDA52 even though they have not completed gathering all their evidence. Usually the chemist report is not ready. I often find that it is almost never ready on the first mention date (or sometimes even several months later). The significance of this is that section 39B(1) of DDA52 is a non-bailable offence. The effect is to keep the accused in remand and denying them bail. Once the chemist report is received and the prosecution is ready to proceed they usually amend the charge to one of possession under section 12(2) of DDA52 where bail is available. These prosecuting officers may claim that this is permitted under procedure but I think whatever the case the dishonesty and sheer injustice of this method outweighs its legitimacy. The prosecuting officers, police force and clueless Magistrates all have a role to play in this sorry state of affairs.

A question also has to be posed to the Attorney General’s chambers: How on earth did it permit such a case to see the light of day? The Attorney General (or his deputies) is supposed to consider all the material and related evidence thoroughly before making the decision to charge somebody. But we have so many people being charged with drug offences before the chemist report is out and now a judicial decision even confirms this practise. What would happen if after charging an accused and remanding them for months on end, the chemist report returns that the substance was not drugs?

Justice KN Segara helpfully explains this to the officers of the court:

It is clearly an abuse of the process of the law for the police/Public Prosecutor to frame a charge, in the magistrate’s court under s. 39B(1) DDA, and then detain the accused in custody at the “prosecution’s pleasure”, without transmitting the case to the High Court for trial, immediately after the accused is produced before a magistrate and the charge read and explained to him, in accordance with s. 41A DDA. Such detention at the “pleasure of the prosecution” is unlawful and could expose the Government to a civil suit for damages.

Aside from the incompetence of the Magistrate, the archaic and silly procedural rules, maliciousness or laziness of the prosecuting officers, police and Attorney General’s Chambers, there is one more contributing factor. The Judge would not have been able to address this factor because it is something his Lordship cannot see. But it is an open secret amongst most criminal practitioners: the occurrences of complicity between the Magistrate and the prosecuting officer and/or Deputy Public Prosecutor. By saying this, I am not saying that all of them are like that; but there are times when fate intervenes to create such an environment. The problem with this complicity is because it is firstly, usually unintentional and secondly, very subtle. If you sit there long enough and observe the principal participants in the courtroom very closely, their body language, the words and tone they use, you may begin to see certain patterns in conduct, relationships emerge, and then you suddenly see the way of life in the courtroom. The reason for this is due to the practise in Malaysia of appointing people into positions in which they lack the relevant skills set or do not possess enough of it to a competent degree. Let me explain.

What I feel the general perception of litigators is that recently, most sitting Magistrates (or any of similar rank such as Senior Assistant Registrars) are fresh graduates which usually means: very young (early twenties), completely lacking in any practise of the law, possessing very little experience in life and because of that, shorn of any accomplishments within and without the law. These graduates are then given a few weeks of training at ILKAP (Institut Latihan Kehakiman dan Perundangan). After that they will be sent off to the various courts to decide on our properties, lives and liberties. But let us try to understand them first.

I am imagining a freshly graduated and trained Magistrate sent to the criminal courts. He would understandably have no idea what to do since he never practised there before. He would be unfamiliar with the rules, the practise, the customs and understandably worry about learning even what or how to decide. Around him would be the interpreters, the prosecuting officer and policemen who are there every day and know more of how the court is run then he does. Of course he has his friends and seniors to stand down and call but he cannot do that all the time. What is more, he won’t want to call them too often either. It might betray that he knew nothing. In time perhaps he would listen to the interpreters. Why? Perhaps because he feels they have no stake in the proceedings and would be more independent or fair in their advice. They had seen other Magistrate’s decide and perhaps even participated in some of the decisions before. Anyway, what harm is there in listening to her? After all, he would think to himself, I don’t have to do as she says. I can consider it. One would think it strange that a Magistrate would take advice on judicial matters from a mere interpreter but this happens, has happened and will continue to happen if inexperienced people are appointed to shoulder and then decide upon such weighty matters. But as the saying goes, ‘Dalam Malaysia, macam mana pun boleh.’ [Literal translation: In Malaysia, any how also can]

What our newly minted Magistrate may not understand is that just on occasion the interpreters are better friends with the prosecuting officers and police because they see them every day. Magistrates come and go but the court staff like the prosecuting officers, policemen and interpreters stay longer, much longer. If he’s lucky or sharp he may come to realize this. He would be less likely to challenge the prosecuting officers because he would think they knew their law and procedure better than he did. When matters were fifty-fifty he would perhaps think to do the prosecuting officer a favour. After all, it was evenly balanced and it was up to him at the end. Why not use that discretion fruitfully and do a potential ally a favour? One is the devil you knew, the other the devil you didn’t. Which would you trust? he may reconcile to himself. He may tend to do this because he has so many cases to deal with and very little time (sometimes of their own doing as well). He had to make the numbers because he has to file statistics on how many cases he dealt with and how he dealt with it each day. Since he wanted to make a good impression he would have to exceed the expected quota enough to hopefully catch someone’s eye. So he would also appreciate in time that if he were on good terms with the prosecuting officer, he could use it to his advantage as well. After all, we are just looking after our rice bowl. Nothing wrong with that.

Before I conclude, if you have not read the case already, it ends happily (as rational, sensible and intelligent judgments do). Justice KN Segara sets aside the warrant of remand and the mention date, then ordered that the accused be brought before the Magistrate again to reconsider whether to transmit the case to the High Court, or discharge the accused after hearing submissions from the Deputy Public Prosecutor and the accused.

But what you really get in the end is this fresh graduate at sea, learning as he goes along, no time for reflection or mature consideration of the law, reaching his decisions not so much through the law and appreciation of the facts before him as through influence by the established practise of the court (this includes decision making) or gut feelings, and the stress of needing to get the job done. The situation, as anyone can appreciate, would be different if someone for example with 10 years experience in criminal practise and knew exactly what he was doing sat as Magistrate. So the blame should not only be cast with the Magistrate but the Judicial Legal Service which keeps appointing people without the relevant knowledge, experience, background and ability to sit in judgment over others. That, is the far greater injustice.

Fahri Azzat practices the dark arts of the law. Although he enjoys writing and reading, he doesn't enjoy writing his own little biographies of himself. Like this one. He wished somebody else would do it...