Somsak, a Thai national, was charged with theft of a motorcycle and receiving stolen property. He was unrepresented and did not understand the charges read in Malay at his first court appearance. At trial, his newly appointed lawyer requested a postponement to consult with Somsak in remand, but this was denied. Key evidence submitted by the prosecution was shown to not match the allegedly stolen motorcycle. Somsak maintains his alibi of being in Thailand at the time of the offense. His lawyer now seeks advice on procedural issues in the case.

1. UCP4622
CRIMINAL PROCEDURE II
GROUP PROJECT PAPER
QUESTION
Somsak, a male Thai national aged 30 years old is charged under s.379A of the Penal Code for
theft of a motorcycle with an alternative charge under s.411 of the same. He was arrested while
riding the motorcycle at Padang Besar on 1.1.2021 when he was on his way back to Narathiwat,
Thailand for his holidays after working as a kitchen help at Blue Lagoon Restaurant, Jalan Bangsar,
Kuala Lumpur.
Somsak was unrepresented at the Magistrate’s Court on 15.1.2021 when the charge was read to
him in Bahasa Malaysia, a language which he was not proficient with, which read as follows:-
Main Charge (English translation)
That you, on or about the first day of July of the year 2020 at Pertama Complex, No 101, Jalan
Tunku Abdul Rahman, 50050 Kuala Lumpur, Wilayah Persekutuan, committed the theft of a
Yamaha C125 motorcycle bearing the registration number WWW 1234, by taking it out of the
possession of Ahmad bin Bedul (NRIC No. 900404-07-2121) intending to take the said thing
dishonestly without his consent and thereby committed an offence punishable under section 379A
of the Penal Code.
Punishment : Imprisonment for not less than one year and not more than seven years, and fine.
Alternative Charge (English translation)
That you, on or about the first day of January of the year 2021 at the Immigration Complex in
Padang Besar, 10010 Perlis, dishonestly received or retained stolen property, to wit, a Yamaha
C125 motorcycle bearing registration number WWW 1234, belonging to one Ahmad bin Bedul
(NRIC No. 900404-07-2121) knowing or having reason to believe the same to be stolen property,
and that you thereby committed an offence punishable under section 411 of the Penal Code.
Punishment : Imprisonment for not less than six months and not more than five years, and fine.

2. Somsak shook his head when asked for his plea to both charges. The Magistrate also denied bail
to Somsak upon the Prosecution objection that Somsak being a foreigner is a potential flight risk
and upon the understanding that the offences under s.379A and s.411 of the Penal Code were not
bailable. The denial was made despite the fact that Raju and Ah Chong, his Malaysian employers
were present and prepared to make bail. The Magistrate then fixed 15.3.2021 for case management.
During case management, the court made no comment on him being unrepresented, and had then
fixed the trial for 15.6.2021.
At trial on 15.6.2021, Diligent a young lawyer from Yayasan Bantuan Guaman Kebangsaan, who
was appointed the day before, requested a postponement to enable him to obtain further
instructions from Somsak who was still in remand after being denied bail, however this request
was denied by the Magistrate who then proceeded to hear testimony from two (2) prosecution
witnesses, namely PW1 (Police officer who took the First Information Report) and PW2 (Inspector
Smart, the Investigation Officer) before adjourning the matter to 15.7.2021.
At the continued hearing date of 15.7.2021, Diligent informed the court that he had sent in a written
notice addressed to the Public Prosecutor on 30.6.2021, receipt of which was duly acknowledged
by the Prosecution, of an Alibi Notice with the names and addresses of persons whom Somsak had
been with when he was back in Narathiwat, Thailand from 20.6.2020 until 10.7.2020, and
Somsak’s passport confirming that Somsak was in Thailand from 20/6/2020 until 10/7/2020. The
Magistrate had dismissed the Alibi Notice as an afterthought and continued with the hearing of
testimonies by other Prosecution witnesses. The Prosecution had then tendered through Ahmad
bin Bedul (PW3) a set of keys (Ex. P3) which were then found during cross-examination by
Diligent to be not the set of keys to the allegedly stolen motorcycle. At the close of the Prosecution
case the Magistrate having ignored Ex. P3 found that the Prosecution had made out a prima facie
case and called for Somsak to enter his defence.
After Somsak had given his testimony through a Thai interpreter, Diligent sought to call the
Investigating Officer (Inspector Smart) who was the PW2 with the intention of tendering
Somsak’s statement to the police made under section 112 of the Criminal Procedure Code to show
evidence of Somsak’s consistent statement and defence of alibi when under investigation. The
request was denied by the Magistrate after objection by the Prosecution.

3. The trial has now been postponed to 15.8.2021 for submission by parties at the end of the Defense
case. Diligent has now turned to you for advise.
Advise Diligent and Somsak on:-
1. Any procedural irregularities or illegalities during the conduct of this trial; and
2. Any remedies or procedures which were available which could have or should have been
resorted to by Diligent and/or Somsak either:-
(i) At the start of proceedings;
(ii) During trial; and/or
(iii) On appeal, in the event that Somsak is found guilty and convicted on either of the
two charges.
-----END OF QUESTION-----