The appellant, an inspector of machinery in the mines department, was charged with having, on two separate occasions, received a sum of $40 as an illegal gratification from one Cheah Pak Pang, the manager of a mining kongsi. The books of the kongsi contained entries showing that on each of the dates charged a sum of $40 had been paid as 'tea money'. The prosecution established that on those dates the appellant had in fact inspected the machinery of the kongsi. The only direct evidence that these sums of $40 had been paid to the appellant was that of Cheah Pak Pang. The books of the kongsi were not kept by Cheah Pak Pang but by another person.

Held: as the magistrate had misdirected himself as to certain aspects of the evidence for the prosecution and as to the defence, his acceptance of the uncorroborated evidence of Cheah Pak Pang could not be supported and the conviction must be quashed.

Lawson v Public Prosecutor [1946] MLJ 52 High Court, Federated Malay States (Carey J).

In this case, the applicant had been charged for the offence of personating a public servant. It appeared that he had gone to a police station to lodge a report and pretended to hold the office of a detective police constable. The learned magistrate acquitted the applicant holding that the applicant had not done any act 'under colour of such office', as making a report is a right open to any member of the public. On appeal the order of acquittal was set aside by the High Court, but the judge agreed to refer the question of law to the Federal Court as follows: 'Do the words Òin such assumed character does or attempts to do any act under colour of such officeÓ appearing in s 170 of the Penal Code refer only to such acts as could legally be done by a person who in fact and in truth holds such office, or do such words also cover acts which fall outside the permitted limits of the actual authority or power conferred or vested in the public servant whose character the accused pretends to assume?'

Held: an offence under s 170 of the Penal Code is committed whenever any person falsely holds himself out to be a public servant and does or attempts to do any act whatsoever under colour of such office. The harmless character of that act or attempt may be relevant to punishment, but the offence under s 170 is nonetheless committed whenever any act is done or attempted to be done by a person impersonating a public servant.

Wong Tomm v Public Prosecutor [1973] 1 MLJ 215 Federal Court, Ipoh (Ong CJ, Gill and Ong Hock Sim FJJ).

One Palurui brought his worker to the National Registration Department, Tawau for the purpose of applying for a replacement of an identity card lost by his worker. At the said office, the respondent wore a nametag and was seated beside another accused. Palurui showed the respondent the various documents needed for the issue of a replacement identity card and asked the respondent whether he could do it. The respondent replied that it could be done as long as Palurui had the money. The respondent mentioned RM150 and the respondent also said to Palurui that if there was no money it could not be done. The respondent also said to Palurui that he did not work there. The alleged act of the respondent as stated in the charge was that he 'claimed' to Palurui that he could process the report of a lost identity card. The respondent was acquitted of the charge of cheating by impersonation under s 170 of the Penal Code (FMS Cap 45) ('the Code'). The public prosecutor appealed.

Held, dismissing the appeal: (1) an offence under s 170 of the Code was committed whenever any person falsely held himself out to be a public servant and did or attempted to do any act whatsoever under colour of such office; (2) the claim, in the context of the facts of this case, was merely a verbal assertion by the respondent that he could process the report of a lost identity card. The charge did not allege that the respondent did something in pursuant to his claim nor that the claim induced anyone to part with anything; (3) it is obvious that the charge under s 170 of the Code against the respondent could not succeed as it disclosed no offence; a verbal assertion without anything more, like a promise, cannot be an 'act'. It would have been a different matter had the charge been that the respondent under colour of such assumed office had caused or induced the delivery to him by Palurui, and he took possession thereof, of documents relating to the processing of a lost identity card; that allegation would constitute an 'act'.

Public Prosecutor v Muhamad bin Chikuna Criminal Appeal No T(42)-1 of 1993 High Court, Tawau (Ian Chin JC).

Six persons were arrested and charged with rioting sometime in May 1967. The trial was adjourned from time to time on no less than seven occasions when finally it was concluded. The accused was one of the persons subpoenaed as a witness at the trial of the six accused. The seventh rioter was arrested sometime in March 1968. The accused was also one of the two witnesses subpoenaed to attend court. On the day fixed for hearing, the prosecution applied for an adjournment and a fresh date was fixed for hearing on 27 August 1968. When the case was called on 27 August 1968, the prosecuting officer advised the magistrate that two of the witnesses (one of whom was the accused) had failed to turn up in court. The magistrate then issued a warrant for the arrest of the accused with the further order that no bail was to be allowed. He then adjourned the case to 13 November 1968. On 28 August 1968, on hearing of the order of arrest against him, the accused went to the court to surrender himself. He was brought before the magistrate, and the magistrate told the accused to go home and await arrest. The accused was arrested on 17 September 1968 and charged with intentionally omitting to appear in court on 27 August 1968. No facts were given and no reference was made to any allegation that the facts were as in the charge. After a plea in mitigation, the accused was fined RM100 which was paid but he was issued a receipt under a different name. The accused asked for a reconsideration of his case by letter.

Held: (1) the record clearly showed that the magistrate had made the bailable offence under s 174 of the Penal Code a non-bailable one. The learned magistrate had no right whatsoever to deprive a subject of his constitutional right to liberty and to be tried according to law; (2) the correct procedure where a man surrenders himself to a warrant of arrest would be to put him on bond for his appearance on the date and then release him; (3) at the trial of the accused of the charge under s 174 of the Penal Code, no facts were given and the accused was never asked to admit the facts which would establish his guilt and therefore a grave injustice was inflicted upon him in the case; (4) the indorsement of a new date of hearing on the subpoena on 27 August 1968 by a police personnel was not a proper or effective indorsement so as a result there had not been served on the accused a proper subpoena to enforce his presence in court on 27 August 1968 and accordingly no offence had been committed under s 174 of the Penal Code.

Sebastian v Public Prosecutor [1968] 2 MLJ 214 High Court, Ipoh (Chang Min Tat, J).

During an investigation into an alleged offence, A was asked a question by a police officer to which he gave a meaningless reply of 'I don't know'. A was prosecuted and convicted of an offence punishable under s 176 of the Penal Code. A appealed.

Held, allowing the appeal: (1) a reply given to a question put by a police officer acting under the provisions of s 116(1) of the Criminal Procedure Code must be a sufficient definite statement before a charge of refusing to answer or giving false evidence will lie; (2) if a person refuses to answer a question put to him under the provisions of s 116(1) of the Criminal Procedure Code, then a charge should lie under the provisions of s 179 of the Penal Code; (3) if a person gives a false answer to a question put to him under the provisions of s 116(1) of the Criminal Procedure Code, a charge should lie under the provisions of s 193 of the Penal Code; (4) a charge under s 176 of the Penal Code is usually laid where a person required to give information under s 17 and 18 of the Penal Code does not give it and may also lie under s 202 of that Code. Giving false information in such an instance would give rise to a charge under s 117 of the Penal Code; (5) a charge should give particulars of the false information alleged.

Leong Ah Chuin v R [1958] SCR 50 Supreme Court, Sarawak, North Borneo and Brunei (Williams CJ).

The appellant was the executor of CTC, deceased. He obtained probate of the will in Penang and later the grant of probate was resealed in Ipoh. On 27 June 1939, the appellant was served with a requisition under s 101(iii) of the Probate and Administration Enactment (Cap 8) requiring him to file an inventory. On request, the time for exhibiting the inventory was extended to 22 August 1939. The appellant instructed his solicitors to file an account, but said nothing about an inventory. The inventory was not filed and on 18 January 1940, a summons was issued charging the appellant with an offence under s 176 of the Penal Code, and he was convicted.

Held: there was no evidence that the solicitors had, in disregard of instructions, failed to supply the inventory. The appellant was legally bound to exhibit the inventory and he had omitted to do so. A man is presumed to have intended his acts, which include omissions, and if the omission cannot be accounted for it must be regarded as intentional. It is a question of fact as to what amounts to an intentional omission.

Chung Kok Yeang v Public Prosecutor [1941] MLJ 163 High Court, Federated Malay States (Howes J).

Leong Ah Chuin v R [1958] SCR 50 Supreme Court, Sarawak, North Borneo and Brunei (William J).

Held: to sustain a conviction of making a false statement to a police officer, it is not necessary to prove that the statement of the accused person recorded under s 112(ii) of the Criminal Procedure Code was made in answer to questions put to him by the investigating officer. It is sufficient if such false statement is substantially an answer to one or more questions addressed to the witness before the statement is made.

Inder Singh v Public Prosecutor [1940] MLJ 174 High Court, Federated Malay States (Poyser CJ).

Leong Ah Chuin v R [1958] SCR 50 Supreme Court, Sarawak, North Borneo and Brunei (Williams CJ).

Held: an accused person, who upon conviction, makes a false statement in mitigation of sentence, cannot be prosecuted in respect of such false statement under s 182 of the Penal Code.

Re Mohamed Shariff [1960] MLJ 277 High Court, Penang (Rigby J).

The appellant was convicted of an offence under s 182 of the Penal Code in that he made a false complaint to a magistrate on 7 July 1960 that he had been assaulted by three male Indians on 5 June 1960. In signing the sanction required under s 139 of the Criminal Procedure Code (SS Cap 21) for a prosecution under s 182 of the Penal Code, the Deputy Public Prosecutor through a mistake, stated the date of offence as 5 June 1960 instead of 7 July 1960. It was argued on appeal that the trial of the appellant on a charge under s 182 of the Penal Code was a nullity as no sanction to prosecute had been obtained as required under s 139 of the Criminal Procedure Code in respect of the offence committed on 7 July 1960.

Held: (1) for an offence under s 182 of the Penal Code the absence of a sanction under s 139 of the Criminal Procedure Code renders all proceedings before a magistrate null and void even if the want of sanction occasions no miscarriage of justice; (2) the sanction was defective by reason of a wrong date having been inserted. This was an error and no more and was therefore curable under s 448(a) of the Criminal Procedure Code, the defect in no way occasioning a failure of justice.

Pitchaykutty v Public Prosecutor [1961] MLJ 293 High Court, Penang (Rigby J).

[Annotation: As to object of sanction to prosecute, see Salleh v R (1906) 10 SSLR 27.]

Held: obstruction in s 186 of the Penal Code, means some interruption or hindrance to the progress of work being carried out by a public servant in the discharge of his public duties, and such public servant may be directly or indirectly obstructed.

Public Prosecutor v Bahadar Khan [1940] MLJ 180 High Court, Federated Malay States (Poyser CJ).

held: a formal arrest is a condition precedent under s 31 of the Minor Offences Ordinance 1955 to seizure of property where any offence was thought to have been committed under s 29 of the said Ordinance. A person commits no offence if prior to such arrest he merely resisted persuasion or offered obstruction to an irregular and improper exercise by any police officer of his powers.

Lee Piew v Public Prosecutor [1963] MLJ 94 High Court, Kuala Lumpur (Ong J).

Held: under s 89 of the Criminal Procedure Code 1926, the only power of a first class magistrate, when he considers that any trade is injurious to health or physical comfort, is to require the person carrying on the trade to suppress or remove that trade or occupation. In the case of a dealer in gramophones, a first class magistrate has no power to make an order against him prohibiting him from making a noise by means of loud-speakers and gramophones in the course of his trade in selling such instruments.

Loke Kui Thong v Public Prosecutor [1933] MLJ 20 High Court, Federated Malay States (Thorne Ag CJ).

Held: at the trial of a civil action, the judge is not bound by law to record the evidence given, but in practice he invariably does so. When so recorded, the notes are admissible at a subsequent trial of one of the witnesses for the offence of giving false evidence at the trial of the civil action before that judge.

Public Prosecutor v Harnam Singh [1933] MLJ 78; [1931-32] FMSLR 325 High Court, Federated Malay States (Thorne Ag CJ).

[Annotation: Public Prosecutor v Mit Singh (1916) 3 FMSLR 2 doubted.]

In this case, the appellants were charged in the sessions court with abetting the offence of perjury under s 193 of the Penal Code allegedly committed by one Othman bin Ahmad. At the trial, Othman bin Ahmad gave evidence on the alleged influence of the appellants to 'tell lies in court'. In support of his evidence, the prosecution called the wife of Othman bin Ahmad and the superior officer of Othman, who both gave evidence of statements made by Othman to them. The learned President of the Sessions Court held that the defence had cast reasonable doubt on the prosecution case and he acquitted the appellants, but on an appeal by the Public Prosecutor the learned judge of the High Court convicted the appellants as he found that the superior officer of Othman was an independent witness and his evidence corroborated that of Othman. Application was made to the learned judge to reserve for the decision of the Federal Court questions of law of public interest which had arisen in the course of the appeal but this was refused. Application was then made by way of criminal reference to the Federal Court, which heard the application and dealt with the matter as on appeal. The question considered by the Fedral Court in relation to the first appellant was 'whether corroboration is provided by proof of consistent statements made out of court before trial'. In relation to the second appellant the question was: 'Where a person is charged with abetting an offence under s 193 of the Penal Code can the evidence of an accomplice be corroborated by what the accomplice is alleged to have told his wife or his superior officer after the offence had been committed?'

Held: (1) the evidence against the second appellant was based on the bare statement of an accomplice and it was a serious misdirection on the part of the appellate judge to consider the previous statement of an accomplice as corroboration; (2) as regards the first appellant, there was hardly any evidence against him in the first place and the question of corroboration did not arise; (3) on the facts of the case, the answers to both the questions posed must be in the negative. It followed that the convictions recorded by the appellate judge against both the appellants should be quashed.

Yap Ee Kong & Anor v Public Prosecutor [1981] 1 MLJ 144 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ (Malaya).

The accused was charged with giving false evidence in a judicial proceeding in a trial for murder before Reay J. The private secretary to the judge produced a certified copy of the judge's notes of evidence; this, with evidence as to identity, was the only evidence offered in proof of the alleged false words. Counsel for defence objected, on the ground that the judge's note book should have been produced.

Held: a certified copy of the judge's notes of evidence is admissible in proof of the original.

Public Prosecutor v Si Cheng Chee [1927] 6 FMSLR 187 High Court, Johore (Acton J).

Held: in a prosecution for perjury during a criminal trial, the record is the only evidence admissible to prove the words used because s 226 of the Criminal Procedure Code 1902, imposes a duty on the judge to take down the evidence in writing.

Public Prosecutor v Modali Kuti [1915] 3 FMSLR 1 Court of Appeal, Federated Malay States (Inne and Edmonds JJC).

[Annotation: In the above case, there is a typographical error in line 4 of the original report: the word 'no' is a misprint for 'a'. In R v Shinaya Nadi (1879) 2 Ky Cr 100, it was held that the ordinary formal record is the only legal proof of a conviction. The charge sheet, notes of evidence and charge book are not admissible to prove a conviction.]

Held: in a prosecution for perjury the judge's notes taken in a civil suit are not admissible. The words used must be proved in some other manner.

Public Prosecutor v Mit Singh [1917] 3 FMSLR 2 High Court, Federated Malay States (Innes JC).

The appellant wrote a letter to the police reporting a robbery at his house and naming four persons as having taken part in it. In the course of the resultant police investigation he made a statement repeating these allegations. At the preliminary inquiry, however, he said he could not recognize any of the robbers. He was charged in the alternative under s 193 of the Penal Code with making contradictory statements the first in the police investigation and the second during the preliminary inquiry and was convicted and sentenced to two years rigorous imprisonment. He appealed against his conviction.

Held: (1) alternative charges based on contradiction between a statement made in the course of a police investigation and evidence given in the course of a preliminary inquiry or trial in the same matter will lie; (2) in the special circumstances of this case if the appellant had, in his statement in the course of the police investigation, contradicted his original letter, he would have exposed himself by such statement to a charge of making a false report to the police and therefore, this would put him within the protection of the exception to s 112(ii) of the Criminal Procedure Code (Cap 6), and absolve him from legal liability to tell the truth in his statement in the course of the police investigation; (3) the appellant was therefore not subject to s 193 of the Penal Code as regards both his contradictory statements charged, and the conviction based on such contradictory statements must be quashed.

Ramamoorthy v Public Prosecutor [1948] MLJ 43 Court of Appeal, Malayan Union (Willan CJ (Malayan Union).

[Annotation: Distinguished in Seow Keh Meng v R [1952] MLJ 215.]

The appellant was convicted on his plea of guilty under s 193 of the Penal Code, in that he made contradictory statements in a police investigation and during the ensuing preliminary inquiry. The appeal was on the issue of law that the charge, which was in the alternative, was bad in that a statement made in the course of a police investigation cannot be linked with evidence given during a judicial proceeding so as to form the basis of an alternative charge under s 193 of the Penal Code.

Held: alternative charges based on contradiction between a statement made in the course of a police investigation and evidence given in the course of a preliminary inquiry in the same matter will lie.

Govindasamy v Public Prosecutor [1948] MLJ 46 Court of Appeal, Malayan Union (Willan CJ (Malayan Union).

[Annotation: Distinguished in Seow Keh Meng v R [1952] MLJ 215.]

In this case, the accused were charged on the following charge: 'That you...on 25 August 1953 at about 4pm at the customs office, Penang, in the course of an inquiry into an alleged offence, stated to P Talbot, Esq, a customs officer, that you drove lorry No P3042 direct to Changloon from Butterworth without stopping on 23 August 1953...and at Alor Star on 24 October 1953 in the course of the trial R v Ch'ng Saik Kee No 1 of 1953, stated in evidence that you stopped to unload goods at Alor Star during the course of the aforesaid journey...one of which statements you knew or believed to be false or did not believe to be true and that you thereby committed an offence punishable under s 193 of the Penal Code.' The two accused were tried jointly in the magistrate's court. After the evidence had been taken, the question was reviewed as to whether the magistrate's court had jurisdiction to try the charge. The learned magistrate after considering the matter transferred the case to a President of the sessions court. The case was then removed to the High Court under the powers given in s 37 of the Courts Ordinance. The most important point raised for decision in the case was whether it was permissible to charge and convict an accused person in the alternative in respect of false information given to a customs officer under s 197 of the Customs Ordinance 1952, as one alternative, and false evidence in the criminal trial in a sessions court as the other alternative.

Held: (1) information given to a customs officer under s 97 of the Customs Ordinance when such information is false to the knowledge of the person giving it, whilst an offence contrary to s 130 of the Customs Ordinance, is not 'giving false evidence' as defined under s 193 of the Penal Code; (2) unless both alternative offences came within s 193 of the Penal Code, it is not permissible to include alternatives in a single charge and the only permissible procedure is to have separate alternative charges; (3) in consequence, as there was no evidence in the present case to show which of the two alleged contradictory statements was false, it followed that the accused could not have been convicted; (4) on the question of jurisdiction, the learned magistrate who was himself a President of the sessions court could have recharged the accused before himself as President and after giving both sides an opportunity of recalling any evidence, could have given his decision; (5) as the certificate of the registrar of the sessions court certifying that the copy was a true copy was not dated as required by the express provisions of s 76 of the Evidence Ordinance, the notes of evidence were not admissible in evidence; (6) where persons are charged with giving false evidence, they should be tried separately unless there is evidence of a conspiracy between them.

Re Tan Ah Chuan & Anor [1954] MLJ 135 High Court, Penang (Spenser-Wilkinson J).

Held: a certified copy of the notes of evidence which is not dated will not be admitted in evidence in a case under s 193 of the Penal Code. The date is an essential requirement of the certificate and there are obvious reasons why this is so as is apparent from other provisions of the Evidence Ordinance 1950. The words of s 76 of the Evidence Ordinance are too clear to admit of any gloss upon them. A certified copy raises certain presumptions under s 79; under sub-s (1) of this section the court shall presume that any officer by whom such document purports to be certified held, when he signed it, the official character which he claims in such document. It is obvious therefore that the date is essential for the purpose of establishing whether on a particular date the officer held the official character which he claims.

Mohamed Hanifah v Public Prosecutor [1956] MLJ 83 High Court, Kuala Lumpur (Buhagiar J).

In the trial of a case of theft, the appellant gave evidence for the prosecution which resulted in the accused being acquitted. The evidence that he gave was alleged to be false in that it differed from what he had stated to the police officer who investigated the theft. This led to his being charged and tried in the sessions court, Penang, for giving false evidence. He was convicted and sentenced to six months' imprisonment. The whole of the trial record wherein the false evidence was alleged to have been given was produced in toto as part of the case against the appellant. The charge as drafted did not clarify to the accused the falsity of the evidence alleged and which he had to meet.

Held: (1) it is wrong in a charge of giving false evidence to attach the whole trial record wherein the false evidence was alleged to have been given. It is sufficient to have an officer of the court produce a duly certified copy of that part of the evidence given by the appellant which formed the basis of the charge; (2) while giving false evidence is at any time a serious offence, it is incumbent on the trial President not to allow himself to be swayed thereby but to scrutinize the charge and the evidence with great care as upon a conviction for such offence the punishment under s 193 of the Penal Code is imprisonment for a term which may extend to seven years and also liability to a fine; (3) there was no material discrepancy or contradiction between the statement and the evidence given by him in court which formed the basis of the charge, nor were certain conclusions arrived at by the President maintainable.

Ang Chaing Lock v Public Prosecutor [1968] 1 MLJ 207 High Court, Penang (Ong Hock Sim J).

The accused in this case was charged, in the alternative, under s 193 of the Penal Code, with intentionally giving false evidence in that he made two contradictory statements, one of which he either knew or believed to be false or did not believe to be true. The particulars of the charge disclosed that in the course of a police investigation under s 112 of the Criminal Procedure Code (Cap 6) the accused, in reply to a question put to him by the investigating police officer, stated: 'After I saw my daughter Wee Kim Hoon injured in the stomach as a result of a stab, and my daughter told me that her husband Eng Hong stabbed her with a knife.' Subsequently however, at the trial of Eng Hong on a charge of unlawful wounding, the present accused stated in evidence before the magistrate: 'I saw blood on her [meaning Wee Kim Hoon's] stomach. She told me she had been stabbed by someone. She did not tell me who stabbed her.' As a result of those contradictory statements, the charge under s 193 of the Penal Code was preferred against the accused. At the trial the accused desired to plead guilty to the charge, but the learned magistrate declined to accept his plea on the ground that both the accused's statement to the police and his evidence before the trial court were hearsay and inadmissible in evidence and, accordingly, could not form the basis of a criminal charge against the accused.

Held: the charge as laid down before the learned magistrate was a valid charge and the case was remitted to the magistrate to hear and record the plea of the accused to that charge as laid.

Public Prosecutor v Wee Eh Tiang [1956] MLJ 120 High Court, Kota Bahru (Rigby J).

The appellant was charged and convicted under s 193 of the Penal Code for making two contradictory statements, one of which he either knew or believed to be false or did not believe to be true. The first statement was given by him during the police investigation and the second before a sessions court, during a criminal trial arising out of the police investigation. The prosecution failed to prove that the appellant was the person who made one of the alleged contradictory statements.

Held: the appellant should have been acquitted and discharged at the close of the case for the prosecution in the court below, because at that stage of the case the prosecution had failed to prove that the appellant was the person who had made one of the alleged contradictory statements which was an essential element of the charge.

Tengku Abdul Aziz v Public Prosecutor [1951] MLJ 185 Court of Appeal, Federation of Malaya (Foster Sutton CJ, Taylor and Wilson JJ).

Leong Ah Chuin v R [1958] SCR 50 Supreme Court, Sarawak, North Borneo and Brunei (Williams CJ).

A police officer conducted an inquiry into a non-seizable case without the order of the Public Prosecutor under s 108(ii) of the Criminal Procedure Code (Cap 6) ('the Code'). In the course of that inquiry, the appellant made a certain statement which the police officer purported to record under s 112(i) of the Code. The case into which the police officer was making inquiries subsequently came to trial. The appellant was a witness at the trial and gave evidence completely at variance with his statement to the police officer. Subsequently, the appellant was charged under s 193 of the Penal Code, it being alleged that he had made contradictory statements in a judicial proceeding.

Held: since the police officer recorded the appellant's statement before the order of the Public Prosecutor had been obtained under s 108(ii) of the Code, the special powers in relation to police investigations under Chapter XIII of the code had not arisen. As a result, the appellant was not bound to answer truly all questions put to him by the police officer purportedly under s 112 of the code. Thus the statement made to the police officer was not made in the course of a judicial proceeding.

Anthony v Public Prosecutor [1958] MLJ 148 High Court, Kuala Lumpur (Smith J).

The record of a civil suit in the High Court was transmitted to the Deputy Public Prosecutor by the trial judge to consider the evidence and whether or not the accused should be charged with an offence under s 193 of the Penal Code. The Deputy Public Prosecutor having considered the matter issued a sanction under s 139(1)(b) of the Criminal Procedure Code (Cap 21). The accused was thereupon charged in court. The learned President acquitted the accused, one of his grounds being that no proper complaint had been filed.

Held: the effect of the provisions of s 138(1)(d) of the Criminal Procedure Code (Cap 21) is that once the accused is before the court there is jurisdiction to try him and the judge is not concerned with how he got into the dock.

Public Prosecutor v Sajjan Singh [1958] MLJ 3 High Court, Malacca (Hepworth J).

[Annotation: Reference may usefully be made to the case of Kuruma v R AC 197; [1955] 2 WLR 223; [1955] 1 All ER 236, PC.]

The appellant in this case was charged with and convicted of giving false evidence in the course of a police investigation conducted under Chapter XIII of the Criminal Procedure Code. The facts of the case were as follows: on 2 October 1949, a shophouse at Segari was burned in circumstances which led to the commencement on the same day of a police investigation under Chapter XIII of the Criminal Procedure Code in relation to a charge of committing mischief by fire on the part of one Hoo Lieng Ping. The following day, and in the course of this investigation, the appellant was interviewed by the officer-in charge of the police station of Segari and made a statement to him in the Malay language, to the effect that he had seen Hoo Lieng Ping pouring kerosene on the walls of the shop and attempting to burn it. On 18 October, the appellant, in circumstances which are not very clear, made a further statement to the officer-in-charge of the Sitiawan police district. This statement was made in a Chinese dialect and translated into English, and in the course of it he said that on the occasion of the fire he heard people saying that Hoo Lieng Ping had tried to set fire to this shop but, 'I never actually saw him throw kerosene on the house'. The charge against the appellant set out the material portions of the two statements made by him and went on, 'one of which statements you either knew or believed to be false or did not believe to be true, and thereby committed an offence punishable under s 193 of the Penal Code'. At the trial, the prosecution produced evidence that the appellant had made both the statements in question, but they did not produce any evidence to show which of them was true and which of them was false. They were content to take up the position that the two statements were in such flat and direct contradiction to each other that one of them must necessarily, to the knowledge of the appellant, be false. In his defence, the appellant stated that he had not told the officer-in-charge of the Segari police station that he had seen Hoo Lieng Ping pour kerosene on the walls of the house and that that officer was mistaken as to what he had said. The learned President accepted that the appellant had made the two statements he was alleged to have made and, without coming to any conclusion as to which of them was true and which of them was false, found that one or other of them must be false to the knowledge of the appellant. He accordingly convicted the appellant.

Held: before an accused person can be held guilty under s 193 of the Penal Code, it is necessary to show by the evidence that the statement which is set out in the charge was a statement in answer to questions put by the investigating officer to the accused.

Beh Chai Eng v Public Prosecutor [1950] MLJ 158 High Court, Perak (Thomson J).

[Annotation: This case was followed in Public Prosecutor v Fernandez [1954] MLJ 5.]

The accused was charged under s 193 of the Penal Code with having made two contradictory statements, one to a police officer in the course of an investigation, the other in evidence given at a preliminary inquiry. The court accepted the latter as the true statement.

Held: the obligation to speak the truth imposed by s 112 of the Criminal Procedure Code (Cap 6) arises when a question has been asked. Once it appears that a true answer might expose the person questioned to a criminal charge, no answer that such person may give can render him liable to criminal proceedings. It is not essential that the statement should be recorded in the form of question and answer, but it is desirable where possible that this form should be adopted.

Public Prosecutor v Pachaiappan [1941] MLJ 102 High Court, Federated Malay States (Murray-Aynsley J).

Held: (1) before a conviction can be sustained of making false statements to a police officer during the course of investigation, it must be proved that such statements were made in answer to questions put to the accused by an investigating officer; (2) (semble) It is well established that before a court should accept as binding on it any decision of the courts of the Colony of Singapore, it should be satisfied that the law of the colony is in pari materia with local law and that such a decision deals with the same problem as that which it is called upon to solve in the case in which such a decision is cited to it.

Public Prosecutor v Fernandez [1954] MLJ 5 High Court, Malacca (Bellamy J).

[Annotation: Kandiah v R [1953] MLJ 64, and Beh Chai Eng v Public Prosecutor [1950] MLJ 158, followed. Inder Singh v Public Prosecutor [1940] MLJ 174 dissented from.]

The respondents in this case were charged with offences punishable under s 193 of the Penal Code. They had made statements to police officers in the course of a police investigation into an alleged offence of attempted robbery. Subsequently, they gave evidence at a preliminary inquiry and in their evidence they made statements which were alleged to be contrary to the statements made to the police officers. The respondents were charged with giving false evidence. At the beginning of the trial, the learned magistrate asked counsel for the accused whether he was of the opinion that his clients would be prejudiced by the hearing of both charges; counsel replied that he had no objection to the joint trial and the magistrate ruled that the two charges against the two respondents formed one transaction and should proceed as one trial. At the conclusion of the case for the prosecution, the learned magistrate held that there was no case to answer mainly on the grounds: (a) s 112 of the Criminal Procedure Code (Cap 6) in effect required police officers recording statements by witnesses to do so in the form of question and answer, and this was not done in this case, and (b) as the respondents were suspected persons at the time of the police investigation, they were under no obligation to state the truth should statements made in any way compromise them. The Public Prosecutor appealed against their acquittal.

Held: (1) the two charges against the respondents in this case did not form one transaction and therefore the joint trial was an illegality; (2) it is not essential under s 112(ii) of the Criminal Procedure Code that the statement in a police investigation should be rendered in the form of a question and answer, but before an accused person can be held guilty under s 193 of the Penal Code, it is necessary that it should be shown by the evidence that the statement which is set out in the charge was a statement in answer to a question put by the investigating officer to the accused; (3) such evidence need not be evidence appearing on the statement itself, and oral evidence may be adduced to show that a statement was rendered in answer to a question; (4) although under s 112 of the Criminal Procedure Code a person may refuse to answer questions which have a tendency to expose him to a criminal charge or penalty or forfeiture, if he does answer he is bound to answer truly; (5) on the facts in this case, there was evidence to show that the statements in the charge were made in answer to questions by the investigating officer and therefore the learned magistrate was wrong in holding that no case had been made against the respondents.

Public Prosecutor v Subramaniam & Anor [1956] MLJ 58 High Court, Kuala Lumpur (Buhagiar J).

The points of law for the determination of the Court of Appeal in this reference were: (a) whether a certificate signed by a medical practitioner, and forwarded pursuant to r 20 of the Employees Provident Fund Rules 1952 by a contributor to the Employees Provident Fund in support of an application to withdraw any amount standing to his credit in the fund, is a certificate required by law to be given within the meaning of s 197 of the Penal Code; and (b) whether before a person can be convicted of an offence in relation to the issuing or signing of any certificate referred to in s 197 of the Penal Code, it is necessary for the prosecution to prove that such person was aware of the purpose for which the certificate was required. Evidence led by the prosecution was to the effect that the respondent, a medical practitioner, had given medical certificates each to the effect that the person named therein was no longer capable of being employed and not likely to be an employee again. The person named in each of the certificates gave evidence that he had not been examined by the respondent. There was evidence that when the respondent signed two of the certificates he signed them without examining any person. Use was made of these certificates to obtain fom the Employees Provident Fund the return of the amount standing to the credit of the persons named in each certificate. There was no evidence to show that the respondent was aware of the purpose for which the certificates were required or of the use to be made thereof.

Held: (1) it is not necessary that the certificate should have been signed or issued by the person legally empowered to sign or issue it. It may have been issued by a person wholly unauthorized, and still he may commit the offence, for all that s 197 requires is that the certificate must be one either required by law to be issued or signed, or it must relate to a fact admissible in evidence. There being no law requiring a medical practitioner to issue a certificate of unfitness, the evidence in this case does not disclose an offence under the first part of s 197; (2) it is not every certificate which is admissible in evidence that comes within the provisions of the second part of s 197 that part only applies to certificates which are admissible in evidence of the fact to which the certificate relates in other words, the certificates affected are those which are proof of the truth of the contents thereof. The documents covered by the provisions of law under consideration are certificates made by a person who is under a legal obligation to state the truth. Although the respondent was under an obligation to state the truth as a medical practitioner, he was not under any legal obligation to do so; (3) even assuming that the second part of s 197 applies to certificates given by a person when under no such legal obligation, he could not be found guilty under that section when the certificate given by him is produced in evidence unless he was aware of the purpose for which the certificate was required. In this case, there is no evidence that the respondent was so aware, therefore no offence was disclosed under the second part of s 197.

Public Prosecutor v D'Fonseka [1958] MLJ 102 Court of Appeal, Kuala Lumpur (Thomson CJ, Buhagiar J and Sutherland Ag J).

In this case, the respondent had been convicted of a charge under s 197 of the Penal Code in that he issued a special pass which was to his knowledge false in a material particular. On appeal to the High Court, the appeal was allowed on the ground that the special pass was not a certificate required by law to be given. On application by the Public Prosecutor, the learned judge referred the following question to the Federal Court: 'Whether a special pass issued under reg 14(3) of the Immigration Act 1963 (Act 155)...is a certificate required by law to be given within the meaning of s 197 of the Penal Code...'

Held: (1) the special pass issued in the circumstances of this case, where the immigration authorities believed that the traveller was the holder of a Malaysian passport, was a certificate required by law to be given or signed within s 197 of the Penal Code; (2) the whole case may be argued as an appeal before the Federal Court to ascertain whether the conviction was correct.

Public Prosecutor v Munusamy [1979] 2 MLJ 286 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ (Malaya).

[Annotation: See also Public Prosecutor v Munusamy [1980] 2 MLJ 133.]

In this case, the respondent had been convicted by the learned magistrate for an offence under s 197 of the Penal Code for issuing a certificate which is required by law to be given knowing that it was false on a material point. On appeal, the High Court allowed the appeal on the sole ground that the special pass issued in this case was not a certificate required by law to be given under s 197 of the Penal Code. The Public Prosecutor applied that the point of law be referred for the decision of the Federal Court and the Federal Court decided that the special pass was a certificate required by law within the meaning of s 197 of the Penal Code. (See [1979] 2 MLJ 286.) The whole case was then reargued as a regular appeal.

Held: (1) in this case, there had been concurrent findings of fact in the lower courts and the Federal Court should not therefore interfere, as it was not shown that there was a miscarriage of justice or violation of some principle of law or procedure; (2) the refusal to allow a witness for the prosecution who had been impeached to be cross-examined by the accused did not constitute a misdirection and even if it was, the Federal Court had power to dismiss the appeal, as there was no failure of justice.

Public Prosecutor v Munusamy [1980] 2 MLJ 133 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ (Malaya).

The appellant was convicted in the magistrate's court upon a charge of making a false statement in a declaration. On appeal it was submitted that the declaration, the subject matter of the charge, was not in accordance with or in the form prescribed by the Statutory Declarations Ordinance 1949, as the words 'Declared at...this...day of...before me' were left out.

Held: (1) because of the omission of the words 'Declared at, etc' from the declaration in this case, the declaration was not a declaration within the meaning of s 199 of the Penal Code; (2) it is not sufficient for a declarant simply to sign the declaration; he should actually declare it before the justice of the peace or commissioner for oaths before whom it is to be declared.

Teh Kim Chooi v R [1955] MLJ 37 High Court, Penang (Spenser-Wilkinson J).

The appellant was charged in the district court, Johore Bahru, with knowingly making two false statements in a declaration made before the presiding officer, district court of the British Military Administration, touching certain matters material to the object for which the declaration was made, an offence against s 199 of the Penal Code. The object for which the declaration was made was to satisfy the Commissioner of Police, Johore, that he was a suitable candidate for appointment to the police. The appellant pleaded guilty and was convicted and sentenced to six months' rigorous imprisonment. It appeared that the statement made by the appellant was in a solemn declaration form which followed that set out in the Schedule to the Statutory Declarations Enactment No 20 Johore Laws, but the words 'and by virtue of the Statutory Declarations Enactment' were omitted. The appellant appealed against his conviction and sentence and the appeal was dismissed, but in view of certain facts disclosed in the record and on examination of the declaration itself, the court decided to act in revision under s 325 of the Criminal Procedure Code.

Held: (1) in order to fall within the four walls of s 199 of the Penal Code, it is necessary that the statements made should be such that a court of justice or a public servant or other person is bound by law to receive them as evidence of any fact; (2) the omission of the words 'and by virtue of the Statutory Declarations Enactment' in this case was vital, as it is those words that give the sanction of the enactment to the declaration and without those sanctioning words, the statement made by the appellant, though in form purporting to be one that can be accepted as evidence, was not such a one and the statement, though wilfully false and made for the purpose of fraud, is not criminally punishable.

Velumailum v Public Prosecutor [1947] MLJ 152 High Court, Johore Bahru (Laville J).

The appellant was prosecuted in the lower court as a result of a complaint made to the learned magistrate by one of the landlords of the premises of which the appellant was the tenant. The complaint was received by the said magistrate in accordance with s 119(1) of the Criminal Procedure Code (Cap 58) as a result of which a summons against the appellant was issued under s 122(1) of the Criminal Procedure Code. The learned magistrate had acted under s 335(2) of the Criminal Procedure Code in allowing the private prosecution to proceed against the appellant. The appellant was convicted in the lower court of offences punishable under s 17(1) and (2) of the Rent Control Ordinance (Cap 86) and s 199 of the Penal Code. He appealed on the ground, inter alia, that the advocate who conducted the prosecution in the lower court had no jurisdiction to do so. The issue involved the construction of s 335(3) of the Criminal Procedure Code.

Held: (1) an offence under s 199 of the Penal Code cannot in any sense be regarded as an offence against the person or property of a private prosecutor within the meaning of s 335(3) of the Criminal Procedure Code; (2) in respect of the offence under the said s 199, there being no legally competent person to conduct the prosecution against the appellant in the lower court and there being none directed by the lower court to conduct such prosecution, the whole proceedings in relation to the charge under the said section were null and void.

Ting Ing Kwong v Lau Kah King [1977] 2 MLJ 80 High Court, Sibu (Tan Chiaw Thong J).

Leong Ah Chuin v R [1958] SCR 50 Supreme Court, Sarawak, North Borneo and Brunei (Williams CJ).

The appellant in this case was charged in the sessions court under s 211 of the Penal Code (Cap 45) with falsely causing the institution of criminal proceedings in respect of dangerous drugs against four persons. The appellant pleaded guilty and was sentenced to two years' imprisonment and he appealed against the sentence. At the outset of the hearing of the appeal, counsel for the appellant raised for the first time a preliminary point that the trial in the sesssions court was a nullity because it had proceeded without a sanction of the Public Prosecutor as required under s 129(i)(b) of the Criminal Code (Cap 6).

Held: (1) by virtue of the provisions of s 422 of the Criminal Procedure Code, the conviction of the appellant in the sessions court should not be set aside unless it can be shown that the want of sanction has occasioned a failure of justice. In this case, there was not the slightest suggestion whatsoever that the want of sanction had occasioned a failure of justice; (2) on an appeal on sentence from the subordinate courts, the High Court will not interfere with the sentence imposed unless it can be shown to its satisfaction that in the circumstances of the particular case, the sentence was manifestly excessive or inadequate, or that in fixing the sentence, the subordinate court had failed to adequately consider all relevant factors either for or against the offender; (3) there were no merits in this appeal and no extenuating circumstances whatsoever which can be taken in favour of the appellant. The learned President of the Sessions Court considered the case very carefully from every angle, and having done so he quite rightly took a serious view and imposed the maximum of two years. There was therefore no reason to interfere with the sentence and the appeal should be dismissed.

Joginder Singh v Public Prosecutor [1984] 2 MLJ 133 High Court, Ipoh (Ajaib Singh J).

The appellant, an inspector of police and a public servant, was charged, inter alia, under s 218 of the Penal Code with making incorrect entries knowing that he would thereby save the registered owner and driver of a lorry from legal punishment. A lorry containing wet sand and suspected of being overloaded was brought to the police station to be weighed. The lorry was found to be in excess of 1 ton 4 cwt 2 qt of permissable laden weight. The excess weight was punched on weighing cards and recorded in the station diary. Subsequently, the owner of the lorry met the appellant. The appellant altered the record of excess weight in the station diary to 0 ton 3 cwt 1 qt. The altered weight was also recorded in the weight register and weighing cards. The appellant was convicted of offences under s 218 of the Penal Code. In an appeal against the conviction,

Held, dismissing the appeal against the conviction under s 218 of the Penal Code: (1) in order to sustain a conviction under s 218 of the Penal Code, it was not sufficient merely to prove that the entry was incorrect. It must be further proved that the entry was made with intent thereby to save, or knowing it to be likely that he would thereby save, some person from legal punishment; (2) in this case, there was ample evidence to show that the entries were altered without the lorry being weighed. The appellant had therefore made incorrect entries knowing them to be likely that he would thereby save the registered owner and the driver of the lorry from legal punishment; (3) where a witness may be regarded as having a purpose of his own to serve, the judge must direct his mind on the danger of convicting on the uncorroborated evidence of such witness, but if there is clear and convincing evidence to such an extent that an appellate court is satisfied that no miscarriage of justice has arisen by reason of the omission of direction, the court will not interfere.

Lim Boon San v Public Prosecutor [1968] 2 MLJ 45 High Court, Kuala Lumpur (Raja Azlan Shah J).

Held:{eb] a temporary clerk in the employment of the government is a public servant within the meaning of cl 9 of s 21 of the Penal Code.

Lim Kee Butt v Public Prosecutor [1954] MLJ 35 Court of Appeal, Kuala Lumpur (Mathew CJ, Brown Ag CJ (S).

Public Prosecutor v Phee Joo Teik [1962] MLJ 56 Court of Appeal, Kuala Lumpur (Thomson CJ, Good JA and Ong J).

Both of the respondents were police officers, charged under s 223 of the Penal Code (hereinafter 's 223') for negligently allowing a person lawfully committed to custody to escape from confinement. At the end of the prosecution's case, the magistrate held that there was a prima facie case under s 221 of the Penal Code (hereinafter 's 221') and not under s 223 as charged. The magistrate further held that he could not amend the charge to a charge under s 221 because the latter was more serious and upon conviction, would result in greater punishment. The magistrate was of the opinion that he could only amend the charge to a lesser charge and that he had no authority to amend a charge to a greater charge. Thus, he discharged and acquitted both the respondents of their charges. The prosecution appealed against the decision of the magistrate. The prosecution submitted that the power to amend a charge given under ss 158 and 173(h) of the Criminal Procedure Code allowed the magistrate to amend the charge under s 223 to a charge under s 221 if on the evidence tendered, there was a prima facie case under s 221. The facts were as follows: the respondents were instructed together with a few other police officers ('the escort party'), to escort and transport by a police van from Penang two detainees entrusted to them ('the detainees'); the first detainee to Batu Gajah and the second detainee ('the detainee') to Kuala Lumpur. The first detainee was safely handed over to the authorities as instructed. The escort party made several stops at various locations and at all times the detainee was not handcuffed. Upon reaching Kuala Lumpur, the first respondent again instructed that they stop; first at a hotel and later at a lane where both respondents left with the detainee who was not handcuffed. Thereupon, the detainee escaped from their custody. The first respondent submitted that it was for the prosecution to apply for an amendment of the charge and this the prosecution had failed to do. Also, he submitted that the magistrate erred in holding that there was a prima facie case under s 221. He referred to the Standing Order of the Chief Police Officer Part A 124 which allows an escorting officer the discretion to decide whether to use handcuffs on detainees. He submitted that the magistrate erred in holding that the omission to use handcuffs and the exercise of his discretion to allow the detainee to stop at the various locations may be inferred as an intention to allow the detainee to escape. Also, he submitted that the magistrate should not have made a negative inference from the failure of the first respondent to bring the detainee to a police station immediately upon reaching Kuala Lumpur instead of stopping at the two locations mentioned. On the other hand, the second respondent alleged that para 9.3 of the Standing Order of the Chief Police Officer was not complied with in that an ordinary detainee was transported in the same van with a 'special' detainee and therefore such detention of the detainees were unlawful. Also, the second respondent contended that he was only responsible to transport the first detainee to Batu Gajah and not the second detainee; therefore he should not have been charged in the first place.

Held, allowing the appeal: (1) based on the evidence tendered, both respondents were responsible to escort the two detainees; (2) the non-compliance with para 9.3 in transporting together both an ordinary and a 'special' detainee did not render any part of the detention of the detainees unlawful; (3) according to the Standing Order of the Chief Police Officer, an escorting officer has discretion as to whether to handcuff a detainee. However, the conduct of the escorting officers in allowing the detainee to make numerous phone calls and subsequently stopping at several locations where the detainee was also allowed to step down from the police van without being handcuffed could be questioned. The conclusion which could be drawn from such conduct was not only of a person who have the 'intention' to commit the particular act but also of a person who had intended the natural and probable consequences of his act, ie the probability of the detainee escaping from custody; (4) based on all the evidence tendered, there was a prima facie case under s 223 against both respondents; (5) the conduct and actions of both respondents showed an 'intention' to release the detainee and not merely being negligent in allowing the detainee to escape;s 173(h) of the Criminal Procedure Code did not only allow but also made it mandatory for the court to consider the charge at the end of the prosecution's case and if necessary, to amend the charge; where the facts do not establish a prima facie case against the accused person on the charge preferred against him but disclose another offence for which he is not charged, the magistrate, unless he has a good reason not to do so, ought to amend the charge; therefore the magistrate had erred in law in not amending the charge from the original charge under s 223 to the charge under s 221.

Public Prosecutor v Ahmad bin Hj Zakaria & Anor Criminal Appeal No 41-247-93 High Court, Kuala Lumpur (Zaleha Zahari JC).

The appellant had been convicted of the offence of attempting to escape from lawful custody under s 224 of the Penal Code and sentenced to one month's imprisonment and a fine of RM300 in default three months' imprisonment. The facts showed that the offence in respect of which he was accused was trivial, no violence to person or property was used in the attempt, which appeared to have been made on sudden impulse, and the appellant was a first offender.

Held: the sentence was manifestly wrong in the sense that it was unsuitable to the proven facts and circumstances. Appeal against conviction dismissed, sentence varied. Observations on sentence.

Yap Teng Chai v Public Prosecutor [1959] MLJ 205 High Court, Muar (Hepworth J).

A police boat on patrol duty in Penang Harbour stopped a speed boat coming from the direction of the island and going towards Prai. In the boat there were two persons, one of whom was the appellant, neither of whom had their identity cards on them. On examination of the speed boat it was found to be empty. Nothing was found on either of the occupants. Suspecting the appellant of being a smuggler the police detained the appellant, from which detention he escaped. He was consequently charged and convicted under s 224 of the Penal Code. On appeal,

Held: there was no reasonable ground for suspicion that the appellant was guilty of an offence under the Customs Ordinance 1952 or any regulation made under it. There was no ground for taking the appellant into custody and the custody was therefore unlawful. There was therefore no lawful detention within the meaning of s 224 of the Penal Code.

Loo Peng Kean v Public Prosecutor [1964] MLJ 131 High Court, Penang (Hepworth J).

The same high degree of negligence which must be proved to support a conviction under s 304A of the Penal Code must be proved to establish a conviction under any of the other sections of the Penal Code which make 'negligent acts' a criminal offence.

Public Prosecutor v Mohamed Salleh and another appeal [1940] MLJ 187 Court of Appeal, Federated Malay States (Poyser CJ, McElwaine CJ (SS).

See criminal procedure, x-ref 67.

Disobedience to an order which was erroneous constitutes contempt of court.

Jonk Kee & Ors v R [1954] SCR 57 Supreme Court, Sarawak, North Borneo and Brunei (Williams CJ and Bodley J).

Held: anything savouring of a discussion in a newspaper of the rights and wrongs of a case pending before the court is improper, and constitutes a contempt of court.

R v Chu Hung Sheng [1954] SCR 49 Supreme Court, Sarawak, North Borneo and Brunei (Lascelles J).

The appellant was convicted in the sessions court for theft and was sentenced to four years' imprisonment and ordered under s 426(i)(b) of the Criminal Procedure Code to pay compensation of RM333,000 to Bank Negara. The facts of the case was as follows: Harun was a clerk in the Public Debt Division of the Accounting Department of Bank Negara. On 1 July 1988, Bank Simpanan Nasional which had an account with Bank Negara issued a cheque for RM22.2m in favour of the Pendaftar Hutang Negara as advance subscription for government securities which was handed to Harun at the Public Debt Division. On the next day, Harun instead of authorizing a credit to the Accountant-General's account, authorized instead a credit to Bank Bumiputra's account at Bank Negara which subsequently was credited, upon instruction by Harun, into the current account of the appellant at a branch of Bank Bumiputra. By 14 July, the RM22.2m in the appellant's account was paid out clean by open cheques signed by the authorized signatory, the appellant. One of the grounds of appeal was that the record of proceedings against Harun, which contained a statement of facts alleged against Harun and admitted by him should not have been admitted in the appellant's trial because its admission was harmful in that the learned sessions court judge was influenced by those admitted facts in coming to a finding that Harun had committed theft and that the appellant had abetted the theft. The principal question in this appeal was whether what Harun was shown by evidence to have done in Bank Negara amounted in law to the offence of theft as defined under s 378 of the Penal Code. It was also for the court to consider whether the appellant should have been convicted under either the two other charges of which he was acquitted in the sessions court at the end of the case for the prosecution, ie the principal charge of abetting criminal breach of trust and the first alternative charge of abetting cheating.

Held, allowing the appeal: (1) although to constitute the offence of abetment it is not necessary that the act abetted should be committed, in the circumstances of this case where there was no direct evidence of any arrangement between Harun and the appellant and where evidence relied upon for proof of abetment was therefore circumstantial no charge of abetment against the appellant can stand without it being proved that Harun did commit the related principal offence; (2) it is fundamental that the facts alleged by the prosecution and admitted by a person who has pleaded guilty cannot be taken as proven against another person to accept the admitted facts as proven would be tantamount to accepting the evidence of the person pleading guilty without the other person being given an opportunity to cross-examine him; (3) the fact, as evidenced by the credit in the deposit book, that the bank owes him money, was not corporeal property and was therefore not movable property. There cannot be theft of incorporeal property; (4) under s 378, to constitute theft there must be a dishonest intention to take a movable property out of its rightful possession coupled with the act of moving that property. The movable property intended to be taken must be the one and the same movable property that is actually moved. That movable property is the one that is to be the proper subject of the charge; (5) it was obvious from s 378 that the offence of theft was completed the moment the movable property in question was moved. Harun did not move the money, the money came from the possession of Bank Bumiputra, not Bank Negara, and Bank Bumiputra consented to the money being paid out. Harun did not commit theft as defined in s 378 and accordingly the appellant could not rightly have been convicted of abetment of theft by Harun; (6) in criminal breach of trust and cheating, the subject is not confined to movable property; (7) Harun's employer, assigned him to the job as clerk in the Public Debt Division, of receiving cheques for advance subscription for government securities Bank Negara impliedly entrusted to Harun the cheques that he might receive or have dominion over; (8) as Harun was a clerk of Bank Negara, the proper offence was criminal breach of trust by a clerk under s 408 and not s 405; (9) there was no proof beyond reasonable doubt of abetment by conspiracy by the appellant; (10) the credit went into Bank Bumiputra's account and there was no evidence that Harun was entrusted with that account or with the dominion over it, so that Harun's instruction to transfer the RM22.2m from that account to the appellant's account could not constitute an act of breach of trust, and the appellant's opening of that account at the Bank Bumiputra branch could not constitute abetment of that act by aiding; (11) an employee who disposes of any property entrusted to him by his employer in any way contrary to what his employer expects or authorizes him to do, disposes of it, for the purposes of the definition of criminal breach of trust in s 405 Penal Code, in violation of an implied legal contract which he has made touching the discharge of the trust;because there was no direct evidence of conspiracy involving the appellant, and the evidence for the prosecution lays itself open as well to the probability that the appellant did, as to the probability that the appellant did not, engage in any conspiracy for the commission of criminal breach of trust by Harun;the offence of criminal breach of trust by Harun having been committed before the time Bank Bumiputra's account was credited, the opening of the account by appellant cannot be said to have facilitated the doing of anything by Harun up to and including that point in time; the facility provided by the account was a facility not for the commission of the criminal breach of trust but for the subsequent gathering of the fruit of the crime.

Che Man bin Che Mud v Public Prosecutor Criminal Appeal No 42-21-1991 High Court, Kuala Lumpur (Abdul Aziz J).

Seet Soon Guan v Public Prosecutor [1955] MLJ 223 High Court, Kuala Lumpur (Buhagiar J).

The appellant was convicted of offences of the rape of R and of using criminal force on H with the intention to outrage her modesty, offences under s 376 and s 354 of the Penal Code (FMS Cap 45) respectively. The appellant appealed against his conviction and sentence. He contended that the trial judge had erred on the issues of the burden of proof cast on the public prosecutor when the judge said that at the close of the prosecution's case that the prosecution had established a prima facie case whereas the authorities of Khoo Hi Ching v PP [1994] 1 MLJ 265 and Arulpragasan v PP [1997] 1 MLJ 1 had stated that the prosecution were required to establish its case beyond a reasonable doubt at the close of the prosecution's case. The appellant submitted that the prosecution had not shown that he was potent and that they had failed to adduce adequate corroborative evidence in the form of medical evidence establishing that the apellant was capable of having an erection.

Held, dismissing the appeal: (1) if the appellant's defence was that he was impotent, it was up to him to establish that to the court below. As it was, the learned judge accepted the evidence of both R and H that the appellant was potent when he committed the criminal acts; (2) it was quite clear that the learned judge viewed the attendant circumstances surrounding the intercourse with R, including her troubled state of mind, as she not having consented to the sexual act. The court agreed with her finding; (3) it was quite clear that the learned judge had found that the prosecution had made out a case beyond reasonable doubt at the close of the prosecution's case. The learned judge carefully examined the defence story in the light of the totality of the defence and of the prosecution's case and rejected the story of there being a `frame up' of the cases against him and the court agreed with her point by point analysis of the evidence and her conclusion. The court also agreed with her rejection of the truth of the cautioned statement for the reasons she gave. It was her considered view that the defence did not create any reasonable doubt on both the prosecution's cases and the court could see no reason to disturb her findings.

Sharif bin Kasmani v Pendkawa Raya Rayuan Jenayah No 42-(3 & 4)-96—High Court, Kuala Lumpur (KC Vohrah J).

held: for a conviction under the first limb of s 285 of the Penal Code, the negligence of the accused must amount to a degree which is criminal. There must be evidence of an act or omission which indicates a high degree of rashness or negligence. It must be more than a mere act or omission sufficient upon which to base a claim for damages in an action for negligence in a civil court.

Mohamed Yusof v Public Prosecutor [1962] MLJ 311 High Court, Johore Bahru (Adams J).

In a case under s 292(a) of the Penal Code, knowledge that the publication is obscene need not be proved. The difficulty of obtaining legal evidence of the offender's knowledge of the obscenity of the publication has made the liability strict. Absence of knowledge may only be taken in mitigation of sentence. A publication is an obscene publication if only a part of it is obscene. Identification is a fact or circumstance which must be proved against an accused person before it can be relied upon and used against him. A fact or circumstance is held to be proved only when it fulfils the definition of the word 'proved' given in s 3 of the Evidence Ordinance 1950. The evidence of identification is as much subject to this definition as any other kind of evidence, but in assessing the evidence of identification the trial court does not apply the tests provided in this section. It is true that an absolute certainty is not required but the court has to test the evidence with prudence and accept it only when it is so highly probable that its truth can safely be accepted. The test excluded from its orbit blind faith of a true believer, because prudence and credulity do not go together.

KS Roberts v Public Prosecutor [1970] 2 MLJ 137 High Court, Kuala Lumpur (Raja Azlan Shah J).

The appellants who were the publishers of a newspaper had been convicted of publishing an advertisement in their newspaper that obscene photographs could be procured from or through certain persons. The magistrate held that s 292 of the Penal Code had been contravened as a person who answered the advertisement in fact received obscene photographs and as the appellants had been negligent because they did not know of the state of facts until after the prosecution.

Held: the proper test to be applied in such cases is 'do the advertisements by their wording proclaim that obscene objects can be procured?', and as in this case the learned magistrate had applied the wrong test, the appeal must be allowed and the conviction set aside.

Sim Poh Ho & Ors v Public Prosecutor [1966] 1 MLJ 275 High Court, Miri (Harley J).

Held: in cases where exhibits in connection with offences under s 292 of the Penal Code are produced, it is desirable that the magistrate keep such exhibits under his personal control during the trial or take such steps as may be necessary to ensure that such exhibits do not come into the hands of any persons except in so far as it may be necessary for the proceedings, and where the order for their destruction is made, it is desirable that the magistrate take such action as may be necessary to ensure that the order is carried out and satisfy himself that it has been carried out. It is also advisable for the magistrate to certify on the relevant record that he is satisfied that the order has been carried out.

Mohamed Yusoff v Public Prosecutor [1956] MLJ 87 High Court, Kuala Lumpur (Buhagiar J).

The applicant was charged under s 292(a) of the Penal Code ('the Code'), pleaded guilty and was fined RM1,000. In addition, the court ordered a video cassette player which had been seized and then used as an exhibit to be auctioned and the proceeds to go to government revenue. The applicant sought the return of the recorder as it belonged to a third party. The recorder had been used to play an uncensored tape, the subject of the charge. The court, in addition, had to consider whether any order made by a lower court should be interferred with in the interests of justice.

Held, disallowing the application for revision: (1) under s 323 of the Code, a judge may examine the record of any proceedings in any inferior criminal court to satisfy himself as to its correctness. The High Court has conferred on it a kind of paternal or supervisory jurisdiction and the court therefore has the power to revise decision where appropriate; (2) s 407(2) of the code empowers a court to make an order for the forfeiture, confiscation or destruction of any property relating to the offence committed. Mohd Yusof v Public Prosecutor [1956] MLJ 87 states that the proper order for offences under s 292 of the Code is for destruction, not confiscation and the magistrate should take such action as is necessary to ensure the order is carried out.

Public Prosecutor v Teo Tsan Kuang Criminal Revision No KG of 1994 (III) High Court, Kuching (Chapman JC).

The appellant who could not read English had in his possession 65 copies of the book Tropic of Cancer, which was found under the counter of his shop by police officers on 22 September 1962. The copies together with others which had been sold were bought on 8 September 1962. The appellant was charged for having in his possession for purposes of sale 65 obscene books in contravention of s 292 of the Penal Code, and convicted on 23 October 1962. On 8 November, there was published in the government gazette an order by the Minister of the Interior under s 4 of the Control of Imported Publications Ordinance prohibiting the importation of the Tropic of Cancer. On appeal, the appellant argued that: (a) the book was not obscene; (b) the appellant was not in possession of the books for sale; and (c) the appellant had no knowledge of the nature or contents of the books.

Held: (1) the test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall: R v Hicklin LR 3 QB 360 applied; (2) as the book is priced at less than RM3 and thus within the reach of the majority of the reading public, and as it is calculated to convey and instil into the ordinary reader the impression that casual and frivolous indulgence of the sexual instinct is something of no importance and nothing more than a joke, the tendency is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands it may fall; (3) on the evidence, the inference was irresistible that the books were for sale; (4) as one object of s 292 of the Penal Code is to protect those members of the public who may be tempted to buy and so expose themselves to the corrupting influence of obscene books, that section must be strictly interpreted and mens rea and intention are not of the essence of the offence.

Mohamed Ibrahim v Public Prosecutor [1963] MLJ 289 High Court, Kuala Lumpur (Thomson CJ).

In this case, each of the petitioners was charged for an offence under s 298A of the Penal Code (Cap 45) for doing an act which is likely to prejudice unity among persons professing the Islamic religion. They were alleged to have acted as an unauthorized Bilal, Khatib and Imam at a Friday prayer in Kuala Trengganu without being so appointed under the Trengganu Administration of Islamic Law Enactment 1955. The issue before the court is whether the said section which was enacted by Parliament by an amending Act in 1983 is ultra vires art 74(1) of the Federal Constitution, since the subject matter of the legislation is reserved for the State Legislatures and therefore beyond the legislative competency of Parliament. Leave was obtained for the petitioners to file a suit for declaratory orders to the effect that the new s 298A of the Penal Code is invalid on the ground that it makes provision with respect to a matter with respect to which Parliament has no power to make laws. (See [1986] 2 MLJ 192.) It was contended by the petitioners that the law is invalid as being ultra vires the Constitution because, having regard to the pith and substance of the section, it is a law which ought to be passed not by Parliament but by State Legislative Assemblies, it being a legislation on Islamic religion, according to art 11 cl (4) and item 1 of List II, Ninth Schedule of the Federal Constitution. The respondent on the other hand contended that the section is valid because it is a law passed by Parliament on the basis of public order, internal security and also criminal law according to art 11 cl (5) and items (3) and (4) of List I of the Ninth Schedule of the Federal Constitution.

Held, by a majority (Hashim Yeop A Sani and Abdoolcader SCJJ dissenting): (1) having considered and examined the provisions of s 298A of the Penal Code as a whole, it is a colourable legislation in that it pretends to be a legislation on public order, when in pith and substance it is a law on the subject of religion with respect to which only the states have power to legislate under arts 74 and 77 of the Federal Constitution; (2) there must be a declaration that s 298A of the Penal Code is a law with respect to which Parliament has now power to make law and a declaration that s 298A of the Penal Code is invalid and therefore null and void and of no effect; (3) the ruling shall not apply to the Federal Territories of Kuala Lumpur and Labuan and is to take effect from the date of the order, ie 13 October 1987.

Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119 Supreme Court, Kuala Lumpur (Salleh Abas LP, Seah, Mohamed Azmi, Hashim Yeop A Sani and Abdoolcader SCJJ).

In this case, the first and fourth respondents were charged for acting in a manner likely to prejudice the maintenance of unity on grounds of religion between persons professing the Islamic religion by acting as Bilal during the performance of Friday prayers, an offence under s 298A of the Penal Code. The second respondent was charged under the same section but as Imam and the third respondent as Khatib. The learned trial judge bound them over a period of three years to keep the peace and be of good behaviour under s 294 of the Criminal Procedure Code. The Public Prosecutor appealed on the ground that the learned judge had failed to impose a deterrent sentence.

Held: (1) the acts committed by the respondents were likely to have far reaching effects and would not only prejudice the maintenance of public order but also affect the security of the whole nation. The offences were therefore not technical offences; (2) in this particular case, the court did not feel disposed to interfere with the sentence imposed by the learned judge but wished it to be known that there is no reason why the commission of other offences of this nature should not attract a more severe sentence, including custodial sentence, in appropriate cases.

Public Prosecutor v Mohamed Nor & Ors [1985] 2 MLJ 200 Supreme Court, Kota Bharu (Abdul Hamid CJ (Malaya).

Aladin v Public Prosecutor [1964] MLJ 345 Court of Appeal, Jesselton (Wylie CJ (Borneo).

The accused was convicted on 27 July 1946 of attempting to export some 20 pikuls of wheat flour and 20 tins of matches without a licence. The Imports and Exports Proclamation 1946 creates an offence but prescribes no penalty. The accused was fined RM100 and the goods concerned were confiscated.

Held: (1) where an act is prohibited by any law in force in Sarawak and no special punishment is provided, a fine of RM100 may be imposed under s 299A of the Penal Code; (2) although the application of s 357(ii) of the Criminal Procedure Code may have the effect of increasing the penalty, the court may order confiscation, but should have regard to the gravity of the offence, the likelihood of its repetition, and to any special circumstances.

R v Ling Chin Hong [1946] SCR 9 Supreme Court, Sarawak (Hedges J).

The appellants were convicted of murder and sentenced to death. They appealed against their sentence on the ground that the court ought to have been satisfied that at the time of the offence they were of or above 18 years of age. The second appellant also appealed against his conviction on the grounds that the learned trial judge misdirected himself and the assessors on the question of common intention and abetment.

Held: (1) s 219 of the Criminal Procedure Code places a responsibility on the court to be satisfied that the appellants were not under 18 years of age. There was some doubt as to whether the appellants had attained the age of 18 years on or before the date on which the offence was committed and the court had to resolve that doubt in favour of the accused. The sentence of death should therefore be set aside; (2) upon consideration of the summing up of the trial judge as a whole, it was not so deficient on the question of common intention as to justify interference by the court; (3) there was no merit in the ground of appeal that dealt with abetment and with aiding and abetting.

John Anak Liman & Anor v Public Prosecutor [1968] 2 MLJ 236 Federal Court, Kuching (Pike CJ (Borneo).

Held: where a person is charged with the offence of murder, the law in Johore, as regards the onus placed upon the prosecution, is the same as in England, and the principles laid down in R v Woolmington [1935] AC 492 should be applied.

Lim Tong v Public Prosecutor [1938] MLJ 41 Court of Appeal, Johore (Terrell Ag CJ and Horne J).

The appellants were charged with the murder of a fishmonger on a street in broad daylight and the first appellant was convicted of this offence and sentenced to death. The second appellant was convicted of culpable homicide not amounting to murder and sentenced to six years' imprisonment. The first appellant had pleaded accident in his defence and that was the only defence put forward. In his summing up to the jury, the learned trial judge put the matter as a case of murder or of no offence at all.

Held: the learned trial judge erred in putting the matter to the jury in this form. The evidence could be viewed as giving rise to an offence less than murder though still culpable, and even though the defence did not rely on any ground other than the one of accident, possible defences which would have reduced the offence from one of murder to one of culpable homicide not amounting to murder should have been put to the jury.

Chee Kim Seng & Anor v Public Prosecutor [1962] MLJ 32 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Good JJA).

Mat Sawi v Public Prosecutor [1958] MLJ 189 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Syed Sheh Barakbah JJ).

Public Prosecutor v Alang Mat Nasir [1938] MLJ 153 Court of Appeal, Federated Malay States (Whitley Ag CJ, Gordon-Smith and Cussen JJ).

Mohamed Isa v Public Prosecutor [1939] MLJ 160 Court of Appeal, Federated Malay States (Roger Hall CJ, McElwaine CJ(SS).

Public Prosecutor v Jong Chin Chin Criminal Trial No MR 1 of 1994 High Court, Miri (Richard Malanjum J).

Held: (1) requisites for granting such leave to calling additional evidence were that: (a) the proposed witness was not available at the trial, and (b) the additional evidence must be such that in the opinion of the court, it probably would have affected the verdict of the jury; (2) in this case, although the court was not satisfied that the witness was not available at the trial; it would not reject the application on this ground; (3) in the opinion of the court, the additional evidence was such that it would probably have affected the opinion of the assessors and the judge and the application therefore failed.

Mohamed Tahir bin Ripu v R [1957] SCR 130 Supreme Court, Sarawak, North Borneo and Brunei (Williams CJ, Smith SPJ and Bodley J).

Held the direction as to the burden of proof of guilt was correct but that the trial judge should have differentiated between that burden and the burden of introducing evidence of accident or provocation which lay on appellant; the burden on an appellant was only to lead evidence sufficient to satisfy the assessors of the probability of accident or provocation; he was not required to prove such case beyond reasonable doubt. Proviso to s 4(1) of the Criminal Appeal Act 1908 applied and the appeal was dismissed.

Thien Pan v R [1957] SCR 153 Supreme Court, Sarawak, North Borneo and Brunei (Wiiliams CJ, Lascelles and Bodley JJ).

The intention required to constitute murder is not necessarily an intention to kill an identified person. An actual intention to kill a human being, though formed on impulse and on suspicion that the person is a terrorist, is in law a murderous intention. A challenge has no legal effect of its own; it is merely a fact which may be relevant to the state of mind of the accused. It is the duty of the prosecution to prove strictly the identity of the body examined at the post mortem.

Ismail v Public Prosecutor [1953] MLJ 48 Court of Appeal, Kuala Lumpur (Mathew CJ, Wilson and Taylor JJ).

The appellant, when on a fishing expedition with friends and relatives and using a parang to kill fish, suddenly turned on the party and killed two people and injured a third. There was no evidence of motive or of provocation. The appellant called no medical evidence. The three assessors were of the opinion that 'a devil might have entered into him'. The appellant appealed on the ground that the evidence of the attack and the surrounding circumstances led to the inference that the appellant was insane at the time.

Held: the presumption of sanity must stand until the contrary is proved in accordance with the burden of proof that lies on the appellant. In the absence of any evidence suggesting that the appellant suffered from unsoundness of mind, the presumption must prevail. Absence of explanation for unusual conduct is not sufficient.

Kabintir @ Haim Majukim v R [1960-1963] SCR 248 Supreme Court, Sarawak, North Borneo and Brunei (Sir Campbell Wylie CJ, Simpson and McGilligan JJ).

Musa v Public Prosecutor [1953] MLJ 70 Court of Appeal, Kuala Lumpur (Mathew CJ, Wilson and Briggs JJ).

The appellants were jointly charged with two others with the murder of one Chan Ah Leong. Apart from the confessions made by the two appellants before a magistrate and their statements made from the dock at the trial, there was no direct evidence as to which of the two appellants inflicted the injuries which caused the death of the deceased. Both the appellants admitted that they were present at the killing but each alleged that the other had struck the fatal blow. The assessors with whom the learned trial judge agreed found that there was no satisfactory proof of common intention by both appellants to kill the deceased or to inflict fatal injuries upon him, and came to the conclusion that it was the first appellant rather than the second appellant who had inflicted the injuries. There was evidence that the first appellant made a statement to the police which resulted in the discovery of the weapon, an iron pipe, which had been 'used in the murder', and a hidden handkerchief bundle containing some of the deceased's belongings.

Held: (1) in the circumstances of the case, neither of the appellants could be convicted of murder unless it could be found that the injuries were inflicted in furtherance of a common intention under the provisions of s 34 of the Penal Code; (2) information supplied by a person in custody which resulted in the discovery of the weapon used in the commission of the offence does not lead to the discovery of the weapon. It leads to the discovery of the fact that the weapon is concealed to the knowledge of the informant, and if the weapon is proved to have been used in the commission of the offence, the fact discovered is relevant, but in this case the words 'used in the murder' deposed to by the police are inadmissible; (3) a length of iron piping can hardly be described as a 'deadly weapon' and s 397 of the Penal Code does not, like s 324, extend the meaning of dangerous weapon. Upon a charge of murder it is not permissible to convict of robbery. If at the outset the appellants had been charged with an alternative charge of robbery, they would have been entitled to make an application for these charges to be tried separately, and such application would have been successful.

Hashim & Anor v Public Prosecutor [1956] MLJ 233 Court of Appeal, Kuala Lumpur (Mathew CJ, Abbott and Spenser-Wilkinson JJ).

[Annotation: See editorial notes in [1936] MLJ xii, [1946] MLJ lxxxvii and [1950] MLJ v.]

The accused pleaded provocation and the learned trial judge directed the assessors, inter alia, that if the accused alleged the exception of provocation, the burden lay on him to prove every requisite fact beyond reasonable doubt according to the same standard of proof as that required of the facts alleged by the prosecution. On appeal,

Held: although the burden of proving provocation is, by s 106 of the Evidence Ordinance, put upon the accused, the onus of proving criminal intention lies upon the prosecution and never shifts. If the accused fails to discharge fully the burden of proving provocation, but by his evidence or arguments raises a reasonable doubt as to whether the prosecution has satisfied the assessors that such criminal intention as would justify a verdict of murder has been satisfactorily established, the accused is entitled to the benefit of such doubt, and the offence would be reduced from murder to culpable homicide not amounting to murder.

Lim Tong v Public Prosecutor [1938] MLJ 41 Court of Appeal, Johore (Terrell Ag CJ and Horne J).

In this case, the appellant had been convicted of murder. The defence of the appellant was provocation. It was alleged that there had been some dispute between the appellant and his former wife (the deceased) relating to joint property, and when the deceased accused the appellant of cheating, he pulled out a knife from his pocket and stabbed her twice. The appellant also stabbed the uncle of his former wife who had rushed to separate the two. On appeal it was argued that: (a) the learned trial judge had erred in his direction on the burden of proof of provocation; (b) the learned trial judge had failed to point out that there had been a series of acts of provocation given earlier; and (c) the learned judge and the assessors had failed to direct their minds to the gravity of the accusation on the rural mind of the appellant.

Held: (1) although the learned trial judge had pointed out that the burden of proof was on the accused to prove provocation on a balance of probability, he had also stated that if the court were left with a reasonable doubt as to whether there was provocation or not, they had to accept the defence. There was therefore no ground of complaint as regards his direction on the burden of proof; (2) the learned trial judge had in fact referred in his summing up to the previous acts of provocation; (3) to succeed on a defence of grave and sudden provocation, it is necessary in law for the defence to satisfy the court not only that by the acts of the deceased the accused had been deprived of the power of self-control, but that such acts of provocation would also have deprived a reasonable man of the power of self-control. In this case, the learned trial judge had correctly directed the assessors and himself on this question.

Ikau Anak Mail v Public Prosecutor [1973] 2 MLJ 153 Federal Court, Kuching (Azmi LP, Gill and Ali FJJ).

The appellant was convicted and sentenced to death for the murder of his mother-in-law. The question on appeal related to the circumstances in which he killed her. At the trial, the different versions of what lead up to the killing showed that there was a long history of domestic troubles and of his suspicions as to his wife's fidelity aggravated by the attitude of the deceased's siding with her daughter. The versions diverged when it came to the night of the killing. His wife said that on the night in question, the appellant complained of pains in his stomach for which she proceeded to massage him. While she was so doing, her mother used very abusive words and an argument arose. So far as she was concerned, that was the end of the affair for she was for some reason attacked by the appellant and woke up next morning in hospital. The appellant in his confession said that his wife, without looking at him, rubbed some oil over his abdomen. He spoke to her but she did not reply. He then spoke to his mother-in-law and drew her attention to her daughter's behaviour and reminded her that this was all due to her allowing his wife to go to work. The deceased began to scold him and accused him of treating her daughter in a rough way. The appellant replied that he was speaking to his wife in a gentle way. He then said: 'When my mother-in-law came forward towards me scolding me I picked up a knife which was in the room the knife used for cutting fowls. When my mother-in-law came towards me scolding me I stabbed my mother-in-law.' Then at the trial he described the quarrel during the night and said that as a result his wife had tried to commit suicide and that the dead woman somehow or other received the injuries which proved fatal to her while trying to take the knife away from her daughter. In his summing up, the learned trial judge said inter alia: 'I must tell you that in order to set up the defence of grave and sudden provocation, it has to be shown that the provocation was grave, that it was sudden, and that it was such provocation as would cause a reasonable man to lose his self-control. There is only one point in this connection about which I would like to tell you, and that is about the question of suddenness. The only provocation here was a suspicion in the mind of the accused that his wife was unfaithful to him while she was working first on one estate and then on another, and that the deceased was responsible for her going to this work. That suspicion had arisen some time ago and there was no suddenness about it. Therefore in this case the defence of grave and sudden provocation does not arise.'

Held: (1) neither was it a matter for the trial judge to decide, though he was entitled to express any opinion he might hold on the point; (2) the trial judge had to decide whether or not he should direct the jury that it was open to them if they were not satisfied that murder was made out to find the accused guilty of some lesser offence; (3) the portion of the summing up which had been quoted was a misdirection. If what the appellant said at the trial was true he was not guilty of any offence, but if that evidence was rejected he was at the very lowest entitled to have what he had done considered in the light of his confession, and on that there was evidence on which it was open to the jury to find that the killing was not murder but culpable homicide not amounting to murder; (4) in this case, there was sufficient evidence to make the question a question of fact for the jury and not a question of law for the judge, and the appellant had therefore suffered to the extent of having the question adjudicated by the judge when it should have been adjudicated by the jury; (5) it was not open to the Court of Appeal to decide where, if at all, the truth lay in those stories;the conviction for murder could not stand and must be quashed. Following Chan Kau v R [1955] AC 206; [1955] 1 All ER 266, a conviction for culpable homicide not amounting to murder in contravention of s 304 of the Penal Code substituted.

Mat Sawi v Public Prosecutor [1958] MLJ 189 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Syed Sheh Barakbah JJ).

The appellant was convicted for the murder of a woman in contravention of s 302 of the Penal Code and was sentenced to death. At the trial, the only question in issue was whether by reason of provocation the killing amounted to something less than murder, and the only question before the Court of Appeal was the correctness of the trial judge's direction on the question of provocation. The learned trial judge had directed the jury as follows: 'Now, the defence in this case as put up by counsel is that the accused killed the woman whilst he was deprived of his power of self-control by reason of a sudden and grave provocation, and the question whether there was such provocation is a question of fact for you to consider. I think I had better say it now that when you are considering the defence story you do so only on the balance of probabilities, that is to say, if you think that the defence story is reasonably true, then you must say that he has discharged that burden. The burden is certainly on him on this question of provocation. Now, if the accused has succeeded in satisfying you on the balance of probabilities that there was provocation then, gentlemen, the offence he commited would not have been murder but culpable homicide, or manslaughter as they call it in England. Now, the defence must satisfy you that the provocation was both grave and sudden, and its gravity and suddenness not only deprived the accused of his power of self-control but would also deprive a reasonable man of his power of self-control.'

Held: the learned trial judge's direction to the jury was not correct; the proper direction to the jury is that if the defence of provocation is to succeed there must be something to support it, either something in the prosecution evidence or some evidence given by the defence which it is capable of making out. But if there is anything to support it, then the burden of making it out which in the first place lies upon the defence is sufficiently discharged if the jury are left with a sense of reasonable doubt as to the existence or non-existence of provocation. In this case, it was quite impossible to say what view the jury would have taken had they been directed in proper terms. The conviction for murder must therefore be set aside and a conviction for culpable homicide not amounting to murder substituted. Observations on the burden of proof and the general exceptions provided in the Penal Code.

Looi Wooi Saik v Public Prosecutor [1962] MLJ 337 Court of Appeal, Penang (Thomson CJ, Hill and Good JJA).

The appellant, an Indonesian/Timorese, was charge with murder. The appellant in a confession to a magistrate admitted the killing but appeared to rely on the defence of grave and sudden provocation. The trial was held before a judge with the aid of assessors. The learned trial judge summed up for the assessors and in his summing up he stated that whether the provocation was grave and sudden in order to deprive a reasonable man of his power of self-control is a question of fact to be decided by the assessors. One of the assessors stated that the accused was not deprived of his self-control by grave and sudden provocation when he did the act, but the second assessor, who was a Timorese, was of the opinion that the accused had lost his self-control because of the grave and sudden provocation. The learned trial judge agreed with the first assessor but disagreed with the second assessor. He, however, gave no reasons for so doing. He convicted the appellant of murder. The appellant appealed.

Held: (1) in this case, the learned judge seemed on the one hand to direct the assessors that whether the provocation was grave and sudden enough to deprive a reasonable man and the appellant of his power of self-control so as to reduce the offence from murder to culpable homicide not amounting to murder was a question of fact to be decided by them. On the other hand, the learned judge appeared to have determined the matter himself not as a question of fact but as a question of law. This was a serious misdirection; (2) the learned judge committed a material error of law when he so decided as a matter of law whether there was grave and sudden provocation at the time of the commission of the offence charged which according to law was to be deemed a question of fact; (3) the learned judge seriously misdirected himself in not adopting the test of a reasonable man belonging to the same class of society as the accused, placed in the situation in which the accused was placed, when he considered the defence of provocation in accordance with Exception 1 to s 300 of the Penal Code; (4) the learned judge had not properly stated his reasons for rejecting the opinion of the second assessor pursuant to s 198 of the Criminal Procedure Code (FMS Cap 6). A fortiori when the second assessor belongs to the same race as the appellant; (5) taking all these grave misdirections together, it is impossible to say what verdict or judgment the learned judge would have given had he properly directed himself on the law. In the circumstances, it would not be safe to allow the conviction for murder to stand and the conviction for murder should be set aside and a conviction for culpable homicide not amounting to murder substituted.

Lorensus Tukan v Public Prosecutor [1988] 1 MLJ 251 Supreme Court, Kota Kinabalu (Seah, Mohamed Azmi and Wan Hamzah SCJJ).

On 8 June 1963, the accused killed the deceased with a parang. Prior to this, the deceased tried to have intercourse with the accused's wife. The accused was told of this but said nothing. The deceased told the wife that he wanted to marry her and threatened that if her husband would not divorce her he would kill him to achieve his purpose. On 8 June 1963, the deceased met the accused and said: 'Eh? Have you divorced your wife yet?' Later the deceased again taunted the accused with these words: 'Eh, are you not ashamed? Don't you realize all your friends know I have interfered with your wife? Why don't you divorce her?' The accused did nothing but tears of shame came into his eyes. Later on the deceased struck the accused on the head. There was a commotion as a result of which the deceased was killed.

Held: the series of grave provocations deprived the accused of his power of self-control and the final provocation, having regard to all the circumstances of the case, was sufficiently grave and sudden to prevent the offence from amounting to murder.

Public Prosecutor v Lasakke [1964] MLJ 56 High Court, Tawau (Simpson J).

In this case, the appellant was convicted of the murder of one Bojeng bin Boyong in a trial with assessors and was sentenced to death. He appealed against his conviction. The facts were that a few days before the tragic incident, the appellant alleged that the deceased had committed rape on his mistress, Ponny. On the day of the incident, the deceased came to the appellant's home and invited Ponny to see a movie. Under the pretext of going to the cinema, the appellant together with Ponny, his daughter and his house guest, Fam Kui Hian, went into the deceased's car. On the way, the appellant said he changed his mind and asked Ponny and his daughter to alight so that they could take a bus home. The appellant then directed the deceased to drive in the direction of Muara Tuang as he wanted to visit his sick mother. After parking the car in a side road and in the presence of Fam Kui Hian, the appellant asked the deceased why he raped Ponny. The deceased was alleged to have answered: 'If I have raped your wife, so what?' On hearing this reply, the appellant alleged that he lost his temper and proceeded to assault the deceased. During the fist fight the appellant used a knife to stab the deceased. Although the appellant admitted he inflicted the bodily injuries which resulted in the death of the deceased, he claimed that the culpable homicide did not amount to murder by reason of grave and sudden provocation or alternatively that the act was committed without premeditation in a sudden fight in the heat of passion and upon a sudden quarrel. The assessors found that the appellant had failed to bring his case within the special exceptions and the judge concurred. On appeal, it was argued inter alia that: (a) the learned trial judge had failed to warn the assessors that Fam Kui Hian, who gave evidence for the prosecution, could be regarded as an accomplice and the danger of accepting his evidence without corroboration; (b) the learned trial judge erred in law in leaving to the assessors for their determination the question of whether or not the grave and sudden provocation in this case was sufficient to reduce the offence to one of culpable homicide not amounting to murder; and (c) the assessors had failed to give due consideration to the directions in the summing up of the learned trial judge dealing with the question of grave and sudden provocation.

Held, dismissing the appeal: (1) in the circumstances of this case, the learned trial judge was right in not regarding Fam Kui Hian as an accomplice and the summing up dealing with his evidence was fair, accurate and helpful; (2) Exception 1 to s 300 of the Penal Code makes it clear that whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact; (3) in the context of this case, the learned trial judge was right in putting only one general question whether they were in reasonable doubt that the accused, at the time he caused the death of the deceased, was deprived of the power of self-control by grave and sudden provocation for the opinion of the assessors.

Kuan Ted Fatt v Public Prosecutor [1985] 1 MLJ 211 Federal Court, Kuching (Seah, Mohamed Azmi and Syed Agil Barakbah FJJ).

Held: to bring a case within the first proviso and so take it out of Exception 1 to s 300 of the Penal Code, it is not sufficient that the accused must go to the provocation, he must go to it as an excuse for killing. In this case the appellant on his own admission had gone to the place with the intention of fighting the deceased. Therefore it did not lie in his mouth to say that any violence to him (if it was offered) by the deceased could be described as sudden, that is, unexpected.

Chong Teng v Public Prosecutor [1960] MLJ 153 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Good JJA).

This was an appeal against the conviction of the appellant for murder. On appeal it was argued that: (a) the learned trial judge had misdirected the jury as to the law in holding that the accused had a burden of proof to discharge by directing that 'the burden of proving or satisfying you that the accused person only struck in self-defence is not as heavy as the prosecution burden of proving overall that the accused committed the offence of murder'; and (b) the learned trial judge failed to direct the jury to consider the possible verdict of culpable homicide not amounting to murder on the ground that the accused commited that act whilst deprived of the power of self-control by grave and sudden provocation. At the hearing of the appeal, an additional ground was raised that the learned judge had failed to direct the jury on the question of sudden fight.

Held, dismissing the appeal: (1) in this case, although it would have been preferable if the word 'burden' had been used so as to make it clear that such a burden on the accused is sufficiently discharged if the jury are left with a sense of reasonable doubt as to the existence or non-existence of the circumstances supporting the particular defence, yet it was clear that from the summing up as a whole in this case, a reasonable jury could not have failed to appreciate that there was a substantial difference between the burden on the accused and the burden required of the prosecution; (2) in this case, there was no evidence as would require the learned trial judge to direct the jury on the question of provocation or sudden fight.

Othman bin Ahmad v Public Prosecutor [1970] 2 MLJ 176 Federal Court, Kuala Lumpur (Azmi LP, Gill and Ali FJJ).

Held: in a trial for murder, it is the duty of the trial judge if the evidence indicates the possible defence of one or more of the exceptions under s 300 of the Penal Code to mention the possible defence or defences to the jury and direct them accordingly.

Jaganathan v Public Prosecutor [1963] MLJ 274 Court of Appeal, Kuala Lumpur (Hill Ag CJ, Barakbah JA and Ismail Khan J).

In this case, the appellant was charged with murder. There had been a business misunderstanding between the appellant and the husband of the deceased. The defence evidence showed that when the appellant asked for a loan of money from the deceased she refused, scolded and chased him, hitting him with a broom and then throwing a knife at him. The knife missed him and fell to the ground. Both went for the knife but the appellant gained possession of it and slashed her. When she fell on the ground, he picked up a stone and hit her on the head. At the trial with a jury, only two types of defences were brought to the attention of the jury by the judge, viz, the exercise of the right of self-defence and whether there was grave and sudden provocation. The jury returned a majority verdict of guilty by five to two. The appellant appealed.

Held: (1) a judge sitting with a jury must put to them any defence available on the evidence irrespective of whether or not reliance has been placed on that defence at the trial or whether or not it has been mentioned by the counsel at the trial. The way in which it is to be complied with is a matter for the trial judge to decide based on the actual evidence adduced at the trial; (2) in this case, the trial judge's direction to the jury on the law relating to the right of private defence was sketchy and inadequate as to enable them to fully understand the law and appreciate the principles relating to self-defence. He also did not explain Exception 2 of s 300 of the Penal Code. This non-direction was fatal to the defence case on the ground that the jury being laymen were not made aware of the legal principle that while the proper exercise of self-defence by the accused in causing the death of the attacker does not amount to any criminal offence, the exercise of such right in excess of the power given by the law which results in the death of the opponent does not amount to murder if exercised in good faith and under the circumstances stated in the exception but amounts to culpable homicide not amounting to murder. There was a failure to direct the jury on an essential point and the non-direction has occasioned a failure of justice; (3) in this case, it was the duty of the trial judge to have invited the attention of the jury to Exception 4 to s 300 of the Penal Code and explain to them the principle applicable thereto. In Exception 4, notwithstanding that a blow has been struck or provocation given in the origin of the dispute, it is the subsequent conduct of the parties which puts them upon equal footing in respect of guilt that is material. It should then be left to the jury to consider whether the appellant had taken an undue advantage or acted in a cruel or unusual manner; (4) the conviction for murder must be quashed and a finding of guilt and conviction for culpable homicide not amounting to murder substituted under the first limb of s 304 of the Penal Code.

Teoh Seng Lian v Public Prosecutor [1986] 1 MLJ 474 Supreme Court, Ipoh (Abdul Hamid CJ (Malaya).

Hashim v Public Prosecutor [1950] MLJ 94 Court of Appeal, Federation of Malaya (Willan CJ, Taylor and Briggs JJ).

The exception in s 388(v) of the Criminal Procedure Code (Cap 6) to grant bail to a woman accused is a discretion which should be exercised sparingly and judiciously depending on the reasons for each particular case. In this case, the respondent was charged with the offence of murder. Upon her application for bail on the ground that she was 'a mother of ten children and the youngest of them is still under breastfeed', the learned magistrate granted her application subject to a bail of RM2,000 in two sureties.

Held: the reasons put forward in this application fell far short of being exceptional and very special reasons and the application should have been refused.

Public Prosecutor v Latchemy [1967] 2 MLJ 79 High Court, Seremban (Pawan Ahmad J).

The appellant had been convicted for murder under s 302 of the Penal Code. The main part of the prosecution evidence consisted of a confession alleged to have been made voluntarily by the appellant. The magistrate who recorded the confession was called and gave evidence. After that, the judge listened to argument by counsel on the question of admissibility in the absence of the jury. The jury were then recalled into court, the confession produced, admitted and read. Counsel for the appellant then asked to be allowed to call the accused to give evidence regarding the making of the confession, but this application was refused. In his summing-up, the judge told the jury that he had admitted the confession because he was fully satisfied that it was made voluntarily. The jury were not told that they were entitled to their opinion of the way in which the confession had been obtained.

Held: (1) although the question of admissibility of evidence is for the judge and not the jury to decide, the question whether a statement is free and voluntary is a question of fact and must be decided on the evidence, both that tendered by the prosecution and that, if any, tendered by the accused; (2) the accused person is entitled to have the verdict of the jury on the weight and value of the confession and, therefore, if the confession is admitted, the jury should hear the evidence so as to enable them to form their opinion on the way in which it had been obtained; (3) in this case, there had been such a disregard of the ordinary way in which criminal proceedings are conducted that the conviction could not stand.

Yaacob v Public Prosecutor [1966] 1 MLJ 67 Federal Court, Kuala Lumpur (Thomson LP, Ong FJ and Abdul Aziz J).

Held: the onus that lies on an appellant who seeks to attack the verdict of the jury is not just to show that the verdict is against the weight of evidence; what he must show is that it is unreasonable or cannot be supported having regard to the evidence.

Lee Kim Swee v Public Prosecutor [1961] MLJ 207 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Good JJA).

Although an accused person is within his legal rights when he elects to make a statement from the dock instead of giving evidence from the witness-box, in a case which must in the event depend on credibility, he takes this course at his own peril. The appellants were charged with murder under s 302 of the Penal Code. There was evidence which made out that charge, if it was believed. There was evidence by the appellants to the contrary though two of them made statements from the dock instead of giving evidence from the witness-box. On appeal,

Held: the evidence and the substance of the defence were adequately put to the jury, and the jury had the benefit of listening to the witnesses themselves.

Udayar Alagan & Ors v Public Prosecutor [1962] MLJ 39 Court of Appeal, Ipoh (Thomson CJ, Good JA and Azmi J).

Held: when there is a joint assault by five persons against one deceased, and the blows are struck in quick succession, it is a refinement to contend that a particular blow did or did not cause death.

Adam bin Gatie & Ors v R [1955] SCR 68 Supreme Court, Sarawak, North Borneo and Brunei (Smith J (President).

Lelek bin Drahman v Public Prosecutor [1973] 1 MLJ 247 Federal Court, Kuching (Azmi LP, Ismail Khan CJ and Raja Azlan Shah J).

This is an appeal against the conviction of the appellant for murder. On appeal, it was contended that the direction on alibi was insufficient. The learned trial judge had told the jury that where the defence was to be an alibi, it was the duty of the defence to disclose it at the earliest possible opportunity. It was argued that the jury should have been expressly told that the accused was entitled to stand on his right and say nothing and that he was entitled to keep back for reasons which he might think good the nature and details of his defence. It was also contended that the learned trial judge should have explained further to the jury the meaning of murder and culpable homicide not amounting to murder and should have told the jury what was the punishment for murder.

Held, dismissing the appeal: (1) the learned trial judge had not in his summing-up made any observation which would amount to an invitation to the jury to form an adverse opinion against the appellant because he had not given an explanation as to his whereabouts at the earliest opportunity available to him. The direction on the defence of alibi was therefore proper; (2) it was clear from the record that the jury was satisfied with the explanation in the summing-up which the learned judge had given, and the learned judge was correct in telling the jury that they should only concern themselves with the verdict to be arrived at, and that the sentence was a matter for the judge.

Juhari bin Ibrahim v Public Prosecutor [1973] 1 MLJ 76 Federal Court, Johore Bahru (Azmi LP, Gill FJ and Syed Othman J).

This was an appeal against the conviction of the appellant for the murder of his daughter, aged 21 months. The medical evidence called at the trial showed that the appellant was an epileptic. The medical officer called at the trial further stated that automatism is associated with some cases of epilepsy, and a person acting under a state of automatism would not be conscious at the time. The appellant in his evidence showed that he had a clear recollection of the events. The defence was that the appellant did the act when in a state of automatism.

Held: (1) the onus was on the appellant to bring himself within the exception set out in s 84 of the Penal Code, and on the facts of the case, the learned trial judge was right in holding that he had failed to do so; (2) irresistible impulse per se is no defence, and can only be a defence when it is proved to have been a result of insanity in law. The onus of proving this lay on the appellant and he did not succeed in discharging it; (3) (emble) the failure to produce a witness, a six-year-old child in this case, could not have affected the decision since on the evidence, the conclusion that it was the appellant who killed the child was inescapable.

Sinnasamy v Public Prosecutor [1956] MLJ 36 Court of Appeal, Kuala Lumpur (Mathew CJ, Wilson and Good JJ).

The appellant had been convicted of murder and appealed against his conviction. It was alleged that while on guardroom duty at the entrance to the military camp where he was stationed, the appellant shot and killed his superior officer, the deceased. The deceased was the appellant's immediate superior, and the alleged motive for the shooting was the cancellation of the appellant's leave as a result of a disciplinary proceeding on a traffic charge lodged by the deceased against him for not wearing a crash helmet when riding a motor cycle. At the trial, the learned judge reminded the jury that to constitute murder the prosecution was not obliged to prove motive as distinct from an intention to kill, and he also put to the jury the incident of leave cancellation as a basis for the defence of grave and sudden provocation which would reduce the offence to culpable homicide not amounting to murder. He directed the jury to consider two possible verdicts: (a) guilty of murder; (b) guilty of culpable homicide not amounting to murder. On appeal it was argued that the judge had failed to put to the jury a third alternative verdict arising from the appellant's defence, namely guilty of an offence under s 304A of the Penal Code for causing death by a rash or negligent act. In his summing up, the learned judge had referred to the defence that the accused had never intended to kill or even to wound the deceased and that he merely wanted to frighten him. However, the possible verdict under s 304A was not put to the jury.

Held: it was the duty of the judge to put to the jury the defence that the shooting was merely to frighten the decease as a third alternative verdict, and it was for the jury to accept or reject the defence. The conviction must therefore be quashed and a retrial ordered.

Ramlan bin Salleh v Public Prosecutor [1987] 2 MLJ 709 Supreme Court, Kuala Lumpur (Wan Suleiman, Mohamed Azmi and Syed Agil Barakbah SCJJ).

Following a conviction for the offence of murder under s 302 of the Penal Code in a case where the killing was not in dispute, the appeal was argued on the following grounds: (a) the direction to the jury contained the statement that the issue before them was whether the killing was murder or whether it was something less than murder; (b) the direction had contained the statement: 'I would like you to agree on a verdict, for otherwise I will have to order a retrial which would cause expense to all concerned'; (c) the judge had intervened on several occasions to question witnesses when he should not have done so.

Held: (1) because there was never at any time a suggestion from the defence that the appellant was not guilty of any offence whatsoever, the direction that the issue was whether the killing was murder or something less than murder was not only a correct but also a desirable direction; (2) the second direction complained of imported no threat of inconvenience or misfortune to the jury themselves, and was therefore inoffensive in law; (3) the intervention of the judge in the examination of witnesses did not exceed what is properly permitted to a judge for his own benefit and the benefit of the jury.

Hanafiah v Public Prosecutor [1963] MLJ 227 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Barakbah JJA).

The appellant was found guilty of murder by a majority verdict of the jury. It was not seriously disputed at the trial that the fatal injury on the neck of the deceased was inflicted by the appellant. There were several grounds of appeal, but the court dealt only with one ground, namely, as to the judge's direction on the question of grave and sudden provocation. The learned judge in his summing up on this defence had said: 'However, when an accused person raises defences of the sort now raised, it shows that he wishes to bring himself within the exceptions provided by the law. Then the onus of proof shifts upon him.'

Held: it was a misdirection in law to say that the burden is on the appellant to bring himself within the exceptions. Retrial ordered.

Abdullah v Public Prosecutor [1967] 2 MLJ 95 Federal Court, Kuala Lumpur (Barakbah LP, Azmi CJ (Malaya).

It is for the defence to call any witness whose evidence is directed to the issue of insanity, and the duty of the prosecution is limited to supplying the defence with a copy of any report or statement of any prison medical officer who can give evidence on that issue and to making such person available as a witness for the defence. In this appeal, the accused was convicted and sentenced to death for the murder of a young man. At one stage or another, the defence knew that the principal officer, Pudu Jail, the medical officer in charge of prisons and the medical superintendent at Tanjong Rambutan were in a position to give evidence if called upon as to the accused's state of mind.

Held: (1) it was for the defence to call such of these witnesses as they saw fit and if they did not do so that was a fair subject of comment by the trial judge in his direction to the jury. The other ground of appeal related to the admissibility in evidence of certain letters which were tendered at the trial. Some of these letters were written by the accused to the deceased and some of them were written by the deceased to the accused. The effect of these letters was opened to the jury. They were told that the accused and the deceased wrote letters to one another in endearing terms and the prosecution alleged there was thus disclosed more than mere friendship. They were said to afford a motive which was alleged to be jealousy; (2) as regards the letters written by the accused to the deceased and whatever their bearing on the cause of death, they were admissible for what they were worth. They were rightly admitted although they could have had little effect on the trial one way or another.

Baharom v Public Prosecutor [1960] MLJ 249 Court of Appeal, Johore Bahru (Thomson CJ, Hill and Good JJA).

This was an appeal against the conviction of the appellant for murder. The main grounds of appeal were that (a) the learned judge failed to direct the jury adequately or properly on the question of insanity, (b) the learned trial judge failed to direct the jury's attention to the fact that lack of motive was an indication of insanity and they were not told that the appellant and the deceased were on friendly terms with one another, and (c) the learned trial judge was wrong in emphasizing to the jury the maxim that 'every man is presumed to intend the natural and probable consequences of his act'.

Held: (1) the learned trial judge should not have deprecated the evidence of the medical expert and directed that the expert's views were based on assumptions; (2) although motive is not important in the offence of murder, the jury's attention should have been drawn to the fact that the lack of motive was an important indication of insanity and the jury should have been told that the deceased and the appellant were on friendly terms with one another; (3) as there was uncontradicted medical evidence of insanity in this case, the jury should have been directed that the expert evidence in this case was not challenged in any way on the question of insanity;judges should avoid using the maxim that 'every man is presumed to intend the natural and probable consequences of his act', in their summings up to the jury when dealing with the question of intention in murder trials.

Yeo Ah Seng v Public Prosecutor [1967] 1 MLJ 231 Federal Court, Kuala Lumpur (Barakbah LP, Azmi CJ (Malaya).

Lee Ah Chye v Public Prosecutor [1963] MLJ 347 Court of Appeal, Kuala Lumpur (Thomson CJ, Barakbah JA and Gill J).

The appellant was charged and convicted of murder at Kuala Trengganu and sentenced to death. On appeal, it was argued: (a) the learned trial judge misdirected the jury as to the nature of the burden which lay on the defence in the case of insanity, (b) his direction as to the law on the subject was inadequate, and (c) he did not deal with the relevant evidence in such a way as to give the jury a proper comprehension of the defence case.

Held: (1) the trial judge's direction to the jury as to the onus of proof complied with the passage set out in Chia Chan Bah v The King [1938] MLJ 147, and could not be said to be wrong; (2) the combined effect of the somewhat cursory way in which the law was stated to the jury and the way in which the evidence was dealt with was that the defence was not adequately put to the jury; (3) in view of the way in which the jury were directed, the appellant had been deprived of a chance of being acquitted which he would have had had the jury been adequately directed and accordingly the conviction should be quashed. Order made under s 348 of the Criminal Procedure Code (Cap 6) for detention pending the orders of the Sultan of Trengganu.

Jusoh v Public Prosecutor [1963] MLJ 84 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Barakbah JJA).

The appellant was convicted at Muar of murder in contravention of s 302 of the Penal Code. The only defence that was put forward at the trial was the defence of insanity, and the only grounds of his appeal in this case were (a) the jury were not given a proper direction on the subject and (b) the judge would appear to have told the jury that subject to his direction and in applying his direction there was no evidence to which the tests laid down by him could be applied.

Held: (1) R v Sodeman [1936] 2 All ER 1138 and R v Carr-Briant [1943] KB 607; (2) the trial judge's direction to the jury complied with what was said in Baharom v Public Prosecutor [1960] MLJ 249;the trial judge nowhere in the course of his direction ruled that as a matter of law there was no evidence on which the jury could bring in a verdict of not guilty on account of insanity. A mere expression of opinion that the evidence did not make out the defence of insanity did not amount to misdirection.

Azro v Public Prosecutor [1962] MLJ 321 Court of Appeal, Penang (Thomson CJ, Hill and Good JJA).

Suba Singh v Public Prosecutor [1962] MLJ 122 Court of Appeal, Ipoh (Thomson CJ, Rigby and Neal JJ).

Held: in a trial for murder, it is the duty of the prosecution to prove beyond reasonable doubt the prisoner's guilt, and the burden of proving the existence of circumstances bringing the case within any statutory exception lies upon the prisoner although the burden on the prisoner is very much less than that on the prosecution and amounts only to establishing a balance of probability in his favour.

Ng Lam v Public Prosecutor [1940] MLJ 74 Court of Appeal, Federated Malay States (Poyser CJ (FMS).

[Annotation: Decision of Woolmington v Director of Public Prosecutions [1935] AC 462 explained.]

In this case, the accused was charged with murdering his own father. The prosecution produced evidence to show that the accused assaulted his father with an iron pipe. The defence did not dispute the fact that it was the accused who killed his father, but called evidence to show that the accused was of unsound mind at the time he committed the act. The learned trial judge urged the jury to accept the defence and to return a verdict of 'not guilty by reason of unsoundness of mind'. The jury however returned a unanimous verdict of 'not guilty of any offence'. The foreman indicated that the jury were not convinced with both the prosecution and defence story that it was the accused who did the killing.

Held: (1) the verdict of the jury was perverse and, in the circumstances, could not be accepted and a retrial should be ordered before another jury; (2) with the amendment of s 50 of the Courts of Judicature Act 1964 (Act 91), which gives a right to the Public Prosecutor to appeal against an acquittal, it is only mandatory for the judge to record an order of acquittal under s 299 of the Criminal Procedure Code (FMS Cap 6) where the jury's verdict is not perverse; (3) the accused in this case was not a convicted person and had no right of appeal; moreover, as there was no conviction or sentence, the appeal was untenable.

Public Prosecutor v Yap Siong [1983] 1 MLJ 415 High Court, Kuala Lumpur (Mohamed Azmi J).

The appellant was charged and convicted of the murder of a prostitute by inflicting some 17 wounds on her person with a lethal type of knife. It was argued for the accused that the judge did not properly direct the jury as to the nature of the burden of proof which lay upon the prosecution and that he did not put to them certain allegedly available defences, namely that the killing was accidental and that the accused was suffering from some temporary defect of the mind.

Held: on the whole of the evidence, in the particular circumstances of this case, the trial judge had directed the jury satisfactorily and the charge did not fail to meet the standard set by Lord Goddard in R v Kritz [1950] 1 KB 82.

Lam Ah Ching v Public Prosecutor [1961] MLJ 208 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Good JJA).

In this case, the appellant had been convicted of murder. The defence of insanity was raised but no evidence was called by the defence to support it. On the defence of provocation which was raised, the trial judge directed the assessors as follows: 'I am in no way satisfied on balance of the evidence, bearing in mind both the events of the previous day and those on the morning of 21 July, that the accused was so gravely and suddenly provoked as to be deprived of his self-control when he struck Maria. Nor has he raised doubts in my mind which should be resolved in his favour.'

Held: (1) if the defence wished to raise the defence of insanity it was for them to call evidence to provide a foundation for it. It was not for the prosecution to call evidence to show that he was sane, it was for the defence to call evidence to show that he was insane; (2) the passage in the summing up of the learned trial judge on the issue of provocation, taken as a whole, correctly stated the law regarding the quantum of proof.

Harun v Public Prosecutor [1966] 2 MLJ 166 Federal Court, Kuala Lumpur (Thomson LP, Harley Ag CJ (Borneo).

In this case, the respondent was charged with murder. The only evidence connecting the respondent with the killing was the evidence of a chemist that the bullet recovered from the body of the deceased was fired from the rifle issued to the respondent. The learned trial judge ruled at the end of the prosecution case that the evidence of the chemist was not admissible because (a) there was inadequate evidence of his competency as an expert in fire arms and in the identification of the rifle from which the bullet had been fired and (b) the witness had not produced the data, photos etc on which he based his conclusion. The learned trial judge accordingly directed the jury under s 214(i) of the Criminal Procedure Code to return a verdict of not guilty, which they did. The appellant appealed.

Held, inter alia: (1) in this case, although the witness had no academic training in forensic ballistics, he might, by virtue of his education, his scientific qualification and his practical experience gained in the Department of Chemistry, be regarded as an expert for the purpose of determining whether or not the bullet had been fired through the respondent's rifle. The learned trial judge was therefore erroneous in treating him as a non-expert; (2) the learned judge should have treated the evidence given by the expert witness as admissible and left the question of its weight or value to the jury; (3) in the circumstances of this case, where the case against the accused was not strong, being dependent on rather thin circumstantial evidence, the court would not order a retrial.

Public Prosecutor v Muhamed bin Sulaiman [1982] 2 MLJ 320 Federal Court, Kuala Lumpur (Suffian LP, Wan Suleiman and Abdul Hamid FJJ).

The appellant was convicted for the murder of a woman and her child and was sentenced to death. It was argued on appeal that: (a) the evidence was entirely circumstantial; (b) the trial judge dealt with the need for corroboration of the evidence of the child witnesses unsatisfactorily; (c) the trial judge misdirected the jury by suggesting to them that the evidence of the defence is to be regarded and evaluated in isolation and if that fails to come up to some standard proof it is to be discarded.

Held: (1) in cases where the evidence is wholly circumstantial, what has to be considered is not only the strength of each individual strand of evidence but also the combined strength of these strands when twisted together to make a rope; (2) although the trial judge did not administer the necessary caution to the jury as suggested in Chao Chong v Public Prosecutor [1960] MLJ 238, nevertheless the court was not prepared to say that the terms in which he did administer the caution were wrong; (3) the suggestion of the learned trial judge that the evidence for the defence is to be evaluated in isolation and if it fails to come up to some standard proof it is to be discarded is beyond the authorities. However in this case, if the jury had been properly directed they would have inevitably come to the conclusion that the prisoner was guilty of both murders and therefore the case was one which came within the scope of s 29(2) of the Courts Ordinance 1948, and the appeal should be dismissed.

Chan Chwen Kong v Public Prosecutor [1962] MLJ 307 Court of Appeal, Penang (Thomson CJ, Hill and Good JJA).

The appellant was convicted of murder and sentenced to death under s 302 of the Penal Code. His conviction was based entirely on circumstantial evidence. At the trial, the deceased's son gave evidence that his father had told him of a quarrel between him and the appellant on the night before he was killed. He contradicted his evidence under cross-examination on several material facts. It was alleged that there were threats uttered by the appellant on the fatal night and that abuse preceded the threats. It was also alleged that there were 30 to 40 independent witnesses who had heard the murderous threats uttered. None of them was called as a witness, and the learned trial judge's directions were as follows: 'If the police have taken statements from witnesses, they have to produce them as witnesses if they are of any assistance to the prosecution's case. If they do not wish them to be called as their witnesses, they are under a duty to make them available to the defence. From the record of the preliminary inquiry I see that the prosecution had made eight witnesses available to the defence.' The learned trial judge in the course of summing-up also commented upon the failure of the defence to tender evidence to prove that no threat had been uttered by the appellant.

Held, inter alia: (1) all the evidence of the deceased's son even if true, being hearsay, was inadmissible and should not have been allowed to influence the jury in arriving at their verdict; (2) at the close of the prosecution's case, there was nothing on the record to show that any of the persons said to have been made available to the defence at the preliminary inquiry was tendered or made available at the trial. From the failure of the prosecution to call material witnesses the jury were in effect directed that they could, if they so desired, draw an unfavourable inference against the appellant, since he could have called them to prove that no threats were uttered in their presence and hearing as alleged. This again was a misdirection of a grave and prejudicial nature; (3) the direction as to the failure of the appellant to protest his innocence at the first reasonable opportunity hardly set out the facts in true perspective. The jury had wrongfully assumed that the accusation was made before the crowd, and so long as this remained uncorrected in the minds of the jury the direction was highly prejudicial to the appellant. Observations on the standard of proof required from the prosecution at the end of the presentation of its case.

Karam Singh v Public Prosecutor [1967] 2 MLJ 25 Federal Court, Kuala Lumpur (Barakbah LP, Azmi CJ (Malaya).

The appellant was convicted of murder. The deceased met his death on 15 May 1955. It was proved that on 16 May 1955 the appellant pawned some jewellery which belonged to the deceased. Apart from this piece of evidence, there was nothing to connect the appellant with the crime.

Held: the only evidence to connect the appellant with the killing was the pawning of two pieces of jewellery, the property of the deceased, and it was not certain that they were on the deceased's person on the day of his death; this did not supply sufficient evidence on which to found a conviction for murder and therefore the conviction must be set aside.

Abdullah v Public Prosecutor [1956] MLJ 92 Court of Appeal, Kuala Lumpur (Mathew CJ, Buhagiar and Good JJ).

Held: circumstantial evidence should be such that when you look at all the surrounding circumstances, you find such a series of undesigned, unexpected coincidences that, as a reasonable person, you find your judgment is compelled to one conclusion. If the circumstantial evidence is such as to fall short of that standard, if it does not satisfy that test, if it leaves gaps, then it is of no use at all. In this case, the circumstantial evidence pointed conclusively to the accused's guilt. An example of a case where procedure adopted of addresses and summing up to the jury was quite inappropriate and incorrect.

Idris v Public Prosecutor [1960] MLJ 96 Court of Appeal, Penang (Hill Ag CJ, Good and Hepworth JJ).

[Annotation: Procedure for the defence in a criminal trial before the High Court to submit at the close of the case for the prosecution, that there is no case to go to jury illustrated in the judgment of Terrell J in R v Koh Soon Poh [1935] MLJ 120 approved.]

This was an appeal from the conviction of the appellant for murder. At the appeal it was argued: (a) as there was no evidence that the body on which the post-mortem examination was conducted by the medical officer was the body of the deceased, the police constable who brought the body to the hospital not having been called by the prosecution at the trial, the evidence of injuries and the cause of death given by the medical officer could not be associated with the deceased and therefore there was no evidence as to how the deceased had been killed; (b) since the deceased had been left alone at the scene after the three Indian witnesses had left to make a report to the police, and since there was no evidence establishing that the deceased was dead at the time, there was a possibility which was never put to the assessors by the learned trial judge that the deceased may have died from violence from a source other than the beating he received from the appellant and his co-assailant; (c) the learned trial judge misdirected the assessors in directing them that the appellant might have deliberately kept his defence of alibi 'up his sleeve' until the trial.

Held: (1) where a case involves the death of a person on which a post-mortem examination has been held, evidence must be given that the body on which the medical officer conducted the post-mortem examination was the body of the deceased in respect of whose death the charge has been laid, and because of the failure to do so in this case, the conviction for murder could not be sustained; (2) the failure of the trial judge to put the possibility that the deceased might have died from violence from a source other than the accused, amounted on the facts of the case to a misdirection; (3) there is no objection to a trial judge commenting in his summing up to the assessors on the failure of an accused person to disclose his alibi defence at the preliminary inquiry provided (a) the trial judge points out that the preliminary inquiry is the first opportunity an accused person has of disclosing such a defence and (b) the trial judge directs the assessors that failure to disclose an alibi defence at the preliminary inquiry is a matter which may detract from the weight to be given to such evidence; (4) the learned trial judge misdirected the assessors in this case in that instead of confining his comments to the weight to be given to the alibi, he suggested to them that the appellant might have deliberately kept this defence 'up his sleeve' until the trial.

Fazal Din v Public Prosecutor [1949] MLJ 123 Court of Appeal, Kuala Lumpur (Willan CJ, Spenser-Wilkinson and Briggs JJ).

The appellant was convicted of murder under s 302 of the Penal Code. During the trial, a witness for the defence in cross-examination contradicted his own evidence in chief. With regard to this the learned trial judge directed the jury thus: 'If, gentlemen, you consider that they were two deliberate contradictions, then you reject the whole of the evidence of that witness. On the other hand, if you think he was nervous and made a genuine mistake, then his credit shall stand. It is entirely a matter for you and puts you back as I see the position to the original proposition I put to you in connection with witnesses: was he telling the truth, or, has he by his contradiction established himself as a liar? If it be the latter, then his evidence must in law be rejected.'

Held: (1) the learned trial judge erred in rejecting the whole of the evidence of the witness because the latter had been proved a liar on one or two points; (2) the learned trial judge had prevented counsel from addressing the jury as to the consequences which would ensue if they found the prisoner guilty of murder. Counsel should not be allowed to address the jury as to the consequences of their verdict; (3) the learned trial judge had also directed the jury to draw no inference against the prosecution case or the first prosecution witness from the fact that the Deputy Public Prosecutor had not called that particular witness. The calling of witnesses is a matter for the discretion of the prosecution and in the circumstances of the case, the judge was right in directing the jury the way he did. Observations on the learned trial judge's direction on the quantum of proof under s 3 of the Evidence Ordinance.

Khoon Chye Hin v Public Prosecutor [1961] MLJ 105 Court of Appeal, Ipoh (Thomson CJ, Ong and Ismail Khan JJ).

Held: on a charge of murder where there is evidence, whether reliable or not, which if accepted would entitle the jury to bring in a verdict of culpable homicide not amounting to murder, the charge to the jury must leave open the possibility of bringing in a verdict of culpable homicide not amounting to murder even if no defence is relied upon which would reduce the charge from one of murder to one of culpable homicide not amounting to murder. Observations upon effect of trial judge's failure to permit a statement of a witness to be used to impeach the credit of that witness under s 113(ii) of the Criminal Procedure Code (Cap 6).

Chen Fan Chiang v Public Prosecutor [1962] MLJ 104 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Good JJA).

In this case, the applicants had been committed for trial on a charge of murder. The only evidence implicating the applicants came from the respective cautioned statements of two other persons accused in the same case. It was argued that the cautioned statements were exculpating to the makers and did not amount to confessions and s 30 of the Evidence Act 1950 (Act 56) was not applicable. Even if they were confessions and s 30 of the Evidence Act applied, it was argued that they could only be considered against the applicants and that there was no prima facie case against the applicants to be committed for trial. The prosecution submitted that the cautioned statements would form part of the prosecution's case and the weight of such evidence would be for the jury and not the committing magistrate to consider. An appeal by the applicants was dismissed on the ground that the said order of committal was not appealable. The applicants applied for revision.

Held: (1) if at the preliminary inquiry there is credible evidence, which if believed but subject to all possible lines of defence may end in a conviction, the inquiring magistrate has no option but to commit the accused person for trial; (2) the evidence of the cautioned statements of the other two accused in this case is credible evidence which if believed and subject to all possible of defence, including one of frailty of such evidence, may result in a conviction. The order for committal must therefore be confirmed; (3) an inquiring magistrate does not determine guilt or innocence and the expression 'sufficient grounds for committing the accused for trial' does not denote a case proved beyond a reasonable doubt.

Indran & Anor v Public Prosecutor [1985] 2 MLJ 408 High Court, Seremban (Peh Swee Chin J).

The appellant was convicted of murder. According to the prosecution story, the appellant being to some extent under the influence of liquor went to the house of his wife from whom he was separated, made an attack on members of her family and subseqently struck a violent blow with a heavy parang on the deceased woman. The appellant's story was that he went to the house peacefully although he had a parang with which he used to cut firewood; he was attacked and he really did not know how the dead woman came by her injury. The learned trial judge put the case to the jury as a clear-cut choice between murder and no offence. If, he said, the prosecution evidence was believed it was a case of murder; if the appellant's defence was accepted it was a case of no offence. The appellant was found guilty. On appeal,

Held: (1) there was a possibility that if it had been left to them, the jury might have been prepared to take the view that the killing of the deceased woman happened while the appellant was disengaging himself from some sort of combat initiated by him, and in that event it would have been open to them to find the appellant guilty of something less than murder, that is culpable homicide not amounting to murder; (2) in the circumstances of the case, the Federal Court would substitute a conviction for culpable homicide not amounting to murder.

Vaeyapuri v Public Prosecutor [1966] 1 MLJ 84 Federal Court, Kuala Lumpur (Thomson LP, Pike CJ (Borneo).

The appellant was convicted of murder. The evidence showed that he had shot the deceased persons. At the trial and in his summing up, the learned trial judge put to the jury the various defences that were raised: the defence of accident, the defence of provocation, the defence of private defence and the defence of sudden quarrel. He did not however put to the jury the defence that what might be involved was an offence of causing death by doing a rash or negligent act.

Held: as the jury had rejected any question of accident, provocation, sudden quarrel or private defence, the omission to put the question of negligence to the jury could have had no effect whatsoever on their decision because it was based on a set of facts which they had clearly rejected; therefore the case fell within the scope of the proviso to s 60 of the Courts of Judicature Act 1964.

Ismail v Public Prosecutor [1965] 1 MLJ 176 Federal Court, Kuala Lumpur (Thomson LP, Barakbah CJ (Malaya).

This was an appeal against the conviction of the appellant on a charge of murder. There were several grounds of appeal.

Held, allowing the appeal: (1) the direction to the jury on circumstantial evidence was inadequate; (2) no reliance could be placed on the chemist's report in this case, by reason of the failure to adduce evidence that the blood samples were those of the appellant and the deceased by calling the persons who actually took them and to whom they were handed after doing so; (3) the admission made by the appellant to the doctor that he had killed a man during a fight was wrongly admitted as the appellant was then in the custody of the police.

Eng Sin v Public Prosecutor [1974] 2 MLJ 168 Federal Court, Kuala Lumpur (Gill CJ, Raja Azlan Shah and Wan Suleiman FJJ).

Held: he trial together of more than one charge of murder is undesirable. The words of s 10 of the Evidence Ordinance are not capable of being widely construed so as to include a statement made by one conspirator, in the absence of the other, with reference to past acts done in the actual course of carrying out the conspiracy, after it had been completed. It is open to the jury to draw inferences from particular pieces of evidence, but it must be explained to them that before an inference can be regarded as a valid one it must comply with two conditions: (a) it must account for all the known facts; and (b) it must be the only reasonable inference which will account for all these facts. In many cases, it is not necessary to give such a caution to the jury but in a case where the prosecution evidence consisted of a somewhat meagre body of primary facts from which the jury were asked by the prosecution to draw a number of inferences of the utmost gravity, it would have been safer to give some guidance as to the principles of ratiocination which were applicable. In any criminal case, the onus lies upon the prosecution to prove that the accused person is guilty of the offence charged against him or of some other charge for which he can be lawfully convicted on the charge against him. The test of 'proved' is the test of the prudent man according to 'the circumstances of the particular case'. It is desirable to read s 3 of the Evidence Ordinance to the jury. The jury must be satisfied 'beyond reasonable doubt'. There is no set formula required. The degree of proof 'need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt... If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence Òof course it is possible, but not in the least probableÓ, the case is proved beyond reasonable doubt, but nothing short of that will suffice.'

Liew Kaling & Ors v Public Prosecutor [1960] MLJ 306 Court of Appeal, Penang (Thomson CJ, Hill JA and Hepworth J).

Held: theoretically, no offence is committed except by a person who by reason either of psychological or moral deficiency is likely to commit offences. In that sense, any evidence as to character or disposition has at least some limited probative value. However, the accepted rule of law is that such general evidence is not admissible, and to make any evidence of disposition admissible there must be some particular connection between it and the identity of the person who has committed a crime. Observations on undesirability of joinder of trial of more than one charge of murder.

Chew Ming v Public Prosecutor [1960] MLJ 11 Court of Appeal, Ipoh (Thomson CJ, Rigby and Hepworth JJ).

Wong Lai Fatt v Public Prosecutor [1973] 2 MLJ 31 Federal Court, Kuala Lumpur (Ong CJ, Ali and Ong Hock Sim FJJ).

Held: where an accused person has been tried on a charge of murder and acquitted on that charge but convicted on a lesser charge and he appeals against that conviction, then the Court of Appeal has jurisdiction, even though the Public Prosecutor has not appealed against the acquittal, to order a retrial. Such order, unless so expressly limited, is an order to retry on the original charge.

Nawi v Public Prosecutor [1936] MLJ 71 Court of Appeal, Federated Malay States (Thomas CJ, Burton Ag CJ (SS).

In this case, three witnesses spoke of the accused having a revolver, but only one of them gave evidence of his shooting with it. In summing up to the assessors, the learned trial judge referred to 'the evidence of the three witnesses of the actual shooting'.

Held: (1) this constituted a misdirection. In summing up, the evidence in favour of the accused must be put to the assessors; (2) in this case, the learned trial judge used the phrase 'I do not propose to comment on the evidence of the two Japanese witnesses'. This constituted a misdirection.

Saw Sheng Hai v Public Prosecutor [1948] MLJ 113 Court of Appeal, Kuala Lumpur (Willan CJ (MU).

Mat Sawi v Public Prosecutor [1958] MLJ 189 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Syed Sheh Barakbah JJ).

In this case, the accused, a member of the Johore Royal family, was charged with an offence under s 304 of the Penal Code (FMS Cap 45). He pleaded guilty.

Held: (1) in considering the appropriate sentence, the court must consider the facts surrounding the particular incident and take into account the conduct of both the accused and the deceased; (2) after full consideration of the facts and surrounding circumstances and relevant mitigating circumstances, the sentence that shall be imposed is imprisonment for six months and a fine of RM6,000 or in default six months' imprisonment.

Public Prosecutor v Tunku Mahmood Iskandar [1977] 2 MLJ 123 High Court, Johore Bahru (Abdul Hamid J).

The accused, a police detective, was charged with culpable homicide not amounting to murder. It appeared that there was a quarrel between the accused and the deceased, and in the struggle for the revolver the accused caused the deceased's death.

Held: on the facts, the accused was placed in a situation of such great peril that he had no time to think or do anything else but to fire the shot from his revolver. The act which caused the death of the deceased was done in the exercise of the right of private defence and was not in excess of that right.

Public Prosecutor v Ngoi Ming Sean [1982] 1 MLJ 24 High Court, Seremban (Ajaib Singh J).

Musa v Public Prosecutor [1953] MLJ 70 Court of Appeal, Kuala Lumpur (Mathew CJ, Wilson and Briggs JJ).

In this case, the accused had pleaded guilty to a charge of culpable homicide not amounting to murder.

Held: in the circumstances of this case, the imposition of a sentence of 14 years' imprisonment would be expedient with a view to the reformation of the accused, but as no facts were alleged which would have placed the offence under the first limb of s 304, the accused was convicted under the second limb of the section and sentenced to seven years' imprisonment only.

Public Prosecutor v Gopalan [1985] 2 MLJ 230 HIgh Court, Malacca (Wan Yahya J).

This was an appeal against the decision of the learned President, Sessions Court, Klang, convicting the appellants for causing the death of the four deceased persons under s 304 read in conjunction with s 34 of the Penal Code (FMS Cap 45). The appeal raised a number of questions of facts and law.

Held: (1) in the circumstances of this case, the prosecution was under no obligation to supply statements of their witnesses to the defence. The defence is only entitled to the police statement when a prosecution witness is to be impeached; (2) the statements made by the appellants to the police corporal when he arrived at the scene were not admissible in evidence but the statements made to the police inspector were admissible as they were made to him before arrest; (3) there was no reason to disturb the findings of the trial court that Inspector Govindan who recorded cautioned statements from the appellants, was competent in Tamil, that the words he used in the cautioned statements have the same effect as required by the Criminal Procedure Code (FMS Cap 6) and that the statements were recorded within the time stated in them. The cautioned statements were therefore rightly held to be admissible in evidence; (4) in dealing with a case which relies on circumstantial evidence it is sufficient if the court makes a finding that in considering all the evidence it is satisfied beyond reasonable doubt that the accused is guilty of the offence. In any case the learned President in his judgment came to the 'inescapable conclusion' that the appellants were expert fighters, which is the same as 'irresistible conclusion'.

Jayaraman & Ors v Public Prosecutor [1982] 2 MLJ 306 Federal Court, Kuala Lumpur (Suffian LP, Abdul Hamid and Ajaib Singh JJ).

The appellant was convicted of causing death by a rash act not amounting to culpable homicide under s 304A of the Penal Code. On appeal, he was acquitted. During the whole of those proceedings, there was no suggestion that the appellant was in any way under the influence of liquor and no evidence was adduced on that point. He was then charged with being intoxicated while in charge of a motor car under s 45(ii) of the Motor Vehicles Enactment (Cap 168) and convicted. At his trial, the prosecution again adduced the same evidence as to the manner of the appellant's driving at the time of and after the accident, as was adduced in the previous charge. All four charges had been made at the same time but originally only that under s 304A of the Penal Code had been tried. The appellant appealed.

Held: (1) it was proper for the prosecution, to have charged the accused with an offence under s 304A separately from the charges under the Motor Vehicles Enactment, and to have refrained from tendering on the former charge evidence of intoxication; (2) in a prosecution such as this, the proper question to be asked is whether or not the accused was so much under the influence of alcohol that the use of his faculties was materially impaired.

Kamaruddin v Public Prosecutor [1938] MLJ 63 High Court, Federated Malay States (Whitley Ag CJ).

The appellant in this case was charged with an offence under s 34A of the Road Traffic Ordinance 1958. At the end of the case for the prosecution, the charge was amended to one under s 304A of the Penal Code. The appellant was found guilty and was convicted and fined a sum of RM1,000 in default six months' imprisonment, and disqualified from driving for a period of 12 months. Against this decision the appellant appealed. The first ground of appeal was that as the amended charge did not contain particulars of negligence it was bad in law, and the conviction could not therefore be sustained. The second ground of appeal related to the admission of the post-mortem report. It was urged that ss 332 and 340 of the Criminal Procedure Code (Cap 6) had no application to the circumstances of this case and had that evidence been rejected, as it should have been, there was no evidence as to the cause of death. For reasons best known to the prosecution, the pathologist was not called to give evidence at the trial.

Held: (1) it was not necessary that the particulars of alleged negligence be stated in the charge; (2) on the assumption that the medical report was properly admitted, it cannot be said that the essential ingredient that the death of the deceased was the direct result of the negligent act of the appellant had been proved to the hilt.

Loh Thye Choon v Public Prosecutor [1967] 2 MLJ 252 High Court, Kuala Lumpur (Raja Azlan Shah J).

The appellant was charged that she did cause the death of one Liew Kam Fook, aged ten months old, by a negligent act not amounting to culpable homicide, to wit, by allowing the ignorant mother of the deceased to administer an overdose of oleum chinnapodium when she was a nurse on duty, and had thereby committed an offence under s 304A of the Penal Code. She pleaded guilty and her plea was accepted, and she was convicted.

Held: in view of the difficulties of the law relating to criminal negligence and of the facts in this case, which were not simple, the learned district judge should not have accepted the plea of guilty.

Low Hiong Boon v Public Prosecutor [1948-49] MLJ Supp 135 High Court, Kuala Lumpur (Spenser-Wilkinson J).

Where the accused person is charged with causing death by the negligent driving of a lorry, the prosecution must prove that he was responsible for some act or omission while driving the lorry which showed such carelessness or lack of consideration to the rights of other road users that the only conclusion that can be arrived at is that the act or omission amounted to gross negligence on his part. It is essential to elicit the evidence to show the actual situation with which the driver was faced in relation to his speed and other factors of driving, and whether he got into this situation through his own or another's carelessness or rashness. The fact of knocking down a pedestrian on the road is not ipso facto conclusive of gross negligence.

Krishnan v Public Prosecutor [1948] MLJ 12 High Court, Malayan Union (Laville J).

Held: the nature and degree of negligence in an act causing death required to support a conviction under s 304A of the Penal Code is the same as that in any other act carried out so harshly or negligently as to endanger human life or the safety of others, where that act was the immediate cause of death and not the remote cause. The standard of proof of an offence under s 304A is the same as that required in any criminal offence in England.

Public Prosecutor v PG Mills [1971] 1 MLJ 4 Court of Appeal of Sarawak, North Borneo and Brunei (Williams CJ, Bodley J and Bladgen Ag J).

This was an appeal against the acquittal of the accused on a charge under s 304A of the Penal Code. The accused had been charged on two charges, one under s 304A of the Penal Code and the other under s 14(1) of the Road Traffic Ordinance (Cap 128). The learned stipendiary magistrate found the accused guilty on the second charge but acquitted him on the charge under s 304A of the Penal Code, as he held that the prosecution had not proved the substantially high degree of negligence required to warrant a conviction under that section.

Held, allowing the appeal: the magistrate had misdirected himself on the degree of negligence required to substantiate a charge under s 304A of the Penal Code. The degree of negligence is the same as that required on a charge under s 14(1) of the Road Traffic Ordinance, that is, the lack of degree of care and attention that a reasonable and prudent driver would exercise in the circumstances.

Public Prosecutor v Chin Saiko Joseph [1972] 2 MLJ 129 High Court, Kota Kinabalu (Lee Hun Hoe J).

[Annotation: See however Abdul bin Palaga v Public Prosecutor [1973] 2 MLJ 177.]

This was an appeal from the conviction of the appellant on two charges: (a) for driving a motor car in a manner so negligently as to endanger human life, contrary to s 304A of the Penal Code; (b) for driving the said motor car without due care and attention, contrary to s 14(1) of the Road Traffic Ordinance (Cap 128). The appellant appealed on the ground, inter alia, that the learned magistrate was wrong in holding that there was no difference in the degree of negligence between s 304A of the Penal Code and s 14(1) of the Road Traffic Ordinance.

Held: (1) the degree of negligence required to be proved under s 304A of the Penal Code is not the same as that under s 14(1) of the Road Traffic Ordinance, and evidence sufficient to sustain a charge under s 14(1) of the Road Traffic Ordinance need not be sufficient to warrant a conviction under s 304A of the Penal Code, where death is proved to be the immediate cause of the negligent act; (2) in this case, the conviction on the charge under s 304A of the Penal Code should be quashed.

Abdul bin Palaga v Public Prosecutor [1973] 2 MLJ 177 High Court, Tawau (Lee Hun Hoe J).

[Annotation: The Federal Court did not deliver any written decision in Joseph Chin Saiko v Public Prosecutor (FC Criminal Appeal No 5 of 1971).]

held: in order to sustain a conviction under s 304A of the Penal Code in the case of a road accident, the prosecution must conclusively prove the identity of the deceased person and that the accused acted with a high degree of negligence. A mere error of judgment on the part of the accused does not amount to gross negligence.

Teay Wah Cheong v Public Prosecutor [1964] MLJ 21 High Court, Kuala Trengganu (Hashim J).

The appellant was convicted under s 304A of the Penal Code on a charge of causing the death of one Lim Teck Chor by doing a rash act not amounting to culpable homicide, namely, by driving a motor lorry at an excessive speed and close to the right hand side of the road. In his grounds of judgment, the learned President referred to the Singapore case of Woo Sing & Anor v R [1954] MLJ 200, and said: 'From this, it appears that an offence under s 304A does not require the high degree of negligence, in other words criminal negligence, that is required for manslaughter. In view of this, I had no hesitation in finding the accused guilty of the offence.'ÊOn appeal it was submitted: (a) the Federated Malay States cases of Public Prosecutor v Bachita Singh & Ors [1940] MLJ 187, and Cheow Keok v Public Prosecutor [1940] MLJ 103, were binding on the court, and these cases clearly lay down that a high degree of negligence must be proved before a person could properly be convicted of an offence under s 304A of the Penal Code; (b) the learned President in this case had been satisfied with a lower degree of neglience, which under the FMS decisions could not be sufficient to support a conviction; (c) if the appellant was negligent at all, there might be a case for a conviction for negligent driving under s 4(2) of the Motor Vehicles (Driving Offences) Proclamation.

Held: (1) the FMS decisions referred to were binding on the court but the decision in Woo Sing & Anor v R was the correct interpretation of s 304A of the Penal Code; (2) the learned President had not made a specific finding with regard to the degree of negligence, but there was in this case that high degree of negligence required to justify a conviction under s 304A in accordance with the law as laid down in the FMS decisions; (3) if in criminal matters a further degree of negligence was required to be proved, the further degree should be the same in all offences, and the gravity of the offence depended on the consequences covered by the negligent act for which different penalties were provided by law.

Anthonysamy v Public Prosecutor [1956] MLJ 247 High Court, Kuala Lumpur (Buhagiar J).

[Annotation: See article 'Conflicting Judgments in the Federation of Malaya and the Colony of Singapore' by SKD in [1957] MLJ vi.]

This was a reference to the Full Bench of the Federal Court, by the High Court at Alor Setar ([1971] 2 MLJ 231), pursuant to the provisions of s 66 of the Courts of Judicature Act 1964 (Act 91). The question of law to be determined was as follows: 'Whether the standard of proof on the prosecution on a charge under s 304A of the Penal Code is (a) a high degree of negligence similar to that required to support a conviction for manslaughter by negligence in England; or (b) the same as that in any other act carried out so rashly or negligently as to endanger human life or the safety of others where that act was the immediate cause of death and not the remote cause.' This reference was prompted in order to resolve the conflicting views which have been expressed on criminal negligence by the pre-Merdeka Courts of Appeal in other jurisdictions, namely, Borneo and Singapore, where the same law applies.

Held: (1) the test to be applied for determining the guilt or innocence of an accused person charged with rash or negligent conduct is to consider whether or not a reasonable man in the same circumstances would have been aware of the likelihood of damage or injury to others resulting from such conduct, and taken adequate and proper precautions to avoid causing such damage or injury; (2) the judgment delivered in Cheow Keok v Public Prosecutor [1940] MLJ 103 must be regarded as per incuriam and must therefore be overruled. Accordingly, the answer to the first question must be in the negative, which implicitly provides the answer to the second question. In the result, the order of the High Court directing that the case be remitted back to the sessions court for the defence to be called, would be affirmed; (3) (per curiam) 'In the first place, mere carelessness or inadvertence, without more, is not enough, in our opinion, to establish guilt. An essential ingredient of all offences under the Penal Code is mens rea; although, in the context of culpable rashness or negligence, mens rea should not be understood as synonymous with Òcriminal intentionÓ or Òwicked mindÓ. Rather, it should be construed as connoting fault or blameworthiness of conduct. In the second place, the fault or blameworthiness must, as in all criminal cases, be proved by the prosecution beyond reasonable doubt not, as in civil cases, on balance of probabilities.'

Adnan bin Khamis v Public Prosecutor [1972] 1 MLJ 274 Federal Court, Kuala Lumpur (Ong CJ (Malaya).

Held: the degree of negligence required to support a conviction under s 304A of the Penal Code is not the same as, and in no way comparable to, that required to support a conviction for manslaughter under English law. Where the facts of a case disclose a substantial and serious degree of negligence, that would be sufficient to support a conviction under s 304A.

Lai Tin v Public Prosecutor [1939] MLJ 248 High Court, Federated Malay States (Murray-Aynsley J).

The appellant was driving his car on the main road into Klang. When approaching the junction of the main road and the road leading to the Klang Amusement Park, a Chinese boy ran diagonally across the main road. The appellant, who was at that time on the left side of the road, swerved to avoid him but failed to do so, and knocked the boy down, at the edge of the grass on the right hand side of the road. The appellant, was unable to stop his car at the spot where he had knocked the boy down, and about eight or ten yards further on knocked down the boy's father, who was wheeling a bicycle on the edge of the right hand side of the road. The appellant was also unable to stop his car after the second accident until he had proceeded about 15 or 20 yards, and he finally pulled his car up on the left hand side of the road. Both the boy and his father died the same day from the injuries they had received.

Held: the evidence proved that high degree of negligence it is necessary to prove before an accused person can properly be convicted under s 304A of the Penal Code.

Kuan Choon Hin v Public Prosecutor [1940] MLJ 114 High Court, Federated Malay States (Poyser CJ).

The appellant, while driving his lorry and after rounding a bend in the road along which he was travelling, knocked down and killed a cyclist who was coming from the opposite direction and carrying on his carrier a sack of padi weighing approximately 48 katties. The appellant was convicted by the magistrate at Kuala Pilah under s 304A of the Penal Code. It was proved that: (a) the appellant rounded the bend on his right edge and therefore the wrong side of the road, (b) before he rounded the bend his view beyond the bend was obstructed by a hillock in front and he did not see what was happening beyond it, (c) on coming to the apex of the bend, he suddenly saw the deceased on his bicycle about 10 ft in front of the lorry, and (d) he swerved a little to his left and at the same time applied his brakes, but as the deceased was very close to the lorry he could not avoid hitting the deceased.

Held: on the facts as outlined above, the appellant was guilty of that high degree of negligence necessary to support a charge under s 304A of the Penal Code, and the conviction must be affirmed.

Lee Fung v Public Prosecutor [1940] MLJ 115 High Court, Federated Malay States (Raja Musa Ag J).

CK was convicted by the first magistrate, Kuala Lumpur, sitting as the magistrate, Kajang, of an offence against s 304A of the Penal Code arising out of the driving of a motor vehicle, and sentenced to three months' rigorous imprisonment. On appeal to the court of a judge,

Held:

Held: while the evidence disclosed a considerable degree of rashness or negligence 'that I should have no hesitation in substituting a conviction for the offence of dangerous driving contra to s 25 of the Road Traffic Enactment 1937, had I the power to do so' s 304A of the Penal Code was nothing more than an attempt to codify the offence designated in English law as manslaughter by negligence. The principles of English common law should be applied to interpret that attempt at codification, and the same high degree of negligence was necessary to support a conviction under the section as was required to support a conviction for manslaughter by negligence in England the negligence must be so great as to satisfy a jury that the offender had a wicked mind in the sense of being reckless and careless, whether death occurred or not. Appeal allowed and conviction set aside. On appeal by the Public Prosecutor to the Court of Appeal, the same high degree of negligence must be proved before a person could properly be convicted of an offence under s 304A of the Penal Code as would be required to be proved to sustain a conviction for manslaughter by negligence in England, and English authorities should be followed.

Cheow Keok v Public Prosecutor [1940] MLJ 103 Court of Appeal, Federated Malay States (Poyser CJ, McElwaine CJ(SS).

[Annotation: Lai Tin v Public Prosecutor [1939] MLJ 248; [1938] FMSLR 290, overruled. Reference may also be made to Public Prosecutor v Mohamed Salleh [1940] MLJ 187, CA, and Woo Sing & Anor v R [1954] MLJ 200.]

In this case, the accused had been charged with causing the death of one Abdul Halim by doing a negligent act, to wit, shooting with a shot gun. The learned President of the Sessions Court acquitted the accused on the ground that the negligence shown in the case was not of such a high degree as required for a case of manslaughter as laid down in Cheow Keok v Public Prosecutor [1940] MLJ 103. On appeal,

Held, allowing the appeal: in this case, the action of the accused in firing the shot that killed the deceased was a negligent act and the prosecution had proved a prima facie case against the accused and therefore the accused, should be called upon to enter on his defence.

Public Prosecutor v Adnan bin Khamis [1971] 2 MLJ 231 High Court, Alor Star (Syed Agil Barakbah J).

[Annotation: See the Federal Court's decision at [1972] 1 MLJ 274.]

Ramlan bin Salleh v Public Prosecutor [1987] 2 MLJ 709 Supreme Court, Kuala Lumpur (Wan Suleiman, Mohamed Azmi and Syed Agil Barakbah SCJJ).

These cases arose out of the sinking of a passenger ship 'Nanukan Express'. The ship was allegedly carrying passengers far in excess of the authorized number of 80 passengers and 4 crew. The ship was put to sea and travelled for about half an hour. Owing to the alleged overloading, undermanning and other defects of the ship, she sank resulting in the loss of lives. The appellant in the first case was the acting master of the ship. He was charged with six charges under the Merchant Shipping Ordinance 1960 (No 11 of 1960), and one charge under s 304A of the Penal Code. The appellants in the second case, the partners of the company owning the ship, were charged with offences under the Merchant Shipping Ordinance. The appellants appealed against their convictions.

Held: in the circumstances of this case, it would be wrong to attribute to the appellant, the acting master, the alleged negligence of overloading resulting in the loss of lives, and therefore the conviction under s 304A of the Penal Code must be set aside.

Lee Lai Siew v Public Prosecutor; Voon Wee Hian & Ors v Public Prosecutor [1978] 1 MLJ 259 High Court, Kota Kinabalu (BTH Lee J).

Held: request for particulars of negligence under s 304A of the Penal Code is tantamount to a request for particulars of the evidence which the prosecution proposes to call, and therefore an accused is not entitled to such particulars. When a person is charged with murder, it is not necessary to specify in the charge the poison or weapon used. Where an accused is involved in a collision, he must be in a position to instruct his counsel as to his version of how the collision took place, and that is all that counsel needs in order to conduct the defence.

Public Prosecutor v Chang Wan Seng [1954] MLJ 186 High Court, Kuala Lumpur (Wilson J).

[Annotation: For the degree of negligence and whether conviction lies under the Penal Code or the Road Traffic Ordinance, see Tan Siong Kok v R [1953] MLJ 137, and also Lim Ghais Kee v R [1959] MLJ 206, where the above case was dissented from.]

Held where a high degree of rashness is established in a charge under s 304A of the Penal Code, a sentence of a fine would be an inadequate punishment.

Public Prosecutor v Quek Bak Seng [1963] MLJ 137 High Court, Muar (Gill J).

This was an appeal by the Public Prosecutor against the sentence imposed by the learned magistrate on a charge under s 304A of the Penal Code. The respondent had pleaded guilty to the charge and was fined RM1,500 or three months' rigorous imprisonment in default.

Held: (1) once the degree of rashness or negligence required to sustain the charge under s 304A of the Penal Code has been proved, there cannot be many cases in which a sentence of a fine would be an adequate punishment; (2) in the present case, the sentence of fine was inadequate and should therefore be altered to one of five months' rigorous imprisonment.

R v Downey [1954] MLJ 148 High Court, Penang (Spenser-Wilkinson J).

The respondent was charged with an offence under s 304A of the Penal Code. At first he claimed trial and the hearing was adjourned. At the adjourned hearing, he retracted his previous plea and pleaded guilty whereupon he was convicted and sentenced to a fine of $100 or in default three months' rigorous imprisonment. The Public Prosecutor appealed on the ground of inadequacy of sentence. The respondent did not appeal. The trial magistrate recorded no evidence but made a short note of the proceedings at the trial.

Held: it is of the utmost importance that a magistrate should take proper notes of evidence in a criminal case where the accused pleads guilty. In this case, the appellate judge decided to record evidence himself and on the evidence before him he considered that the sentence of the learned magistrate was totally inadequate. The sentence was altered to one of 12 months' rigorous imprisonment.

Public Prosecutor v Nahat Singh [1939] MLJ 239 High Court, Federated Malay States (Raja Musa Ag J).

The appellant was convicted and sentenced to nine months' rigorous imprisonment on a charge of causing the death of two persons by doing a rash act not amounting to culpable homicide, to wit, by driving his motor car rashly, an offence punishable under s 304A of the Penal Code. One of the grounds of appeal was that the learned President should not have admitted the report made by the accused on the ground that it was a statement made in the course of police investigation. The material facts regarding this point were that immediately after knocking down the two deceased, the accused drove straight to the police station at Balik Pulau and there made a report of the accident. This statement was not taken down in writing at the time and the report, which was put in evidence, was purported to have been made the following morning and was said to have been written out by the accusd himself.

Held: the report under s 12(2) of the Motor Vehicles (Driving Offences) Proclamation made immediately after the accident should be taken down in writing under the provisions of s 117 of the Criminal Procedure Code (Cap 21), and the omission to do this cannot render the subsequent fuller report admissible.

Abdul Aziz v R [1954] MLJ 198 High Court, Penang (Spenser-Wilkinson J).

The appellant was charged with an offence under s 304A of the Penal Code. The undisputed fact was that the appellant, whilst driving a car No W1496 along the main road near Nibong Tebal, knocked into a small boy aged eight, as a result of which the boy died. The prosecution called the wife of the accused, who said that the boy was running across the road. Two other prosecution witnesses said that the boy was walking along his left side of the road either on or very close to the grass verge. The learned President of the Sessions Court said in his grounds of judgment, inter alia: 'Of these two stories I was more inclined to believe at the close of the prosecution case the story of PWs 6 and 7 than that of PW 8, but I found that in either case I was satisfied on the prosecution evidence that the accused was driving rashly and that his brakes were inefficient, and so I called upon the defence.' The accused gave evidence which confirmed that of his wife PW 8. The learned President thereupon found the appellant guilty under s 304A of the Penal Code.

Held: (1) in view of the provisions of s 182(f) of the Criminal Procedure Code (Cap 21), the court is bound, at the conclusion of the case for the prosecution, to decide definitely which, if either, of two possible but incompatible versions of the facts has been proved; (2) as the learned President had failed to do this in this case, the appeal must be allowed; (3) (semble) in a summary trial, the prosecution need not call every witness from whom a statement has been taken. The prosecution has a discretion in this matter, but the discretion must be exercised fairly.

Mohamed Kassim v R [1956] MLJ 212 High Court, Penang (Spenser-Wilkinson J).

The accused, an obstetrician and gynaecologist, was charged under s 312 of the Penal Code for voluntarily causing a woman with child to miscarry, and such miscarriage was not done in good faith for the purpose of saving her life. At the close of the prosecution case, the learned judge found that the prosecution had proved all the three ingredients beyond any reasonable doubt, viz: (a) the woman who was caused to miscarry was pregnant; (b) the accused voluntarily caused her to miscarry; and (c) the miscarriage was not caused by the accused in good faith for the purpose of saving the life of the woman. The events showed that the accused had not given reasonable consideration and neither had he come to a reasonable conclusion that he had to cause the woman to miscarry in order to save her life. There was no indication that her life was or would be in danger if pregnancy was allowed to continue. The woman had tubal ligation done on her by the accused in 1977. She was examined by the accused on 8 August 1978 and was found to be about 14 weeks pregnant and to have enlarged varicose veins. The accused instantly gave her an injection of 150 cc saline and told her that she would be in labour within 48 hours. The next day she was admitted to his clinic and on 10 August 1978 a male foetus was aborted. The accused was called upon to enter his defence. He gave evidence on oath. His defence was that he performed the abortion in good faith for the purpose of saving the life of the woman, who was suffering from bad or enlarged varicose veins which might cause pulmonary embolism. Professor Sinnathuray, a highly qualified expert obstretrician and gynaecologist, supported the accused and gave his opinion that the abortion performed by the accused was justified.

Held: (1) the burden of proof both in English law and the Penal Code that procuring of the miscarriage is not done in good faith to save the life of the woman is on the prosecution; (2) the support and approval by Prof Sinnathuray for the abortion performed by the accused was not supported by reasonable explanation and the professor was not free from a motivation to help a friend (the accused) out of trouble. No reasonable person whether a qualified surgeon or not would perform or procure an abortion in the circumstances of this case without infringing the law as it stands. Procuring an abortion is a serious matter and it should only be done as a last resort to save the life of a woman or to save a woman from becoming a mental wreck; (3) from evidence adduced, the accused had not given reasonable thought and had not taken enough steps to examine the woman further. The accused had failed to rebut or throw any reasonable doubt on the prosecution case, and was therefore guilty as charged; (4) the accused was fined RM3,500, in default four months' imprisonment.

Public Prosecutor v Dr Nadason Kanagalingam [1985] 2 MLJ 122 High Court, Kota Kinabalu (Wan Mohamed J).

The accused doctor was charged that he, with intent to cause the miscarriage of Tee Bee Geok, did a certain act, to wit, he performed an operation of abortion which caused the death of the said Tee Bee Geok and thereby committed an offence punishable under s 314 of the Penal Code. There was evidence that on 18 May 1953, when Tee Bee Geok went to the doctor's maternity home she was over two months pregnant and that there could be normal delivery of the child. The doctor examined her and subsequently, it was alleged the woman agreed to undergo an operation. As a result of this operation, the woman died a few days later in the general hospital at Malacca. In the course of his summing up, Bellamy J inter alia, directed the jury as follows: '...If you are satisfied that the woman was pregnant; if you are satisfied that the accused did the act upon her as alleged to cause her miscarriage; if you are satisfied that she died as a result of that act; and furthermore, if you are satisfied that in doing so, the accused intended to cause her miscarriage and that there was no bona fide belief that in so causing her to miscarry, he was doing so to save the woman's life, then there is sufficient evidence to substantiate the charge which the prosecution has preferred against the accused. If you are satisfied about that then, and only then, will you come to consider the defence in this case.' The jury returned a unanimous verdict of 'guilty' and the accused was sentenced to five years' imprisonment. When the case went to the Court of Appeal, Counsel for the appellant contended that there were a number of misdirections and nondirections in the learned trial judge's summing up, the cumulative effect of which amounted to such serious misdirection that the verdict of the jury could not stand. The Court of Appeal dismissing the appeal,

Held: the summing up of the learned trial judge was, as a whole, a full and proper direction to the jury to which no real objection could be sustained. In consideration of the appellant's age and long professional career, the Court of Appeal varied the sentence to two years' imprisonment.

Public Prosecutor v Ong Bak Hin [1954] MLJ xxxiii Court of Appeal, Malacca (Mathew CJ, Wilson and Taylor JJ).

A discharge at a preliminary inquiry is no bar to a second preliminary inquiry on the same facts and for the same offence. The appellant was convicted of an offence punishable under s 314 of the Penal Code, ie with doing an act with intent to cause the miscarriage of one Lily Tan, which act caused the death of the said Lily Tan. It was argued on appeal that certain statements made by the deceased should not have been admitted by reason of the hearsay rule. Defence counsel also strongly criticised a statement made by the deceased to a magistrate, evidence on which was admitted, on the ground that it did not contain the ipsissima verba of the deceased.

Held: (1) statements made by the deceased were rightly admitted under s 32(a) of the Evidence Ordinance; (2) though the magistrate gave evidence a year or so after recording of the statement and his recollection of questions he may have put was impaired, there seemed no reason for thinking that he did not record correctly the actual words of the deceased; (3) as deceased was an accomplice to the criminal act of abortion, corroboration of her evidence was desirable. Corroboration was to be found in the evidence of visits to the appellant by the deceased.

Shim Mary v Public Prosecutor [1962] MLJ 132 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Good JJA).

In this case, the applicant had been charged with voluntarily causing hurt under s 323 of the Penal Code (FMS Cap 45). The applicant in his defence said that he was asleep at the time of the incident. He heard noises and came out and saw some persons injured. At the trial, the prosecution objected to the defence of alibi alleged to be put up by the applicant as no notice had been served on the prosecution under s 402A of the Criminal Procedure Code (FMS Cap 6). The trial magistrate agreed and in his grounds of decision, he said he excluded the defence. In the event, he found the applicant guilty and convicted him. The appeal of the applicant was dismissed in the High Court and he thereupon applied for the following question to be referred to the Supreme Court: Is an accused person, who gives evidence on his own behalf of a defence of alibi, but who proposes to call no other witnesses in support thereof, obliged to give notice under s 402A of the Criminal Procedure Code.

Held: (1) a distinction should be drawn between a bare denial and an alibi defence. Evidence of a bare denial is in any case always admissible. In order to distinguish one from the other, the court must know the nature of the evidence; (2) it follows that, initially, the court cannot prevent an accused person from giving evidence. Having heard the evidence, the trial court must then decide the nature of the evidence. If it is only evidence of a bare denial, the evidence stays. If it is evidence in support of an alibi and no notice under s 402A has been given, then he must exclude that part of the evidence from his consideration of the defence evidence; (3) on the facts of this case, both the trial magistrate and the appellate judge were in error in excluding the applicant's evidence that he was not involved in the fight and that he was in bed at the material time because this was not evidence of an alibi but a mere denial. Be that as it may, there was ample evidence to support the conviction and there are therefore, no grounds to make any other order; (4) the answer to the question referred to the court is in the affirmative, provided that the evidence is in support of his alibi and not a bare denial.

Vasan Singh v Public Prosecutor [1988] 3 MLJ 412 Supreme Court, Kuala Lumpur (Abdul Hamid Ag LP, Hashim Yeop A Sani and Harun SCJJ).

In this case, the learned magistrate found the accused guilty of voluntarily causing hurt under s 323 of the Penal Code and he ordered her to pay compensation to the complainant and bound her over under s 173A(ii)(b) of the Criminal Procedure Code (FMS Cap 6). He also bound the complainant and her witness to keep the peace for six months without first giving them an opportunity to show cause.

Held: (1) it is imperative that the complainant should have been called upon to show cause and only upon her failure to do so, could the court have ordered her to execute a bond to keep the peace; (2) the learned magistrate had acted contrary to the provisions of the Criminal Procedure Code and therefore, the order for binding over of the complainant and her witness must be set aside.

Chow Kim Lan v Public Prosecutor [1966] 1 MLJ 183 High Court, Alor Setar (Yong J).

The respondent was charged with voluntarily causing hurt.

Held, inter alia: the prosecution must prove every fact necessary to establish the truth of the charge and this applies equally to private summons and official prosecution.

Mek bte Awang v Che Mas bte Awang [1948] MLJ 36 High Court, Malayan Union (Taylor J).

The appellants were originally charged with rioting. At the end of the prosecution case, the court amended the charge against the accused to one of voluntarily causing hurt, upon which latter charge the accused were ultimately convicted. On appeal, it appeared that there was not sufficient evidence of voluntarily causing hurt against each of the accused, but there was evidence of rioting.

Held: (1) it was open to the appellate court to reverse a finding which amounts to acquittal, and substitute therefor a conviction if the facts so warrant and the acquittal was based on wrong grounds; (2) in this case, the finding of guilty of voluntarily causing hurt should be altered to a finding of guilty of rioting.

Paramasivan & Ors v Public Prosecutor [1948-49] MLJ Supp 152 High Court, Johore Bahru (Laville J).

The respondent was earlier fined RM2,000 in default four months' imprisonment by a magistrate after he pleaded guilty to a charge under s 324 of the Penal Code (FMS Cap 45) for using an iron chain to voluntarily cause hurt to a woman arising from a trivial traffic matter. The High Court judge called for the record of proceedings under s 323 of the Criminal Procedure Code (FMS Cap 6).

Held, enhancing the sentence: (1) the facts revealed that the respondent was very aggressive and violent arising from a traffic dispute. The medical report showed that the victim, who was then two months' pregnant, suffered injuries on various parts of her body; (2) the courts could take judicial notice that cases of aggression on the roads over trivial matters had become prevalent. This called for clear signals from the courts that such aggressive behaviour would be met with the severest of penalties; (3) in order to do substantial justice in this case, and taking into account that the respondent had pleaded guilty, was 60 years old and had committed the offence whilst he was fasting during the month of Ramadhan, the sentence was enhanced to four months' imprisonment and the fine of RM2,000 was set aside.

Public Prosecutor v Mustapha bin Abdullah [1997] 2 MLJ 424 High Court, Kuala Lumpur (KC Vohrah J).

Hashim & Anor v Public Prosecutor [1956] MLJ 233 Court of Appeal, Kuala Lumpur (Mathew CJ, Abbott and Spencer-Wilkinson JJ).

Held: acid throwing is a serious offence. The people who indulge in acid throwing are savages who deserve no mercy as they show no mercy to the people they attack. It is absolutely no mitigation in a case of this kind to say that it is a first offence. The severest penalty should be imposed in all cases of acid throwing.

Public Prosecutor v Ng Ah Tak [1959] MLJ 19 High Court, Ipoh (Good J).

Public Prosecutor v Haled [1981] 2 MLJ 211 High Court, Kuching (Yusoff Mohamed J).

In this case, the appellant was arrested for an offence of voluntarily causing hurt by a dangerous weapon under s 324 of the Penal Code, a bailable offence. The learned magistrate made an order authorizing his detention in police custody for 14 days under the provisions of s 117 of the Criminal Procedure Code (FMS Cap 6). The appellant appealed.

Held, dismissing the appeal: the learned magistrate had exercised her discretion rightly in this case and had fully complied with the provisions of s 117 of the Criminal Procedure Code.

Maja Anak Kus v Public Prosecutor [1985] 1 MLJ 311 High Court, Miri (Tan Chiaw Thong J).

In this case, the accused, who was 29 years of age, had been convicted on his plea of guilty on two charges of voluntarily causing hurt to two persons with a chopper under s 324 of the Penal Code (FMS Cap 45) an offence punishable with imprisonment for a term which may extend to three years or with fine or with whipping or with any two of such punishments. The learned magistrate, on considering the age of the accused, the probation report and the circumstances of the case, applied the provisions of s 294 of the Criminal Procedure Code (FMS Cap 6) and directed that he be released on his entering into a bond with sureties. He subsequently referred the papers in the case to the High Court for review as he doubted the correctness and legality of his order in view of the decisions of the High Court which seem to suggest that an order under s 294 of the Criminal Procedure Code can only be made where the offence is punishable with imprisonment without the option of a fine.

Held: the provisions of s 294 of the Criminal Procedure Code are applicable in the case of conviction for an offence punishable with imprisonment, whether with or without the option of a fine or other alternative penalties and in the circumstances of the case, there was no reason to interfere with the order of the magistrate.

Public Prosecutor v Yeong Yin Choy [1976] 2 MLJ 267 High Court, Ipoh (Abdoolcader J).

This was an appeal against the conviction of the appellants on charges of voluntarily causing hurt with dangerous weapons under s 324 of the Penal Code. There was no evidence that the instruments in question, if used as weapons of offence, would be likely to have caused death, and no attempt was made by the police to have the instruments examined by the chemist or anyone else to discover whether they showed any signs of having been used in the fight.

Held: (1) the prosecution had not in this case discharged the burden of proof which lay upon them in regard to the nature of the weapons used and the appellants were entitled to the benefit of the doubt upon this point; (2) on the facts of the case, the conviction should be altered from one of causing hurt with a dangerous weapon under s 324 of the Penal Code to that of causing hurt under s 323 of the Penal Code; (3) (obiter dictum) Where there is one trial at which more than one person is tried jointly with others, there should be but one appeal.

Shaik Meera & Anor v R [1955] MLJ 258 High Court, Penang (Spenser-Wilkinson J).

The accused in this case was originally charged with the offence of attempting to commit robbery, punishable under s 394 of the Penal Code. The charge was subsequently amended to one under s 324 of the Penal Code, an offence for voluntarily causing hurt by means of an instrument likely to cause death. When his defence was called, the accused elected to give statement from the dock. Later, he changed his mind saying that he had nothing to say and had no witnesses to produce. Evidence revealed that on 19 May 1977 at about 9.50pm, the accused went to the complainant's shop at Market Street, Kuching, which had been closed. The complainant was closing his account for the day when he heard someone knocking at the door. The complainant opened the door and the accused entered with another person. While the other person was talking to the complainant, the accused hit the complainant on the head with a hammer. The complainant lost his consciousness at the blow and when he recovered, the accused was still near him holding the hammer. The complainant grabbed hold of the accused and shouted for help. When the police arrived at the scene, they saw that the accused was struggling to free himself from the complainant and the hammer was still in the accused's hand. The complainant suffered injuries and was hospitalised for four days. The accused was convicted on the amended charge. He was sentenced to three years' imprisonment to be followed by two years' police supervision, and was ordered to be given six strokes of the rotan. He appealed against sentence.

Held: (1) having considered the fact that he had four previous convictions, that his career in crime was prompted by his addiction to drugs and also the serious manner in which he committed the offence, a sentence of imprisonment only was not sufficient. Some corporal punishment was necessary. Hence, the order of six strokes of the rotan; (2) police supervision was imposed to curtail his tendency to commit a more serious crime.

Public Prosecutor v Haled [1981] 2 MLJ 211 High Court, Kuching (Yusoff Mohamed J).

The appellant was convicted on a charge under s 324 of the Penal Code for voluntarily causing hurt with an instrument for cutting, to wit, a kris. He was sentenced to two years' imprisonment. On appeal against the sentence,

Held: having regard to the particular circumstances in Kelantan and also in view of the fact that the appellant had a previous conviction for a similar offence, the imposition of the sentence of two years, although harsh, was not manifestly excessive.

Mohamed Noor v Public Prosecutor [1966] 2 MLJ 173 High Court, Kota Bahru (Abdul Aziz J).

The respondent was charged under s 325 of the Penal Code. At the close of the prosecution case, the President discharged and acquitted him on the ground that as the radiographer was not called there was no evidence that the fracture shown on the x-ray film was that of the complainant. In passing, the President remarked that the case was poorly investigated and no statements were taken from independent withnesses. Since these independent witnesses were not called to give evidence, it was right he should also invoke s 114(g) of the Evidence Ordinance 1950.

Held: (1) as the medical report was properly admitted as evidence and the report clearly showed the injuries sustained, that was sufficient to warrant a conviction. The fact that the contents of the report have not been proved to the hilt matters little; (2) (per Abdul Aziz J) 'As regards the observation of the learned president, I feel that such an observation that the case was not properly investigated is uncalled for and is strictly outside the duty of the learned president. Not having seen the investigation papers, it is hardly right for the learned president to make such comments. His concern is merely to decide whether or not a prima facie case has been made out to justify calling upon the defence. Whether or not to call the so-called independent witnesses is according to the long line of cases a discretion for the prosecution. These cases show that it is not incumbent on the prosecution to call every witness present at the scene.'

Public Prosecutor v Subramaniam [1969] 1 MLJ 145 High Court, Kuala Lumpur (Abdul Aziz J).

[Annotation: Reference may be made to Harjit Singh v R [1963] MLJ 287.]

Lee Thian Beng v Public Prosecutor [1972] 1 MLJ 248 Federal Court, Kuala Lumpur (Suffian, Gill and Ong Hock Sim FJJ).

Gui Hoi Cham & Ors v Public Prosecutor [1970] 1 MLJ 242 Federal Court, Ipoh (Ong CJ (Malaya).

The appellant had been convicted on a charge of voluntarily causing grievous hurt with a spear. The trial judge considered that the evidence of the complainant as regards his ability to identify the asssailant was completely unshaken and he found the appellant guilty. In cross-examination, the complainant had given contradictory answers as to the identity of the assailant and the weapon used.

Held: the learned trial judge should have taken into consideration the answers of the complainant elicited in cross-examination and in the circumstances of the case and in view of the contradictions in the evidence of the complainant the conviction must be set aside.

Mahinder Singh v Public Prosecutor [1967] 1 MLJ 126 Federal Court, Kuala Lumpur (Barakbah LP, Pike CJ (Borneo).

The appellate with four others were accused of being members of an unlawful assembly, the common object of which was to cause harm to one R. On the categoric evidence of the appellant that the co-accused had nothing to do with the events alleged to have taken place, the learned trial judge acquitted the other accused and amended the charge against the appellant to one of voluntarily causing grievous hurt to R with a parang. The learned judge then referred to the contradictions and discrepancies in the evidence for the prosecution and stated that he was satisfied that the appellant had voluntarily caused grievous hurt to R. On appeal,

Held: the evidence of the complainant required close scrutiny in the context of the rest of the evidence for the prosecution and the defence and in the circumstances of this case, as the evidence of the independent witness (a police constable) did not support the evidence of the complainant, the conviction should be quashed although in doing so the appellate court would be drawing its own inference from the facts and would be coming to a finding different from that of the trial judge.

Periasamy v Public Prosecutor [1966] 1 MLJ 138 Federal Court, Kuala Lumpur (Thomson LP, Ong Hock Thye FJ and Ismail Khan J).

The appellants had been found guilty of voluntarily causing grievous hurt. The learned trial judge accepted the evidence of the prosecution witnesses that there was an unprovoked attack on the complainant by the appellants and rejected that of the defence that there was a general affray. He gave as his ground for so doing that the prosecution witnesses were unshaken in cross-examination.

Held: (1) the inherent probability or improbability of a fact in issue must be the prime consideration; (2) the fact of being unshaken in cross-examination was not per se an all-sufficient acid test of credibility;in view of the fact that the defence story in this case was consistent with the facts of the injuries, while that of the prosecution was not, it was open to the court to differ from the trial judge on the assessment of the evidence and the facts, and in the circumstances, the convictions of the appellants must be set aside.

Muniandy & Ors v Public Prosecutor [1966] 1 MLJ 257 Federal Court, Kuala Lumpur (Barakbah CJ (Malaya).

The appellant was convicted for causing grievous hurt with a knife in contravention of s 326 of the Penal Code and sentenced to two years' imprisonment. On appeal, it was argued inter alia that the charge was bad because it did not include an allegation that the instrument used was one which, when used as a weapon of offence was likely to cause death as in Shaik Meera v R [1955] MLJ 159, and Sultan Mohamed v R [1952] MLJ 186.

Held: as the knife used in this case fell within the first three descriptions, ie for shooting, stabbing or cutting, it was not necessary to specify in the charge that the instrument used was one which when used as a weapon of offence was likely to cause death. Per curiam: 'In our view, the meaning of that (ie s 326 of the Penal Code) is crystal clear. There is an offence if the instrument used is one for shooting; there is an offence if the instrument used is one for stabbing; there is an offence if the instrument used is one for cutting; and finally there is an offence if the instrument used which does not come within either of the first three descriptions, that is for shooting, stabbing or cutting, is one which if used as a weapon of offence, is likely to cause death. In other words, the words 'likely to cause death' qualify the word 'instrument' the second time it occurs and not the first time.'

Muniandi v Public Prosecutor [1963] MLJ 153 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Barakbah JJA).

The first appellant was charged separately from the second and third appellants with the offence of causing grievous hurt under s 326 of the Penal Code (FMS Cap 45) ('the Code'). However, as both cases arose from the same transaction in regard to the same complainant, they were tried together. The complainant was alleged to have been attacked by the first appellant with a knife. The left palm of the complainant was sliced and fractures were caused to the distal part of the carpal bones. The second and third appellants, each armed with a piece of wood, joined in the attack and hit the complainant with the wood. The case against the appellants rested solely on the evidence of the complainant as the other person who was with him could not be traced. The first appellant was arrested some five months after the attack after the complainant spotted him and informed the police of his presence at a coffee shop. The second and third appellants were arrested some ten months after the attack. The complainant identified the first, second and third appellants at two separate identification parades conducted after the respective arrests. At the close of the prosecution case, all the three appellants were called to enter their defence. Their defence of alibi was rejected by the trial judge as they did not raise a reasonable doubt. The first appellant was found guilty as charged, while the second and third appellants were found guilty under s 325 of the Code. The appellants appealed on the grounds, inter alia, (a) that the identification parades were conducted six months in the case of the first appellant and ten months in the case of the other two appellants, after the alleged incident and thus could not be relied on; (b) that the trial judge failed to draw an adverse inference under s 114(g) of the Evidence Act 1950 against the prosecution for failing to call two important witnesses; and (c) that the alibi of the appellants should have been accepted.

Held, allowing the appeal of the second and third appellants and dismissing the appeal of the first appellant: (1) the charge faced by the second and third appellants were separate and independent from that faced by the first appellant. They were not charged with committing the offence jointly and with common intention with the first appellant. The second and third appellants only hit the complainant with pieces of wood. Thus, at the close of the prosecution case, the charge under s 326 of the Code against them should not have been allowed to stand, as the grievous hurt was caused by the first appellant alone; (2) the identification parade with regard to the second and third appellants was conducted some ten months after the incident. One could not, therefore, discount the danger of misidentification as they were complete strangers to the complainant; (3) in the case of the first appellant, the fact that he was arrested and identified only some five months later would not be a factor to consider since he was known to the complainant. The case against the first appellant did not rest on the complainant's ability to identify him; (4) an adverse inference could only be invoked against the prosecution if there was withholding or suppression of evidence. The two witnesses in this case could not be traced; (5) the trial judge found that the first appellant's story did not raise a reasonable doubt mainly because he was positively identified by the complainant whom the judge believed was telling the truth. An appellate court would not disturb a finding of fact by the trial judge who had the advantage of hearing and observing the demeanour of the witness.

Arumugam & Ors v Public Prosecutor Criminal Appeal No 52-4-91 High Court, Ipoh (Kang Hwee Gee JC).

In this case, the respondent had been acquitted by the sessions court on a charge under s 4 of the Corrosive and Explosive Substances and Offensive Weapons Ordinance 1958.

Held: the charge in this case should have been laid under s 326 of the Penal Code and therefore, the trial was a nullity and an order would be made that the accused be recharged and a preliminary inquiry held with a view to his committal for trial in the High Court.

Public Prosecutor v Karnal Singh [1970] 1 MLJ 49 High Court, Penang (Ong Hock Sim J).

The appellant was convicted in the Resident's Court, First Division, of culpable homicide not amounting to murder, and was sentenced to three years' imprisonment. He appealed against the sentence on the ground of provocation, the deceased having committed adultery with his wife.

Held: (1) the provocation though grave was not sudden, and there was no reason why the sentence should be reduced; (2) as there was some doubt whether there was an intent to commit culpable homicide, the conviction for culpable homicide not amounting to murder was quashed, and a conviction for causing grievous hurt with a dangerous weapon under s 326 of the Penal Code was substituted.

The Rajah v Jong Pok [1928-41] SCR 68 Supreme Court, Sarawak

The accused was convicted by the learned magistrate on his own plea of guilty to a charge for voluntarily causing hurt to a girl by means of a knife and sentenced to a fine of RM250. He had slashed the face of the girl on the left and right cheeks some three or four times.

Held: under the Penal Code, where there is permanent disfiguration of the head or face, the offence should be one of grievous hurt and the charge framed under s 326. The trial of the accused before the learned magistrate therefore was a nullity, because the charge under s 326 carries a term which may extend to life or ten years, and shall also render him liable to whipping.

Public Prosecutor v Lee Hor Sai [1969] 1 MLJ 168 High Court, Penang (Ong Hock Sim J).

Held: the omission of the accused's name in the police report made by a witness does not in any way detract from the weight and value which the trial judge had attached to the testimony of the complainant himself. The witness's evidence as to the identity of the complainant's assailant was at any rate only secondary, and the law does not in this case (on a charge under s 326, Penal Code) require independent corroboration of the complainant's evidence.

Chinnakarappan v Public Prosecutor [1962] MLJ 360 Court of Appeal, Kuala Lumpur (Hill and Good JJA, and Ong J).

This was an appeal against the conviction of the appellant for murder. The deceased made a dying statement which was recorded by the police but this was not produced in evidence. It was also alleged on appeal that the trial judge had misdirected the jury on an alleged suicide attempt by the appellant, when the evidence did not support the allegation.

Held: because of the misdirection or non-direction as to the alleged suicide attempt and the non-production of the best available evidence, to wit, the dying statement, the verdict of the lower court cannot stand and the conviction must be quashed.

Chow Siew Woh v Public Prosecutor [1967] 1 MLJ 228 Federal Court, Kuala Lumpur (Barakbah LP, Azmi CJ (Malaya).

This was an appeal against the conviction of the appellant at the magistrate's court at Kuala Kangsar on a charge of causing grievous hurt by a rash or negligent act, an offence under s 338 of the Penal Code. The two grounds of appeal were: (a) s 377 of the Criminal Procedure Code (Cap 6) is a bar to a private person conducting a prosecution for an offence under s 338 of the Penal Code, which is a seizable offence, and the proceedings having therefore been conducted in contravention of s 377 of the Criminal Procedure Code, were void; (2) the evidence did not disclose such a degree of negligence as would support a charge under s 338 of the Penal Code.

Held: (1) the fact that the prosecution was conducted by the complainant and not by any of the officers mentioned in s 377 of the Criminal Procedure Code was an irregularity, but as it did not prejudice the appellant, it was cured by the provisions of s 422 of the Criminal Procedure Code; (2) on the facts, the evidence did not disclose such a degree of negligence as would make the appellant criminally liable and therefore, the appeal must be allowed.

Tara Singh v Public Prosecutor [1954] MLJ 123 High Court, Ipoh (Buhagiar J).

This was an appeal against the conviction of the appellant for murder. The charge alleged that the murder was committed in the course of and in furtherance of the common intention of the appellant and three others to commit robbery. Among the grounds of appeal raised were that (1) there was a misdirection of the law relating to common intention; (2) the learned trial judge failed to direct the jury as to when and subject to what conditions an inference adverse to an accused person may be drawn; (3) the learned trial judge did not put the defence adequately to the jury; (4) the learned trial judge failed to direct the jury as to the possibility of returning a verdict of culpable homicide not amounting to murder.

Held, dismissing the appeal: (1) the learned trial judge had given sufficient direction on the law relating to common intention (2) the learned trial judge had given an adequate direction to the jury which was tantamount to telling them that unless the only conclusion to be drawn from the circumstantial evidence was that the appellant was present at the robbery, they must not act on it; (3) the learned trial judge had in his summing up referred adequately to the defence, which was one of alibi. There was nothing in the summing up to support the argument that he told the jury that the appellant's alibi required corroboration or that there was any burden on the appellant to show that his story was true; (4) in this case, the failure of the trial judge to direct the jury on the need to consider the lesser verdict of culpable homicide not amounting to murder was not such a misdirection as would lead to a miscarriage of justice. In the circumstances, this was a case in which the proviso to s 60(1) of the Courts of Judicature Act 1964 (Act 91) should be applied.

Lee Kok Eng v Public Prosecutor [1976] 1 MLJ 125 Federal Court, Ipoh (Gill Ag LP, Ali Ag CJ (Malaya).

This was an appeal against the conviction of the appellants on a charge of cheating. The main ground of appeal related to the way in which the trial judge dealt with the cautioned statements. It was argued that they were not made voluntarily and that the learned judge had just lumped together the statements made by the accused. One of the accused had originally filed a notice of appeal but, subsequently, he filed a notice of withdrawal of the appeal. He later applied to the Federal Court for leave to file a fresh notice of appeal out of time.

Held, dismissing the appeal: (1) the learned trial judge had fully and correctly gone into the question of law before admitting the cautioned statements. Although he did not specifically refer to the various parts of the statements and say in each case what part he would admit and against whom, he had in his judgment made it clear that in dealing with these cautioned statements, he would not make use of any part of the statements which implicated another co-accused; (2) there must be special circumstances before the appellate court could allow the withdrawal of a notice of abandonment of appeal and, in this case, there were no such special circumstances.

Wee King Hock & Ors v Public Prosecutor [1971] 2 MLJ 96 Federal Court, Kuching (Azmi LP, Ismail Khan CJ (Borneo).

The Public Prosecutor appealed against an order discharging all six respondents from a charge under s 348 of the Penal Code (FMS Cap 45) ('the Code') read together with s 34 of the same Code. It was established that SP2 was forced into a car by the first four respondents and held in a hotel with a view to extorting from SP2's father (SP13) a sum of RM450,000 for his release. SP5 admitted that the six respondents were investors in a scheme founded by SP13 known as Pestama Bhd ('Pestama') which subsequently failed. This scheme caused substantial losses to the respondents; hence the respondents were under pressure to recover as much of their investment as they could from SP13. From the evidence, it was clear that there were at least 5 to 11 times where opportunity arose for SP2 to escape but he did not do so.

Held, convicting respondents 1 to 4 under s 340 of the Code, but upholding the discharge of respondents 5 and 6: (1) when respondent 1 (with respondents 2, 3 and 4) pulled or 'invited' SP2 into their car, SP2 could not move as he wished and this could be considered as 'confining'; (2) an absence of a desire to move on the part of the person confined no doubt detracts from it being an offence under this section but mere omission of an attempt to run away when there is no watch does not mean an absence of desire; (3) respondents 1, 2, 3 and 4 had committed an offence under s 340 (and not s 348) of the Code read with s 339 and punishable under s 341. When SP2 had opportunities to escape but did not do so and subsequently followed the respondents around and sympathized with them, at that point of time wrongful confinement ended; (4) the period of confinement, ie the time during which a person is kept in wrongful confinement is immaterial, except with reference to the extent of punishment. The prosecution also does not need to prove 'malice' as 'malice' is not an essential ingredient in the offence of wrongful confinement; (5) for each of respondents 1, 2, 3 and 4, considering the confused state caused by SP13 (SP2's father) and considering that they did not act untowardly toward SP2, these factors would be taken into account to lighten the sentence 'according to law'; (6) under s 316(a) of the Criminal Procedure Code (FMS Cap 6) and s 341 of the Code, a sentence of RM100 fine each, in default three months' imprisonment is imposed. Had it not been for the special circumstances, a heavier sentence such as imprisonment may have been required; (7) the facts of the case are amply clear for respondents 1 to 4 to be convicted of offences under s 340 of the Penal Code and not s 348 as they were originally charged with; (8) the prosecution should have altered the charge in the lower court via ss 157, 158, 165 or 167 of the Criminal Procedure Code. If the charge was altered to one under s 340, the situation would not have arisen. The prosecution should have evaluated the evidence obtained by them and matched it with the requirements of the charge that they had proferred.

Public Prosecutor v Isa bin Johnit Criminal Appeal No 41-425-92 High Court, Kuala Lumpur (Syed Ahmad Idid J).

The appellant, who was convicted of extortion, appealed on two grounds: (a) admission of evidence that he was a member of a secret society previously prejudiced his trial; (b) failure of the prosecution to produce a possible eye witness raised a presumption unfavourable to the prosecution under s 114 of the Evidence Ordinance 1950.

Held: (1) it was part of the threat that the appellant was a member of a secret society and therefore, in a case of extortion it became a relevant fact under s 54 of the Evidence Ordinance; (2) it was not clear from the evidence in this case whether the witness, who was not produced, was able to give evidence in regard to the conversation which took place at the material time. The prosecution was not bound to call all available eye-witnesses. They have a discretion, which in this case was rightly exercised.

Wong See Har v Public Prosecutor [1968] 1 MLJ 32 High Court, Kuala Lumpur (Azmi CJ (Malaya).

Public Prosecutor v Chan Choon Keong & Ors [1989] 2 MLJ 427 High Court, Kuala Lumpur (Faiza Tamby Chik JC).

Namasiyiam & Ors v Public Prosecutor [1987] 2 MLJ 336 Supreme Court, Kuala Lumpur (Salleh Abas LP, Wan Suleiman and Syed Agil Barakbah SCJJ).

Choo Yoke Choy v Public Prosecutor [1992] 2 MLJ 632 Supreme Court, Kuala Lumpur (Harun Hashim, Mohamed Yusoff SCJJ and Anuar J).

In this case, the two appellants and a third person were charged with being jointly in possession of firearms. The two appellants were convicted. In the course of his summing up, the learned trial judge said: 'If you apply your minds to the first charge, that is, that the three prisoners were jointly in possession of these firearms, I have to tell you that it is the law that if a number of people set out with a common purpose which involves the use of firearms, if in the course of carrying out that purpose with these firearms, some of them have physical possession of firearms, that is, have firearms in their hands, and in the course of what is done they are used, then everyone in that party who is there with the common intention of acting with the rest of the party is jointly in possession of the firearms which are in fact used.'

Held: (1) the above direction does not set out accurately the law of common intention in this country; (2) the law of common intention in this country is laid down in s 34 of the Penal Code, and as there was no evidence in the present case from which a common intention to possess arms could reasonably be inferred, the conviction of the appellants must be quashed.

Kong Wai & Anor v Public Prosecutor [1948-49] MLJ Supp 170 Court of Appeal, Kuala Lumpur (Willan CJ, Spenser-Wilkinson and Russell JJ).

Foon Bernard & Ors v Public Prosecutor [1968] 2 MLJ 117 Federal Court, Kuala Lumpur (Azmi CJ (Malaya).

Where a trial judge in his charge to the assessors directs that, 'if two or more persons armed with weapons jointly and in common attack a man, then it matters not which of them strikes the blow. The common intention is to attack the man with weapons. In a case such as that, each person, whether it be one or more, is equally guilty in just the same way as if there were only a single assailant.'

Held: such a direction is a correct statement of the law on the subject of common intention.

Santa Singh v Public Prosecutor [1938] MLJ 58 Court of Appeal, Federated Malay States (Howes Ag CJ (FMS).

[Annotation: R v Vincent Banka [1936] MLJ 66 and R v Chhui Yi [1936] MLJ 177 at p 180, referred to and applied; William Herbert Wallace 23 Cr App R 35 referred to.]

The appellant appealed against his conviction for the murder of one KAK. The evidence showed that the deceased was stabbed by three persons, one of whom was the appellant. In his summing up, the learned judge said, inter alia, 'If two or three or four people take part in any act which leads to the death of another person and they act in conjunction, then every one of those four is equally guilty of the death of the victim and therefore, if you believe the evidence, the fact that the accused delivered two blows, the unknown Malay delivered another blow and the prosecution witness (Ismail) himself delivered another blow makes no difference whatsoever. If murder is proved, all striking blows in the circumstances described by the witness are equally guilty. If you are satisfied beyond reasonable doubt that any one of those blows which led to the death of the victim was delivered by the accused, that is sufficient for the purposes of this charge.'

Held: (1) to establish guilt under s 34 of the Penal Code, it is necessary to prove a common intention, and it must be shown that the criminal act was done in furtherance of that intention; (2) the summing up of the learned judge in this case concentrated on the joint nature of the acts themselves rather than on the common intention to commit those acts, and because of this misdirection, the conviction must be quashed and a retrial ordered.

Abu Bakar v Public Prosecutor [1947] MLJ 133 Court of Appeal, Malayan Union (Willan CJ (MU).

On 6 August 1961, four persons, three of whom were armed with firearms, entered the house of one Foo. When the said Foo came on the scene, at least two shots were fired at him and he fell down dead. The intruders were pursued and later in a hut nearby, the appellant was arrested by the police who also found an unfired revolver concealed under a platform. One W was also arrested and together they were charged and tried for murder committed in furtherance of a common intention. W was acquitted at the trial. The appellant at the trial changed his counsel three times and on the fourth occasion when he asked for an adjournment to engage someone else, this was refused. The trial judge directed the jury on the point of common intention more than once in these and similar words: 'If you are satisfied that the prosecution have to your satisfaction proved all of the ingredients which I have set out to you, namely, that the first accused was there as a member of the gang, took part in the affairs of the gang, that the man who fired the shot intended to murder or to kill Foo and that Foo was killed in furtherance of that common intention, then it is your clear duty to say he is guilty as charged.' The appellant's defence was one of alibi; he was convicted. On appeal,

Held: (1) the request for the adjournment was unreasonable and properly rejected; (2) the judge's direction to the jury was suitable and adequate to ensure that the jury applied their minds to the circumstances of the case.

Lee Fook Sam v Public Prosecutor [1963] MLJ 371 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Good JJA).

The appellant was convicted of murder. The evidence in the case was based mainly on statements made by the deceased and on his dying deposition. This evidence suggested that the appellant and another person, Mohan Singh, took part in a fight with the deceased. There was no direct evidence to show who struck the fatal blows which led to the death of the deceased, but the learned Deputy Public Prosecutor in his closing address cited s 34 of the Penal Code in arguing that even if the other person took part in the fight, the appellant was still guilty in law. The learned trial judge failed to warn the assessors that in the absence of any evidence of common intention, the submission of the Deputy Public Prosecutor was fallacious.

Held: the failure of the learned trial judge to direct the assessors on the question of common intention constituted a misdirection.

Naranjan Singh v Public Prosecutor [1949] MLJ 122 Court of Appeal, Kuala Lumpur (Willan CJ, Russell and Briggs JJ).

See evidence, x-ref 33.

Osman bin Abdullah v Public Prosecutor [1958] MLJ 12 Court of Appeal, Penang (Thomson CJ, Whyatt CJ (S).

Hashim & Anor v Public Prosecutor [1956] MLJ 233 Court of Appeal, Kuala Lumpur (Mathew CJ, Abbott and Spenser-Wilkinson JJ).

Held: the law of common intention in this country is defined in s 34 of the Penal Code and under the terms of that section, there must exist a common intention to commit the crime actually committed, and it is not sufficient that there should be merely a common intention to behave criminally. To invoke the aid of s 34 successfully, it must be shown that the criminal act complained against was done by one of the accused in the furtherance of the common intention of all.

Lee Yoon Choy v Public Prosecutor [1948-49] MLJ Supp 167 Court of Appeal, Kuala Lumpur (Willan CJ, Spenser-Wilkinson and Russell JJ).

Public Prosecutor v Chan Ah Kow & Anor [1988] 3 MLJ 337 High Court, Kuala Lumpur (KC Vohrah J).

Shamsuddin bin Hassan & Anor v Public Prosecutor [1991] 3 MLJ 314 Supreme Court, Malaysia (Jemuri Serjan CJ (Borneo).

Public Prosecutor v Lim Boon Hock & Ors [1985] 2 MLJ 219 High Court, Johore Bahru (Yusoff Mohamed J).

Namasiyiam & Ors v Public Prosecutor [1987] 2 MLJ 336 Supreme Court, Kuala Lumpur (Salleh Abas LP, Wan Suleiman and Syed Agil Barakbah SCJJ).

In a privately conducted prosecution for assault under s 352 of the Penal Code, a police investigation was held and statements taken from two persons who were present at the scene of the alleged offence, but their evidence was not called at the trial. The prosecution rested solely on the complainant's evidence and on the evidence of a witness not produced to the police.

Held: the conviction could not stand in the absence of corroboration by the material witnesses, whose evidence should have been but was not called. The witness who was called must be regarded with suspicion and his evidence disregarded.

S Swam Pillay v Public Prosecutor [1937] MLJ 159 High Court, Johore Bahru (Laville Ag J).

Paramasivan & Ors v Public Prosecutor [1948-49] MLJ Supp 152 High Court, Johore Bahru (Laville J).

The respondent was charged on two charges, namely: (a) hawking vegetables without a licence, contrary to byelaw 2 of the Kuala Lumpur Municipal (Itinerant Hawkers) Byelaws 1957, an offence under s 53 of the Municipal Ordinance, and (b) using criminal force on a police constable in the execution of his duty, an offence punishable under s 353 of the Penal Code. He pleaded guilty to both charges and the magistrate fined him RM10 for the first offence and on the second offence he was bound over for RM100 to be of good behaviour for six months. On appeal by the Public Prosecutor against the inadequacy of sentence in respect of the second charge,

Held: from the facts as stated by the learned magistrate, the arrest was not made in the proper form as required by s 15(i) of the Criminal Procedure Code, and it was justifiable for the respondent to put up a struggle since he was resisting an illegal or unjustifiable use of force against him. Reasons advanced for not imposing prison sentence.

Public Prosecutor v Kok Khee [1963] MLJ 362 High Court, Kuala Lumpur (Ong J).

Held{eb] a fine of RM80 for an offence of assaulting a public servant in the execution of his duty is inappropriate.

Yeo Hock Heng v Public Prosecutor [1969] 1 MLJ 126 High Court, Penang (Ong Hock Sim J).

In this case, the appellant had pleaded guilty and been convicted of the offence of assaulting a public servant and had been sentenced to three months' imprisonment. He appealed against the sentence.

Held: (1) there were matters pleaded in mitigation in this case and these should have been considered by the learned magistrate in imposing sentence; (2) no plea in mitigation should be thrown aside lightly, but must be examined and considered equally with the facts presented by the prosecution; (3) in this case, having regard to all the facts before the court, the public interest would in no way be better served by committing the appellant to prison. The public interest would be best served by setting aside the sentence of imprisonment and substituting therefor an order under s 294(i) of the Criminal Procedure Code (Cap 6) that the appellant should enter into a bond with one surety in the sum of RM1,000 for a period of two years and in the meantime, to keep the peace and be of good behaviour.

Raja Izzuddin Shah v Public Prosecutor [1979] 1 MLJ 270 High Court, Ipoh (Hashim Yeop A Sani J).

Held: appeal against conviction and sentence dismissed.

Soo Nyown v R [1957] SCR 97 Supreme Court, Sarawak, North Borneo and Brunei (Smith J).

The appellant was convicted under s 353 of the Penal Code. She appealed on two grounds, one of which was that the prosecution had failed to prove that the police constable was acting in the execution of his duties. It appeared that the son of the appellant was selling handkerchiefs at a small stall on the five-foot way of Penang Road, Penang, a short distance from where the appellant also was selling articles at a stall. On the record, it was not clear which provision of which law the son of the appellant was alleged to have broken. It was also not clear whether the son of the appellant was at any time under arrest.

Held: the prosecution failed to prove that the police constable was in law a public servant acting 'in the execution of his duty'.

Khor Ah Kah v Public Prosecutor [1964] MLJ 309 High Court, Penang (Hepworth J).

In the case of assault with intent to outrage modesty and other sexual offences against children, the imposition of a fine only is not adequate punishment and the appropriate sentence should be one of rigorous imprisonment.

Public Prosecutor v Tanga Muthu [1939] FMSLR 166 High Court, Federated Malay States (Poyser CJ).

Held: while there is no law in this country that in sexual offences, the evidence of the complainant must be corroborated, nevertheless, as a matter of common sense, it will be unsafe to convict unless either the evidence of the complainant is unusually convincing or there is some corroboration of the complainant's story. It would be sufficient if that corroboration consisted only of a subsequent complaint by the complainant herself, provided that the statement implicated the accused and was made at the first reasonable opportunity after the commission of the offence.

Public Prosecutor v Mardai [1950] MLJ 33 High Court, Kuala Lumpur (Spenser-Wilkinson J).

This was an appeal by the Public Prosecutor against the acquittal of the respondent at the end of the prosecution case on a charge of using criminal force on the complainant with the intention of outraging her modesty, an offence punishable under s 354 of the Penal Code. The complainant, who had known the respondent for some time, had recognized his face by flashes of lightning when the alleged offence was committed. Notwithstanding all the evidence for the prosecution, which was not contradicted by other evidence and remained unshaken by cross-examination, the magistrate acquitted the respondent on the ground that the complainant's evidence could not be relied on in so far as identification alone was concerned.

Held: in this case, there was nothing inherently improbable about the complainant's story, and her evidence was neither contradicted nor shaken by cross-examination. In the circumstances, it was the duty of the magistrate to have called on the defence.

Public Prosecutor v Basar [1965] 1 MLJ 75 High Court, Ipoh (Gill J).

The power to impose police supervision is a measure that should be resorted to sparingly by magistrates and then only in the most appropriate cases. Its sole object and only justification is to ensure that in the interests of public security, the police are in a position to exercise some measure of control over the movements and activities of persons of known bad character such as burglars, pick-pockets and common thieves who habitually and consistently lead a life of criminal dishonesty. It should therefore not be imposed by way of an additional punishment. The imposition of police supervision and the consequent difficulties and restraint it puts upon the prisoner after his release does more harm than good. Particulars of previous convictions should be produced by the prosecution and after they have been specifically put to and admitted or denied, as the case may be, by the accused either be attached to the magistrate's record, or he should himself take down upon his record of the case the full particulars thereof. Such details are necessary in the event of the case being required, as in this instance, by the High Court. In this case, the accused was convicted of indecent assault under s 354 of the Penal Code, the facts accepted by the magistrate being that the accused accosted a woman in or near a durian plantation and attempted to embrace her. He was sentenced to six weeks' imprisonment followed by police supervision. On revision, the order for police supervision was set aside on the ground that neither the facts of the case nor the past record of the accused justified the order.

Re Bakar [1959] MLJ 256 High Court, Penang (Rigby J).

Held: in this case, the appellant had pleaded guilty to and was convicted of an offence of kidnapping contrary to s 365 of the Penal Code. The learned judge called for a probation officer's report and from it, he was satisfied that the proper order in the case was that the appellant should be detained in a Henry Gurney School until he attained the age of 21 years.

Teh Yew Whatt v Public Prosecutor [1958] MLJ 171 High Court, Kuala Lumpur (Smith J).

A were charged with wrongfully confining X and Y with intent to hold them for ransom, an offence punishable under s 3(1) of the Kidnapping Act 1061 read with s 34 of the Penal Code (FMS Cap 45). At the trial, the prosecution sought to rely on the oral testimony and evidence of a witness who alleged that ransom was demanded by B and on behalf of A, for the release of X and Y. B, who was alleged to have committed the offence with A, had since been hanged. Counsel for A objected to the introduction of the evidence by the witness on the grounds that it was hearsay.

Held, amending the charges to one of abduction and wrongful confinement: (1) evidence by witness of what another person has stated (whether verbally, in writing or otherwise) on a prior occasion is inadmissible for the purpose of proving that any fact stated by that person on such prior occasion is true. The hearsay rule will not be infringed where the purpose of adducing the evidence is to show not the truth of what was said but that the statement was in fact made; (2) in the instant case, the purpose of introducing the evidence was to show that ransom was made not only by B himself but also by A. The evidence was accordingly hearsay and therefore inadmissible; (3) in the result, there was insufficient evidence to sustain the charges against A under s 3(1) of the Kidnapping Act 1961. However, on the prosecution's evidence, the court was satisfied that A had committed the offence of abduction and wrongful confinement under s 365 of the Penal Code (FMS Cap 45). The charges were accordingly amended and read to A who unequivocally pleaded guilty to the amended charges; (4) A1-A3 were sentenced on each of the charges to five years' imprisonment from the date of arrest, the sentences to run concurrently. In regard to A4 and A5, they were each sentenced on each of the charges to three years' imprisonment from the date of arrest, the sentences also to run concurrently.

Public Prosecutor v Ng Lai Huat & Ors [1990] 2 MLJ 427 High Court, Kuala Lumpur (Faiza Tamby Chik JC).

This was an appeal against the conviction of the appellant on charges of kidnapping a woman in order that the said woman may be forced into illegal intercourse, an offence under s 366 of the Penal Code and of knowingly living on the earnings of prostitution, an offence under s 5(i) of the Woman and Girls' Protection Enactment (Cap 156). The complainant in the case was above the age of 16 years at the material time. The second charge of knowingly living on the earnings of prostitution was added by the learned President at the end of the prosecution case. The charge required a sanction which was produced after an adjournment was obtained.

Held, allowing the appeal: (1) as the complainant in this case was above the age of 16 years at the material time, the charge should have been for abduction and not for kidnapping; (2) as kidnapping and abduction are two different offences and as on charge of abduction, the burden is on the prosecution to prove that the taking away was by compulsion, the conviction on the first charge could not stand; (3) the learned President had properly exercised his power in adding the new charge under the Women and Girls' Protection Enactment and the sanction required in this case for the charge had been produced in compliance with s 161 of the Criminal Procedure Code; (4) there was no corroboration of the complainant's evidence in this case and as the learned President had not directed his mind on the question of corroboration, the conviction on the second charge must be quashed.

Pritam Singh v Public Prosecutor [1970] 2 MLJ 239 High Court, Kuala Lumpur (Abdul Hamid J).

The appellant was charged and convicted by the President of the Sessions Court under s 366 of the Penal Code for abducting a woman of 19 years with intent to have illicit sexual intercourse with her and sentenced to one and half years' imprisonment and a fine of RM200. In this appeal, it was contended for the appellant: (a) the charge was defective because no reference was made to s 34 of the Penal Code; (b) the learned President had erred in placing on the appellant the onus of proving that no offence had been committed; (c) the President misdirected himself in accepting as corroboration the complaint of the complainant, and (d) the learned President was wrong in disallowing any questions by the appellant's counsel as to her character.

Held: (1) the charge was correctly framed because there was evidence that both the appellant and his companion had removed the complainant in a car and that shortly afterwards, they both had sexual intercourse with her; (2) it was clear that throughout the trial the President had fully appreciated that the onus was always on the prosecution; (3) there was no misdirection because a complaint, if made immediately, would be treated as corroboration in view of s 157 of the Evidence Ordinance 1950 although in England it would not be so regarded; (4) in this case, where the case for the prosecution rested almost entirely on the corroborated evidence of the complainant, a cross-examination addressed to the credit of the complainant would have been especially relevant.

Lim Baba v Public Prosecutor [1962] MLJ 201 High Court, Malacca (Ismail Khan J).

Held: a conviction of an offence of abduction under s 366 of the Penal Code does not warrant the imposition of police supervision.

Hussain v Public Prosecutor [1956] MLJ 207 High Court, Kota Bahru (Rigby J).

The accused were charged under s 373A of the Penal Code with buying a female for the purpose of prostitution. It appeared that on receipt of certain information, Mr Clogh, the officer-in-charge of 'B' Division, Kuala Lumpur, arranged that a girl Chan Fong Sai should be produced by the witness, who had given the information as a girl who was willing to be sold as a prostitute. As a result, the accused were arrested after they had paid a sum of money for the purchase of the girl. It was argued for the accused, inter alia: (a) there could be no sale of the girl by herself; (b) the action of the police officer in this case was improper.

Held: (1) a woman can sell herself into prostitution and as in this case, an attempted buying was proved, the accused were guilty of the charge brought against them; (2) the police officer did not behave improperly in this case and if he had not acted as he did, a gang of traffickers in women would never have been prosecuted.

Re Lee Yoke Keng & Ors [1955] MLJ 55 High Court, Kuala Lumpur (Mathew CJ).

The appellant was charged with knowingly permitting premises to be used as a brothel. He pleaded guilty and was convicted. The evidence was that a hotel guest was found with a woman in a room in the hotel and they admitted using the room for sexual intercourse. The appellant said he did not know about the matter as he was playing 'mahjong' at the time.

Held: (1) it was clear that the appellant's plea did not constitute an unequivocal plea of guilty and his plea should not have been accepted; (2) the facts disclosed by the prosecution did not indicate that the appellant's hotel was being used as a brothel, still less that it was so used with the knowledge or permission of the appellant.

Lau Eng Teck v Public Prosecutor [1965] 1 MLJ 34 High Court, Kuching (Harley J).

[Annotation: Section 373C(c) of the Penal Code of Sarawak (Cap 57) corresponds to s 133(4) of the Women's Charter 1961 of Singapore and s 7 of the Women and Girls Protection Enactment (FMS Cap 156).]

This was an appeal against the conviction of the appellant on a charge of rape. The prosecution rested mainly and solely on the evidence of the child complainant. There was no corroboration of her evidence. A witness was called for the defence and asked whether he had sexual intercourse with the complainant but the provisions of s 132(2) of the Evidence Ordinance 1950 was not explained to the witness.

Held: (1) the complainant's evidence by itself was far from convincing and there was a total absence of corroboration in any material particular implicating either of the appellants. On the contrary, the complainant's evidence was discredited by her own father; (2) the defence's case was not properly and fairly presented to the jury; (3) the failure of the learned judge to comply with the pro-visions of s 132 of the Evidence Ordinance 1950 resulted in serious misdirections; (4) on all these grounds, the appeal must be allowed and the conviction of the appellants quashed.

Muniandy & Anor v Public Prosecutor [1973] 1 MLJ 179 Federal Court, Kuala Lumpur (Ong CJ, Gill and Ong Hock Sim FJJ).

The appellant had been charged and convicted under the fifth limb of s 375 of the Penal Code (FMS Cap 45) of raping a 17-year-old who was intellectually subnormal. The prosecution's case was that the complainant, who worked as a maid, had wandered into a neighbouring clinic, which was undergoing renovation, with her employee's children. The appellant, who was at the time employed to paint the wards in the clinic, had sexual intercourse with her. The incident was only discovered the next day when a woman police constable, who was working as an orderly in the clinic at the time, noticed that the complainant was behaving strangely; unlike other days, she had bothered to dress up that day. The orderly asked her if she 'kena buat orang' (had something done to her by someone). The complainant smiled and said yes, but did not elaborate. When asked who was responsible, she gave a name which the orderly did not recognize and could not remember at the time of the trial. The orderly subsequently informed the complainant's employers that the complainant had been raped and a report was eventually lodged by the complainant alleging that she had been raped. A medical examination revealed no physical injuries, apart from an 'old uniform tear of the hymen', which could have been equally caused by intercourse or some form of rigorous exercise. At the trial, the complainant's answers during examination-in-chief and cross-examination in respect of what had actually happened were inconsistent and also contradicted the statements made in her police report and what she had told the orderly. It was undisputed that, while the complainant was incapable of fantasizing, she was susceptible to suggestions. The appellant admitted that he had been physically intimate with the complainant at the material time, but insisted that it was with the complainant's consent, and, further, he claimed that he had stopped short of actually having intercourse with her.

Held, allowing the appeal and acquitting the accused: (1) while it is true that the rule requiring corroboration of the testimony of a complainant in a rape case is only a rule of prudence and not a rule of law, the trial judge had clearly failed to take into consideration the possibility that the complainant, being a person of low intelligence, was susceptible to suggestions when he came to the conclusion that she was a witness of truth; (2) to prove their case under the fifth limb of s 375, the prosecution must prove that the complainant was, at the time of the incident, 'unable to understand the nature and consequences of that to which she gives consent'. The inability of comprehension in this context must be specifically proved in respect of sexual intercourse. Expert evidence is necessary to prove this, but the expert must first understand what is meant in law by the words 'nature and consequence' and the degree of inability to understand required by the law to satisfy the provision. The meaning attached to the words 'unable to understand the nature and consequences of that to which she gives consent' must be the same as that given to similar words in s 90. In other words, the result is that, although the prosecution need not, under s 375, prove intoxication or insanity, the inability of comprehension must be of the same nature as the inability of comprehension arising out of a situation as in s 90, ie due to intoxication or insanity. The court was not convinced in this case that the complainant did not have some basic awareness of sexual matters, and, therefore, could not accept that she did not understand the nature and consequence of that which she consented to in the manner required; (3) furthermore, the court found that the learned trial judge had insufficient grounds to even conclude that there had been intercourse between the appellant and the complainant in the light of the evidence adduced before the court. In the circumstances, the conviction of the accused was clearly unsafe.

Ridzuan bin Zainal lwn Pendakwa Raya Criminal Appeal No 42-51-91 High Court, Kuala Lumpur (Abdul Aziz J).

In this case, the accused was charged with rape. The accused sought at the trial to rely on the defence of alibi. No notice under s 402A of the Criminal Procedure Code (Cap 6) had been given to the Public Prosecutor. However, the accused had made a cautioned statement to the police which was alleged to contain the defence of the alibi. At the trial in the sessions court, the charge was amended by altering the time in the charge from '8.30pm' to '8pm'. It was argued that because of this amendment in the charge, the provisions of s 402A of the Criminal Procedure Code were no longer applicable. At the trial, the accused was convicted and sentenced to three years' imprisonment. The learned President rejected the accused's evidence of alibi. His appeal to the High Court was dismissed. The accused was given leave to refer two questions of law of public interest to the Supreme Court. The two questions as reframed were: (a) whether a cautioned statement recorded under s 113 of the Criminal Procedure Code can constitute a valid notice under s 402A of the Criminal Procedure Code; If the answer is in the negative, then (b) whether in an offence where the charge is amended in the court of the trial relating to the time set out in the original charge, s 402A of the Criminal Procedure Code is not applicable, and notice required to be served thereunder need not be so served to render evidence in support of a defence of alibi admissible.

Held, answering both questions in the negative: (1) for the purpose of compliance with s 402A of the Criminal Procedure Code, actual written notice containing particulars of the alibi must be given to the Public Prosecutor within the prescribed period. Therefore, a cautioned statement recorded by the police under s 113 of the Criminal Procedure does not constitute a valid notice under s 402A of the Criminal Procedure Code. The answer to the first question is in the negative; (2) the alteration in the charge as to time by half an hour could not possibly, on the facts of the case, alter the legal position as to the requirement of alibi notice. Both the original and amended charges refer to one and the same occasion and, accordingly, any argument on the basis of the whereabouts of the accused on 'another occasion', which evidence is not 'evidence in support of a defence of alibi', does not arise at all; (3) the accused also failed to satisfy the court that by reason of any error or omission in the particulars given in the original charge, the time, place and date of the alleged offence were so uncertain that he was in fact misled in not supplying the particulars of alibi required to be given to the Public Prosecutor within the prescribed period, so as to justify the trial court to conclude that the disputed evidence which he intends to adduce at the trial is, having regard to the circumstances of the case, not 'evidence in support of a defence of alibi' and thereby should remain outside the restriction of s 402A of the Criminal Procedure Code; (4) having regard to the facts and circumstances of this case, in particular the nature of the offence, the particulars given in the charge, the materiality of the amendment and the type of alibi evidence intended to be adduced, the second question posed should also be answered in the negative.

Hussin bin Sillit v Public Prosecutor [1988] 2 MLJ 232 Supreme Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

This was an application by the accused for bail. He had been charged with the offence of rape, which was an offence punishable with imprisonment for life. Under s 388(i) of the Criminal Procedure Code (Cap 6) (as amended by the Criminal Procedure Code (Amendment) Act 1967), a president or magistrate has no power to grant bail in a case involving a non-bailable offence if there appears to be reasonable grounds for believing that the accused has been guilty of an offence punishable with death or with imprisonment for life. The President of the Sessions Court before whom the accused had been charged had refused bail. The principal ground of the application for bail was that the accused and the girl with whom the offence was alleged to have been committed wanted to get married.

Held: in this case, the object of the application for bail was in effect to get the rape charge against the accused withdrawn, that is to frustrate or embarrass the criminal proceedings which were being taken against the accused. There were no exceptional or special reasons and therefore the application must be dismissed.

Shanmugam v Public Prosecutor [1971] 1 MLJ 283 High Court, Kuala Lumpur (Mohamed Azmi J).

In this case, the appellant had been convicted of the offence of rape on a girl aged 12 1/2 years. The learned President of the Sessions Court who tried the case found the girl to be mentally retarded or otherwise having a very low IQ but he held that she was a reliable and credible witness. Applications were made during the trial for the girl to be sent to a psychiatrist and also to have her cross-examined on her report but these wre refused. The appellant appealed.

Held: (1) in the circumstances of this case, the learned President should have determined the competence of the witness to testify and he should have done this with the aid of expert medical opinion; (2) if the witness was found competent to testify the President should then have determined whether she should be affirmed or just warned to speak the truth; (3) in this case, the reasons advanced by the defence for the recall of the witness for further cross-examination were sufficient to justify the making of an order for recall.

Kee Lik Tian v Public Prosecutor [1984] 1 MLJ 306 High Court, Ipoh (Edgar Joseph Jr J).

The accused was charged with rape. The crucial question was whether there was consent to the sexual intercourse. Another person was originally charged with abetting the offence of rape, but the charge against him was withdrawn not amounting to an acquittal and he gave evidence for the prosecution.

Held: (1) in this case, there was corroboration of the evidence of the complainant and the defence did not throw any reasonable doubts on the prosecution's evidence. Therefore, the accused was found guilty and convicted; (2) in this case, as the accomplice had been discharged but not acquitted, his evidence should be excluded from consideration.

Public Prosecutor v Ku Hang Chua [1975] 2 MLJ 99 High Court, Sandakan (Yusoff J).

The appellant was charged for committing rape on the victim, a girl of 15 years and three months, punishable under s 376 of the Penal Code ('the Code'). The appellant pleaded guilty and was sentenced to eight years' imprisonment and six strokes of the rotan. The appellant appealed agaisnt the sentence. The appellant submitted that the sentence imposed was excessive in the circumstances bearing in mind that the appellant had a wife and two young children; that the victim was a 'girlfriend' and had voluntarily followed the appellant and consented to the intercourse; and that he had not put any physical force against the victim. He alleged that he was unrepresented during the hearing and could not make a proper plea in mitigation. The appellant further submitted that public interest would be protected by imposing a minimum sentence of five years' imprisonment. The prosecution, on the other hand, submitted that the offence committed by the appellant was a very serious offence against a minor it was an offence of statutory rape. The prosecution also urged the court to take cognizance and judicial notice that rape is rampant in Sabah and that the victim did not voluntarily consent to the intercourse but because of her age, succumbed to the appellant's demand.

Held, dismissing the appeal: (1) it is settled law that for an appellate court to interfere with a sentence passed by a lower court, it must be shown that the sentence passed is either wrong in law as amounting to it being illegal or that it is manifestly excessive or inadequate in the circumstances of the case, or it is otherwise not a proper sentence having regard to all the facts which the court ought to take judicial notice of, that is to say, that the lower court clearly has erred in applying the correct principles in the assessment of the sentence. It is a firmly established practice that the court will not alter a sentence merely because it might have passed a different sentence; (2) the issue of consent was irrelevant as this was an offence of statutory rape. The court was of the view that the victim because of her age succumbed to the appellant's demand and that the appellant, a married man had taken advantage of the victim's immaturity. Also, the facts showed that before the sentence was passed, the appellant was given the opportunity to put up his plea in mitigation. The cases where the accused for rape was given a ligher sentence cited by the appellant were not applicable as they were decided before the amendment to s 376 of the Code wherein there was no mandatory minimum sentence of five years' imprisonment. The offence committed by the appellant was a serious crime punishable with imprisonment for a term which may extend to 20 years under s 376. The court must consider all these circumstances. Moreover, public interest must be taken into consideration. This meant the court must impose a deterrent sentence, not only to deter the appellant from committing the same offence again but to deter others from committing the same type of crime. The punishment inflicted for the crime of rape should also adequately reflect the revulsion felt by the great majority of society. The fact that the victim was a young girl also aggravated the crime committed.

Norman Gantis v Public Prosecutor Criminal Appeal No K 42-05-93 High Court, Kota Kinabalu (Tee Ah Sing J).

The appellant was convicted of rape. At the trial, there was a direct conflict of evidence between the appellant and the complainant as to whether there was consent to the intercourse that took place the complainant alleged she was frightened into submission, the appellant said that she willingly agreed. The learned trial judge believed the complainant's evidence and said, 'I could not but come to the conclusion that she was speaking the truth and that in all the material circumstances, her evidence was corroborated by the facts.' On appeal, the Court of Appeal ([1963] MLJ 119) decided that it could not interfere with the learned trial judge's decision, as the learned trial judge had seen and heard the witnesses; he was aware of the danger of convicting without some corroborating evidence of the complainant's story and knew that there was no such evidence; nevertheless, he was convinced of the truth of the complainant's story and was therefore entitled to convict the appellant. The appellant appealed to the Privy Council.

Held: (1) the circumstances did not afford corroboration of the complainant's allegation of no consent and as the case was one where the appellant had been convicted on the basis that the complainant's allegation was corroborated when it was not, there had been a miscarriage of justice bringing the case within the category of cases where the Board will intervene; (2) in a case where the trial judge had in mind the risk of convicting without corroboration, but nevertheless decided to do so because he was convinced of the truth of the complainant's evidence, the judge should make it clear that he had the risk in question in his mind, but nevertheless is convinced by the evidence, even though uncorroborated, that the case against the accused is established beyond any reasonable doubt. No particular form of words is necessary for this purpose: what is necessary is that the judge's mind upon the matter should be clearly revealed; (3) as there was an ambiguity on the point, it should be resolved in favour of the appellant because the liberty of the subject is involved.

Chiu Nang Hong v Public Prosecutor [1965] 1 MLJ 40 Privy Council Appeal from Malaysia (Lord Reid, Lord Hodson and Lord Donovan).

The prosecutrix was raped whilst working on a rubber estate some distance from her house. Consequent upon this, the prosecution sought to prove that the accused was the assailant on the following grounds: (a) the prosecutrix identified the accused at an identification parade on 15 March 1975; (b) she identified him again in court; and (c) he was seen near the scene of the crime shortly after it was committed. Evidence showed that the identification parade was held four days after the incident. The other boys in the parade were of lighter skin than the accused whose complexion was very dark. At the trial, the prosecutrix pointed to the dock when the accused was bending down and looking at the floor.

Held: (1) in a prosecution for rape it is unsafe to convict unless there is corroboration on the allegation of rape and corroboration on the identification of the assailant; (2) the identification parade was unfair to the accused and the subsequent identification in court was of little significance.

Public Prosecutor v Mohamed bin Majid [1977] 1 MLJ 121 High Court, Raub (Harun J).

The appellant had been convicted of rape. The trial judge considered that the complainant's credibility was unimpeached and he stated that he was personally impressed by her demeanour. He thought her evidence consistent throughout and held that her evidence of rape was amply corroborated.

Held: (1) corroboration in the legal sense connotes some independent evidence of some material fact which implicates the accused person and tends to confirm that he is guilty of the offence and in this case there was no such corroboration of the evidence of the complainant; (2) in view of the inconsistencies in the evidence of the complainant it was unsafe to rely on her uncorroborated evidence and therefore the conviction must be set aside.

Ah Mee v Public Prosecutor [1967] 1 MLJ 220 Federal Court, Kuala Lumpur (Barakbah LP, Azmi CJ (Malaya).

In this case, the appellant had been committed at the preliminary inquiry for attempted rape, but at the trial, he was found guilty of rape of a girl of about 11 years. The trial judge found that there was ample corroboration of the evidence of the girl that it was the appellant who had connection with her and had infected her with gonorrhoea. He was sentenced to ten years' imprisonment.

Held: (1) there was corroboration of the evidence of the girl in this case, both as regards the factum of connection with somebody and being infected by that person and as also as regards the identification of the appellant and therefore, the appeal against conviction should be dismissed; (2) in the circumstances, as no violence was used and as the girl had not suffered physical damage that would impair her future chances of marriage, the sentence would be reduced to one of seven years' imprisonment.

Mohamed Kunju v Public Prosecutor [1966] 1 MLJ 271 Federal Court, Kuala Lumpur (Thomson LP, Barakbah CJ (Malaya).

This was an appeal against convictions of rape. The girl was under 14 years of age and her evidence was uncorroborated. Cautioned statements were taken from the appellants but 'no trial within a trial' was held to decide on their admissibility. The learned judge ruled them admissible after written submissions on admissibility were handed in by defence counsel and the Deputy Public Prosecutor.

Held, allowing the appeal: (1) the evidence of the complainant was uncorroborated and there were serious and grave discrepancies in the evidence; (2) the cautioned statements should not have been admitted in evidence without a 'trial within a trial'; (3) there had been a failure of justice and the proviso to s 60(1) of the Courts of Judicature Act 1964 (Act 91) could not be invoked.

Sabli bin Adin & Ors v Public Prosecutor [1978] 1 MLJ 210 Federal Court, Kota Kinabalu (Lee Hun Hoe CJ (Borneo).

Held: the rule relating to corroboration (in rape cases), like most of the other rules of our law of evidence, which are based on accumulated human experience and common sense, is not a purely technical rule the contravention of which is fatal to a conviction. The desirability for corroboration of the evidence of the prosecutrix in a rape case (which in any event has not yet crystallized into something approaching a rule of law and which is still a rule of practice and prudence) springs not from the nature of the witness, but from the nature of the offence. The necessity for corroboration, generally speaking, is not so imperative with regard to the identity of her assailant as to the fact of the offence itself. Though it might be dangerous to find the factum of rape on the uncorroborated evidence of the prosecutrix, once that factum of rape is established, there seems to be nothing left to support the view that her identification of the assailant calls for corroboration any more than it would in relation to any other type of offence.

Din v Public Prosecutor [1964] MLJ 300 Federal Court, Ipoh (Thomson LP, Barakbah CJ (Malaya).

[Annotation: The Court of Criminal Appeal case, R v Trigg [1963] 1 WLR 305, does not seem to have been cited in the above case. A different light might have been thrown on the case if it had been brought to the attention of the court.]

Held: where an accused is convicted on the uncorroborated evidence of a child of tender age and there is nothing in the record of trial to indicate that the magistrate or judge has directed his mind to the danger of convicting on such evidence, it is the duty of an appellate court to set aside the conviction and not to assume that the magistrate or judge has properly directed himself.

Lee Mion @ Lee Miow v Public Prosecutor [1934] MLJ 124 Court of Appeal, Johore Bahru (Huggard CJ and Gerahty J).

The appellant was found guilty of rape of his sister-in-law, a girl under the age of 14 years, and sentenced to three years' imprisonment. He appealed.

Held: on the facts, the appellant was rightly convicted but as in this case, no violence was resorted to by the appellant to overcome resistance and therefore, he would have not committed any offence if the girl had been a little older, the sentence of three years was excessive and should be reduced to 18 months' imprisonment.

Brabakaran v Public Prosecutor [1966] 1 MLJ 64 Federal Court, Ipoh (Ong Ag CJ (Malaya).

The appellant was convicted of rape of a girl aged 13 years and 11 months in contravention of s 376 of the Penal Code and sentenced to three years' imprisonment. He appealed against the said conviction and sentence. The Public Prosecutor, on the other hand, appealed on the ground of inadequacy of sentence. The girl said that there were two acts of rape both at the Rest House, Penang, on two different nights in July 1979. As regards the first of these acts, she was frightened into submission and was, therefore, not a consenting party, whereas, as to the second, she was a consenting party, having been seduced by the appellant with a promise that he would divorce his wife and marry her. The appellant claimed that the case against him had been framed and that no sexual intercourse took place at any time. The learned President found in favour of the girl's version and rejected that of the appellant.

Held: (1) contrary to the finding of the learned President, there was corroboration of the girl's evidence. This was in the form of love letters which passed between the appellant and the girl. There was also a manifest lie on the part of the appellant that his relationship with the girl was purely platonic. The appeal against conviction was therefore dismissed; (2) justice would be best served if the sentence of three years were reduced to eight months. The Public Prosecutor's appeal against sentence was dismissed.

Ch'ng Lian Eng v Public Prosecutor [1983] 1 MLJ 424 High Court, Penang (Edgar Joseph Jr J).

In this case, the facts were that the complainant, a girl aged 17 years old, and her sister aged 13 years old were in their house when four male persons forced themselves into the house. The respondent was one of the four persons. They then threatened and robbed the complainant and her sister of their jewellery and cash. After that, each of the four persons, including the respondent, took turns and raped both the complainant and her sister. The four persons were subsequently arrested and charged. The three others had been dealt with earlier. The charges against the respondent were two charges of rape and two charges of robbery. The respondent pleaded guilty to all four charges. After hearing the facts and the plea in mitigation, the learned President of the Sessions Court sentenced the respondent to three years' imprisonment on each of the charges and ordered the sentences to run concurrently. The Public Prosecutor appealed.

Held: (1) the sentences imposed by the learned President were not only manifestly inadequate but also wrong in law; (2) where two or more distinct offences have been committed, sentences of imprisonment should not be made concurrent. It should only be made concurrent when an offender had been convicted of a principal and a subsidiary offence. In all other cases, sentences should be made to run consecutively; (3) in certain specific offences, the courts should not place too much emphasis on the fact that the offender is young and a first offender. Public interest demands that in such cases, a deterrent sentence ought to be given; (4) on the first charge, the respondent should be sentenced to imprisonment for a period of five years plus three strokes of the rotan and on the second charge, to eight years plus three strokes of the rotan. Both these sentences are to run consecutively. As for the third and fourth charges, the respondent is sentenced to five years on each charge and this sentence is to run concurrently with the sentences on the first and second charges.

Public Prosecutor v Yap Huat Heng [1985] 2 MLJ 414 High Court, Kuala Lumpur (Shaikh Daud J).

Held: a stale charge of rape may be true, but the probabilities are against it. The court should not convict unless the evidence is overwhelming and the circumstances corroborative.

Government of Pahang v Mamat [1898] SSLR Supp 17 High Court, Federated Malay States (Jackson JC).

Held: an unnatural offence committed by an adult on a juvenile merits severe punishment. However, in view of the well-known psychological connection between the giving and the suffering of pain and sexual perversion, a sentence of whipping is not a suitable punishment for such an offence.

Ahmad v Public Prosecutor [1958] MLJ 186 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Syed Sheh Barakbah JJ).

Murugiah v Public Prosecutor [1941] MLJ 17 High Court, Federated Malay States (Horne J).

The appellants had been respectively convicted of theft and abetment of theft of three katties of latex. The defence proved that the second appellant had not merely agreed to purchase the land from which the rubber was taken from the complainant and paid a deposit of RM800 against the purchase price of RM1,400, but also paid the balance before the date set for completion. The balance was in fact deposited with the second appellant's solicitor who had written to the complainant asking him to attend at his office to execute a valid transfer on payment of the balance.

Held, allowing the appeal: in respect of the land, the complainant, while nominally the registered owner, was no longer the beneficial owner, but merely the bare trustee of the land for the second appellant. What the appellants took was from land the second appellant was entitled to. Therefore, the conviction could not stand.

Talha & Anor v Public Prosecutor [1971] 2 MLJ 167 High Court, Ipoh (Chang Min Tat J).

Che Man bin Che Mud v Public Prosecutor Criminal Appeal No 42-21-1991 High Court, Kuala Lumpur (Abdul Aziz J).

When a person is charged with the offence of theft, the dishonest intention to deprive another of his property must be proved. The accused, having called upon the complainant to collect a debt owing to him by the complainant, and being unable to obtain satisfaction, removed from the complainant's shops certain goods which he had sold to the complainant, but for which he had not been paid.

Held: dishonest intention could not be presumed. The power of arrest in cases such as this should be exercised by the police with discrimination. It is an abuse of power on the part of the police to effect an arrest in the case of a dispute between respectable persons, when the attendance of the accused before a magistrate can be secured by other means.

Lai Chan Ngiang v Public Prosecutor [1930] 1 JLR 30 High Court, Johore

[Annotation: On the difference between theft and larceny, see Public Prosecutor v Ramiah & Ors [1959] MLJ 204. See also R v Lim Soon Gong & Ors [1939] MLJ 10 at p 12.]

The appellant was convicted of the theft of nine nibong trees. It appeared that he cut down the trees without asking the owner's permission, but it was possible that he had some right to take these trees.

Held: the conviction must be quashed.

Tsen En Fook v R [1953] SCR 46 Supreme Court, Sarawak, North Borneo and Brunei (Smith J).

Held: it has long been a salutary practice having the force of a rule of law that the evidence of an accomplice must be corroborated by independent testimony, not only that the crime had been committed, but also that the accused person committed it. Although the appellants participated in the theft, the only evidence connecting them with the alleged offence was the uncorroborated evidence of two self-confessed thieves. Therefore, their conviction cannot under any circumstances be upheld.

Mohamed Ali & Anor v Public Prosecutor [1965] 1 MLJ 261 High Court, Kuala Lumpur (Ong J).

This was an appeal against the conviction of the appellant on a charge of theft. On appeal, it was argued: (a) the report of the complainant to the police ought to have been put in evidence and the failure to do this was fatal to the prosecution's case; and (b) there was insufficient evidence of guilty knowledge on the part of the appellant.

Held: despite the fact that the complainant's report was not produced and that the conviction of the principal theft was not strictly proved, there was ample evidence upon which the learned magistrate could find the appellant guilty and therefore, there was no failure of justice in this case; (3) (semble) where a complainant has made a report to the police, the report must be produced as part of the prosecution's case.

Ooi Hock Leong v R [1955] MLJ 229 High Court, Penang (Spenser-Wilkinson J).

The appellant was convicted of the offence of theft of some wooden beams and fined a sum of RM300, in default three months' imprisonment. The appellant gave evidence on oath at the trial to the effect that the beams were given to him by a contractor named KA and that he did not steal them from the complainant. In cross-examination, he said that KA had no land near his place and that he took the said beams from the side of a bridge. KA was not called as a defence witness and there was no mention in the record that the appellant had asked for an adjournment in order to call that witness.

Held: (1) the circumstances of this case warranted an adjournment so that the witness named by the appellant could be called; (2) failure of the defence to produce a particular witness must not be made the subject of adverse comment by the court, otherwise it would amount to a misdirection.

Tan Foo Su v Public Prosecutor [1967] 2 MLJ 19 High Court, Raub (Raja Azlan Shah J).