MOHAMED SYAFFIQ BIN MOHAMED SIDEK v Pendakwa Raya

Case Significance

Illustrates that an appeal may proceed despite the absence of the trial judge's grounds of decision, and that where the corrupt-inducement element of a section 17(a) MACC Act 2009 offence is not proved, a court may substitute a conviction under section 165 of the Penal Code for a public servant's receipt of a valuable thing without consideration.

This High Court decision at Kuantan concerns an appeal against a conviction for corruption and raises both a procedural question and a point on the elements of the offence. The appellant, a police corporal, had been convicted by the Sessions Court under section 17(a) of the Malaysian Anti-Corruption Commission Act 2009 and sentenced under section 24 to nine months' imprisonment. A preliminary difficulty was the absence of the Sessions judge's grounds of decision, which raised whether the matter should proceed as an appeal or as a criminal revision under Chapters XXX and XXXI of the Criminal Procedure Code. The court held that it should proceed as an appeal: section 310 permitted the filing of a petition of appeal notwithstanding non-compliance with the requirements of section 307(3) to (6), section 307(9) did not apply, and the late filing of the petition of appeal was allowed, no prejudice or injustice having arisen. On the merits, the court held that the element of the section 17(a) offence, that the gratification was obtained as an inducement to forbear from doing something, had not been proved, so that the conviction under that provision was unsafe. What the evidence did establish was the receipt of a valuable thing without consideration by a public servant, an offence under section 165 of the Penal Code. The court therefore allowed the appeal in part: it set aside the conviction and sentence under section 17(a), substituted a conviction under section 165 of the Penal Code, and, weighing the public interest, the seriousness of the offence and the sentencing trend, imposed one month's imprisonment. The court also treated the substituted lesser offence as one squarely supported by the facts proved at trial, so that no injustice arose from the change of the provision under which the appellant stood convicted. The judgment is a useful illustration of proceeding by appeal despite an absence of grounds, and of substituting a section 165 conviction where the corrupt-inducement element of a MACC Act offence is not proved.