The appellants, who were directors and shareholders of certain companies, implemented a scheme to withdraw money from the companies for the purpose of an earlier withdrawal and distribution of their expected profits otherwise than in the proper way by declaring dividends. The scheme involved the use of fictitious contracts and vouchers by which moneys purportedly to pay a sub-contractor's bills were drawn out and paid eventually to the appellants. The magistrate who tried the case found that the exercise of withdrawing the funds from the companies was dishonest and also found that there was dishonesty on the part of the appellants in relation to the Revenue in that they evaded payment of income tax on the disguised payments. Both appellants were convicted of several charges of criminal breach of trust and abetment of criminal breach of trust in respect of transactions arising out of the scheme. The issues raised in the appeals were: (a) whether the appellants did misappropriate the property of the companies within the meaning of s 405 of the Penal Code; and (2) if they did, whether they did so dishonestly within the meaning of s 405 of the code. It was submitted for the appellants that the finding of dishonesty vis-á-vis the Revenue was not the requisite finding of dishonesty required by a s 405 of the code for criminal breach of trust because what had to be found was dishonesty vis-á-vis the company. It was further submitted that there was no misappropriation because: (a) there was no intention on the part of the appellants to cause wrongful loss to the companies as the appellants did not consider their companies to be 'other persons'; and (b) there was no intention on the part of the appellants to cause wrongful gain in relation to the companies as the money taken represented profits and as shareholders, the appellants honestly believed that they were entitled to take the money as profits.

Held, dismissing the appeals: (1) the directors of a company are trustees as to the moneys of the company which come to their hands or under their control and can be proceeded against for misapplication of the funds of the company; (2) a person in total control of a limited liability company, by reason of his shareholding and directorship is or, two or more persons acting in concert, are capable in law of stealing the property of the company; (3) the defence that the sums taken out represent 'profits' was untenable. The act of appropriation was dishonest. The appellants had caused wrongful loss to the companies in that the companies had paid out various sums of money as contractual payments when there were no such contracts. If these sums were to be taken as profits, the proper procedures in the Companies Act 1948 had to be followed. By secretly taking out these large sums of money for themselves, the appellants, as agents of their companies, had committed fraud on their own companies. In disguising these payments as payments to sub-contractors, the appellants had not only caused wrongful loss to their respective companies, but they had also caused wrongful gains to themselves. Had the accounts been properly audited and a profit and loss account put up, their entitlements would have been less than what they had arrogated to themselves.

Lai Ah Kau & Anor v Public Prosecutor [1988] 3 MLJ 391 High Court, Singapore (Chua J).

The first appellant, the honorary treasurer of a trade union, was charged with two charges of wilfully suffering the second appellant, the general secretary of the union, to dishonestly misappropriate two sums amounting to S$7,500 from the funds of the union, contrary to s 406 of the Penal Code. The second appellant was charged with abetment of the offence contrary to ss 109 and 406 of the Penal Code. The main defence of both appellants was that the sum of S$7,500 was taken by the second appellant by way of loan or loans from time to time, and that although these loans were taken without prior approval, they were approved by the executive council of the union at a later date. After the prosecution had closed its case, the trial judge, having formed the view that both appellants had a case to answer on criminal breach of trust simpliciter and abetment thereof on the ground that the first appellant was not a servant in the employ of the union and therefore not a servant within the meaning of s 408 of the Penal Code, amended the charges against the appellants who then claimed trial on the amended charges. Before the trial judge called upon the appellants to enter upon their defence, counsel for the appellants applied to recall the main prosecution witness and his purpose for so doing was 'to show that this witness has been coached. He has motive to implicate the second accused'. The application was disallowed on the ground that it was not consequential upon and had no reference to the charges as amended and therefore, he could not recall the witness for that purpose at that stage, but could do so later when the two appellants made their defence.

Held: (1) on the facts before the district court, there was ample evidence to support a finding that both appellants acted 'dishonestly' within the meaning of s 24 of the Penal Code; (2) the trial judge was right in rejecting the application to recall the witness as the appellants had no absolute right under s 160 of the Criminal Procedure Code (Cap 132, 1955 Ed) to recall and examine a witness where the purpose of that application had no reference to the altered charges; (3) the trial judge was correct in rejecting the defence contention that the approval given by the executive council subsequent to the taking of the money and at a time when the police were already investigating the matter afforded a complete defence in law in respect of the charge; (4) taking all the factors and the observations of the trial judge into consideration, the sentences of both appellants should be varied from imprisonment to a fine on each charge.

Yeow Fook Yuen & Anor v R [1965] 2 MLJ 80 High Court, Singapore (Wee Chong Jin CJ).

The accused had played a significant and central part in forward contracts and the financing thereof, which brought about the demise of the Pan-Electric Group. He had conspired with one Tan Kok Liang and had made use of the resources of the group. The accused had also engaged in price support schemes, so that forward contracts could be extended or rolled-over and could be financed by the banking system. In connection with one such support scheme, he conspired with Tan Kok Liang to dishonestly dispose the sum of S$144,852.68 of Pan-Electric Industries Ltd (Pan-El). As a result of the conspiracy, Tan Kok Liang violated s 157(1) of the Companies Act (Cap 185, 1970 Ed) and dishonestly paid out the money of the company to a firm of stockbrokers. The accused pleaded guilty to a charge of abetting Tan Kok Liang in committing a criminal breach of trust, which offence is punishable under s 109 read with s 406 of the Penal Code. Counsel for the accused urged the court not to impose a custodial sentence as he had made partial restitution and had suffered enough. The court was urged to order instead a fine 'of a very substantial amount consistent with the gravity of the offence'. The prosecution pointed out that having taken everything into account, the prosecution decided to proceed on the one charge to which the accused had pleaded guilty. To get the accused to make as much restitution as possible, the prosecution undertook not to press for a punitive sentence. However, the prosecution made it plain that the matter of sentence is and always has been left to the court and that in the administration of justice in Singapore, there is no room whatsoever for any plea bargaining on sentence.

Held: (1) the offence of abetment committed by the accused struck at the very heart of the integrity, reputation and confidence of Singapore as a commercial city and a financial centre. The aftermath of the collapse of the Pan-El group could not be ignored; (2) public interest plainly requires that the accused should receive a punishment which will not only fit his crime, but which will also act as a deterrent to other persons who may be similarly disposed. The Singapore commercial market place must be protected from and purged of the likes of the accused; (3) the appropriate sentence is imprisonment for a term of two years and a fine of S$500,000 in default of which there will be imprisonment for a further term of six months.

Public Prosecutor v Tan Koon Swan [1987] 1 MLJ 18 High Court, Singapore (Lai Kew Chai J).

The appellant was convicted of voluntarily assisting in the disposal of stolen property, to wit, four hundred wristwatches knowing or having reason to believe that they were stolen property. The appellant was, by occupation, a broker, and on the evidence available, he was asked to arrange for the sale of these watches which were new, without the relevant certificate, and without the issue of a receipt from the seller who admitted the theft. The learned magistrate, on the evidence of the surrounding circumstances, found that the appellant's suspicions must have been aroused that the watches were stolen property and was therefore put on inquiry and that he omitted to make further inquiries. The learned magistrate accordingly held that in those circumstances, the appellant must have known or had reason to believe that the watches were stolen property and convicted him. The accused appealed. One of the principal issues in this appeal was as to the meaning of the phrase 'knows or has reason to believe' which governs s 414 of the Penal Code.

Held, allowing the appeal: on the evidence available, the suspicions of the appellant must have been aroused, but the law does not allow for a conviction based merely on suspicion.

Tan Ser Juay v Public Prosecutor [1972] 1 MLJ 6 High Court, Singapore (Wee Chong Jin CJ).

[Annotation: The Honourable Chief Justice accepted the Indian authorities on the interpretation of the phrase 'reason to believe' in ss 411 and 414 of the Penal Code, as requiring the prosecution to prove facts from which a reasonable person would necessarily believe, not merely suspect, that the goods were stolen. However, his Lordship indicated that he was not prepared to follow the Indian authorities on the interpretation of the phrase 'disposing of' in s 414 of the Penal Code.]

The appellant was charged with having engaged in a conspiracy with two others to cheat a finance company over the hire purchase financing of audio and visual equipment. The appellant, in his capacity as chairman of a church, had purchased certain equipment in the USA for a certain sum. In negotiating for hire purchase facilities, the appellant supplied the finance company with an invoice which inflated the true prices of the equipment. The finance company proceeded to approve the hire purchase financing based upon the figures contained in the invoice. The court below convicted the appellant as charged and sentenced him to one day's imprisonment and a fine of S$10,000, in default four months' imprisonment. On appeal, counsel for the appellant submitted that the trial judge had erred in finding that there was a deception practised upon the finance company. It was contended that there never was any dishonest intention to deceive the finance company into granting the hire purchase financing. Alternatively, even if there had been a deception, it was contended that the finance company was not induced by the alleged deception to offer hire purchase financing to the church.

Held, dismissing the appeal: (1) in relation to the issue of deception, the appellant's concealment of facts amounted to a deception. It was clear that the appellant had deceived the finance company into believing that the figures in the invoice were the true purchase prices of the equipment. On the evidence, the appellant must be taken to have known that the disclosure of the true state of affairs would have resulted in the finance company not granting the hire purchase on the terms the appellant had sought; (2) the church gained wrongfully, through the appellant's unlawful acts, property to which it was not legally entitled. The gain was wrongful since the appellant knew or must have known that the finance company would not have agreed to finance the equipment if it had known about the true state of affairs. Since the appellant intended to cause a wrongful gain to the church, he would have been acting dishonestly within s 24 of the Penal Code (Cap 224); (3) as to the issue of inducement, the finance company had relied upon the inflated figures in the invoice in approving the financing. The finance company had thereby been induced into approving the transaction and disbursing the money to the church. It was immaterial that the false pretence was not the sole, operative reason why the finance company parted with its money. As long as the deception played some part in inducing the finance company to approve the financing, the element of inducement would have been satisfied; (4) in relation to the elements of an abetment by conspiracy to cheat, there was evidence that a plan had been conceived to obtain higher financing from the finance company, and that the appellant had conspired with another to give effect to the scheme. It did not matter that the appellant had not dealt with the finance company personally. The evidence established that the appellant was the primary force behind the scheme to obtain the financing from the finance company; (5) there was no suggestion that the offence was committed for the personal gain of the appellant. As far as the finance company was concerned, the only risk it had to shoulder was that, in the event of default, the security over the hire purchase arrangement would have been inadequate. In the result, the sentence of one day's imprisonment and a fine of S$10,000 was appropriate.

Seaward v Public Prosecutor [1994] 3 SLR 369 High Court, Singapore (Yong Pung How CJ).

The respondent, an advocate and solicitor, was acquitted of two charges, first, for cheating his client Lee Sim Yow (Lee) of a sum of S$5,000 and, second, for attempting to cheat Lee of a further sum of S$5,000. In 1987, Lee was the director and shareholder of a company known as Gillman Video & Trading Pte Ltd (Gillman) which carried on the business of renting out video tapes to members of the public. An action for infringement of copyright was brought against Gillman. Lee retained the respondent to handle the matter. Lee alleged that, on two occasions, the respondent told Lee that money was needed as refundable court deposits in the legal proceedings. The first time, Lee believed him and paid him the sum of S$5,000. After paying the second sum of S$5,000 in the form of a cheque, she discovered the deception. She managed to instruct her bank to stop payment on the cheque. In his defence, the respondent said that the sums were meant as legal fees, as agreed between the respondent and Lee. On appeal by the prosecution against the acquittal, counsel for the respondent raised a preliminary question whether the two charges were defective in law. Counsel contended that if the respondent had cheated at all, he cheated Gillman and not Lee. This was because Gillman, a separate legal entity, was the party involved in the legal proceedings and owned the money. It was further submitted that the defective charges prejudiced the respondent in the conduct of his defence. The prosecution's appeal was based solely on the facts. The prosecution contended that there was sufficient prosecution evidence to prove beyond reasonable doubt the two charges against the respondent.

Held, allowing the appeal: (1) the prosecution case rested on the key allegations that the respondent deceived Lee, by dishonestly misrepresenting to her twice that money was needed as court deposits for legal proceedings, thus dishonestly inducing her to deliver two sums of money to the respondent. Undeniably, Gillman and Lee were two separate and distinct legal entities. However, it was quite irrelevant in the two charges whether Gillman, as a separate legal entity, was perhaps also cheated by the respondent. The allegations as contained within the charges, if proved, would constitute all the necessary elements of the offences of the cheating and the attempted cheating of Lee by the respondent. Furthermore, on a plain reading of the relevant statutory provisions within the Penal Code, namely, ss 415 and 420, there was no requirement that the person cheated must own the property involved: 'any property' sufficed. Therefore, it was immaterial whether the money belonged to Gillman. Full particulars had already been set out in the two charges which were not in any way defective. Even if the charges were defective as contended, the respondent suffered no prejudice. In all the circumstances, there would be no material difference to the conduct of the defence; (2) the trial judge's assessment of the totality of the prosecution evidence was erroneous. There was sufficient prosecution evidence, both oral and documentary, to prove beyond reasonable doubt the two charges against the respondent. As for the defence, it was incredible and was rejected. In fact, from the deliberate and self-serving lies and the suspicious conduct of the respondent and his witnesses, a guilty mind on the part of the respondent was inferred. Accordingly, the decision of the trial judge was reversed. The respondent was sentenced to 18 months' imprisonment on each charge, the sentences to be served consecutively. Finally, costs of prosecution pursuant to s 401 of the Criminal Procedure Code (Cap 68) were awarded.

Public Prosecutor v Kalpanath Singh [1995] 3 SLR 564 High Court, Singapore (Yong Pung How CJ).

Loh Shak Mow v Public Prosecutor; Wong Hoi Ping, Alan v Public Prosecutor [1987] 1 MLJ 362 High Court, Singapore (Chua J).

The accused went to a jeweller's shop on 19 February 1955 and took a pair of diamond bracelets, worth over S$4,000, on approval. On the same day, he took a bracelet worth nearly S$5,000 from another jeweller, on approval. On 21 February, he took another pair worth about S$3,700 from a third shop, also on approval. On the following day, he bargained with each jeweller for a small discount and completed the purchase. The sales were ostensibly for cash but in each case, by a feigned mistake as to the date, he induced the vendor to accept a cheque postdated to 24 February 1955. The state of his bank account was such that the accused could not possibly have thought that any of the cheques would be honoured unless, on the intervening day, he paid in a very substantial sum. On 22 February 1955, he pledged all the jewellery to three separate pawnbrokers, to one of whom he gave a false name and another a false address; he did not pay any part of the proceeds either to the bank or to the vendors. All the cheques were dishonoured. Complaints were lodged by the vendors and the police traced the pledges. The accused was tried on three charges of cheating under s 420 of the Penal Code, each of which alleged that he obtained delivery of the jewellery by tendering a false cheque. At the end of the case for the prosecution, counsel for the prosecution submitted that the offences proved were cheating under s 417 of the Penal Code. The learned district judge convicted the accused under that section and in his grounds of judgment, he stated that he found that the accused had deceived each vendor on 22 February by falsely representing that he intended to pay for the bracelets and had thereby dishonestly induced the vendor's consent to his retaining them. The learned district judge considered that this constituted an offence under s 417 of the Penal Code, that such an offence is 'minor' as compared with one under s 420 of the Penal Code and that he could therefore convict under s 417, without amending the charge, by virtue of s 168(2) of the Criminal Procedure Code (Cap 132, 1955 Ed).

Held: (1) s 168(2) of the Criminal Procedure Code (Cap 132) could not be used to justify the conviction in this case, as the false representation of which the accused was convicted under s 417 of the Penal Code was quite different from the one in the charge under s 420 of the Penal Code to which he had pleaded; (2) the conviction cannot be supported under s 166 of the Criminal Procedure Code, as although the unframed charge under s 417 of the Penal Code was available in this case from the start, the evidence was not presented in such a way as to raise all the same issues of fact as could have been raised had the unframed charge been framed and trial claimed on it; (3) the charges in this case could and should have been amended by the trial court at the close of the prosecution case.

Lew Cheok Hin v R [1956] MLJ 131 High Court, Singapore (Taylor J).

See criminal law, Vol 4, para.

The respondent was charged for the offence of criminal trespass. He had entered the Bukit Turf Club in contravention of a notice prohibiting him from entering the club for a period of one year. At the close of the prosecution's case, the respondent was called upon to enter his defence. The respondent elected to remain silent, but was acquitted. The Public Prosecutor appealed against the acquittal.

Held, allowing the appeal: (1) the requisite intent to annoy under s 441 of the Penal Code (Cap 224) must usually be inferred from the surrounding circumstances and need not be the accused's primary or proximate intent; (2) it could be said that a person who entered a club in blatant disregard of a notice prohibiting his entry had entered 'with intent to annoy' the management of the club. It would be wrong to insist on further evidence of such intention before a conviction for criminal trespass could be founded; (3) as the respondent had chosen not to testify in his own defence and not to offer any explanation for his conduct, an adverse inference could be drawn against him as to the intention with which he entered the club; (4) accordingly, the respondent should have been convicted of the offence of criminal trespass.

Public Prosecutor v Ker Ban Siong [1992] 2 SLR 938 High Court, Singapore (Yong Pung How CJ).

The respondent was tried for criminal trespass before the magistrate's court. The prosecution's evidence was that the respondent was found at the Kent Ridge Hall hostel at the National University of Singapore (NUS) at about 2.45am. He told the complainant that he was looking for someone by the name of 'Michele'. When the complainant asked the respondent to go down with her to where her male friends were, he ran away. The respondent claimed that he was not the person at the hostel. The magistrate did not accept the respondent's evidence that he was not present at the hostel, but she ruled that the prosecution had failed to prove that the respondent had any intention to annoy. The prosecution appealed.

Held, allowing the appeal: (1) proving criminal intent can never be an easy thing since people who harbour criminal intentions are hardly likely to publicize these intentions. The court will not lightly attribute criminal intent to an accused person but such intent may clearly be inferred from the surrounding circumstances of the alleged offence. There was no reason why the prosecution should be required to produce further evidence; (2) the requisite intent to annoy under s 441 of the Penal Code (Cap 224) must usually be inferred from the surrounding circumstances of the alleged offence and need not be the accused's primary or proximate intent; (3) in the present case, the respondent was found in the complainant's hostel room at the unsociable hour of 2.45am. When he found himself being led to meet the complainant's friends, he bolted without any explanation or apology to her. These circumstances constituted ample evidence from which a court could clearly infer under s 441 that he entered the complainant's room with intent to annoy her; (4) the respondent was fined S$500.

Public Prosecutor v Seah Soon Keong [1993] 3 SLR 442 High Court, Singapore (Yong Pung How CJ).

The accused were found sleeping on a ship in the harbour. It appeared that they were coolies employed to carry goods and that they had fallen asleep after finishing their business and were waiting for their sampans. They were convicted under s 451 of the Penal Code for criminal trespass.

Held: there was no evidence that the accused had any intention to commit any offence and therefore, in the absence of proof of criminal trespass, the accused must be discharged.

Tan Ah Chee & Anor v R [1948-49] MLJ Supp 166 High Court, Singapore (Gordon-Smith Ag CJ).

The appellant was convicted in a district court on five charges which involved the fabrication of false evidence (DAC 11132/93 [evidence relating to an armed robbery] and DAC 2869/94 [evidence relating to a fraudulent debtor]), criminal breach of trust (DAC 11133/93), criminal intimidation (DAC 2868/94) and furnishing false information to a public servant in order to cause him to use his lawful powers to the injury of another person (DAC 4022/94). The appellant was an advocate and solicitor practising as the sole proprietor of Yogen & Partners. He had acted for one Colin in the sale of the latter's two apartment units, #09-378 and #11-376, located at the Skyscraper, 372 Clemenceau Avenue. One Mdm Nemah purchased an option to buy #11-376 for S$380,000, while the appellant himself agreed to buy #09-378 for the same price. Mdm Nemah obtained a bridging loan of S$38,000 from Keppel Bank to enable her to exercise the option, the deadline for which was 25 March 1992. The appellant undertook to hold the S$38,000 as stakeholder and received a cashier's order for this sum from Keppel Bank's solicitors, Drew & Napier, on 25 March 1992. The S$38,000 was deposited into Yogen & Partners' clients' account on 26 March 1992. Unit #11-376 was, however, auctioned off for S$400,000 at a mortgagee's sale on the same day. The prosecution case was that the appellant called Colin on 27 March 1992 to tell him that the S$38,000 downpayment for unit #09-378 was available but the appellant wanted to borrow this sum to settle some financial problems. He said he would prepare a cheque in Colin's name, whereupon Colin would encash the cheque and lend the money to him. Colin agreed, and turned up to collect the cheque from the appellant at the latter's office. The appellant prepared an uncrossed cheque in Colin's name. Colin encashed the cheque but later decided that he would not lend the appellant the entire amount, as he intended to use some of it to settle his own debts. A brief scuffle ensued when the appellant found out about Colin's intentions. The appellant called the police. Colin testified that on 28 March 1992, the appellant spoke to him on the telephone and threatened to kill him. On 30 March 1992, the appellant lodged two police reports alleging that he had been robbed by Colin who had threatened him with a letter-opener. The appellant also called up a reporter with The New Paper on 31 March 1992 to relate his story of how Colin had robbed him. On 31 March 1992, the appellant informed Insp Patrick Rajagopal at Central Police Station that Colin owed him a lot of money and had given him five postdated cheques as payment, which he suspected were bad. Insp Rajagopal advised him to bank in the cheques in order to make a police report. All the cheques were dishonoured as Colin's bank account was closed. The appellant gave a statement to Insp Rajagopal accordingly. Insp Rajagopal lodged a police report on the appellant's behalf in relation to the cheques, classifying the case as one falling within s 27(a) of the Debtors' Act (Cap 73). Colin was subsequently arrested and charged with having committed armed robbery on the appellant. He was granted a discharge not amounting to an acquittal on the charge. The appellant's defence was that Colin had indeed robbed him. He denied making any threatening telephone call. He asserted that the five cheques were presented for payment without knowledge that Colin's bank account was closed and that he had only acted in accordance with Insp Rajagopal's advice. The district judge rejected the appellant's evidence and convicted and sentenced him on all five charges. He ordered the imprisonments in DAC 11132/93, DAC 11133/93 and DAC 4022/94 to run concurrently, but consecutively to the imprisonment terms in DAC 2868/94 and DAC 2869/94. The appellant thus had to serve five years' imprisonment as well as undergo a mandatory minimum punishment of 12 strokes of the cane (for DAC 11132/93). On appeal, the primary focus was on the question whether the district court had jurisdiction to try the offences under DAC 11132/93 and DAC 2869/94. It was submitted that col 8 of Sch A to the Criminal Procedure Code (Cap 68) (CPC) did not specify that the district court had jurisdiction to try these offences. Schedule A was unambiguous, so it was irrelevant that the district court would otherwise have been conferred jurisdiction by s 7(1) CPC (which had been recently amended to provide the district court with jurisdiction to try all offences for which the maximum term of imprisonment provided by law did not exceed ten years). Thus, only the High Court had jurisdiction to try the two offences in question, and there was a misjoinder of the charges which vitiated the entire proceedings. It was also contended that since the offence of armed robbery did not carry any mandatory minimum punishment of seven years, the charge in DAC 11132/93 was not properly framed within s 195 of the Penal Code (which referred to offences 'punishable with É imprisonment for a term of seven years or upwards'). In addition, it was submitted that the district judge had erred by drawing the wrong inferences and concluding that Colin was a credible witness whose evidence was to be preferred over the appellant's. In relation to the criminal intimidation charge in DAC 2868/94, it was also contended that no offence had been committed since Colin had not been unduly affected by the threat. With regard to sentence, on appeal, the main points raised in mitigation by the appellant were that he was a senior member of the bar and that he was in poor physical health, suffering from ailments such as diabetes and hypertension, as well as having recently undergone surgery on a knee for the replacement of the kneecap. Counsel for the appellant argued that the sentences were manifestly excessive. In particular, he urged this court to consider setting aside the sentence of caning, in view of the appellant's deteriorating health.

Held, dismissing the appeals against conviction, but allowing the appeal in respect of the sentence in DAC 2868/94: (1) there was a patent ambiguity in the CPC in that col 8 of Sch A did not specify that the district courts could try offences under s 195 or s 397, while the amendment of s 7(1) CPC in 1986 (by Act 5 of 1986) had enlarged the district courts' jurisdiction. The ambiguity was exacerbated by the use of the qualifying words 'subject to this Code' in s 7(1) CPC, and 'subject to the other provisions of this Code' in s 9 CPC. The occurrence of the words 'subject toÉ' in both ss 7(1) and 9 of the CPC meant that in reading one section, the other should be taken into account. Section 9(a) and Sch A of the CPC clearly could not be taken to have the effect of curtailing or denying the jurisdiction which s 7(1) conferred, since s 9(a) itself must be read 'subject to the other provisions of this Code'; (2) the 1960 amendments to the CPC established three tiers of jurisdiction which were to operate in a complementary fashion. The introduction of two additional jurisdictional tiers contained in the current ss 7(1) and 7(2) CPC were not intended to override or detract from the existing tier in the current s 9; (3) if the appellant's arguments were accepted, s 9(a) CPC would always take precedence in any exercise to ascertain the district courts' jurisdiction. If so, Parliament's intention in enacting Act 5 of 1986 was self-defeating, and this could not have been what Parliament intended. In order to give effect to the 1986 amendments to the CPC, the district court must be held to have jurisdiction to try the offences in DAC 11132/93 and DAC 2869/94. Accordingly, there was no misjoinder as all five charges were properly within the trial judge's jurisdiction; (4) the words 'punishable with É imprisonment for a term of seven years or upwards' in s 195 of the Penal Code did not impute that the offence must be one specifying a mandatory minimum punishment of seven years' imprisonment. What was envisaged was that the offence involved should be one carrying punishment for a term which could extend to seven years. The offence of armed robbery carried a maximum term of ten years' imprisonment and clearly fell within the category of cases covered under s 195; (5) there was no reason to disagree with the district judge's findings of fact and his conclusions. The court was satisfied that no robbery had taken place. The appellant had devised the arrangement for Colin to encash the cheque and had evinced a clear dishonest intention to treat the S$38,000 as his own; (6) there was no indication that the appellant's threat was merely empty talk; (7) the intention of the accused was paramount in s 195 cases. The fact that Insp Rajagopal had advised him to present the cheques for payment was immaterial since it had been open to the appellant to take steps to prosecute a civil claim against Colin without bringing the matter to the attention of the inspector. Instead, the appellant had chosen to inform the latter about the cheques before proceeding to present the cheques for payment, in spite of his knowledge that Colin's MBB account was closed. By his conduct, the appellant had caused to come into existence the circumstance that Colin was a fraudulent debtor; (8) with regard to the appeal against the caning sentence, only a medical officer could determine the fitness of an offender to undergo the punishment of caning. The courts were not empowered to dispense with a mandatory sentence of caning; (9) the essential considerations in establishing a charge of criminal intimidation were the intention of the maker and the nature of the threat. The threat must be sufficient to overcome the ordinary free will of a firm man. The appellant had threatened to kill Colin. There was some objectively reasonable basis for Colin to be alarmed;with respect to the appeals against sentence, only the sentence of one year's imprisonment in respect of the criminal intimidation charge was excessive in the circumstances, since it had been made only through the phone, providing the person threatened ample time to take steps to protect himself. Nonetheless, a threat to kill someone which was made in all seriousness could not be taken lightly. The appropriate sentence for that charge would be a term of six months' imprisonment.

Ramanathan Yogendran v Public Prosecutor [1995] 2 SLR 563 High Court, Singapore (Yong Pung How CJ).

The appellant was charged in the court below, on a private summons, for criminal intimidation. He and the complainant (his brother) had an acrimonious relationship. On 11 June 1995, the appellant had apparently telephoned the complainant and allegedly threatened to assault him over a complaint made by the latter to the appellant's mother-in-law. The appellant, however, denied making any threat, although he admitted calling the complainant. The trial judge essentially believed the complainant's version and convicted the appellant accordingly. The appellant appealed.

Held, dismissing the appeal: (1) the outcome of this case essentially depended on who was to be believed. On the evidence, the court fully agreed with the trial judge's finding that the appellant had intended to confront the complainant and that the appellant had uttered the alleged threatening words. There was no reason to conclude otherwise; the minor inconsistencies in the complainant's account did not affect the substratum of his evidence; (2) an appellate court would not usually interfere with a trial judge's findings of fact which were based on the credibility and veracity of the witnesses whom the trial judge had the opportunity to observe when giving evidence. Such findings should have been deferred to by the appellate court unless they were clearly against the weight of evidence; (3) the complainant had clearly comprehended the words uttered as a threat. On the facts, there was obviously some objectively reasonable basis for the complainant to be alarmed. There was therefore no reason to think that this was all empty talk; (4) the fact that the threat was not carried out eventually was irrelevant. On the evidence, it was apparent that the threat was uttered because the appellant was angry, and he wanted to frighten the complainant. The obvious and irresistible inference was that the appellant had uttered the threat with intent to cause alarm to the complainant. Moreover, the fact that there was also evidence to show that the complainant was actually alarmed, even though such an element was not required in the charge, reinforced the finding of the relevant guilty intent; (5) (per curiam) the state of mind of the victim was not wholly irrelevant to whether the words uttered constitute a threat. For there to be a threat, the words uttered had to be such that they would actually cause the victim, and any reasonable man in the victim's circumstances, to at least comprehend the words as having the effect of a threat to begin with. Otherwise, such words would not constitute a threat. To this extent, the existence of a threat would depend on the factual matrix of the case - a threat was not issued merely because threatening words per se were used. Therefore, all the circumstances of the case had to be considered. However, the victim's perception of the words was not to be confused with whether the victim was actually frightened or not. And, to this extent, the offence of criminal intimidation did not depend on the nerves of the individual being threatened.

Ameer Akbar v Abdul Hamid [1997] 1 SLR 113 High Court, Singapore (Yong Pung How CJ).

The two accused were charged with the offence of culpable homicide not amounting to murder under s 304(a) read with s 34 of the Penal Code. Questions arose as to whether the facts actually disclosed an offence and whether they could be guilty of an offence of attempted murder as there was doubt whether the victim was alive or dead at the time when the alleged crime was committed. Medical evidence at the preliminary inquiry seemed to indicate that the deceased appeared to have been alive at the time when his head was held under the water, following which his head was lifted out of the water and his throat was cut. The cause of death was reported to be the throat-cut injury contributed to by a fractured skull. However, it was not possible to say absolutely whether the deceased was alive at the time he was held under the water and his throat was cut. The facts were found to have failed to disclose the offence of culpable homicide amounting to murder and led to the question of what courses were open to the court and whether the facts disclosed an offence of attempted murder. The trial proceeded as though the accused had pleaded not guilty and the prosecution's case was closed as it did not seek to adduce any further evidence. The defence counsel accepted the evidence set out in the statement of facts and the medical evidence. The court, using its jurisdiction under s 163(1) of the Criminal Procedure Code, amended the charge against the two accused and substituted the offence of attempted murder.

Held, convicting both accused and sentencing them each to eight years' imprisonment: (1) although the prosecution decided not to call any further evidence, it was clear that even though there was a doubt as to whether the two accused had committed culpable homicide not amounting to murder, the interest of justice was not served by acquitting them but by amending the charge to one more suited to the facts. Difficulties in a case may be resolved by amending the facts or the charge, or by removing any qualification in the plea. If the difficulty is one as to facts, it is open to the prosecution to call further evidence; (2) the issue of whether an accused can be charged with attempting to murder a person who may already be dead can be considered on two levels the jurisprudential plane of whether there can be an attempt to commit an offence that is impossible to achieve and on the more limited scope of the law of attempts under the Penal Code; (3) the Penal Code provides not only for punishment for attempts to commit offences but also gives examples of criminal attempts. The s 511 examples follow the approach taken in the UK line of cases of R v Brown (1889) 24 QBD 357 and R v Ring (1892) 17 Cox CC 491 doubting the correctness of the approach requiring the possibility of a successful completion of the offence before an attempt can be constituted; (4) the issue for decision here is whether the examples given in s 511 are part of Singapore law? Mahomed Syedol Ariffin v Yeoh Ooi Gark [1916] 2 AC 575 is authority for the suggestion that they are, noting it is the duty of a court to accept, if it can be done, the illustrations as being of relevance and value in the construction of the text. Further, Munah bte Ali v PP [1958] MLJ 154 considered s 511 and the English law of criminal attempts and held that s 511 and the illustrations applied. Decisions of that court are binding; (5) under Singapore law, it is possible to attempt to commit an offence that is impossible to accomplish. The determining factor of the actor's intention, though not the universal view under the common law, prevails in s 511; (6) the question is then whether an attempt in s 307 bears the same meaning as in s 511. Indian authority in Om Prakash v State of Punjab AIR 1961 SC 1782 found them to have the same meaning; (7) in sentencing the two accused, their pleas in mitigation were taken into consideration. The maximum sentence under s 307(1) is ten years and sentences of eight years were imposed. No caning could be imposed as there was doubt as to whether the victim was alive and capable of being hurt.

Public Prosecutor v Ketmuang Banphanuk & Ors Criminal Case No 54 of 1994 High Court, Singapore (Kan Ting Chiu J).

Public Prosecutor v Lee Thiam Hock Criminal Case No 50 of 1994 High Court, Singapore (Rajendran J).

Tan Beng Chye v Public Prosecutor [1966] 1 MLJ 173 Federal Court, Singapore (Tan Ah Tah Ag CJ, Buttrose and Chua JJ).

The two appellants, together with a third person named Koh Cho Phuan, were convicted by a district court on a charge of conspiracy to cheat on 42 charges of cheating and six charges of attempted cheating. The three convicted persons were sentenced to three years' imprisonment each for the offence of conspiracy, three years' imprisonment in respect of each of the 42 offences of cheating and 18 months' imprisonment in respect of each of the six offences of attempted cheating. All the terms of imprisonment were ordered to run concurrently. The two appellants appealed against their conviction on the aforesaid charges and the sentences imposed on them. There was no appeal by Koh Cho Phuan. The question for determination in this appeal was whether or not the two appellants were parties to the conspiracy to cheat the bank, for if they were not, then they could not be guilty of the cheating and attempted cheating offences. The second appellant was convicted on the evidence of one Sim who was a self-confessed criminal, an accomplice of the conspirators and the principal witness for the prosecution.

Held: (1) an appellate court will not allow a conviction obtained on the uncorroborated evidence of an accomplice to stand unless there is a clear indication by the trial court that it was aware that there was no corroboration and that in spite of the absence of corroboration it was so convinced of the truth of the accomplice's evidence that it felt safe in convicting the accused; (2) the evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirm in some material particular not only that the crime has been committed but also that the accused committed it; (3) there was no evidence in this case which could be regarded as corroborative evidence which in any way connected the second appellant with the offence of conspiracy to cheat the bank; (4) the learned district judge had not stated in his grounds of judgment that he was aware that the evidence against the second appellant of Sim, the accomplice, was uncorroborated and as there was no other evidence against the second appellant, his conviction could not be allowed to stand; (5) as for the first appellant, apart from the evidence of Sim, there was ample other evidence which was sufficient to sustain a conviction against him and the learned district judge was fully justified in convicting the first appellant on all the charges on which he was tried.

Gan Leong Gee & Anor v Public Prosecutor [1969] 2 MLJ 76 High Court, Singapore (Choor Singh J).

Narayanasamy Rajaram v R [1949] MLJ 252 High Court, Singapore (Murray-Aynsley CJ).

The accused and the deceased were employees of a refinery in Jurong. About two months before the offence, the accused had been at a bar with the deceased and the accused had been assaulted by someone else but he did not retaliate. On 21 September 1989, the accused and the deceased were consuming beer together with other employees of the refinery when the deceased teased the accused about his failure to react when he had been assaulted at the bar two months ago. He also verbally abused the accused. A quarrel ensued and another employee, Lee, intervened. When the accused told Lee not to interfere, Lee went to the cooking area and armed himself with a chopper. Seeing Lee armed, the accused went into the kitchen, and armed himself with a knife and a chopper. When he returned, Lee again intervened and the accused and the deceased walked away. After that, the quarrel continued between the accused and the deceased. The accused slapped the deceased who told him to put down the weapons and fight one to one. The accused dropped the chopper but held the knife. The deceased was restrained and the accused walked away, but the deceased freed himself and walked towards the accused. A struggle ensued and the deceased was stabbed by the accused.

Held, convicting the accused: (1) there was clear and direct evidence that the accused was the only person who had a physical encounter with the deceased armed with a knife. There was nothing to establish that the act was accidental or that the accused was intoxicated during the occurrence of the facts leading to the charge; (2) the deceased did not offer the accused grave and sudden provocation leading to the accused losing his self-control; (3) there was nothing in the accused's evidence which negatived the intention to cause such bodily injury as is likely to cause death; (4) considering that the accused was repeatedly teased by the deceased, the lack of premeditation and that the deceased would not be restrained, the accused was sentenced to nine years' imprisonment.

Public Prosecutor v Tan Chai Cheng Criminal Case No 57 of 1990 High Court, Singapore (Coomaraswamy J).

The accused was charged with causing the death of his brother by stabbing him. The evidence was that A had become upset because of his inability to pay a debt owed to his uncle and because of an argument with his brother. The accused had consumed a whole bottle of brandy and whilst intoxicated, he fatally stabbed his brother and injured his sister. The accused's defence was that he was so heavily intoxicated that he did not know what he was doing.

Held: (1) having considered all the evidence, the court is satisfied on a balance of probabilities that the accused, at the material time when he stabbed his brother and sister, was suffering from delirium due to acute alcoholic intoxication and that by reason of the intoxication, he was insane at the time of the stabbing and did not know what he was doing; (2) the accused is to be kept in safe custody pending the order of the Minister under s 314 of the Criminal Procedure Code (Cap 113, 1970 Ed).

Public Prosecutor v Tan Ho Teck [1988] 3 MLJ 264 High Court, Singapore (LP Thean and Rajah JJ).

A was charged with murdering two persons in a fight. The evidence showed that he was intoxicated at the time of the killings and he was armed with a bearing scraper. After the event, he surrendered himself to the police.

Held, convicting A of culpable homicide not amounting to murder: (1) although A was under the influence of alcohol, his level of intoxication was not sufficient to constitute a defence to the charges. However, the level was sufficient to warrant it being taken into account for the purpose of determining whether A had formed any intention, specific or otherwise; (2) the degree of intoxication was such that A could not have formed any of the intentions required for murder. However, his actions were done with the knowledge that they were likely to cause death and, giving him the benefit of the doubt, without any intention to cause death or such bodily injury as is likely to cause death. He was thus only guilty of culpable homicide and not murder; (3) A's intoxication was self-induced. Although A had surrendered himself, this factor should be given little weight. Considering all these factors, A was sentenced to eight years' jail on the first charge and six years' jail on the second, the sentences to run consecutively; (4) the test to be applied in deciding whether sentences should be consecutive or concurrent was whether consecutive sentences would be 'too much'. Having regard to all the facts, the sentences should run consecutively and 14 years in total was not too much. Sentences were to run from the date of A's arrest.

Public Prosecutor v Teo Heng Chye [1989] 3 MLJ 205 High Court, Singapore (Coomaraswamy and Rajah JJ).

The appellant was convicted of the murder of one Karubbun Velusamy, a male Indian who died of severe head injuries. The prosecution relied on circumstantial evidence in the testimony of two witnesses, Muthukamaru and Mohamed Misha, and on a cautioned statement (amounting to a confession) made by the appellant to the police shortly after his arrest 16 days later. At the trial, the appellant retracted his confession and raised the defence of alibi. The trial judges accepted the evidence of the confession as voluntary and true, and rejected his defence. On appeal, the appellant alleged, inter alia, that: (a) the evidence of Mohamed Misha should have been rejected in the absence of corroboration as he had been arrested in connection with the murder before the appellant was arrested and was later released after he had identified the appellant at an identification parade. As such, he was an accomplice or at least an interested witness; (b) the cautioned statement should not have been given any weight because the officer recording it was also the investigating officer and therefore had an interest in the matter; (c) no weight ought to have been attached to the cautioned statement, which was a con-fession, as it had been retracted; (d) the appellant's defence of alibi had been inadequately considered in that as the prosecution had failed to call evidence in rebuttal of the alibi, the trial judges, even if they disbelieved the appellant's evidence, should have considered whether it was probable that the appellant was somewhere else at the time of the attack on the deceased; (e) the trial judges had failed to give adequate consideration to the fact that the appellant was drunk at the time of the attack and accordingly, was incapable of forming the intention to kill.

Held: (1) there was insufficient evidence to support the defence of intoxication laid down in s 85 of the Penal Code. The bare statement of the appellant that he was drunk was inadequate to negate the intention to kill; (2) there was ample evidence before the trial judges to establish beyond a reasonable doubt that the appellant had murdered the deceased and the appeal was therefore dismissed.

Ismail bin UK Abdul Rahman v Public Prosecutor [1974] 2 MLJ 180 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Winslow and Choor Singh JJ).

The appellant was tried and convicted in the High Court for the murder of one Man Tem-On. The evidence led at the trial was that, on 30 April 1990, the accused and the deceased were seated at different tables at a coffeshop at Geylang. Two material witnesses for the prosecution, Somyos and Prayoon, testified that they heard the appellant saying that he felt like killing someone and walking to the deceased's table. Prayoon then testified that he saw the appellant holding two cutters and raising both hands. Somyo testified that he saw the deceased standing up with his head and body turning in the direction of the appellant. Thereafter Somyo saw the deceased holding his neck and the appellant running off. The deceased was bleeding at his neck and he was assisted by Somyos and his friends and taken to hospital but he succumbed to his injuries. The defence sought to impeach the credit of Prayoon on his preliminary inquiry deposition but the trial judge found no material discrepancies and disallowed the application. The forensic pathologist testified that the fatal wound was a slash wound at the neck which completely cut the trachea and the right jugular vein at the level of the thyroid. Such a wound could have been caused by the cutter produced in court. The appellant had led to the recovery of the said cutter. The appellant also did not object to the admission in evidence of his cautioned statement. In the statement, the appellant had admitted slashing the deceased. However, he stated that he slashed the deceased in self-defence as he thought the deceased and his friends were going to attack him. In his defence, the appellant stated that he had bought the two cutters for his protection. He claimed that while he was at the coffeeshop, he had drunk about 12 bottles of stout with his friends and was a bit tipsy. He claimed that one of the deceased and some of his friends had come at him. He, therefore, immediately drew his cutter and swung at them to ward them off. He then heard some of his friends shouting at him to run and he did. The appellant was convicted and he appealed.

Held, dismissing the appeal: (1) the appellant clearly had the intention to inflict the injury that was inflicted. He had equipped himself with the two cutters and on the evidence he had the intention to use the cutters prior to going to the deceased's table; (2) there was no clear evidence to suggest that the appellant was intoxicated at the time of the offence. There was also no scientific evidence placed before the trial judge to support this contention; (3) (obiter) the statements used by the defence to cross-examine Prayoon were not statements made to a police officer but a depositional statement made before an examining magistrate at the preliminary inquiry. Such a statement was not subject to s 122(1) and (2) of the Criminal Procedure Code and, therefore, there would be no impediment to applying s 147(3) of the Evidence Act to treating the statement as substantive evidence; (4) (per curiam) the pronouncement made in Somwang Phatthanasaeng v Public Prosecutor [1992] 1 SLR 850 at p 862 that a previous statement made by an accused and used to impeach his credit is admissible for the limited purpose of impeaching his credit only and not as substantive evidence of the content thereof is an obiter dictum and the question whether in such case the statement is admissible as substantive evidence of its content is open for consideration in future by the High Court and the Court of Appeal.

Saengarun Ukthunthod v Public Prosecutor [1994] 1 SLR 225 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

This was an appeal from the conviction of the ap-pellant for murder. The substantial defence of the appellant was that he was in a state of intoxication which precluded him from forming the specific intent to kill. In summing up, the learned judge directed the jury that 'the accused appeared to be fairly steady on his feet. That was Mr Martin's evidence at 3.30 on the afternoon of 22 August'. In cross-examination at the trial, Mr Martin had admitted that the appellant was unsteady on his feet. It appeared also that certain medical reports on urine tests of the appellant were not put in evidence.

Held: if there had been no misdirection with regard to the evidence of Mr Martin and if the medical reports had been admitted and put in evidence, it was impossible to say that the jury must have reached the conclusion they did and therefore, the verdict of murder must be set aside and a verdict of culpable homicide not amounting to murder be substituted for it.

Tan Hung Song v R [1951] MLJ 181 Court of Criminal Appeal, Singapore (Brown Ag CJ, Spenser-Wilkinson and Rogers JJ).

[Annotation: See article 'Investigation in Murder Cases' [1935] MLJ xvii.]

The appellant was convicted on his plea of guilty to a charge of housebreaking in order to commit theft under s 454 read with s 34 of the Penal Code (Cap 224) and was sentenced to the mandatory minimum of 18 months' imprisonment. He admitted that he had entered the premises of a primary school with a friend by cutting a hole in the fence with a pair of pliers. They then forced open various offices inside the school and stole various items, including a computer and a printer. They were arrested when the police arrived at the scene. Before the senior district judge, the appellant's counsel urged the court to make a probation order instead of ordering a custodial sentence. It was pointed out for the appellant that he had a stable and promising career with an electronics company and that he was a prominent and highly-respected young Malay entrepreneur. There was also a brief reference to the appellant having committed the offence while under the influence of alcohol. However, the senior district judge was of the view that probation was inappropriate and imposed the punishment of 18 months' imprisonment. The appellant filed a criminal motion asking the High Court to exercise its revisionary powers under s 268 of the Criminal Procedure Code (Cap 68) ('CPC') to inquire into the conviction. He also applied for the leave of the High Court to introduce additional evidence to show that he was in fact entitled to the defence of intoxication under s 86(2) of the Penal Code. This additional evidence was in the form of affidavits which purportedly showed that the appellant was addicted to alcohol, that he was heavily intoxicated at the time he committed the offence, that he could not have intended to steal the items as he would have known that they were almost worthless and that what he did was completely out of character with his achievements and station in life. Alternatively, he appealed against the sentence of 18 months' imprisonment.

Held, dismissing the criminal motion and the appeal: (1) and thirdly, the evidence must be apparently credible although it need not be incontrovertible. In short, the circumstances in which an application to introduce fresh evidence will be allowed are extremely limited; (2) s 86(2) of the Penal Code may be a complete defence or a mitigating circumstance which may render an accused to be guilty of a lesser offence. Section 86(2) applies only where the mens rea for an offence is intention and not other forms of mens rea. The burden of proof fell on the accused person to prove on a balance of probabilities that he was so intoxicated that he did not form the necessary intention. The appellant would have a complete defence if he could show that he was so intoxicated that he did not housebreak with the intention to commit any offence or to intimidate, insult or annoy. Alternatively, his conviction may be reduced to one for a lesser form of housebreaking if he could show that he did not housebreak with the intention to commit the specific offence of theft; (3) such a protracted criminal venture negates any serious possibility of one of the two participants being so inebriated as not to have intended to embark on the unlawful endeavour at all; (4) there was no flagrantly incompetent advocacy; (5) to correct glaring injustice, the court may allow evidence which was considered at the trial to be introduced in an appeal. But this is warranted only by the most extenuating circumstances, which may include the fact that the offence attracts grave consequences and that the additional evidence was highly cogent and pertinent and rendered the conviction unsafe. The present case falls far short of that mark; (6) the court has no power to make a probation order under s 5(1) of the Probation of Offenders Act (Cap 252) as s 454 of the Penal Code prescribes a minimum sentence of 18 months' imprisonment and is 'an offence the sentence for which is fixed by law'. The expression 'an offence (not being an offence the sentence for which is fixed by law)' cannot and should not be given the excessively broad meaning of any offence other than one which attracts a single inflexible sentence for which the exact quantum and kind of punishment are expressly provided in the statutory provision concerned. The appellant was sentenced to the minimum of 18 months' imprisonment and any appeal against the sentence is entirely misconceived; (7) three conditions have to be fulfilled to justify the court taking additional evidence non-availability, relevance and reliability. Firstly, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that if given at the trial, it would probably have an important influence on the result of the case although it need not be decisive;the additional evidence here is not apparently credible and, even if believed, does not establish on a balance of probabilities that the appellant was entitled to the defence of intoxication. Furthermore, the commission of the offence entailed an extensive sequence of apparently conscious and purposeful acts;the additional evidence was available at the time of the trial. While the court would allow additional evidence available at the time of the trial to be called if it is necessary in the interests of justice, such a situation will arise only in the most extraordinary circumstances. If defending counsel in the course of a case made a decision or took a course which later appeared to have been a mistake or unwise, that, generally speaking, has never been regarded as a proper ground of appeal. A conscious decision not to adduce evidence, unless it amounted to flagrantly incompetent advocacy, did not provide a reasonable explanation for the failure to call at the trial the evidence which is sought to be introduced at the appeal. In the present case, the defence of intoxication was considered by the appellant's counsel at the trial but later rejected due to a perceived lack of evidence;(per curiam) the decision in R v Goh Boon Kwan has been used to render probation under the Probation of Offenders Act available to the majority of the offences under the Penal Code and other criminal statutes, the exceptions being those offences for which a death sentence or life imprisonment has been mandatorily prescribed. The result has been that counsel for accused persons almost invariably and as a matter of course plead for a probation order as an alternative to any sentence of imprisonment which may appear to be under consideration. There is obvious need for a general review outside the court system of the scope of probation and its application by the courts.

Juma'at bin Samad v Public Prosecutor [1993] 3 SLR 338 High Court, Singapore (Yong Pung How CJ).

The appellant was convicted of murder in the High Court. The prosecution evidence was that the appellant and another person named Kuppiah had gone to Johore Road to confront a transvestite, the victim. They were of the opinion that the victim had stolen a gold chain from their friend. When they found the victim, they requested for the return of the chain. When the victim denied knowledge of the chain, Kuppiah threatened him with violence. The victim took out a knife and pointed it at Kuppiah. The appellant then kicked the victim, picked up the knife and stabbed him. The accused and Kuppiah then fled the scene. The forensic pathologist found five stab wounds on the victim's body, two of which were fatal. The pathologist confirmed that the stab wounds were caused by forceful thrusts. The appellant gave evidence in his own defence. He claimed that after he had kicked the knife out of the victim's hand, they had then both struggled for the knife. In the course of the struggle, he had stabbed the victim five times. He claimed that the two stab wounds were accidental. He appealed against his conviction.

Held, allowing the appeal: (1) there was no premeditation on the part of the appellant or any desire on his part to engage the victim in a fight to recover the chain. The court noted that the trial judge had failed to state whether he accepted the appellant's evidence. The court accepted the appellant's evidence; (2) the trial judge had overlooked a vital aspect of the evidence which was uncontroverted at the trial and that was that the victim kept coming at the appellant each time he was repulsed and the appellant was unable to disengage himself from the fight which in fact was started by the victim drawing the knife and pointing it threateningly at Kuppiah; (3) it could not be said that the appellant took undue advantage or acted in a cruel or unusual manner as the injuries he inflicted on the victim were inflicted while he was involved in a fight with the victim. Consideration of doing more harm than was necessary as in the case of the right of private defence did not arise in sudden fight; (4) the defence of sudden fight cannot apply, however, where one party who has emerged the clear victor in a fight inflicts a fatal injury on the loser who is attempting to escape. It is a clear situation where there is undue advantage or cruel or unusual conduct; (5) private defence did not apply to this case. The appellant was perfectly justified in kicking the victim when the knife was produced. This was an act in defence of Kuppiah and the appellant. The result was that the victim fell to the ground and the knife was dislodged from his hand. The victim had been disarmed and the appellant took possession of the knife. Whether at this point the appellant must have had a reasonable apprehension of danger to his life was an objective question. On an objective inquiry into the facts, it could not be said that the appellant, who now had possession of the knife and probably had knowledge that his friend Kuppiah was still at the scene, could have conceived of any danger of his life. There was no danger or apprehension of any grievous bodily harm to the appellant after he kicked the victim and deprived him of the knife. Any apprehension of danger to the appellant or Kuppiah ceased from the moment the knife was dislodged from the victim's hand and the appellant had taken possession of it. Even if the right of private defence existed, the appellant had inflicted more harm than was necessary for the purpose of defence. The test in this case is subjective. The use of a knife on an enraged but unarmed person could not be justified when that person could surely be quietened by other means, for example, a few well-aimed punches, or be subdued physically by the appellant and Kuppiah acting together. There was no evidence of any third persons coming to help the victim to warrant the use of the knife in defence. The right of private defence, if it was at all applicable in this case, was far exceeded by the appellant; (6) in a sudden fight, most if not all the blows struck were deliberate but it did not necessarily follow that deliberateness was concomitant with an intention to kill or cause grievous bodily harm. In view of the facts, it could not be said that the appellant had the intention of causing the victim's death or of causing such bodily injury to him as was likely to cause death. The appellant was therefore sentenced to nine years' imprisonment under s 304(b) of the Penal Code.

Soosay v Public Prosecutor [1993] 3 SLR 272 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Goh Joon Seng and Karthigesu JJ).

The accused was charged with the offence of murder. The evidence adduced by the prosecution consisted of the testimonies of witnesses at the scene of the incident, medical evidence on the stab wound and the cause of death of the deceased, and a voluntary statement made by the accused under s 122(6) of the Criminal Procedure Code (Cap 68, 1985 Ed). At the end of the prosecution's case, defence counsel made a submission that the defence had no case to answer as the prosecution had not adduced sufficient credible evidence which if unrebutted would warrant a conviction. Counsel for the accused also relied on certain statements in the accused's cautioned statement as evidence that the accused had stabbed the deceased when he had first been assaulted by the deceased and then threatened by his gang as well. It was submitted that these statements not only created a reasonable doubt on the prosecution's case but was also sufficient to establish the general exception of private defence and exceptions 1, 2 and 4 to s 300. Counsel also contended that where a cautioned statement was adduced as part of the prosecution's case, it was admitted as substantive evidence of the truth of the facts stated therein.

Held, convicting the accused: (1) the court did not accept counsel's submission that a cautioned statement, when admitted as part of the prosecution's evidence, was substantive evidence of the truth of all the contents therein irrespective of the character of such statements. The law makes a distinction between inculpatory (or disserving) statements and exculpatory (or self-serving) statements. Exculpatory or self-serving statements, when given in accordance with s 122(6) of the Criminal Procedure Code (Cap 68, 1985 Ed), may be admitted as part of the prosecution's evidence but not as to the truth of the contents thereof. The law of England is the same as the law of Singapore in this respect; (2) there was nothing in the evidence adduced by the prosecution or elicited from the prosecution witnesses which had, at the end of the prosecution's case, created a reasonable doubt that the accused had intended to cause such injury as was sufficient in the ordinary course of nature to cause death. There was credible evidence that the accused had intended to stab the deceased in the neck and such stabbing was sufficient in the ordinary course of nature to cause death. Accordingly, the defence was called for; (3) the court is unable to conclude that the accused had discharged, on a balance of probabilities, the burden of proving any circumstances which brought him within the general exception of right of private defence under s 96 of the Penal Code or any of the special exceptions 1, 2 and 4 to s 300 of the Penal Code.

Public Prosecutor v Chan Kim Choi [1989] 1 MLJ 404 High Court, Singapore (Coomaraswamy and Chan Sek Keong JJ).

The respondent was prosecuted in the subordinate courts for having voluntarily caused hurt to one Lim Boon Lian ('Lim'), the complainant below. The evidence showed that the two men had been involved in a scuffle on 22 May 1992, in the course of which Lim suffered various injuries, including laceration of the lower lip and subluxation of two teeth. The magistrate held that these injuries to Lim had been voluntarily caused by the respondent but that, in view of the fact that Lim had thrown the first punch, the respondent had acted in exercise of his right of private defence; and further, that he had not used more force than was necessary to defend himself. He was therefore acquitted. On appeal by the prosecution it was argued (inter alia) that the respondent had exceeded his right of private defence in causing hurt to Lim. Evidence had been adduced at trial as to the overwhelming disparity in the physiques of the two men. The respondent, a 5' 10" rugby player, weighed 91 kg, while Lim, at 58 kg, weighed a whole 33 kg less.

Held, allowing the appeal: whilst it is true that no man can be expected to assess with scientific accuracy the precise amount of force necessary to defend himself from an attack, in a case such as the present, where both protagonists are unarmed and where the party being attacked possesses a considerable weight advantage over his attacker, the former cannot be entitled (except in the most exceptional circumstances) to do more than ward off the latter's blows. In particular he should not be allowed to put his physical superiority to such use as to 'beat up' the latter. In the present case, in addition to his weight advantage, the respondent was at the time of the scuffle on 'home turf', with several of his staff members close by. Moreover, in contrast with Lim, his only visible injury was a bruise on the leg. The appellate court was of the view, having regard to all these circumstances, that the respondent had exceeded his right of private defence in punching Lim with such force as to lacerate his mouth and knock his teeth backwards. Accordingly the order of acquittal granted below was set aside. However, since the respondent had not been responsible for the first (and apparently incendiary) blow, a custodial sentence was deemed inappropriate and he was fined $1,000 instead.

Public Prosecutor v Lee Twe Jeat [1994] 3 SLR 219 High Court, Singapore (Yong Pung How CJ).

Mohd Sulaiman bin Samsudin v Public Prosecutor [1994] 2 SLR 465 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The deceased was found lying in a pool of blood in the corridor outside his office at Upper Cross Street. The deceased was still alive at that time but by the time an ambulance arrived, he had passed away. The cause of death was massive haemorrhage due to stab wounds. Five stab wounds were found in the deceased's body, two in the area of the neck and three around the abdomen. The fatal stab was one of the neck wounds which cut the artery and jugular vein. The accused was arrested and charged with murder. In his defence, he claimed that he had met the deceased at his office to discuss a business deal. One Peter Tan was present at the time. There was an argument between the accused and the deceased, and the deceased attacked the accused with a piece of glass. The accused then took a letter opener and struck the deceased a few times. Both the accused and deceased scuffled further and both then fell to the ground. The deceased did not get up. The accused then fled the scene. The accused was unaware of the whereabouts of Peter Tan. The police were also unable to trace Peter Tan.

Held, convicting the accused of culpable homicide not amounting to murder: (1) the court accepted the accused's evidence that there was a Peter Tan present at the scene at the time of the scuffle; (2) the court also accepted the accused's evidence as to how the scuffle took place; (3) the right of private defence arose when the deceased armed himself with the piece of broken glass. However, bearing in mind that Peter Tan was present to assist in the confrontation with the deceased, the accused's repeated stabbing of the deceased in so vital a spot as the neck and with such force that the letter opener penetrated 10cm to 11cm into the deceased's body exceeded the right of private defence; (4) the accused's case did fall within exception 2 of s 300 of the Penal Code (Cap 224).

Public Prosecutor v Jeow Soon Criminal Case No 48 of 1992 High Court, Singapore (Rajendran J).

Held: the word 'assembly' in s 149 has the ordinary meaning of the word and means a meeting of persons in the same place, so as to be able to communicate freely with each other, per Wood J, quashing a conviction under s 149 upon the facts.

R v Khoo See Hee & Ors [1884] 3 Ky 170 High Court, Straits Settlements (Wood J).

Held: a common brothel is not a public place within the meaning of s 159.

R v Cheah Tee & Anor [1885] 4 Ky 84 High Court, Straits Settlements (Wood J).

The prosecutor had rented a strip of land at the back of a shop in Prangin Lane in which he resided. The appellants were carrying granite stones, passing and repassing over the strip, thereby scattering some paddy the prosecutor had laid out to dry. This led to words and eventually to blows. The strip lay at the back of the shop by the sea side, and though some distance from the public thoroughfare, it was open on all sides and was distinct from the shop land which was fenced all round; over the strip was a lane or foot-path. Crowds of people were attracted to the spot by the noise of the fight.

Held: the strip was not a 'public place' within the meaning of s 159 of the Penal Code, so as to render the appellants guilty of an affray.

R v Ong Kong Poon [1888] 4 Ky 346 High Court, Straits Settlements (Wood J).

[Annotation: As to what is a public place, see Choo Siew Koon v ]R [1952] MLJ 138. Reference may also be made to Public Prosecutor v Koo Gee Leong [1962] MLJ 101.]

No conviction can be had for receiving a gratification under s 161 of the Penal Code, unless it be received for doing what would be, strictly, an official act. The appellant, an apothecary, came to this Colony under a contract with the Indian government that he was required to do only hospital duties, and was not to be restricted from private practice. On his arrival here, he was placed in charge of a hospital in Province Wellesley. Not long after, a patient was admitted into the hospital suffering from wounds in a fight, and his friends applied to the appellant for a certificate of the wounded man's condition, in order to procure a warrant for the apprehension of the assailants. The general practice of the apothecaries in the settlement was to grant such certificate without remuneration and the medical officer considered it was the duty of the appellant to have granted the certificate without charge. There was no other evidence of it being an official act. The appellant declined to grant a certificate unless he was paid for it as he considered it no part of his duty to grant a certificate. He was accordingly paid $5, and thereupon granted the certificate. The magistrate convicted him under s 161.

Held: the conviction could not be sustained.

Connor v Tan Jim Sin [1897] 3 Ky 114 High Court, Straits Settlements (Wood J).

'Rendering service or disservice' under s 161 of the Penal Code contemplates the exercise of some direct personal influence with a public servant. Where the accused promised to give evidence in favour of a coolie and took a gratification for that promise,

Held: there was no offence under s 161, but the accused was punishable under s 165.

Salleh & Anor v R [1906] 10 SSLR 27 High Court, Straits Settlements (Hyndman-Jones CJ).

See criminal procedure, x-ref 156.

Held: where the accused forbears to do not an official act but a wrongful act, there can be no conviction under s 162 of the Penal Code. The case should be remitted and the accused retried on the graver charge of extortion.

Secunder v Kyamboo; R v Shavoo [1879] 3 Ky 116 High Court, Straits Settlements (Wood J).

Held: a forest ranger has no power to arrest without a warrant, except in the cases specified in s 11 of the Crown Lands Ordinance 10 of 1883, and if he do so, his act is not an 'official act' but a trespass, and any person offering him money to procure the release of the person or thing detained, cannot be convicted of offering a gratification under s 165A of the Penal Code.

R v Low Lau Sew [1885] 4 Ky 76 High Court, Straits Settlements (Wood J).

[Annotation: Section 165A seems to have been omitted from the Present Penal Code, but see s 12 of the Prevention of Corruption Act (Cap 241, 1985 Ed).]

Held: a person cannot be punished under s 174 of the Penal Code for disobeying a subpoena when the time between the service of the subpoena and the time he is therein directed to appear before the magistrate is not reasonably sufficient to enable him to appear. Any statement made at the time by the person serving the subpoena to the person served that the date mentioned therein had been extended to enable him to appear cannot alter the directions of the subpoena or legally bind the person served to appear at such extended date.

R v Tan Sim Ho [1886] 4 Ky 156 High Court, Straits Settlements (Wood J).

Held: the accused must be legally bound to furnish the information, otherwise there can be no conviction under s 177.

R v Chan Kan [1895] 3 SSLR 18 High Court, Straits Settlements (Cox CJ).

Held: there can be no conviction under s 188 of the Penal Code unless the order which the defendant is charged with disobeying, is couched in definite terms.

R v Akim bin Jeloh [1893] 2 SSLR 7 High Court, Straits Settlements (Bonser CJ).

The prisoner was charged with giving false evidence in denying that he had made a report to a police officer on 15 September 1881. The date 15 was a clerical error for 16. The charge omitted to state that the prisoner was bound by an oath or that he falsely, wilfully and corruptly gave false evidence.

Held: the court has power under s 53 of the Criminal Procedure Ordinance VI of 1873 to alter the date mentioned in a charge to the correct date shown by the evidence, even after the case for the prosecution was closed; and where no injustice is thereby done to the prisoner, the court will order the amendment to be made forthwith, and the trial to proceed. Under the present procedure, it is unnecessary to state in a charge of giving false evidence, that the prisoner was bound by oath to state the truth, or that he 'falsely, wilfully and corruptly' stated what was not true.

R v Manjoorsah [1882] 2 Ky Cr 109 High Court, Straits Settlements (Wood J).

The two accused were tried jointly with giving false evidence in a civil judicial proceeding in the Supreme Court. They each swore an affidavit to support the same application and each of these affidavits was false in certain particulars.

Held: (1) there was an intention common to both offences which connected them together and enabled the court to hold that they had been committed in the same transaction and that there was no misjoinder; (2) there is nothing in the Penal Code or the Evidence Ordinance which requires a degree of proof in the case of trials under s 193 of the Penal Code different from that required in other criminal cases.

R v Govindasamy & Anor [1935] MLJ 23 High Court, Straits Settlements (Terrell J).

Held: on a charge of fabricating false evidence by falsely entering certain items in an account book, the prosecution may not adduce evidence of other false entries in the same book in order to get the jury to draw an inference that the items charged are false.

R v Mahomed Mydin & Anor [1884] 2 Ky Cr 115 High Court, Straits Settlements (Wood J).

[Annotation: In view of the provisions of the Evidence Act (Cap 97, 1990 Ed), this case is no longer authoritative.]

Held: it must be proved that the proceeding is strictly a judicial one before there can be a conviction under the first part of s 193 of the Penal Code.

R v Thaysen Bee [1895] 3 SSLR 1 Court of Appeal, Straits Settlements (Cox CJ, Law and Leach JJ).

Held: a prosecution will not lie under s 193 of the Penal Code for giving false evidence in a stage of a judicial proceeding when the only statement is that made in a police investigation. Although under s 119(2) of the Criminal Procedure Code 1900 a witness is bound to answer truly, evidence cannot be given of the statement made, except as provided in s 120.

R v Ng Keng Chiong [1904] 8 SSLR 26 Court of Appeal, Straits Settlements (Cox CJ and Hyndman-Jones J).

Held: in a prosecution for giving false evidence, it is insufficient merely to allege that the accused made on different occasions, statements which were inconsistent with one another. A conviction on this charge cannot be sustained unless the prosecution can prove conclusively from facts within the accused's knowledge that one or the other of his statements is necessarily untrue.

Raj Kishor Rai v R [1937] MLJ 171 High Court, Straits Settlements (Terrell Ag CJ).

Held: the validity of a sanction to prosecute under this section, whether given by the Public Prosecutor or by a magistrate, is not affected merely because the original complainant has not been given an opportunity of substantiating his charge or of withdrawing it. The circumstances in which a magistrate may properly grant a sanction for a prosecution under this section discussed.

R v Retnam and another appeal [1934] MLJ 6 High Court, Straits Settlements (Huggard CJ, Gerahty and Mills JJ).

[Annotation: The court, considering it desirable to indicate briefly for the guidance of magistrates as to the circumstances in which a magistrate may properly grant a sanction for a prosecution under his section, observed: 'It is essential in our opinion that before a magistrate may grant a sanction in such a case, the original complaint must have been legally disposed of, that is to say, either by the withdrawal of the charge by the Public Prosecutor or his duly authorized deputy, or by the abandonment of the charge by the complainant, or by the dismissal of the complaint by the magistrate. If the original complaint has been legally disposed of as indicated above, it is then competent for a magistrate to grant his sanction, but inasmuch as in granting or refusing a sanction the magistrate is performing a judicial act; he should not grant his sanction unless he has materials before him upon which he can form an opinion as to the existence of a prima facie case. In cases where the original charge has been withdrawn by the Public Prosecutor or has been abandoned by the complainant, the magistrate may not have before him any such materials as would enable him to form an opinion whether or not a prosecution under s 211 ought to be sanctioned. In such cases, we consider that the magistrate's proper course would be to refuse to grant his sanction and to leave the matter in the hands of the Public Prosecutor. Where, on the other hand, the original complaint has been dismissed by the magistrate under s 142 of the Criminal Procedure Code (ie after examining the complainant on oath, recording his examination, and considering the result of the inquiry), the magistrate is entitled to grant his sanction if the evidence is in his opinion sufficient to raise a prima facie presumption that the complainant has committed an offence under s 211 of the Penal Code.]

A fastened up his pony securely overnight and at 3am discovered that it was missing, together with one of the ropes by which it had been tied. He made a search and inquiries in the neighbourhood all that day, and reported the loss on the next day at a police station. On the third day, B came to the house of A and inquired if the pony had been found. A then asked B's assistance to recover the pony. B told A that one C required $25 for the restoration of the pony, and that if the pony was not returned, he (A) could have B's pony instead. A thereupon paid the sum of $25 to B, and accompanied him to the house of C, but remained outside though able to see what took place. B handed over $25 to C and the pony was afterwards returned to A. B had not given any information to the police as to the whereabouts of the stolen property, though he subsequently swore an information and obtained a warrant for the arrest of C.

Held: the use of the word 'gratification' implies a benefit to the recipient, and when it was proved that the defendant had received a sum of money to be paid to a person in possession of stolen property for its release, and had handed over such sum intact, there can be no conviction under s 215.

R v Haji Jafar [1900] 6 SSLR 26 High Court, Straits Settlements (Law J).

Held: a conviction for an offence of allowing a person in lawful custody to escape cannot be sustained when that person is not legally in custody or where the offence is punishable with a mere fine.

R v Sahid [1890] 4 Ky 615 Court of Appeal, Straits Settlements (O'Malley CJ, Wood and Pellereau JJ).

R v Tan Chu Chooi [1938] MLJ 230 Court of Criminal Appeal, Straits Settlements (McElwaine CJ, Mills and Pedlow JJ).

Where a police officer receives a warrant for the apprehension of a person, but leaves the warrant behind instead of taking it with him when attempting to apprehend the offender,

Held: a third party who obstructed him in making such arrest could not be charged with obstruction under s 225 of the Penal Code.

R v See Kah Loon [1881] 2 Ky Cr 101 High Court, Straits Settlements (Wood J).

Held: the moment a banishee sets his foot in the Colony, he is punishable under this section even though his return is for a purely temporary purpose.

R v Tan Ah Tong [1884] 2 Ky Cr 117 Court of Appeal, Straits Settlements (Sidgreaves CJ, Ford and Wood JJ).

Held: a cheque, payable to order, but not indorsed by the payee, is 'movable property' within the meaning of the Penal Code.

Tuan Puteh v Dragon [1876] 3 Ky 86 High Court, Straits Settlements (Phillippo J).

Held: misappropriation itself or mere use of money or goods is not a crime; to be so it must be done dishonestly.

R v Batty [1889] 4 Ky 441 High Court, Straits Settlements (Pellereau J).

Held: a magistrate, on convicting a person under s 290 of the Penal Code, has no power to order the discontinuing of the nuisance.

Municipal Commissioners v Ah Chin [1876] 3 Ky 85 High Court, Straits Settlements (Phillippo J).

A dispute arose between the appellant, an asphalt-mixer, and a Eurasian overseer, since deceased, in consequence of the deceased having called upon the appellant to vacate the coolie lines. Shortly afterwards, both the appellant and the deceased were proceeding towards the office and in the course of the journey, the appellant stabbed the deceased. The appellant was charged with murder. During the trial, in answer to a question put by the judge, the appellant stated that he did not intentionally stab the deceased and the effect of his evidence was that the death was purely accidental. In his summing up, the learned judge directed the jury that the whole case was whether the evidence by the defence was sufficient in their minds to reduce the charge from murder to culpable homicide not amounting to murder on the grounds that the appellant was provoked, which was the suggestion of his counsel, or if they accepted his story that he turned round with such force that the knife accidentally hit the deceased and that he had no intention of stabbing the deceased. The learned judge also directed the jury that the appellant must be guilty of either one of the two offences indicated above, in view of the evidence.

Held: the conviction must be quashed as the learned judge had misdirected the jury in two respects: (1) if the jury had accepted the appellant's story that the fatal blow was unintentional and a pure accident, there would be no evidence to support a charge of culpable homicide not amounting to murder, as criminal intention has to be established as fully as in the case of murder; (2) the jury were not directed that if the defence of accident were accepted, the appellant was entitled to an acquittal.

Ratnam v R [1937] MLJ 222 Court of Criminal Appeal, Straits Settlements (Terrell Ag CJ, Horne and Laville JJ).

The appellant was convicted on a charge of causing grievous hurt by driving a motor car negligently, an offence punishable under s 308 of the Penal Code. He appealed on the issue of his identity with the driver of the car.

Held: by virtue of s 315 of the Criminal Procedure Code (Cap 21), the onus is upon the appellant, in an appeal on a question of fact, to satisfy the appellate court that the judgment was against the weight of the evidence.

Ong Joo Chin v R [1946] MLJ 1 High Court, Straits Settlements (Worley J).

Sahat v Hajee Brahim [1888] 4 Ky 337 High Court, Straits Settlements (Wood J).

Held: where, in an attack on a person, a bone is broken, this makes the offence 'grievous hurt' under the Penal Code; and a magistrate has no jurisdiction to dispose of the case summarily. The evidence in the case showed that the respondent had been attacked, and a bone of his finger broken; the magistrate having tried the appellants summarily and convicted them of voluntarily causing hurt, this court quashed the conviction as having been made without jurisdiction, and directed the case to be remitted to the magistrate to be heard as a preliminary proceeding, and committed to the assizes.

Man & Anor v Samsah [1877] 3 Ky 99 High Court, Straits Settlements (Phillips J).

[Annotation: As to the present jurisdiction of the subordinate courts, see the Criminal Procedure Code (Cap 68 1985 Ed).]

A person who inflicts a wound on another is answerable for the results, if the results follow without unreasonable conduct on the part of the man wounded. Where, therefore, the prisoner inflicted a wound on the prosecutor, which in itself was not a serious wound, but the prosecutor omitted to obtain proper and immediate remedies, by reason whereof the wound got into an unhealthy state and only after it got to that state the prosecutor was sent to the hospital where he was kept by the medical officer for treatment for 23 days during which time he was unable to follow his ordinary pursuits,

Held: the foul state of the wound and the consequent detention in hospital must be considered the result of the prisoner's act, and the case was therefore one of grievous hurt under s 325 of the Penal Code, and not simple hurt under s 323, and a magistrate's conviction for the latter could not be sustained as he had no jurisdiction over a case of grievous hurt.

Sahat v Hajee Brahim [1888] 4 Ky 337 High Court, Straits Settlements (Wood J).

Held: (1) contributory negligence is no defence in a criminal case, but it may be weighed and considered if it has a bearing on the question of whether the negligence (if any) of the prisoner was so gross, culpable or reckless as to disclose mens rea on his part or whether it was in any substantial sense a cause of the collision; (2) (semble) if the killed or injured person contributed to his own death or injury by his negligence, it may be taken into consideration when imposing punishment, but not where the prisoner's guilt is shared by another, not being the injured party.

Lim Lim v R [1937] MLJ 81 High Court, Straits Settlements (McElwaine CJ).

Held: before the jury can find an accused person guilty of murder by reason of the provisions of s 34 of the Penal Code, they must be satisfied on the evidence that there existed between the participants a common intention not only to rob but also to kill the deceased. The trial judge should direct the jury to this effect.

R v Vincent Banka [1936] MLJ 66 Court of Criminal Appeal, Straits Settlements (Huggard CJ, Whitley and Terrell JJ).

[Annotation: This case is unlikely to be considered good law in Singapore in the light of the decision of Mimi Wong & Anor v Public Prosecutor [1972] 2 MLJ 75.]

The appellant was tried before Terrell J and a special jury on a charge of murder and was convicted. He appealed against this conviction. The appeal was dismissed on various grounds.

Held: 'A third question was that which was raised in the eighth ground of appeal, which alleged misdirection on the question of common intention. This court recently considered this question in the case of R v Banka & Anor [1936] MLJ 66, where the terms of s 34 of the Penal Code were summed up in the following phrase: ÒUnder the terms of the 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'.Ó That does not, of course, mean that, in the case of murder, there need have been a common intention actually to kill; but there must have been a common intention to do any of the acts which are described in ss 299 and 300 of the Penal Code and the doing of which, if death results, amounts to murder.'

R v Chhui Yi [1936] MLJ 177 Court of Criminal Appeal, Straits Settlements (Whitley Ag CJ, Mills and Adrian Clark JJ).

The appellant and one who had not been brought to justice attempted to rob one OCY and in the course of a struggle, stabbed OCY in the side and inflicted a wound from which he died about 14 hours later. The appellant was convicted of murder, the prosecution resting its case on the allegation that the appellant had an intent common with X that the deceased should be stabbed fatally in the event of his refusing to stand and deliver. The trial judge directed the jury, inter alia, that they should consider the questions, whether the other man and the appellant had conspired to commit robbery, whether the appellant knew that the other man had been armed with a knife and whether it was a part of the conspiracy that the knife should be used, if necessary, even to the point of causing death or injury which they knew to be likely to cause death, and that if the jury returned an affirmative answer to all those questions, then the jury should find the appellant guilty of murder.

Held: the above direction was a proper and adequate direction on common intention.

T'ng Ban Yick v R [1940] MLJ 153 Court of Criminal Appeal, Straits Settlements (McElwaine CJ, Gordon-Smith Ag JA and Pedlow J).

Held: when s 34 of the Penal Code is relied upon, the substance of the section should be indicated in the particulars or at least explained to the accused at the commencement of the trial if the accused are not represented by counsel.

Sathaiah v R [1938] MLJ 30 High Court, Straits Settlements (McElwaine CJ).

The accused was charged before the criminal district court with kidnapping, an offence punishable under s 363 of the Penal Code, and convicted. In fact, the evidence would have supported a charge of kidnapping a woman to compel her marriage under s 366 of the Penal Code, an offence cognizable only by the Supreme Court. The accused appealed against the conviction on the ground that the district court had no jurisdiction to try the accused since the evidence disclosed an offence cognizable only by the Supreme Court.

Held: the district judge, having properly exercised his discretion under s 183(2) of the Criminal Procedure Code (Cap 21), was entitled to dispose of the case summarily and the appellate court would refuse to set the proceedings aside.

Bapoo v R [1935] MLJ 19 High Court, Straits Settlements (Huggard CJ, Prichard and Terrell JJ).

Where a prisoner is charged under s 363 of the Penal Code with kidnapping a minor under 16 from lawful guardianship, the prosecution ought to show by satisfactory and conclusive evidence, that the child is under that age. Where the only evidence was that of the minor that her mother had told her her age and the alleged guardian stated that the mother had also told her the same, but the parents of the child (being out of the jurisdiction) were not called,

Held: (1) the evidence of age was too slight for consideration and the conviction was annulled; (2) where the alleged guardian stated the minor was a niece of her husband, and had been adopted by her for more than seven years, and the minor spoke of the guardian as her aunt in the absence of evidence to the contrary there was ample evidence of lawful guardianship.

Fong Ah Chan v Kah Sew [1879] 3 Ky 109 High Court, Straits Settlements (Wood J).

Held: a girl may be seduced to illicit intercourse within the meaning of s 366 of the Penal Code although she is not thereby surrendering her chastity for the first time. Illicit intercourse does not necessarily mean punishable carnal knowledge; but includes any intercourse out of lawful wedlock.

R v Tan Ah Kow [1936] MLJ 83 High Court, Straits Settlements (Terrell J).

Held: the mother of a minor under 16 years of age, who has always had charge of the minor, cannot be convicted under s 373 of the Penal Code although she brings up and employs the minor for the purposes of prostitution. The words 'or otherwise obtains possession of' in the section are ejusdem generis with the preceding words 'buys' and 'hires', and cannot apply to a mother who has always had the custody and possession of her child.

R v Quak Ah Sah [1888] 4 Ky 385 Court of Appeal, Straits Settlements (Ford CJ, Wood, Pellereau and Goldney JJ).

Held: the last part of s 373A of the Penal Code applies only to cases of buying and selling a woman, where the woman is brought into the colony subsequent to the act and the bringing in forms part of the transaction.

R v Rajaya & Anor [1882] 2 Ky Cr 112 High Court, Straits Settlements (Wood J).

The appellants were convicted of theft of government timber. The evidence that the timber was cut in British Territory was very unsatisfactory.

Held: the conviction could not be sustained. Even if the trees were felled in British Territory, yet, as there was nothing to show that the appellants knew they were trespassing, the conviction could not be sustained, as no animus furandi could, under the circumstances reasonably be implied.

R v Lim A Si & Anor [1882] 3 Ky 143 High Court, Straits Settlements (Wood J).

The accused was convicted on the charge that he 'on 5 September 1896, at Penang, did commit theft of $47.20 in money and five bank notes, value $25, from the person of CN and that &c'.

Held: the conviction was good, although the ownership of the property stolen was not stated therein.

Pang Ah Pok v Chang Ngon [1897] 4 SSLR 135 Court of Appeal, Straits Settlements (Cox CJ, Law, Leach and Hyndman-Jones JJ).

Held: when an accused person is convicted under s 397 of the Penal Code of armed robbery without causing any hurt, the court has no power to award whipping with a cat-o'-nine tails in addition to rigorous imprisonment.

R v Seow Png [1937] MLJ 49 Court of Appeal, Straits Settlements (McElwaine CJ, Whitley and Mills JJ).

[Annotation: In consequence of this decision, ss 397 and 398 of the Straits Settlements Penal Code were repealed and re-enacted as s 397 by the Penal Code (Amendment) Ordinance 1938, which empowered the court to award whipping with a cat-o'-nine tails in addition to any other punishment to which the offender may be liable. By the Criminal Justice (Punishment Amendment) Ordinance 1954, the words 'with-cat-o'-nine tails' were deleted and by the Penal Code (Amendment) Ordinance 1959, the word 'whipped' was substituted by the word 'caned'.]

Held: evidence was held to amount to theft where the accused, after bargaining for goods, ran away with them.

Sahid v Fu Ah Seh [1888] 4 Ky 349 High Court, Straits Settlements (Wood J).

Held: (1) the foreshore down to the ordinary low water mark is the property of the Crown. The foreshore is in the possession of the Crown though it may not be actually occupied. The protection of the Crown's sand and gravel of the foreshore is within the mischief of the Crown Lands Encroachments Ordinance (Cap 114). Any person who takes sand from an un-alienated foreshore without authority from the Crown does an act forbidden by s 13 of the ordinanc; (2) (quaere) Whether the sea bed between the ordinary low water mark (and/or low water mark of ordinary spring tides) and the outward limit of territorial waters is the property of the Crown.

R v Lim Soon Gong & Ors [1939] MLJ 10 Court of Appeal, Straits Settlements (McElwaine CJ, Terrell Ag CJ (FMS).

An accused was charged with putting one Tan Kim Teck in fear of injury and also with committing theft of 12 lemonade bottles.

Held: the two offences charged were not of the same kind and not connected in any way. Conviction was quashed.

Seng Sai Kee v R [1940] MLJ 246 High Court, Straits Settlements (Terrell Ag CJ).

The two appellants were charged as follows: 'That you, (a) James John Quinn, and (b) Robert Howland, on or about the 12th day of May 1948, at or near Tanglin Road, Singapore, did commit robbery of a motor car No S6841, of the approximate value of $2,000, the property of one Lee Kong Eng and then in his possession, and at the time of committing the said robbery, you did voluntarily cause hurt to the said Lee Kong Eng and thereby committed an offence punishable under s 394 of the Penal Code.' At the conclusion of the trial, the jury found the appellants not guilty of robbery of the motor car but guilty of attempted robbery of the money. This verdict was fully supported by the evidence. The appellants were convicted. This appeal was against conviction and sentence.

Held: the verdict was one that might lawfully be returned by virtue of s 177 of the Criminal Procedure Code (Cap 21).

Quinn & Howland v R [1949] MLJ 217 Court of Appeal, Straits Settlements (Murray-Aynsley CJ, Evans and Gordon-Smith JJ).

Held: dishonest misappropriation of a cheque without conversion thereof is punishable under s 403.

Tuan Puteh v Dragon [1876] 3 Ky 86 High Court, Straits Settlements (Phillippo J).

[Annotation: See also Mat Issah v Mas Etah (1881) 3 Ky 134.]

A claim set up by a prisoner to property which is alleged to be stolen or criminally misappropriated, does not oust a magistrate of his jurisdiction unless the claim be bona fide raised. Where, from the case as set up, it was doubtful whether a witness, the wife of the prisoner, was called for the prosecution or defence; and on appeal, the prisoner alleged she was was called by the prosecutor, and the prosecutor alleged she was called by the prisoner, and the magistrate had no recollection on the point, but subsequently believed she was called by the prisoner, and then, for the first time, in a footnote to the case, stated, she 'was called for the defence', both prosecutor and prisoner being prepared to file affidavits, by themselves and others, in support of their respective allegations,

Held: as the evidence of the wife, if called by the prosecutor, would clearly be inadmissible, and her evidence was of a material kind, the conviction ought to be set aside, and the prisoner tried afresh.

Mat Issah v Mas Etah [1881] 3 Ky 134 High Court, Straits Settlements (Wood J).

Held: a prosecution will not lie for criminal misappropriation of money paid to a person for a criminal purpose.

Yong Ah Kim v Lee Kee Chiang [1905] 9 SSLR 142 High Court, Straits Settlements (Fisher J).

[Annotation: See, however, R v Tan Ah Seng [1935] MLJ 273, where the above case was not followed.]

Held: a partner is liable to conviction under s 403 of the Penal Code for dishonestly misappropriating the partnership property.

Haji Sahid v Shaik Peroo [1875] 3 Ky 79 High Court, Straits Settlements (Ford J).

[Annotation: See further R v Lee Siong Kiat [1935] MLJ 53, where it was held that a partner may commit criminal breach of trust in respect of partnership property.]

Held: the appellant was charged with criminal breach of trust in respect of three tongkangs and was convicted and sentenced in respect of two such tongkangs. The Court of Appeal opined that 'property' for the purpose of s 405 of the Penal Code must be something tangible, and a mere incorporeal right does not fall within the purview of the section. The court also found that the offence proved was clearly to fall under s 424 of the Penal Code in that the appellant was found to have dishonestly or fraudulently concealed or removed the two tongkangs in question. Accordingly, ss 176 and 177(1) of the Criminal Procedure Code (Cap 21) were applicable. The verdict was accordingly set aside and a conviction on both charges substituted.

R v Kavena Ismail Sahib [1937] MLJ 242 Court of Criminal Appeal, Straits Settlements (Terrell Ag CJ, Cussen J and Laville Ag J).

Held: a loan of jewellery to another does not create any legal trust within the meaning of s 405 of the Penal Code, even if a promise to return the same within a stated time is given. The mere pawning of the jewellery by the person to whom it is lent will not, therefore, amount to criminal breach of trust as defined in that section.

Ng Chye Giat v R [1938] MLJ 126 High Court, Straits Settlements (Howes J).

[Annotation: This decision was dissented from in Gan Beng v Public Prosecutor [1939] MLJ 314; [1938] FMSLR 318.]

Held: where an accused person is charged with committing criminal breach of trust in respect of the property of a limited company, he cannot exonerate himself by showing that one of several directors of the company had knowledge of the facts or had been a party to the fraud. The knowledge of a director is not the knowledge of the company, even in a case where the other directors had remained in ignorance through their own negligence.

R v Tay Thye Joo [1933] MLJ 35 High Court, Straits Settlements (Terrell J).

Held: it is no defence to a charge of criminal breach of trust that the money, the subject matter of the charge, belonged to an unlawful society of which the accused was a headman.

R v Kassim [1891] SLR Supreme Court, Straits Settlements

Held: the relationship between partners is such that one of them may be entrusted with property on behalf of the partnership and may accordingly commit criminal breach of such trust within the meaning of the Penal Code. Criminal breach of trust can be committed with respect to moneys only constructively in the possession of the accused.

R v Lee Siong Kiat [1935] MLJ 53 High Court, Straits Settlements (Terrell J).

Held: where it is proved that jewellery is entrusted to a person for sale and that that person never returned the jewellery to the owner or paid to the owner any money as the price of the jewellery, that is prima facie proof of misappropriation unless explained or rebutted. It is not for the prosecution to show in what manner property has been actually disposed of. The prosecution must, undoubtedly prove that there has been a dishonest misappropriation, but that may be shown by proving the entrusting of the property to the accused and failure to account or give any reasonable explanation.

R v Hadji Mariam [1896] 4 SSLR 130 Court of Appeal, Straits Settlements (Cox CJ, Law and Leach JJ).

R v Salim bin Ja'amat [1938] MLJ 210 High Court, Straits Settlements (Horne J).

Held: a prosecution will lie for criminal misappropriation of money entrusted to a person, even if it had been entrusted to him for a criminal purpose.

R v Tan Ah Seng [1935] MLJ 273 High Court, Straits Settlements (Burton Ag CJ, Terrell and Williamson JJ).

[Annotation: Yong Ah Kim v Lee Kee Chiang (1905) 9 SSLR 142 not followed.]

A Chinese was arrested in Singapore on a warrant issued by a magistrate appointed in and for the settlement of Labuan. The charge preferred against the accused was criminal breach of trust in respect of moneys belonging to a firm carrying on business in Labuan of which the accused was a partner. The moneys were alleged to have been collected and received by the accused in Brunei and other parts of Borneo. The principal place of business of the firm was in Labuan, and ordinarily, the moneys collected would have been accounted for there.

Held: (1) the offence charged was committed within the settlement of Labuan and process for the arrest of the person charged was rightly issued by the magistrate in Labuan; (2) (per curiam) the power of a magistrate to issue process is not confined to cases in which the offence charged is alleged to have been committed within the settlement in and for which the magistrate is appointed under s 51 of the Courts Ordinance (No 101).

Re Lee Beow Sin [1930] SSLR 70 High Court, Straits Settlements (Stevens J).

R v Salim bin Ja'amat [1938] MLJ 210 High Court, Straits Settlements (Horne J).

Held: a charge of criminal breach of trust cannot be supported by proof merely of a general deficiency appearing in the books and accounts of the party charged.

R v Kam Guan Sian [1896] 4 SSLR 102 Court of Appeal, Straits Settlements (Cox CJ, Law and Leach JJ).

Held: the delivery of goods by a merchant to an agent 'on consignment' in the absence of express stipulation to the contrary entitles the consignor to demand from the agent the return of the goods at any time or the balance of the goods unsold and to payment at any time for such goods as the agent may have sold. Similarly, the agent may return any such goods to the consignor at any time. The agent obtains possessions of the goods, but neither the property nor the ownership in such goods passes to him and such remains in the consignor. If the agent dishonestly fails to return the goods or to pay for them, he may be charged with having committed criminal breach of trust of which offence dishonesty is a necessary ingredient.

R v Tan Kee Leng [1936] MLJ 51 High Court, Straits Settlements (Gordon-Smith J).

[Annotation: See Wan Ali v Public Prosecutor [1939] MLJ 85.]

Held: s 410 does not cover the case of a thief, not a British subject, who brings into the colony property stolen by him abroad.

R v Koh Chin & Ors [1906] 10 SSLR 48 Bench Court, Straits Settlements (WC Michell and JC Nathan).

[Annotation: The distinction between cases of fraudulent possession under the Minor Offences Ordinance and the possession of recently stolen property under the Penal Code and the common law of England was carefully considered in R v Chan Ah Soo (1902) 7 SSLR 85.]

The prisoner was charged with receiving stolen property under s 410 of the Penal Code; the evidence showed that possession of the property was obtained from the owner by misrepresentation, amounting to cheating under s 410 of the Penal Code. The property was subsequently sold to the prisoner. It was contended that the property was stolen property, as the consent of the owner was given under a misconception of fact, and therefore, there was no consent under s 90 of the Penal Code.

Held: the property was not stolen property within s 410, as possession of the property was transferred by cheating and not by theft.

R v Wong Kim [1901] 6 SSLR 82 High Court, Straits Settlements (Cox CJ).

[Annotation: This case was decided when s 410 did not include the word 'cheating'.]

The accused, a tindal on a sugar estate in Province Wellesley, in the presence of several persons, received some planks from four labourers of the estate and proceeded to cut them and nail them down as a flooring for a cow shed belonging to the estate, which he had the use of for his cows. The planks belonged to the estate, and the labourers had no permission to remove them. He was convicted of receiving stolen property. On appeal,

Held: (1) on these facts, there was no satisfactory evidence of guilty knowledge on the part of the accused, and the conviction was bad; (2) (Quaere) could the planks, under the circumstances, be said to be 'stolen' property within the meaning of the Penal Code?

Shellapen v Gordon [1888] 4 Ky 388 High Court, Straits Settlements (Wood J).

[Annotation: In the unreported part of his judgment in R v Lim Yam Hong (1919) 14 SSLR 152, Woodward Ag CJ held that on a charge of receiving or retaining stolen property, the prosecution must prove that the property alleged to have been received or retained was the very property stolen and that it was insufficient to prove it to be like that stolen. This was concurred with by Whitley J in the last paragraph of his judgment at p 168 of the report.]

Held: before there can be a conviction for cheating under s 417 of the Penal Code, there must be conclusive evidence of a dishonest intent at the time of obtaining the money or goods; where the evidence does not necessarily show such dishonest intent at the time, but is consistent with either being or not being the fact, no conviction can be had.

Lee Kang Wye v Ng Ah Min [1888] 4 Ky 335 High Court, Straits Settlements (Wood J).

Held: where a person, accused of several offences, is charged with and tried at one trial for three of such offences by virtue of s 170(1) of the Criminal Procedure Code 1910, he may also be charged in the alternative with, and tried at the same time for, abetment of the offences. The effect of s 172 of the Criminal Procedure Code is not limited to cases in which there is a doubt whether the facts proved will constitute a major or minor offence of the same kind.

R v Tay Thye Joo [1933] MLJ 35 High Court, Straits Settlements (Terrell J).

Held: a charge, and especially a charge in a complicated case, should be accompanied by particulars of the acts complained of as constituting the crime charged when the mere mention of the time, place, persons and crime are insufficient to explain by what means the crime was committed. This is particularly necessary in charges of such offences as cheating. The particulars need not be incorporated in the charge. It is sufficient if they are contained in a separate memorandum supplied to the accused and to the court.

Sathaiah v R [1938] MLJ 30 High Court, Straits Settlements (McElwaine CJ).

The appellant had been convicted of two charges of cheating: (a) that he did on or about 10 March 1941 cheat Yap Chan Guan by deceiving him into believing that a cheque for $150 would be met and so induced the said Yap Chan Guan to deliver ten bags of flour, and (b) that he on or about 11 March 1941 cheated Chua Tian Seng by deceiving him into believing that a cheque for $209.19 would be met on presentation and so induced the said Chua Tian Seng to deliver to him 13 dozen tins of 'Barlova'. It appeared that the appellant was the partner, if not the sole proprietor, of a shop Chop Ban Seng Chiang which has a bank account. In 1941, the business declined and on 11 March 1941, there was a balance of $3.12 in the Chop's banking account. The appellant kept the books of the Chop. On the afternoon of 12 March, the Chop vacated its premises at 12 Merchant Lane, taking with them some cases and sacks but leaving behind the Chop signboard and the seals.

Held: (1) an essential ingredient in the offence of cheating is a dishonest intention at the time of obtaining the money or the goods; (2) there was evidence in this case of a false representation of an existing fact and also evidence of a fraudulent intent and that therefore, the appellant was rightly found guilty of the offence of cheating; (3) in any case, the evidence showed that the appellant had no intention to pay at the time he got the goods, and he was therefore guilty under s 3(a) of the Fraudulent Debtors Ordinance (Cap 26).

Yong Yong Peng v R [1947] MLJ 40 High Court, Straits Settlements (McElwaine CJ).

The accused was concerned in a contract with one Joi Cheong Seah, whereby the latter agreed to purchase 1,000 forged $1 notes for $388. The money was paid, and a bundle with a couple of genuine notes on top was received by Joi Cheong Seah. The rest of the bundle was found to be blank paper, and on these facts, the accused was charged with cheating, an offence punishable under s 420 of the Penal Code. The magistrate who originally heard the case stopped the case at an early stage under s 182(g) of the Criminal Procedure Code, holding that as the agreement was concerned with the purchase of forged notes, which was in fact an illegal transaction, it could not be enforced in any civil court and could not therefore support a criminal prosecution for cheating.

Held: a prosecution would lie for cheating in the course of a transaction to purchase forged notes, if a party to the transaction is found to have committed it.

R v Lim Cheng Soo [1946] MLJ 51 High Court, Straits Settlements (McElwaine CJ).

An accused was charged with cheating under s 420 of the Penal Code by dishonestly insuring his motor car with two insurance companies without disclosing to either of such companies the fact that he had insured it with another company and by receiving from both companies moneys under the two policies.

Held, on appeal: before non-disclosure can be deemed to be dishonest, it must be shown that the accused knew that each company's liability would be lessened by the fact which he failed to disclose, and that non-disclosure would deceive and induce the company to act to its detriment. Such knowledge had not been proved and could not be assumed in a criminal case. No legal presumption arose that the accused had read and was acquainted with the conditions of the policy of assurance and there was no sufficient evidence of cheating.

Low Cheng Swee v R [1941] MLJ 98 Court of Appeal, Straits Settlements (McElwaine CJ, Aitken Ag JA and Manning J).

Held: despite the caption which precedes s 421 of the Penal Code, that section is not confined to a removal of property by the debtor. It has a general application, and does not apply to offences by debtors only and, being expressed in clear language, is not controlled by the caption.

R v Leong Kwing [1929] SSLR 162 High Court, Straits Settlements (Murison CJ).

R v Kavena Ismail Sahib [1937] MLJ 242 Court of Criminal Appeal, Straits Settlements (Terrell Ag CJ, Cussen and Laville JJ).

Dorehsawmy Pillay v Arnashellam Patten [1878] 3 Ky 105 High Court, Straits Settlements (Wood J).

The complainant was a squatter on land belonging to the Singapore United Rubber Plantations Ltd and paid a rent of $1 per month. The complainant admitted that he had broken the terms of his contract and that he was thereby rendered liable to expulsion. The manager of the estate expelled him without notice and caused his house to be demolished by sawing through the uprights embedded in the ground. He was charged with the offence of mischief by pulling down an attap dwelling house and poultry shed.

Held: though the complainant has given the estate just grounds to expel him and though he was probably no more than a tenant at will, he was nevertheless entitled to notice of the estate's intention to expel him and a reasonable time to demolish his house and remove his goods and the appellant was correctly convicted.

R v ALB Swaine [1935] MLJ 276 High Court, Straits Settlements (Burton Ag CJ).

Held: wounding an animal, though the wound is slight, causes a sufficient change therein to diminish the value, so as to make the act 'mischief' within s 426 of the Penal Code.

Mahomed Aniff v Ebram Khan [1876] 3 Ky 88 High Court, Straits Settlements (Phillippo J).

Held: before a person can be convicted of criminal trespass, it must be shown affirmatively that he entered the place in order 'to intimidate, insult or annoy or to commit an offence' within s 411 of the Penal Code.

Cassim v Haji Mahomed Syed [1878] 3 Ky 101 High Court, Straits Settlements (Wood J).

[Annotation: As to essentials of the offence of criminal trespass, see editorial note in [1951] MLJ iii.]

The appellant was charged with committing forgery, an offence under s 468 of the Penal Code, and pleaded guilty. In order to enable the judge to estimate the seriousness of the offence, the prosecution outlined the facts and in the course of doing so, it was alleged that the appellant had been blackmailing a European gentleman. The court below, in imposing sentence, took into consideration this allegation that the forgery was done to support blackmail and said that it could not take a lenient view of what the appellant had done. On appeal,

Held: the court below was wrong as it took into consideration a matter which it should not have taken into consideration, an allegation that the accused was guilty of an entirely different crime with which he might have been charged but was not, and for which he might, if it could be sustained, still be tried. Sentence reduced.

Balakrishna v R [1941] MLJ xlvi Court of Criminal Appeal, Straits Settlements (McElwaine CJ, Aitken Ag JA and Manning J).

Held: where A was charged with fraudulently and dishonestly using as genuine a promissory note under s 471 of the Penal Code, and B with abetment of the offence, the jury was directed that, if they found that the intent of the prisoner in using the note was not to get money from the prosecutrix, but only to bring her and B with whom she had formerly lived as his mistress together, the case was not made out.

R v Nur Mohamed & Anor [1893] 1 SSLR 164 High Court, Straits Settlements (Gatty J).

Held: the two words 'fraudulently' and 'dishonestly' in s 477 of the Penal Code are to be treated as different aspects of criminal intention essential to the offence of destroying a valuable security; hence, a charge alleging fraud and dishonesty in the alternative is not bad for duplicity. It is desirable, however, that the charge under this section should be so framed as to allege either fraud or dishonesty, thereby avoiding the slightest suggestion that the accused is not certain of which specific act with which he is charged.

Teh Peng Kim v R [1937] MLJ 173 Court of Criminal Appeal, Straits Settlements (Terrell Ag CJ, Thomas CJ (FMS).

An accused was charged under s 489B of the Penal Code with the offence of using as genuine forged currency notes having reason to believe the same to be counterfeit. He pleaded not guilty. At his trial he was charged not only with the above offence but on a second count for escaping from lawful custody, an offence punishable under s 224 of the Penal Code, to which he also pleaded not guilty. He claimed trial on both charges. Evidence was given in support of each charge. The jury brought in a verdict of guilty on the first charge and the second charge was then withdrawn by the Crown Counsel who was prosecuting.

Held: the joinder of the two charges was illegal and could not be legalized under s 448 of the Criminal Procedure Code (Cap 21). The time for ascertaining whether or not there is a misjoinder is at the time when the accusation was made and not when the trial was concluded. It was immaterial that the misjoinder did not prejudice the appellant as the evidence to substantiate the first charge.

R v Tan Chu Chooi [1938] MLJ 230 Court of Criminal Appeal, Straits Settlements (McElwaine CJ, Hills and Pedlow JJ).

Held: s 428 of the Criminal Procedure Code (Cap 21) as amended by the Treasury Officers (Titles and Powers) Ordinance 1938, allows a certificate signed by the Chairman of the Board of Commissioners of Currency to be admitted in evidence in criminal proceedings when it is necessary to decide whether a currency note is or is not forged, but the requirements of this section must be strictly observed before such certificate can be admitted in evidence. The jury are not allowed to judge for themselves in such a case whether or not the notes are forgeries as to do so would confuse the functions of a juror with that of a witness and the fact that such notes are forgeries must be strictly proved at the trial.

R v Wong Kiang Chin [1938] MLJ 178 Court of Criminal Appeal, Straits Settlements (McElwaine CJ, Mills and Horne JJ).

Held: the word 'traffic' in s 489B of the Penal Code includes any act done in connection with, and directly leading up to, a passing of forged notes, whether the passing is effected or not.

Ohki & Ors v R [1938] MLJ 123 Court of Criminal Appeal, Straits Settlements (McElwaine CJ, Terrell and Horne JJ).

The accused, a Jaffna Tamil, who at the time of his marriage was of the Hindu religion, married in Ceylon in 1914 a Hindu lady, also of the Hindu religion, under the provisions of the Ceylon Marriage Registration Ordinance 1907 and also by Hindu ceremonies. Subsequently, he came to Singapore and on 5 December 1919, was baptized a Christian and admitted into the Roman Catholic Church. On 7 February 1920, he went through a ceremony of marriage according to the rites of the Roman Catholic Church. The first wife, as a person aggrieved, caused a prosecution to be set on foot against the accused. Upon these facts, which counsel for the accused at the trial did not dispute, the trial judge directed the jury to convict the accused.

Held: (1) the conversion of a Hindu to Christianity with the consequence of his expulsion from caste does not dissolve or affect the validity of a marriage properly effected by Hindu rites by that Hindu prior to his conversion, and if he subsequently purports to marry another woman according to a Christian ceremony, such marriage is null and void; (2) if a man, not a Christian, but married by the legally recognized ceremonial of his faith, joins the Christian religion and is duly baptized, he does not, by his change of faith, dissociate himself from his first marriage, and should he, whilst his first wife is alive, go through another ceremony of marriage with another woman under the rites of the Christian Church, such an act is bigamous, and is an offence against the Penal Code; (3) the first marriage was monogamous as stated in s 34(2) of the Ceylon Marriage Registration Ordinance 1907, a marriage celebrated under that ordinance cannot be dissolved except by a judgment of divorce and therefore, the accused had committed the offence of bigamy.

R v Devendra [1920] 1 MC 51 Singapore Assizes (Bucknill CJ).

[Annotation: See, however, Attorney General of Ceylon v Reid [1965] 2 MLJ 34. Reference may usefully be made to Re Loh Toh Met deceased [1961] MLJ 234, and Re Ding Do Ca deceased [1966] 1 MLJ 6, since affirmed by the Federal Court. For the law in Singapore, see the Women's Charter (Cap 353, 1985 Ed).]

This was a case stated by Pellereau J for the consideration of the Court of Appeal. The accused, a Muslim married woman, was charged under s 494 of the Penal Code. She pleaded not guilty but the jury, by a majority, found her guilty but recommended her to mercy on the ground of the possible ignorance under which she might have been of this law, which seemed never to have been enforced before. Her counsel pleaded that the court had no jurisdiction in the matter as her first and second husbands were both Muslims.

Held: (1) the court had jurisdiction; (2) a Muslim married woman is not exempt from prosecution on a charge of bigamy under s 494 of the Penal Code.

R v Rabia [1889] 4 Ky 513 Court of Appeal, Straits Settlements (Wood Ag CJ, Pellereau and Goldney JJ).

Held: the words 'any person' in s 498 include the person enticing away the married woman himself and do not necessarily refer to some third person.

R v Dorasamy [1886] 4 Ky 162 Court of Appeal, Straits Settlements (Ford CJ, Wood and Sheriff JJ).

[Annotation: R v Kadir 2 Ky Cr 105 overruled.]

Held: the first essential in a charge under s 498 is to prove that the woman was married; recourse cannot be had to the well-known presumption as to marriage. On a criminal charge, the actual celebration of a marriage ceremony must be proved, unless the marriage can be established by a certificate of registration; and if the ceremony is to be proved, at least one witness must be called who can describe it so as to enable the court to determine whether it constituted a legal marriage. Moreover, if foreign law is involved, that law must be proved strictly.

R v Ratnam [1930] SSLR 218 Court of Appeal, Straits Settlements (Murison CJ, Thorne and Stevens JJ).

[Annotation: The court, consisting of Murison CJ, Thorne and Stevens JJ, unanimously overruled the decision of Fisher J in R v Topandas & Anor (1905) 9 SSLR 137.]

Held: before a conviction can be had under s 504 of the Penal Code, it must be shown that the insult was given with the intention of causing the person insulted to commit a breach of the peace.

Mootoo & Ors v Ayah Doreh Pillay [1876] 3 Ky 90 High Court, Straits Settlements (Phillippo J).

Held: where the acts of a banker in a game of chap ji ki amount to assisting in carrying on a public lottery as well as to taking part in a game, they constitute an offence falling within two separate definitions of the law, and not an offence made up of two parts, within the meaning of s 71 of the Penal Code.

Lim Ong Lum v R [1926] SSLR 152 High Court, Straits Settlements (Brown J).

Mat Salleh v Sarah [1883] 3 Ky 167 High Court, Straits Settlements (Wood J).

Held: where there is a bona fide claim to property, the subject matter of the charge, no conviction for a criminal offence in respect thereto, ought to be made. Therefore, where it appeared that the congregation of a Hindoo temple was divided in the election of a trustee, and each party appointed the person chosen by them, and one of such parties resolved to repair the temple, and their trustee thereupon directed the repairs to be done, in the course of which a wall of the temple was pulled down, Held: no criminal offence had been committed. Under such circumstances, the court on appeal quashed the conviction as regards the fine imposed on the prisoner, but upheld the further order of the magistrate by which he directed the prisoner to be bound over to keep the peace and also refused the appellant his costs.

Dorehsawmy Pillay v Arnashellam Patten [1878] 3 Ky 105 High Court, Straits Settlements (Wood J).

R v Wong Kim [1901] 6 SSLR 82 High Court, Straits Settlements (Cox CJ).

Held: where persons were proved to have been fighting amongst themselves, it was held that they had no common object.

R v Cheng Hee [1876] 3 Ky 89 High Court, Straits Settlements (Phillippo J).

The accused were convicted of rioting on the high seas, but there was no evidence that they were British subjects or that the ship was a British ship.

Held: the court having no jurisdiction, the conviction must be quashed.

R v Low Chok & Ors [1893] 1 SSLR 145 High Court, Straits Settlements (Bonser CJ).

Held: the holding of a kunduri or feast in one's private residence, does not require a pass from the police authorities, and the holding of such kunduri, apparently without a pass, is not illegal, so as to render persons assembled with the object of disturbing such kunduri and preventing people from attending the same, not punishable under s 143 of the Penal Code.

Nawas & Anor v Shaik Rajah Ali [1879] 3 Ky 118 High Court, Straits Settlements (Wood J).

Five persons were originally charged with rioting and two were acquitted. The remaining three were convicted of rioting. They did not themselves constitute an unlawful assembly within the meaning of s 146 of the Penal Code and contended that they could not be convicted of rioting.

Held: as there was ample evidence that the disturbance was created by a number of persons far in excess of five, the fact that only three had been sufficiently identified did not prevent those three from being convicted of an offence under s 147.

Latip v R [1941] MLJ 5 High Court, Straits Settlements (Terrell Ag CJ).

[Annotation: It appears that the learned judge was referring to s 141 of the Penal Code rather than to s 146 of the said Code as the former section is the definition section.]

Held: where members of two societies were having a free fight among themselves, it was held that they had no common object.

R v Abdulrahman & Ors [1874] 3 Ky 61 High Court, Straits Settlements (Sidgreaves CJ).

Held: there cannot be convictions under ss 162 and 163 of the Penal Code under one and the same state of facts.

R v Dorasamy Pillay [1888] 4 Ky 350 High Court, Straits Settlements (Wood J).

The respondents were charged that they, on or about 18 May 1938 at Singapore, committed theft of sand from the foreshore at the 6[1/2] milestone East Coast Road, the property of the Crown, and thereby committed an offence under s 379 of the Penal Code. In the course of his judgment, McElwaine CJ said: 'The thing that can be stolen is Òmovable propertyÓ and this is defined by s 22 as including Òcorporeal property of every description, except land and things attached to the earthÓ. Now, I think ÒlandÓ in this definition means an area of the earth's surface and does not mean a sod cut from the land. What is stolen is something that can be moved. A field cannot be moved, so a field cannot be the subject of theft. ÒThe earthÓ means this terrestial globe. A tree cannot be stolen while it is attached to the earth because while so attached, it cannot be asported. It would be absurd to treat Òthe earthÓ as meaning mould or clay and to assert that a sapling which was pulled up could not be the subject of theft because earth was attached to the roots. But mould, sand, earth, stone, etc can be dug or quarried out of a piece of land and when so dug or quarried, they are undoubtedly ÒmovableÓ. They are also prima facie the property of the person who owned the land from which they were taken. I have no doubt severed things, peat, coal, stone, etc can be stolen in England by the severer, provided there has been a real or fictitious abandonment of these by the severer and s 378 only differs in this respect from the English common law in that it eliminates the abandonment as an element of the crime. I therefore think that Suri Venkatappayya Sastri v Madula Venkama ILR 27 Mad 531, and Queen Empress v Shivram ILR 15 Bom 702 were correctly decided; that soil or stone, when severed from the earth, is movable property capable of being the subject of theft, and that the contrary opinion of the majority of the court in Queen Empress v Kotayya ILR 10 Mad 255 was erroneous.

R v Lim Soon Gong & Ors [1939] MLJ 10 Court of Criminal Appeal, Straits Settlements (McElwaine CJ, Terrell Ag CJ (FMS).

The appellants were convicted by the magistrate for causing a nuisance by carrying on the trade of blachan-making. They had been charged under s 268 of the Penal Code and the conviction purported to be under s 290. The appellants contended that this trade had been acquiesced in by the inhabitants of the town and was an old one; that the real prosecutor was the magistrate who tried the case. The smells were not continuous; only with a southerly wind which was for a short time in the year was there any smell. It might be a nuisance to the Europeans of the town, but they do not constitute the 'public' or the 'people in general'. The native community did not complain.

Held: the carrying on of an offensive trade is an offence under s 268 of the Penal Code, although the trade may have been for a long while acquiesced in, or was carried on long before the persons who complained went to reside in that neighbourhood.

R v Lim Peng & Ors [1876] 3 Ky 84 High Court, Straits Settlements (Ford J).

R v Chhui Yi [1936] MLJ 177 Court of Criminal Appeal, Straits Settlements (Whitley Ag CJ, Mills and Adrian Clark JJ).

The appellant appealed against his conviction on a charge of kidnapping a Muslim girl under the age of 16 years from the lawful guardianship of her father. It was argued, inter alia, that (a) the only material witness as to the kidnapping was the girl herself and as the appellant had married the girl, she could not be compelled to give evidence against him; (b) as the girl had attained puberty, she was discharged from guardianship and therefore she had no guardian from whose keeping she could be kidnapped.

Held: (1) the district judge who convicted the appellant was fully within his rights in compelling the wife to give evidence, as her evidence did not fall under any section of the Evidence Ordinance (Cap 13) which enacts that she shall not be compelled to give such evidence; (2) as the girl had attained puberty, she had no guardian and therefore, she was not taken out of the keeping of her lawful guardian and on this ground, the appeal should be allowed.

Ghouse bin Haji Kader Mustan v R [1946] MLJ 36; [1941-42] SSLR 260 High Court, Straits Settlements (McElwaine CJ).

[Annotation: See however Deputy Public Prosecutor v Abdul Rahman [1963] MLJ 213, where Winslow J did not agree with the findings in the above case. See also editorial comments in [1941] MLJ xliii and [1946] MLJ lxxxii.]

Held: misappropriation itself or mere use of money or goods is not a crime; to be so, it must be done dishonestly. To decide the question of whether it was dishonest or not, it must be considered whether the accused had the intention of returning the property and the power and means to do so, or whether he intended making an unlawful gain of property, or had no grounds for believing that he would be able to return it when required.

R v Batty [1889] 4 Ky 441 High Court, Straits Settlements (Pellereau J).

The prisoner, belonging to a foundry company, was desirous of procuring certain firebars from the prosecutor's firm, a rival foundry company, but knowing the prosecutor's firm would not supply them to his (prisoner's) firm, he went to the prosecutor and ordered the firebars, telling the prosecutor they were wanted by one AH (which was false), but on the firebars being subsequently manufactured, the prisoner asked for them and offered to pay the prosecutor their costs, but the prosecutor then for the first time, suspecting they were not wanted by AH, did not deliver them or take payment, and having afterwards found from AH that the prisoner's statement was false, prosecuted him for cheating, and the magistrate convicted the prisoner under s 417 of the Penal code.

Held, on appeal: to bring a person within s 415 (cheating) of the Penal Code, it is necessary to show that he intended to cause damage or loss to the person he was deceiving. In this case, any damage, even if it is shown to exist, is too remote to be within the meaning of s 415. Therefore, the conviction could not be sustained, and it was accordingly quashed.

Johnson v McLarty & Ors [1888] 4 Ky 430 High Court, Straits Settlements (Wood J).

R v Nadaison [1933] MLJ 41 High Court, Straits Settlements (Terrell J).

Held: mere possession of adulterated milk is not punishable. There must be some overt act to bring a person within the law.

R v Ramasamy [1888] 1 SLJ 107 High Court, Straits Settlements (Wood J).

Held: the mere fact of a person advancing money to the owner of an estate in order to enable him to work his estate, and taking a mortgage of the estate as security, does not make him an abettor of mischief by reason of the owner having cut down timber on Crown land, nor does the fact that he is indirectly benefited by getting his wood free in consequence of that act by the owner, make him so liable.

R v Tan Poh Keah [1883] 3 Ky 154 High Court, Straits Settlements (Ford J).

Held: the act of a person in going into the house of another, with intent to have criminal intercourse with the latter's wife, although necessarily resulting in annoyance, or as an insult to the latter, is not an offence within ss 441 and 442 of the Penal Code.

Abbass v Tomby [1881] 3 Ky 131 High Court, Straits Settlements (Wood J).

Held: the entry and taking possession of property under the bona fide belief of a right thereto, and in assertion of such right, although accompanied by high-handed acts, which insult or annoy the person in possession, do not make a person liable to conviction for criminal trespass, provided that such high-handed acts are merely incidents to the assertion to title and are not done with the primary intention of insulting and annoying.

Mat Salleh v Sarah [1883] 3 Ky 167 High Court, Straits Settlements (Wood J).

[Annotation: See Smt Mathri & Ors v The State of Punjab AIR 1964 SC 986; 4 SCD 557, where the Supreme Court of India held that in order to establish that the entry of the property was with the intent to annoy, intimidate or insult, it is necessary for the court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; it is not sufficient for the purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the persons entering; in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the court has to consider all the relevant circumstances, including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry.]

Held: the accused was tried together with one Tang Choon Hong who was charged with attempted cheating under ss 511 and 420 of the Penal Code and convicted. Tang Choon Hong was sentenced to six months' rigorous imprisonment. The accused was charged with abetting under s 109 the Penal Code the offence charged against Tang Choon Hong. On revision, Held: abetment of an attempt to cheat should be charged under s 116 and ss 417 or 420 of the Penal Code. Section 420 should however be reserved for serious cases only.

R v Nadaison [1933] MLJ 41 High Court, Straits Settlements (Terrell J).

The accused, a Malacca opium farm chinteng, on 21 March 1892, took to Pengkalan, at Balak, a magistrate's warrant issued under the Excise Ordinance, to search the house of one Tai Bong. At a police station, about a quarter of a mile from the house of Tai Bong, a police corporal searched the chinteng and found tied to his right leg a piece of chandoo of the value of 30 or 40 cents. The warrant was not executed, but the chinteng was detained and charged under ss 193 and 511 of the Penal Code.

Held: the accused had made no direct movement towards the commission of the offence with which he was charged, and he was acquitted.

R v Koo Choo [1892] SLR Supreme Court, Straits Settlements

R v Ramasamy [1888] 1 SLJ 107 High Court, Straits Settlements (Wood J).

Held: the mere laying of a pole, 25ft in length, across the lines of a steam tramcar, which is stopped on the obstruction being seen, does not constitute 'mischief' under s 426 of the Penal Code, but only an 'attempt' to cause 'mischief' within ss 426 and 511. A conviction for 'mischief' was therefore amended by altering it to one for 'attempt' and the sentence reduced accordingly.

Li Ah Chew & Ors v Penang Tramway Co [1887] 4 Ky 250 High Court, Straits Settlements (Pellereau J).

Held, per curiam 'The general exceptions referred to in s 105 of the Evidence Ordinance (No 53) are those contained in Chapter IV (ss 76 to 106) of the Penal Code, and Woolmington's case [1935] App Cases 462, can be no authority for saying that the onus is always on the Crown of negativing ab initio every one of those possible exceptions together with any contained in any other relevant ordinance; of proving affirmatively in every case, for example, that the accused was acting under no mistake of fact, was over seven years of age, was not so drunk as to come within ss 85 and 86, was not acting in self-defence, had suffered no provocation, was sane and so forth. It is true that it is the duty of the Crown to put before the court all relevant evidence which can be given by witnesses whose honesty there is no reason to doubt, and that the evidence thus fully given may, in most cases, in fact tend to disprove many or all of the statutory exceptions. We think it is clear, however, that there can be no legal obligation on the Crown, as part of its case, to rebut, in advance, all possible grounds of defence. The Crown must give evidence sufficient, if believed, to prove every ingredient of the offence of which they invite the jury to find the accused guilty but, that onus discharged, it remains for the accused to establish any facts which may show that what he did is, in his case and as an exception to the general law, not a criminal offence.'

R v Chhui Yi [1936] MLJ 177 Court of Criminal Appeal, Straits Settlements (Whitley Ag CJ, Mills and Adrian Clarke JJ).

Held: a defence, however weak, and whether raised in evidence or even in a statement from the dock or by way of explanation, must be left to the jury. Any point on which there is evidence which may afford a defence should be drawn to the attention of the jury, even if the defence has not raised it and even if it is inconsistent with the defence.

R v Ong Choon [1938] MLJ 227 Court of Criminal Appeal, Straits Settlements (McElwaine CJ, Mills and Pedlow JJ).

Ratnam v R [1937] MLJ 222 Court of Criminal Appeal, Straits Settlements (Terrell Ag CJ, Horne and Laville JJ).

In a trial for murder, it is incumbent on the Crown to prove beyond reasonable doubt that the accused killed the deceased by an act which constitutes murder within the meaning of s 300 of the Penal Code. Where the defence is insanity, the onus is on the accused to prove that he was probably insane. This onus is placed upon him by s 106 of the Evidence Ordinance, but the law does not require an accused person setting up an exception such as insanity as a defence to prove that exception beyond reasonable doubt. It is sufficient if he induces in the mind of the jury a feeling that he probably was insane though the jury may have its doubt whether he really was insane. The appellant was convicted at the Penang Assizes held on 17 February 1938 of the murder of one Uni Tee Wan alias Lap Pheng on 14 July 1937 and was sentenced to death. The defence was that the accused was insane at the time of the killing. The accused appealed.

Held: the plea of insanity failed inasmuch as there was nothing in the evidence to suggest that the appellant was probably of unsound mind on the day of the commission of murder or to discharge the mild burden of proof prescribed in Sodeman's case [1936] 2 All ER 1138, much less that on the day of the crime, the appellant was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law.

Chia Chan Bah v The King [1938] MLJ 147 Court of Criminal Appeal, Straits Settlements (McElwaine CJ, Terrell and Horne JJ).

M, living with his friend C, aroused him at night being alarmed of housebreakers; C armed himself with a revolver and hunting crop, and followed M downstairs. M had nearly reached the bottom of the stairs, when C (who was at a turn about halfway down the stairs) seeing two men, one being armed with a long spear and within 7ft of M, shouted in English: 'What are you doing?' and after about half a minute, fired and killed the man holding the spear, mistaking him for a housebreaker. The questions left to the jury were: (1) 'Was there such a threat, or attempt by the armed man to commit a murderous or seriously dangerous assault on M as would cause a reasonable apprehension on the part of C, of death or grievous hurt to M?' (2) 'Was there any reasonable possibility of defending M and avoiding his death or grievous hurt, short of C shooting the armed man?'

R v Cumming [1891] SLR High Court, Straits Settlements (O'Malley CJ).

The accused was charged with developing the land on lot 3741 J behind Jalan Pelantok, by carrying out massive earth filling and levelling without written permission from the competent authority. The land was owned by Guan Soon Development Pte Ltd. They had contracted with Lee Giap Construction Pte Ltd ('Lee Giap') to have the land levelled. Lee Giap contracted with the respondent's company, Tai Chuan Engineering Construction ('Tai Chuan'), to supply the earth. Tai Chuan was in the business of removing and transporting earth from various sources and needed land to dump the earth. The respondent paid Lee Giap S$5 per lorry load of earth that he was allowed to dump on the said land. The respondent's trucks and workers and levelling equipment were used to dump the earth. The respondent contended that there was a distinction between the terms 'dumping' and 'earth filling and levelling'. In any event, he contended that neither 'dumping' nor 'earth filing and levelling' constituted 'development' as defined in s 2 of the Planning Act (Cap 232) ('the Act'). Even if it did, the respondent contended that, as the full control of the operations on the land rested with Lee Giap, it was Lee Giap's responsibility to apply for written permission. He was acquitted by the trial court.

Held, allowing the appeal: (1) whether works done constitute 'development' is a question of fact which varies with the circumstances of each case, as well as the sufficiency of alteration of the physical characteristics of the land. Dumping 40,000 lorry loads of earth such as to create a one-two storey hill on the land constitutes such a change in the physical characteristics of that land, with some degree of permanence, as would constitute substantial 'development', whether or not there was 'earth filling and levelling' in addition to the dumping; (2) (c) the respondent paid Lee Giap for allowing him to dump the earth on the said land; (3) the respondent was the one who had 'carried out the operation': (a) He admittted to the Urban Redevelopment Authority ('URA') that he had dumped the earth on the said land but at the trial, he said that all he was responsible for was the ferrying of the earth to the site and Lee Giap was responsible for the dumping; (b) the written contract between Lee Giap and the respondent's company clearly provided that the respondent was to dump the earth and level, compact and grade the earth, subject to the supervision of the main contractor Lee Giap, and that the respondent was to comply with the requirements of the relevant authorities;the nature of the construction industry is such that work at a particular site is very often shared amongst a number of contractors, therefore s 10(1) must be interpreted to impose a duty on all those who participate in operations on a land which constitute development.

Public Prosecutor v Khoor Eng Seng [1994] 2 SLR 71 High Court, Singapore (Yong Pung How CJ).

The respondent was charged with a 'continuing offence', in that, despite having been previously convicted of failing to comply with an enforcement notice issued pursuant to s 16(1), it had continued to defy the enforcement notice for 223 days. The respondent first received the relevant enforcement notice on 18 March 1992. On 27 July 1992, it was convicted under s 16(8) of having failed to comply with the enforcement notice and fined S$600. Thereafter, it apparently made no effort to comply for on 11 January 1993 it was convicted of having continued its breach of the enforcement notice and fined S$10 a day, the total fine amounting to S$300. Yet it did not seem any more concerned to abide by the enforcement notice and another conviction for a continuing offence followed on 18 April 1993. On this occasion, the fine was increased to S$80 a day (the final sum totalling S$15,210). This made no dent in the respondent's intransigence, for on 5 January 1994 the respondent pleaded guilty to the charge in the present case. He was fined S$15 a day, the final sum totalling S$3,345. The prosecution appealed against the sentence imposed.

Held, allowing the appeal and increasing the fine to the maximum of S$100 per day: (1) it is plain that this was a case in which a magistrate's court would be justified in invoking the proviso to s 11(5) of the Criminal Procedure Code (Cap 68). The proviso empowers a magistrate's court to award the full punishment authorized by law for the offence of which an accused has been convicted, when the accused's past record indicates a need for punishment beyond the range of sentencing power accorded to the magistrate's courts by s 11(5); (2) having regard to the bold flouting of the law evinced by the above chain of conduct, the present sentence of a fine of S$15 per day was manifestly inadequate. In view of the detriment to public security posed by illegal establishments such as that run by the respondent, stiffer penalties are called for to deter their proliferation.

Public Prosecutor v Choon Nguan Enterprise Pte Ltd [1994] 2 SLR 611 High Court, Singapore (Yong Pung How CJ).

Siva Segara v Public Prosecutor [1984] 2 MLJ 212 Federal Court, Kuala Lumpur (Abdul Hamid CJ (Malaya).

On an application by the respondent, the OCPD Petaling Jaya issued him a licence permitting him to convene a political rally on 20 May 1973. Attached to the licence were names of intended speakers and the conditions imposed in connection with the rally. Condition No 14 imposed on the licensee an obligation to ensure that speeches at the rally should not touch on matters relating to the MCE results and the status of Bahasa Malaysia as the national language as laid down in the Federal Constitution. One of the authorized speakers at the rally was Lau Dak Kee, whose appeal against conviction for contravening condition 14 was dismissed in another appeal case. The accused was also charged for contravention of the condition. In the present case, the learned magistrate held that the defence should not be called because the respondent should not be held responsible for an offence committed by the speaker, Lau Dak Kee, in the absence of any evidence to connect him with the offence committed by Lau Dak Kee. The Public Prosecutor appealed against the order of acquittal and discharge made by the learned magistrate.

Held, allowing the appeal: the respondent as a licensee of the assembly assumed responsibility for the entire conduct of the rally and its component members, and he cannot repudiate such responsibility by alleging that the violation of condition 14 took place without his consent or knowledge or in his absence. Since Lau Dak Kee, one of the speakers at the rally, was guilty of the breach of condition 14 of the licence, the respondent was liable to be prosecuted for breach of the condition.

Public Prosecutor v Madhavan Nair [1976] 2 MLJ 270 High Court, Kuala Lumpur (Mohamed Azmi J).

On 19 June 1982, 42 lawyers were charged under s 27(5) of the Police Act 1967 (Act 41/1967) '(the Act') for having taken part in an unlawful assembly in a public place without a licence. They all claimed trial. Three lawyers had their case deferred. The case against the 39 was heard on 9 February 1983. On that day, the appellants were called to make their defence after the close of the prosecution case. The learned President then recorded that the charge had been proved. After hearing submissions from defence counsel and the prosecution, the learned President admonished and discharged the appellants under s 173A(ii)(a) of the Criminal Procedure Code. The Public Prosecutor appealed against the sentence and the lawyers appealed against the finding that the charge had been proved.

Held: (1) under s 27(5) of the Act, an assembly, meeting or procession which takes place without a licence shall be deemed to be an unlawful assembly; (2) the concept of assembly includes any coming together of persons. An assembly is complete, as it were, by collection or aggregation: no form or object in coming together is required; (3) two classes of persons may be charged under s 27(5): they are the convenors of the assembly, meeting or procession and persons who take part in such assembly, meeting or procession; (4) under s 27(5), the prosecution has to prove that there was an assembly, that no licence had been issued in respect of the assembly and that the accused persons took part in the assembly, and the onus is then cast on the defendants to rebut the presumption; (5) the charge neither contains any element extraneous to nor omits any element from s 27(5) of the Act. The appellants were therefore not misled or in any way prejudiced by the charge.

Pendakwa Raya v Cheah Beng Poh & Ors; Cheah Beng Poh & Ors v Pendakwa Raya [1984] 2 MLJ 225 High Court, Kuala Lumpur (Hashim Yeop A Sani J).

[Annotation: See the Federal Court's decision: [1984] 2 MLJ 212.]

Arising from the announcement of the Malacca State government of its intention to develop Bukit China, the issue grew into a subject of public controversy. The Democratic Action Party had announced its intention to hold a 'walk and jog' meeting at Bukit China on August 1984. On that day, at 6.15am, 20 or 30 persons had gathered at a temple located at the foot of the hill. Barely two hours later, the number swelled to around 800 to 900 persons. The Chief Police Officer, Malacca, who was supervising his men around the area, thought that no offence had been committed. Meanwhile, on another part of the scene about 600 yards away from the temple, the police road block manned by police personnel stopped a busload of people wearing T-shirts with the words 'Save Bukit China' imprinted on them. The Chief Police Officer, who arrived at the spot a few minutes later, found the passengers were in the process of alighting from the bus. At this stage, the officer issued a warning through his loud hailer to the effect that those who were gathered in front of him were committing unlawful assembly under s 27 of the Police Act 1967 (Act 41/1967) and he ordered them to disperse immediately or face police action. The warning was ignored. On the Chief Police Officer's instruction, the 18 respondents were arrested and taken to the police station. They were subsequently released on bail and charged in court. At the hearing, the magistrate acquitted and discharged all the respondents without their defence being called. The prosecution appealed.

Held: (1) once there is a gathering of three or more persons in a public place, then it is an assembly and when that assembly is an organized one as distinguished from a spontaneous one, then a licence under s 27(2) of the Police Act 1967 is required from the police. Failure to comply with the requirement will render the organizer and any participant, with the knowledge that such assembly was unlicensed, liable to prosecution under s 27(5)(a) of the Act; (2) when a police officer arrests in this case the 18 accused, confines and takes them to the police station, gets the entire group photographed with him, takes down the particulars and then releases them on bail and the same persons as in the photograph appear to answer to the charge read against them, no further identification is required; (3) (d) each of the persons charged knew that he was taking part in an assembly, meeting etc that was being convened or organized without a licence; (4) the essential ingredients for the offence under the present charge are: (a) there is an assembly or gathering or the coming together of three persons or more in public places; (b) such assembly or gathering is a convened or organized event as distinguished from a spontaneous gathering of persons for a lawful object; (c) no licence has been issued under s 27(2) by the OCPD for such assembly;the order of acquittal and discharge in this case would be set aside and the case should be remitted for retrial before another magistrate.

Public Prosecutor v Liew Ah Kim & Ors [1986] 1 MLJ 419 High Court, Malacca (Wan Yahya J).

The applicant was one of 42 lawyers who were charged with the offence of taking part in a unlawful assembly in a public place for which no licence was obtained, an offence under s 27(5)(a) of the Police Act 1967 (Act 41/1967) ('the Act'). The learned magistrate recorded the charge as proved, but admonished and discharged the accused under s 173A(ii)(a) of the Criminal Procedure Code. An appeal to the High Court was dismissed ([1984] 2 MLJ 225). The applicant was given leave to refer the following questions to the Federal Court under s 66 of the Courts of Judicature Act: (a) whether knowledge and intention are essential ingredients to be established before a prima facie case can be said to have been made out for the finding of guilt under s 27(5)(a) of the Act; and (b) whether s 27(5)(a) of the Act can be read without any or any proper reference to all the other provisions of s 27 of the Act.

Held: (1) although there is no express reference to knowledge or intention in s 27(5)(a) of the Act, it cannot be said that an assembly, meeting or procession simpliciter which takes place without a licence becomes in law unlawful; (2) s 27(5)(a) of the Act has to be construed with reference to s 27(2) of the Act. Subsection (2) speaks of an assembly, meeting or procession which is intended to be convened, collected etc, in other words, an assembly, meeting or procession which is intended to be organized. If therefore a person intends to convene or organize an assembly and he in fact takes part in convening or organizing an assembly envisaged by sub-s (2) and that assembly does take place without the convener or organizer first obtaining a licence, such assembly is deemed by law to be an unlawful assembly and the convener or organizer commits an offence under sub-s 5(a) of s 27 of the Act. Further and in respect of such assembly, that is, the assembly which takes place without a licence issued under the provisions of sub-s (2), then whoever takes part in such assembly commits an offence under sub-s 5(a) of s 27 of the Act; (3) knowledge on the part of the person who takes part in such assembly becomes an essential ingredient of the offence and the answer to the first question must therefore be in the affirmative; (4) sub-s 5(a) of s 27 has to be read in the light of or with reference to s 27(2) of the Act and therefore, the answer to question (2) as it is framed in the negative will be in the negative; (5) it was a question of fact in this case whether there was an intention to convene or organize an assembly of three or more persons in a public place, but on the basis that there was such intention and the assembly did take place, then such assembly should in law be deemed to be an unlawful assembly and the person or persons who took part in such assembly could by inference be held to have knowledge that it was an assembly that was convened or organized without a licence being issued under sub-s (2); and therefore, the person or persons who took part in such assembly would have committed an offence under sub-s 5(a) of s 27 of the Act and also the person or persons who convened or organized such assembly.

Siva Segara v Public Prosecutor [1984] 2 MLJ 212 Federal Court, Kuala Lumpur (Abdul Hamid CJ (Malaya).

Public Prosecutor v Ismail bin Ishak & Ors [1976] 1 MLJ 183 High Court, Kuala Lumpur (Harun J).

Tong Keng Wah v Public Prosecutor [1979] 2 MLJ 152 High Court, Singapore (Chua J).

Public Prosecutor v Haji Kazi Habibur Rahman Criminal Appeal No 16 of 1992 High Court, Brunei (Roberts CJ).

Chandrasekaran & Ors v Public Prosecutor [1971] 1 MLJ 153 High Court, Kuala Lumpur (Raja Azlan Shah J).

Poh Cho Ching v Public Prosecutor [1982] 1 MLJ 86 High Court, Melaka (Wan Yahya J).

Mohamed Alias v Public Prosecutor [1983] 2 MLJ 172 High Court, Kota Kinabalu (Charles Ho J).

Mohamed bin Long v Public Prosecutor [1972] 1 MLJ 76 Federal Court, Kuala Lumpur (Suffian, Gill and Ong Hock Sim FJJ).

Public Prosecutor v Lai Sien Kon [1978] 2 MLJ 110 High Court, Seremban (Ajaib Singh J).

See criminal law, Vol 4, pa 1893.

Lee Mun Foong v Public Prosecutor [1976] 2 MLJ 16 Federal Court, Kuala Lumpur (Suffian LP, Lee Hun Hoe CJ (Borneo).

Balakrishnan v Deputy Public Prosecutor [1969] 2 MLJ 61 High Court, Kuala Lumpur (Abdul Aziz J).

Mohamed Alias v Public Prosecutor [1983] 2 MLJ 172 High Court, Kota Kinabalu (Charles Ho J).

Public Prosecutor v Yuvaraj [1969] 2 MLJ 89 Privy Council Appeal from Malaysia (Lord Hodson, Lord Guest, Lord Pearce, Lord Pearson and Lord Diplock).

Public Prosecutor v Yuvaraj [1968] 1 MLJ 238 Federal Court, Kuala Lumpur (Barakbah LP, Azmi CJ (Malaya).

Pie Bin Chin v Public Prosecutor [1985] 1 MLJ 234 High Court, Melaka (Wan Yahya J).

Attan bin Abdul Gani v Public Prosecutor [1970] 2 MLJ 143 High Court, Malacca (Sharma J).

A, a policeman, was charged under the Prevention of Corruption Act 1961 ('the Act') with soliciting gratification for himself contrary to s 4(c) of the Act. A was found guilty of the offence and sentenced by the sessions court judge to eight months' imprisonment. A appealed to the High Court against the conviction and sentence imposed. Counsel for A contended that the charge was imperfectly framed as the demand for the money was not made by him alone but was made collectively by other constables as well. Counsel also contended that the failure on the part of the prosecution to check the evidence of a witness instead of merely making the witness available to the defence was fatal to the prosecution's case. As regards the sentence passed on A, it was contended that it was excessive.

Held, dismissing the appeal against conviction: (1) having regard to the evidence, the sessions court judge was perfectly entitled to come to the finding that the demand for the bribe was made by A alone and not collectively by other constables as well. There was no evidence to show any concerted action or conduct on the part of the other constables to indicate any common intention to share the money. It was clear from the evidence that A not only demanded for money but also took the initiative to enable the complainant to get the money from his sister; (2) the prosecution is not relieved of the adverse presumption under s 114(g) of the Evidence Act 1950 ('the Act') by merely making available a witness to the defence, only in cases when they are unable to establish a prima facie case. However, in the instant case, the prosecution had, on the evidence adduced, succeeded in establishing a prima facie case that A had solicited gratification for himself contrary to the Act; (3) in the instant case, the presumption under s 14 of the Act applied as the prosecution had proved that A had solicited for and received the money as an inducement or reward. The burden was on A to disprove the presumption on the balance of probability; (4) as A had failed to raise a reasonable doubt on the prosecution's case, his appeal against conviction was dismissed by the court; (5) in the light of additional punishment required under s 13 of the Act, the sentence of eight months' imprisonment imposed on A was excessive. The learned judge accordingly varied the sentence of eight months to one of four months and ordered that A be additionally fined a sum equivalent to the bribe offered, in default three months' imprisonment.

Jazuli bin Mohsin v Public Prosecutor [1990] 2 MLJ 190 High Court, Malacca (Wan Yahya J).

The accused had been convicted for corruption under the Prevention of Corruption Act 1961 (Act 57). He appealed on the ground that the President of the Sessions Court had misdirected himself on the burden of proof. The learned President in his grounds of judgment stated: 'The burden of proof on the accused is as stated in Public Prosecutor v Yuvaraj [1969] 2 MLJ 89 but accused failed to prove on a balance of probabilities that the money came to be in his left trouser pocket as he had claimed.' The question of any presumption under s 14 of the Act did not arise in this case.

Held, allowing the appeal: the learned President had gravely misdirected himself as to the burden of proof. Proof on balance of probabilities has no application in criminal cases. The fundamental principle in criminal cases is that the burden is throughout on the prosecution and it is not for the accused to prove his innocence. To entitle an accused to an acquittal, it is sufficient if after considering the defence, he has cast a doubt on the prosecution's case.

Nadarasa v Public Prosecutor [1972] 2 MLJ 47 High Court, Kuala Lumpur (Abdul Hamid J).

Public Prosecutor v Gurbachan Singh [1964] MLJ 141 High Court, Alor Setar (Hepworth J).

Public Prosecutor v Ling Tee Huah [1982] 2 MLJ 324 High Court, Sibu (Yusoff Mohamed J).

Public Prosecutor v Ng Nee Tiak [1962] MLJ 421 High Court, Kota Bahru (Hashim J).

Lim Chong Kooi v Public Prosecutor [1965] 2 MLJ 169 High Court, Ipoh (Ong J).

Mahesan v Public Prosecutor [1970] 1 MLJ 255 Federal Court, Kuala Lumpur (Ong CJ (Malaya).

Mohamed bin Long v Public Prosecutor [1972] 1 MLJ 76 Federal Court, Kuala Lumpur (Suffian, Gill and Ong Hock Sim FJJ).

Public Prosecutor v Gurbachan Singh [1964] MLJ 141 High Court, Alor Star (Hepworth J).

Lim Chong Kooi v Public Prosecutor [1965] 2 MLJ 169 High Court, Ipoh (Ong J).

Chandrasekaran & Ors v Public Prosecutor [1971] 1 MLJ 153 High Court, Kuala Lumpur (Raja Azlan Shah J).

Mahesan v Public Prosecutor [1970] 1 MLJ 255 Federal Court, Kuala Lumpur (Ong CJ (Malaya).

Mohamed Taufik v Public Prosecutor [1975] 1 MLJ 36 High Court, Kuala Lumpur (Abdul Hamid J).

In this case, the appellants had been convicted for the offence of giving a bribe to a public officer. Their appeal to the High Court was dismissed. Leave was given to refer the following questions for the determination of the Federal Court: (a) Whether a witness alleging that he had been given gratification by the accused is, prima facie, an accomplice? (b) If the answer to question (1) above is in the positive, whether there is a duty on the part of the trial court to determine whether having regard to the circumstances of the case, such a witness is or is not an accomplice?

Held: the answer to question No (a) is in the negative and there was therefore no need to deal with question (b). Thus in every case when the issue is raised that a witness is an accomplice, the court must study the evidence and make the necessary finding. There can be no rule of law or evidence that a witness is automatically an accomplice just because of his actus reus.

Ng Kok Lian & Anor v Public Prosecutor [1983] 2 MLJ 379 Federal Court, Kuala Lumpur (Salleh Abas CJ (Malaya).

Mohamed Taufik v Public Prosecutor [1975] 1 MLJ 36 High Court, Kuala Lumpur (Abdul Hamid J).

Chandrasekaran & Ors v Public Prosecutor [1971] 1 MLJ 153 High Court, Kuala Lumpur (Raja Azlan Shah J).

The High Court reserved for the decision of the Federal Court the following questions of law: '1. (a) Where an accused is charged for an offence under the Prevention of Corruption Act 1961 in addition or alternatively to a prescribed offence, is a consent required by s 26 of the said Act sufficient if it authorizes the prosecution of the accused only for an offence under the Act? (b) If the answer is in the negative, what is the effect on a trial proceeding with such consent only? 2. Is the point of time for institution of a prosecution within the meaning of s 26 of the Act the moment at which the court asks an accused person to plead to the charge and, if not, what is the point of time indicated? 3. If no adequate consent is available and no Deputy Public Prosecutor is present at the time when an accused person is required to plead to an offence under the Prevention of Corruption Act and/or a prescribed offence, would the presence of the Deputy Public Prosecutor as prosecutor at the hearing of the said charges against the accused on a subsequent date be deemed to be sufficient consent for institution of prosecution within the meaning of s 26?' The appellant was charged in the Sessions Court, Kuala Lumpur, under the Prevention of Corruption Act 1961 (Act 57) and alternatively under 165 of the Penal Code. A written consent of the Deputy Public Prosecutor was produced, but this related only to the charge under the Prevention of Corruption Act 1961.

Held: (1) where an accused is charged for an offence under the Prevention of Corruption Act 1961 in addition or alternatively to a prescribed offence, the consent required by s 26 of the Act is sufficient if it authorizes the prosecution of the accused only for an offence under the Act. The consent of the Public Prosecutor or his deputy is not required when the accused is charged with a prescribed offence; (2) a prosecution under the Act is instituted when the accused is called upon to plead to the charge. If no consent is available and no Deputy Public Prosecutor is present at the time the accused person is called upon to plead to an offence under the Act, the consent of the Deputy Public Prosecutor given subsequently does not constitute a sufficient consent for the prosecution within the meaning of s 26 of the Act.

Perumal v Public Prosecutor [1970] 2 MLJ 265 Federal Court, Kuala Lumpur (Azmi LP, Suffian and Gill FJJ).

The appellant was an administrative assistant in the Education Department, Sarawak. He was in charge of tenders and supplies. On 1 July 1971, the department issued purchase orders for the supply of articles to a college. Before the said equipment had been supplied, the appellant instructed the firm's proprietor to submit bills in respect of the said equipment. On 13 December 1971, the appellant, though knowing that the equipment had not been received by the college, certified the receipts on both the local purchase orders to the effect that the articles in the local purchase orders had been handed to him in good condition. After certifying the said orders, the appellant handed them to the accounts clerk in his department for payment of the equipment allegedly received by him. On 20 December 1971, the said proprietor received payment for the said equipment alleged to have been supplied to the college. The appellant was charged and convicted for having committed an offence under s 4(c) of the Prevention of Corruption Act 1961 (Act 57). He appealed.

Held, dismissing the appeal: (1) the definition of the word 'agent' in s 2 of the Prevention of Corruption Act which deals with criminal liability of an individual cannot be equated with the definition of the same word in the Contracts Act 1950 (Act 136) which deals with civil rights and liabilities of a person. Both laws are not in pari materia and the position and liability of an agent in each respective law are different altogether; (2) the learned magistrate had correctly held that the agent in this case was an agent, being a person serving under a public body as defined in s 2 of the Prevention of Corruption Act, and 'public body' would include the government of Malaysia.

Voon Ah Shoon v Public Prosecutor [1979] 2 MLJ 131 High Court, Kuching (Yusoff J).

In this case, the accused who was an Air Force Officer was charged with corruption in relation to a recommendation to the government to purchase a certain type of aircraft. The accused alleged that although he solicited the amounts alleged he did so at the request and on behalf of another air force officer. In his statement to the police which was put in by the prosecution, the accused mentioned the allegations against the other officer. The person alleged to have given the bribes gave evidence for the prosecution. Held by the High Court: (1) on the facts, the defence had not raised any reasonable doubt in the prosecution's case and therefore the accused must be convicted; (2) although the statement of the accused, to the police was put in by the prosecution and contained allegations which seem to contradict the evidence led by the prosecution, the court was entitled to assess the evidence and in so doing accept part of the statement and reject the rest; (3) although the person who gave the bribes was an accomplice, it was the accused who solicited the bribe, and therefore that person could not be classified as an accomplice of the first degree, and in any event there was corroboration by documentary and circumstantial evidence. On appeal to the Federal Court,

Held: (1) as the finding of the trial court depended on an assessment of the credibility and reliability of the witness, it is not the practice of the court sitting on appeal to refuse to accept it; (2) there was no reason to disturb the High Court's findings of fact or the conviction and sentence.

Ahmad Shah bin Hashim v Public Prosecutor [1980] 1 MLJ 77 Federal Court, Kuala Lumpur (Raja Azlan Shah Ag LP, Chang Min Tat and Syed Othman FJJ).

The respondent was charged in the sessions court on four counts of corruptly soliciting and accepting gratification of RM6,000 each ('extra payment') from PW2 and PW3 as a reward for himself for allotting to each of them one unit of single-storey low-cost terrace house to be constructed by Bina Sutra ('the company') and with thereby having committed offences punishable under ss 3(a)(i) and 4(a) of the Prevention of Corruption Act 1961 ('the Act'). At the material time, the respondent was the project supervisor cum administrator of the company. The houses were priced at RM25,000 each by the state authority. According to PW2 and PW3, the respondent informed them during the interview that they each had to pay the extra payment in order to be allotted a low-cost house. No receipts would be issued for the extra payment which was to be in cash but they would get the houses once they made the payment. They were also told that they would not get the houses if they refused to pay. Subsequently, a trap was laid for the respondent under the direction of the Anti-Corruption Agency ('ACA') where PW2 and PW3 went to see the respondent together with PW7, an ACA officer, where the same demand for the extra payment was made by the respondent. PW1, the managing director of the company, testified that his company issue receipts for all payments and that the respondent was not authorized to collect any other payments other than deposits and progress payments. The learned sessions court judge acquitted the respondent and discharged him of all charges on two grounds: (a) that it was admitted by PW2 that the extra payment was for extra work to be carried out on the house allotted; and (b) it was not an offence for a non-government servant to receive under-counter money. Against this decision the Public Prosecutor appealed.

Held, allowing the appeal and sentencing the respondent to one-day imprisonment and imposing a fine of RM1,000 or two months' imprisonment and RM12,000 as penalty to the government: (1) the learned judge failed to consider whether the claim by the respondent could not have been an anticipatory false defence especially in the light of the defence that the extra payment was for extra work to be carried out on the low-cost house allotted; (2) the appellate court can interfere where the trial judge has misdirected himself on a question of fact and the appellate court is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion; (3) the ground upon which the learned sessions judge appears to have acquitted the respondent in relation to the gratification solicited and accepted was demolished; (4) the finding of the sessions judge that PW2 admitted that this extra payment was for extra work was not supported by the evidence as the respondent himself made no mention in his defence that the extra payment was for the construction of the highway. The copy of the sale and purchase agreement clearly shows that the responsibility for the construction of the roads and other infrastructure was that of the company at its own cost. Therefore any requirement to make the purchaser pay for such construction would clearly make it a solicitation of under-counter payment; (5) the agreement also stipulates that the building shall be constructed in accordance with the plans approved by the appropriate authorities and that no changes or deviations therefrom shall be made without the consent of the purchaser except such as may be required by the appropriate authorities and such as may be certified by the vendor's architect. The purchaser was not to be liable for the cost of such alteration or deviations; (6) it is clear that the respondent purported to hold out the construction of the highway and the alterations and additions to the house as a ploy or excuse for the demand that he had made for the extra payment. This was further strengthened by the turn of events when the trap was sprung and he at first feigned ignorance of the money given and then said someone else had taken it; (7) the trial judge had misapplied the law by holding himself bound by the decision of the High Court in Sally Chan's case [1991] 1 MLJ 358 as the Supreme Court subsequently reversed that decision and held that under-counter money is a gratification within the meaning of s 2 of the Act and that the person who receives the gratification need not be a public officer;the possibility of the extra payment eventually making its way into the pocket of PW1 or the coffers of the company did not denude it of its illicit character.

Public Prosecutor v Ong Goon Hock Criminal Appeal No 52-3-89 High Court, Seremban (T Selventhiranathan J).

The appellant was charged in the sessions court with two offences under the Prevention of Corruption Act 1961 (Act 57) ('the Act'). He was acquitted on the first amended charge under s 3(a)(i), but was convicted on the second amended charge under s 4(a) of the Act for corruptly accepting a gratification of RM23,773.50, and was sentenced to one day's imprisonment and a fine of RM5,000 in default one year's imprisonment. He was also ordered to pay a penalty of RM23,773.50. It was alleged for the prosecution that before purchasing a weed killer called Desatox for Syarikat Pembangunan Pekebun Kecil Sdn Bhd ('the Company'), the appellant, who was special assistant to its chairman/chief executive, asked PW 12, chairman of Hua Sing Chemicals (M) Sdn Bhd, for a commission which worked out to RM23,773.50. A receipt dated 4 December 1980 was prepared and it was signed by the appellant, who denied this allegation. It was contended on behalf of the appellant, on appeal, that the learned trial President had failed to make any finding as to whether or not PW 12 was an accomplice or whether or not he was a credible witness; that there was no corroborative evidence; and that a prima facie case had not been made out.

Held: (1) the name and address of the person who presented the cheque and received the cash at the bank was not recorded. There was a doubt about the signature on the cash voucher (P9). The alleged corroborative evidence adduced by the prosecution was of no truly probative value on the most relevant issue in this case. Apart from the evidence that the shares of the Company were allotted to RISDA, there was no other evidence adduced to show how the Company could be regarded as a 'public body' within the meaning of s 2 of the Act. Therefore a prima facie case had not been made out by the prosecution at the close of its case; (2) having called for the defence, the President did not consider it adequately. The appellant did not have a trial in which the relevant law had been strictly followed and has therefore lost a chance which was fairly open to him of being acquitted. The cumulative effect of the various errors in the judgment of the lower court was that there has been a failure of justice and in the circumstances the appeal should be allowed and the conviction and sentence on the second amended charge set aside. No retrial should be ordered.

Mohamed Din v Public Prosecutor [1985] 2 MLJ 251 High Court, Kuala Lumpur (Gunn Chit Tuan J).

Mahesan v Public Prosecutor [1970] 1 MLJ 255 Federal Court, Kuala Lumpur (Ong CJ (Malaya).

See criminal law, Vol 4, par 1874.

The first accused had been charged as a public officer in his capacity as Commissioner of the Malacca Municipality with corrupt practice in the approval of plans. The other accused had been charged with abetment of the offence. At the original trial, the learned trial judge acquitted all the accused. (See [1979] 1 MLJ 166.) The Public Prosecutor appealed against the acquittal of the first, second and fourth accused, but not against the acquittal of the third accused. The Federal Court set aside the order of acquittal in respect of the first and second accused the first and second respondents and directed that they be called on for their defence. The acquittal of the fourth accused was upheld see [1979] 1 MLJ 166 at p 174.

Held, acquitting the accused: (1) although the decision of the Federal Court on the meaning of the term 'public officer' is not authoritatively binding, it should not be disregarded in this case; (2) the prosecution has failed to prove beyond reasonable doubt that the first accused knew that the files which he was dealing with when he signed his approval were those of Almac, with which he was connected. When the plans were approved, the first and second accused derived no pecuniary or other advantage over and above their lawful shares from the profits of Almac; (3) there was no evidence to connect the second accused with the first accused in the sense that he had instigated or conspired or intentionally aided in the commission of any offence by the first accused.

Public Prosecutor v Datuk Tan Cheng Swee & Ors [1980] 1 MLJ 117 High Court, Malacca (Ajaib Singh J).

The first respondent was charged as a public officer in his capacity as Commissioner of the Malacca Municipality with corrupt practices in the approval of plans. The second and third respondent were charged with abetment of the offences. The learned trial judge found that the first respondent, in approving the plans in his capacity as Commissioner of Malacca Municipality, had used his public office for his pecuniary or other advantage. But he held that the first respondent was not a public officer and in the absence of this first essential ingredient of the charge, he found that he had no case to answer and therefore acquitted him. He also acquitted the second and third respondents. The Public Prosecutor appealed.

Held: (1) the first respondent was a public officer within the definition of public officer in the Prevention of Corruption Act 1961 (Act 57) and for the purposes of a charge of corrupt practice under the Emergency (Essential Powers) Ordinance 1970; (2) in this case, a prima facie case had been established against the first and second respondents and the case should therefore be remitted to the High Court with a direction that the defence be called; (3) the prosecution had not adduced evidence beyond reasonable doubt of the third respondent's knowledge of the connection of the first respondent with the housing developer in this case and therefore, his acquittal must be upheld.

Public Prosecutor v Datuk Tan Cheng Swee & Ors [1979] 1 MLJ 166 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah Ag CJ (Malaya).

Public Prosecutor v Datuk Tan Cheng Swee & Anor [1980] 2 MLJ 276 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ (Malaya).

A was charged before the sessions court under s 3(a)(1) of the Prevention of Corruption Act 1961 ('the Act') with receiving under-counter money in respect of the sale of a house. A had demanded and received the under-counter money from the complainant who had paid a deposit to confirm the booking of the house. A was convicted on the charge and sentenced to one day's imprisonment and fined RM6,000 in default one year's imprisonment. A was also ordered to pay RM15,000 as penalty under s 13 of the Act but this was stayed pending the outcome of her appeal to the High Court. The issue for the consideration of the High Court was whether A was guilty of corruption.

Held, allowing the appeal: (1) the demand and receipt of under-counter money by someone who is not a public officer and in the absence of any price restriction imposed by law, is clearly devoid of any element of corruption and therefore is not a gratification under the Act. The element of profiteering is not an offence under the Act; (2) in the instant case, A was not a public officer as defined in the Act and the presumption under s 14 accordingly does not apply; (3) in the circumstances, the court allowed the appeal, set aside the conviction and quashed the sentence.

Chan Sally Kit Tong v Public Prosecutor Criminal Appeal No 52-108 of 1988 High Court, Seremban (Mustapha Hussain J).

D, who carried on the business of housing development, was charged before the sessions court under s 3(a)(1) of the Prevention of Corruption Act 1961 ('the Act') with receiving under-counter money in respect of the sale of a low-cost house. D had demanded and received the under-counter money from the complainant who had paid a deposit to confirm the booking of the house. D was convicted on the charge and sentenced to one day's imprisonment and fined RM6,000 in default one year's imprisonment. D was also ordered to pay RM15,000 as penalty under s 13 of the Act but this was stayed pending the outcome of her appeal to the High Court. The issue for the consideration of the High Court was whether D was guilty of corruption. The learned judge, in allowing the appeal, held that the demand and receipt of under-counter money by someone who is not a public officer and in the absence of any price restriction imposed by law, is clearly devoid of any element of corruption and therefore is not a gratification under the Prevention of Corruption Act 1961. Dissatisfied with the decision, the public prosecutor applied under s 66 of the Courts of Judicature Act 1964 to refer the following questions for the determination of the Supreme Court, namely, whether under-counter money described in the circumstances obtained in the instant case is a gratification within the meaning of s 2 of the Act and if so, whether the person receiving it in the said circumstances received it corruptly.

Held: (1) the interpretation of gratification in the Act is wide enough to include in the instant case the RM15,000 paid as under-counter money. Gratification as defined in s 2 of the Act includes, inter alia, money, fee and reward; (2) on the evidence, it was clear that D corruptly received gratification in the sum of RM15,000 from the complainant. The price for low-cost houses had been fixed by the state government and D in secretly soliciting the said sum in excess of the price fixed by the state government was certainly guilty of corruption under the Act; (3) the fact that the RM15,000 gratification was not received for D's own personal benefit but was meant for her company was immaterial as s 3(a)(i) clearly states that any person who corruptly receives any gratification for himself or for any other person, shall be guilty of corruption. Further, a person who corruptly receives any gratification need not be a public officer; (4) for the reasons stated above, the court answered both the questions under reference in the affirmative. The conviction, sentence and the penalty as ordered by the learned sessions judge were accordingly restored.

Public Prosecutor v Chan Kit Tong Sally [1991] 1 MLJ 358 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

The appellant in this case was found guilty and convicted under s 3(a)(ii) of the Prevention of Corruption Act 1961 (Act 57) for corruptly receiving a gratification of RM1,500 from one Mohamed Munapil on account of Officers of Public body. The facts revealed that the complainant applied for a PKNS terrace house on 18 January 1979. Later, he told his superior officer, one Bahaldin that he would be guaranteed a PKNS house if he paid RM1,500 to one Kassim (the appellant) and the money was for a woman officer of PKNS who was identified as Kanisah. This information was found to be not true and a report was lodged by the complainant on 7 February 1979 and a trap laid. The appellant was arrested on the following day at the complainant's office at the University after he received the trap money of RM1,500. According to the complainant's police report, it was one Zakaria who informed him to get in touch with the appellant and to hand over RM1,500 bribe for the purpose of getting a house. The appeal was on two grounds: the learned President erred in holding that the prosecution had established a prima facie case against the appellant and that the learned President erred in law and in fact in holding that there was independent corroboration of the complainant's evidence.

Held, allowing the appeal: (1) none of the material parts of the complainant's evidence connecting the appellant with the crime was corroborated by Zakaria who was a material witness for the prosecution. This gap in the prosecution's case was not considered by the learned President; (2) the defence ought not to have been called in this case as the prosecution had failed to establish a prima facie case; (3) the only real evidence against the appellant was the acceptance of the trap money at the office of the complainant on 8 February 1979. There was no evidence that the appellant had demanded the money for corrupt purpose except for the uncorroborated evidence of the complainant who was admittedly an accomplice; (4) even if the complainant's police report had been corroborated by Zakaria, this appeared to be more consistent with cheating by the appellant by falsely misrepresenting to the complainant through Zakaria that the money was for PKNS officers, in particular, for Kanisah, when in fact it was meant for himself; (5) for a charge under s 3(a)(ii) of the Prevention of Corruption Act 1961, it is incumbent on the prosecution to prove that the corrupt money was received as gratification on account of officers of a public body, which, in this case, the prosecution had failed to prove; (6) the conviction should be quashed and sentence set aside.

Mohamed Kassim v Public Prosecutor [1981] 2 MLJ 91 High Court, Kuala Lumpur (Mohamed Azmi J).

The prosecution appealed against the order of the learned magistrate discharging and acquitting the respondent at the close of the prosecution's case on a charge under s 3(a)(ii) of the Prevention of Corruption Act 1961 (Act 57). The learned magistrate found that the prosecution had failed to establish a prima facie case against the accused which if unrebutted would warrant his conviction of the offence as charged. The learned magistrate held that the facts appeared more consistent with the offence of cheating by the accused, rather than corruptly receiving money on account of the income tax officers, and therefore did not call the accused to enter upon his defence. The learned Deputy Public Prosecutor contended that in the light of the learned magistrate's finding, he ought to have exercised the powers conferred upon him by ss 158 and 173(h) of the Criminal Procedure Code (Cap 6) to amend the charge.

Held: (1) 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 learned President or magistrate, unless he has good reason not to do so, ought to amend the charge; (2) in the present case, the facts as found by the learned magistrate would point clearly to an offence of cheating having been committed and the learned magistrate had not given any reason as to why he did not amend the charge; (3) the learned trial magistrate was therefore directed to amend the charge against the respondent to one of cheating and the trial was to proceed on the amended charge.

Public Prosecutor v Tan James [1983] 2 MLJ 173 High Court, Kota Kinabalu (Charles Ho J).

The facts alleged by the prosecution were that the licence of a nightclub had been cancelled and the board of directors of the club made every effort to get the licence renewed. Direct approaches by them to the authorities were of no avail. The accused informed one of the directors that he could help in the matter. The accused told the director that the district officer wanted $30,000. After some bargaining, the amount was lowered to $25,000 and the accused was given $15,000 in cash and a postdated cheque for $10,000. The accused then purported to get in touch with the district officer and subsequently, the licence was renewed. The district officer who gave evidence for the prosecution said he did not know the directors of the nightclub and he was not asked whether he knew the accused. There was therefore no evidence to show that the district officer was in any way involved with the activities of the accused. The district officer had renewed the licence, as the police authorities to whom an appeal had been made by the club, had informed him that they had no objections to the renewal of the licence. The postdated cheque was paid into the accused's bank account. The accused was charged under s 3(a)(ii) of the Prevention of Corruption Act 1961 (Act 57). At the end of the prosecution case, the learned President of the Sessions Court acquitted the accused on the ground that the prosecution had failed to prove that the district officer had in fact been induced to renew the licence by reason of the corrupt payment. The Public Prosecutor appealed.

Held: (1) upon a proper construction of s 3(a)(ii) of the Prevention of Corruption Act as applied to the facts of this case, it was not necessary for the prosecution to prove that the district officer was in fact induced to renew the licences by reason of the payment of the gratification; (2) the evidence led by the prosecution in this case went to show not only that the accused solicited the payments in question, but also that he actually received the moneys. There was therefore some evidence on each essential element of the offence and the defence should have been called; (3) the prosecution evidence, if unrebutted, can only lead to the conclusion that the accused was acting in complicity with somebody in the district office, not necessarily the district officer against whom there was no evidence on the record; (4) in view of the unsatisfactory manner in which the records were kept in this case, a retrial should be ordered before another President of the Sessions Court.

Public Prosecutor v You Kong Lai [1985] 1 MLJ 298 High Court, Muar (Shankar J).

The complainant had lodged a police report against the second respondent upon discovering that one of his missing cows was skinned and the others were in the stable of the second respondent. The second respondent and the first respondent, purportedly on behalf and at the request of the second respondent, informed the complainant that the second respondent was seeking the complainant's help to withdraw the said police report against the second respondent in which event the second respondent would pay the complainant a sum of RM2,000. A letter was prepared and addressed to the deputy public prosecutor to withdraw the complainant's police report. Upon the complainant signing the letter, the first respondent paid the complainant RM650 in the presence of the second respondent. The sole issue for determination was whether there was any corrupt intent on the part of the respondents in offering the sum of RM2,000 as in the first charge or giving the sum of RM650 as in the second charge to the complainant as an inducement under s 3(b)(i) of the Prevention of Corruption Act 1961 ('the Act'). The sessions court judge discharged and acquitted both respondents. The deputy public prosecutor appealed.

Held, dismissing the appeal: (1) as both of the respondents are not persons in the employment of any public body but merely members of the public, the presumption under s 14 has no application and therefore the burden is on the prosecution to prove this essential element beyond a reasonable doubt; (2) the application to the deputy public prosecutor with a view to withdrawal does not contravene any provisions of the law, neither was it an act which the law forbids. It is also not an act which is wrong in law. The complainant's letter to the Deputy Public Prosecutor in exchange for the sum of RM650 for the loss suffered by the complainant by reason of his cow having been slaughtered and skinned or even the offer of the sum of RM2,000 was an act the exercise of which was well within his legal right; (3) the provisions of s 6(1) of the Act have no application to the instant cases which involve a prosecution under s 3(b)(i) of the Act against two members of the public and not of any public body; (4) the mode of settlement which can be ascertained from the evidence adduced by the prosecution clearly shows an amicable settlement between two willing parties, ready and able to accept mutual conditions in order to apply to withdraw the police report. Letters from members of the public to the relevant authorities for the purpose of withdrawing a police report is an exercise of a legal right. Indeed, the law has given statutory recognition to the settlement of cases with or without intervention of the relevant authorities; (5) there was no inducement applied on the complainant nor was there any interference in the exercise of his legal right as a complainant. The writing of the letter to the deputy public prosecutor to apply for the withdrawal of the police report was a voluntary act on the part of the complainant.

Pendakwa Raya lwn Tambi bin Monir & Satu Yang Lain dan Satu Rayuan Yang Lain Criminal Appeal Nos 42-6-1993 and 42-7-1993 High Court, Malacca (Low Hop Bing J).

Lee Mun Foong v Public Prosecutor [1976] 2 MLJ 16 Federal Court, Kuala Lumpur (Suffian LP, Lee Hun Hoe CJ (Borneo).

Ahmad Shah bin Hashim v Public Prosecutor [1980] 1 MLJ 77 Federal Court, Kuala Lumpur (Raja Azlan Shah Ag LP, Chang Min Tat and Syed Othman FJJ).

The applicant was convicted on his plea of guilty to a charge of accepting a bribe under s 4(1)(a) of the Prevention of Corruption Act 1961 (Act 57). The giver of the bribe was arrested with the applicant but the case against him was withdrawn and he was acquitted and discharged. The applicant appealed against his conviction but he did not proceed with the appeal. The trial court also made an order for the payment of a penalty of the amount of the bribe to the government. The applicant applied for revision and submitted that the charges and penalties imposed were illegal.

Held: (1) the power to withdraw a charge is exercisable by the Public Prosecutor and the court cannot question the exercise of this power; (2) the applicant has not shown that the Public Prosecutor had acted unlawfully in withdrawing the charge against the giver of the bribe and had deprived the applicant of his right of equality before the law; (3) where it is shown that an accused person has received a bribe, the court has no alternative but to impose the additional mandatory penalty on him. If the body for which the bribe is taken is not a public body, the court will make an order for a sum equivalent to the gratification received to be paid to the Federal revenue; (4) the sentence of nine months' imprisonment imposed in this case could not be said to be manifestly excessive and therefore should not be disturbed.

Poh Cho Ching v Public Prosecutor [1982] 1 MLJ 86 High Court, Malacca (Wan Yahya J).

This was an appeal against the conviction of the appellants for charges under s 4(a) of the Prevention of Corruption Act 1961. The main grounds of appeal were that: (a) the learned President of the Sessions Court failed to consider whether some of the witnesses were accomplices and if so, whether the necessary caution had been taken in accepting such evidence; (b) the learned President erred in law in considering the statement of the second appellant as evidence against the first appellant.

Held: (1) there was nothing in the judgment of the learned President to indicate that he had applied his mind to determine whether or not any of the witnesses were accomplices and if so, whether there was any desirability for corroboration of their evidence and therefore, the conviction of the first appellant must be quashed; (2) as the second appellant had made a cautioned statement confessing to the offence, there was a presumption of law against him and as he had failed to rebut the presumption, his appeal against conviction must be dismissed.

Thangavelu & Anor v Public Prosecutor [1965] 2 MLJ 234 High Court, Kuala Lumpur (Abdul Aziz J).

The accused was acquitted of a charge of corruptly accepting gratification. The prosecution appealed by way of revision as the grounds of judgment by the sessions court were not forthcoming. The prosecution case was that one Yap Hee had complained to one DSP Chester that his logging truck had been stopped by three policemen who demanded RM1,000 for the truck to be released. If not, it would be detained for non-payment of road tax. Yap Hee alleged that his clerk had already paid RM300 and that the remainder would be paid that evening at a shop. A trap was set to catch the accused policemen. DSP Chester took down the serial numbers of three notes amounting to RM700 which Yap Hee had shown him and which were later given to Yap Hee's clerk outside the said shop with the instruction only to give to the policemen if asked for it. DSP Chester then saw a police landrover arriving at the shop, and the accused, who was in it, going into the shop. After the clerk came out of the shop, the accused was searched and an envelope containing the money was found in a boot of the accused. The accused's defence was effectively an allegation that someone had forced the envelope into his boot just before he was arrested and that he did not initiate the meeting or solicit any gratification. The defence case was never put to the witnesses of the prosecution and the prosecution's version was not challenged.

Held, allowing the appeal and convicting the accused: (1) a party's failure to cross-examine amounts to a tacit acceptance of the witness's evidence-in-chief; (2) although the appellate court does not have the advantage of observing the demeanour of witnesses, it is the duty of the appellate court to check by critical examination of the whole of the evidence, the trial judge's conclusion as to the truthfulness of a witness and the credibility of a witness's story should be based on its inherent inconsistency with the facts and circumstances alleged therein. Given how the accused had asserted his case during the prosecution stage, how he had later changed his case when giving evidence and the fact that he had not challenged vital and damaging evidence by the prosecution witnesses, the demeanour of the defence had little relevance; (3) although a court can accept part of an accused's evidence and reject another, in the case at hand, the evidence of the accused was so intermingled with lies that it had to be rejected in its entirety; (4) there was no doubt that Yap Hee had encouraged the bribe and was only unhappy about the amount demanded. He was therefore an accomplice. Despite s 18 of the Prevention of Corruption Act, it is generally unsafe to convict on uncorroborated evidence unless there are special circumstances, eg where the accomplice is of high character or the offence does not carry any moral stigma. Since corruption is an offence that carries a serious moral stigma, there must be corroboration of the evidence to satisfy the court that he was telling the truth. In the circumstances, there was overwhelming independent evidence corroborating the essential particulars which positively implicated the accused with the offence.

Public Prosecutor v Bukarak bin Lingoi Criminal Revision No T(43)-1 of 1994 High Court, Tawau (Ian Chin J).

This was an appeal against conviction and sentence on a charge under s 4(a) of the Prevention of Corruption Act 1961 (Act 57). One of the grounds of appeal was that the complainant was an accomplice and that even if he was not, he at any rate was a participant in the crime and therefore there should be sufficient corroboration of his evidence.

Held, dismissing the appeal: (1) the complainant was a trap witness at the most. Corroboration of the testimony of a trap witness is no doubt desirable and it is not safe to convict the accused in the absence of that corroboration. However, in the present case, the evidence was so clearly against the accused that no court using the standards of any reasonable man could possibly have come to any other inference except the clear guilt of the accused; (2) (per Sharma J) '... when the appellate court is convinced, as I am in this case, that the conviction of the appellant was good and there is nothing to cast any shadow of doubt in the finding of guilt arrived at by the learned magistrate or the President, the court itself can deal wtih the matter as fully and as effectively even though the grounds of decision as appearing in the appeal record are found lacking in specific findings and the reasons for those findings...' Observations on desirability of grounds of decision being comprehensive.

Mohamed Mokhtar v Public Prosecutor [1972] 1 MLJ 122 High Court, Ipoh (Sharma J).

The appellant, who had been convicted on a charge of corruptly accepting an illegal gratification under s 4(a) of the Prevention of Corruption Act 1961 (Act 57), applied for additional evidence to be adduced at the hearing of the appeal.

Held: (1) (d) the court, will, after considering that evidence go on to consider whether there would have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial; (2) the principles for the exercise of the court's discretion have been summarised by Lord Parker CJ in the case of R v Parks [1961] 3 All ER 633 as follows: (a) the evidence sought to be called must be evidence which was not available at the trial; (b) the evidence must be relevant to the issue; (c) it must be credible evidence in the sense of being well capable of belief;the conditions so propounded are cumulative and it was for the appellant to satisfy the court that all four conditions are fulfilled. As he had failed to do so in this case, the application must be dismissed.

Che Din bin Ahmad v Public Prosecutor [1976] 1 MLJ 289 High Court, Alor Setar (Syed Agil Barakbah J).

Thavanathan a/l Balasubramaniam v Public Prosecutor [1997] 2 MLJ 401 Supreme Court, Kuala Lumpur (Chong Siew Fai CJ, (Sabah and Sarawak).

In May 1963 one Lee, a police informer, reported to the police that an arrangement had been made to pay the sum of RM500 per month to the respondent, the OCPD, Jitra, that various payments had been made to him and that a further payment would be made to him in June. These sums were allegedly paid to the respondent so that he might allow lorries carrying fresh fish belonging to certain companies to cross the Thai-Malayan border after 6pm. Lee further alleged that one Hashim made the payments to him and he made them to the respondent. Hashim, who was called as a prosecution witness, stated in evidence that he had no financial dealings with Lee and that he had not been in Lee's shop. The prosecution however adduced evidence to show that a cine-camera and a tape recorder had been stalled at Lee's shop and that three prosecution witnesses saw Hashim hand over the money to Lee. The pictures taken by the cine-camera and the tape recordings confirmed this evidence. Evidence was also adduced of the police interrogation of the respondent, where he admitted that he had accepted some fish and two motor tyres from the companies. At this stage, the learned President stopped the evidence and acquitted the respondent on a charge under s 4(a) of the Prevention of Corruption Act 1961. On appeal by the Public Prosecutor,

Held: (1) Lee was not an accomplice, but his evidence should be subjected to the closest scrutiny and corroborated in material particulars before it could be accepted; (2) had the learned President correctly assessed the evidence relating to Hashim, he would have no hesitation in holding that he was a wholly unreliable witness who was not to be believed and whose evidence should be rejected in toto; (3) the statements made by Hashim and recorded by the tape recorder were admissible although investigation had commenced because they were not made to a police officer and they were not made with a view to avoid the bar of s 113 of the Criminal Procedure Code; (4) the acceptance of fish or motor tyres is not by itself an offence and such an admission would not amount to a submission to custody. Accordingly, the learned President should not have stopped the evidence at that stage; (5) the effect of s 15(1) of the Prevention of Corruption Act is that where a statement is made after the person making it has been arrested, s 26 of the Evidence Ordinance does not apply, but proviso (b) to s 15(1) of the Prevention of Corruption Act does; (6) the burden of proof on an accused person under s 14 of the Prevention of Corruption Act is not higher than that on a party to a civil action to prove his case on a balance of probabilities.

Public Prosecutor v Gurbachan Singh [1964] MLJ 141 High Court, Alor Setar (Hepworth J).

The appellant was charged under s 4(a) of the Prevention of Corruption Act 1961 for corruptly accepting, as gratification, a sum of RM150 from the complainant as an inducement to refrain from taking action against the complainant for an alleged offence of assisting in disposing of stolen property. The appellant was a police officer who had requested the presence of one Z whom the complainant claimed was the first owner of his motor cycle which was alleged to be a stolen property. This the complainant was not able to fulfill. The appellant told the complainant that the complainant would have to be taken to the police station in Johor Bahru. The complainant, being reluctant to be taken to the police station, asked whether there were other solutions to this problem. The appellant then agreed to a sum of RM150 ('the money') to solve the matter. The appellant was arrested when he went to the appellant's shop to collect the money. The money was kept in an envelope and was found beside a rubbish bin in the drain in front of the shop. The sessions court judge found the appellant guilty and sentenced him to five months' imprisonment. The appellant appealed on the ground that: (a) the learned judge had made a mistake of law and fact when he found that the complainant was not an accomplice; and (b) that the money was not found on the appellant. The appellant also appealed on the sentence.

Held, dismissing the appeal and substituting the sentence of five months' imprisonment with one day's imprisonment and fine of RM2,000, in lieu of six months' imprisonment: (1) the court cannot automatically decide that a witness is an accomplice only upon the counsel saying so. The court must evaluate the evidence of the witness and decide whether he is an accomplice; (2) although the complainant was an accomplice, it does not mean that he cannot be believed at all; (3) the evidence of a witness who paid or offered a bribe can still be believed although he is regarded as an accomplice. Principles of law would require him to be corroborated by other independent evidence. The court can still accept such evidence even if not corroborated by independent evidence on the condition that the judge 'warn himself of the danger of acting on the uncorroborated testimony of an accomplice'; (4) although the complainant was an accomplice, his evidence was clearly and sufficiently corroborated by the evidence of SP3, SP4, SP6 and SP7 and also the circumstantial evidence that the appellant showed up at the shop at the time and date agreed upon by them earlier; (5) the law does not require the money which forms the subject matter of the bribery to be found on the accused. What must be shown is that the accused had received the gratification; (6) although corruption is a serious offence, the imprisonment sentence imposed is not proportionate. The imprisonment is substituted to one day's imprisonment and a fine of RM2,000, in lieu of six months' imprisonment. The penalty of RM150 as provided under s 13 is maintained.

Yassin bin Bachik v Pendakwa Raya Criminal Appeal No 42-20-91 High Court, Johor Bahru (Mohd Ghazali J).

This was an appeal against the conviction of the appellant by Raja Azlan Shah J on two charges of corruption under s 4(a) of the Prevention of Corruption Act 1961 (Act 57). At the appeal, it was argued that the learned trial judge: (a) was wrong in holding that the Malaysian Government Officers' Cooperative Housing Society Ltd was a 'public body'; (b) failed to direct himself on the need for corroboration; (c) erred in applying s 17 of the Act as regards the evidence of pecuniary resources or property disproportionate to the accused person's known sources of income in the absence of any direct evidence of gratification; (d) erred in excluding a statement made by the appellant to the police.

Held, dismissing the appeal: (1) on the facts of the case, a prima facie case was established at the end of the prosecution case, even without regard to the aid of the presumption under s 14 or the corroborative evidence of resources admissible under s 17 of the Act, and this had not been rebutted by the defence; (2) although the learned trial judge was wrong in (a) holding that the society was a public body and (b) excluding the statement made by the appellant to the police, no miscarriage of justice was occasioned thereby.

Mahesan v Public Prosecutor [1970] 1 MLJ 255 Federal Court, Kuala Lumpur (Ong CJ (Malaya).

The appellant was convicted of an offence punishable under s 4(a) of the Prevention of Corruption Act 1961 (Act 57) and sentenced to six months' imprisonment. Against that conviction and sentence he appealed. The main ground of appeal was that in refusing to allow a prosecution witness to be cross-examined, or to complete her evidence, and in holding her completely discredited, the learned President of the Sessions Court had erred.

Held, quashing the conviction and ordering a retrial: the defence should at all times be allowed the opportunity of defending within the well-established principles of adversary trial as against the inquisitorial system; and where there is prima facie a valid complaint, however thin it might be, it must be entertained.

Paramasivam v Public Prosecutor [1970] 2 MLJ 106 High Court, Ipoh (Chang Min Tat J).

The appellant had been convicted under s 4(a) of the Prevention of Corruption Act 1961 (Act 57) and sentenced to two years' imprisonment. The gratification of RM1,000 in this case has been handed to and accepted by the appellant in the course of a trap set by officers of the Anti-Corruption Agency and the money was recovered upon the appellant's arrest. On appeal, an additional penalty of RM1,000 was imposed on the appellant by the appellate court. The learned judge then reserved the following question for the Federal Court: 'Whether the provisions of s 13 of the Prevention of Corruption Act 1961 are applicable in every case of a conviction under the said Act or whether the application of s 13 is restricted only to instances where the money the subject matter of the offence has not been recovered.'

Held: the provisions of s 13 of the Prevention of Corruption Act 1961, are applicable in every case of a conviction under the said Act and not restricted only to instances where the money and indeed any other form of gratification, the subject matter of the offence, has not been recovered.

Lee Mun Foong v Public Prosecutor [1976] 2 MLJ 16 Federal Court, Kuala Lumpur (Suffian LP, Lee Hun Hoe CJ (Borneo).

The appellant in this case was convicted by the magistrate's court on a charge under s 4(a) of the Prevention of Corruption Act 1961 (Act 57), and was sentenced to four months' imprisonment and ordered to pay a sum of RM60. He appealed against sentence and conviction. The case for the prosecution was that the appellant as a police officer demanded and obtained a sum of RM60 from PW4 for forbearing to take any action against PW4 in respect of a traffic offence. The defence claimed that the sum of RM60 received by the appellant was repayment of a loan which the appellant had made to PW4 as evidenced by a letter signed by PW4. There were a number of discrepancies in PW4's testimony and the learned trial magistrate regarded him as an unreliable witness. She, however, did not state whether she rejected the whole of the testimony given by PW4 in her judgment. The defence relied on the evidence of DW2, one Martin Pandan. His testimony if believed, would have corroborated the appellant's story that the RM60 was repayment of the loan. The learned trial magistrate held that 'it is unsafe to give great reliance on DW2's evidence'.

Held, allowing the appeal: (1) the fact that there are discrepancies in a witness' testimony does not straightaway make him an unreliable witness and make the whole of his evidence unacceptable. It is open to the court having observed the demeanour of the witness and after careful consideration of such discrepancies to accept parts of the witness' evidence if it considers them to be true; (2) it is important for the trial magistrate to state clearly whether the testimony of a certain witness whom he or she considers as unreliable is to be disregarded completely; (3) the burden cast on the appellant to rebut the presumption under s 14 of the Prevention of Corruption Act 1961 was a light one. If some reliance could be put on DW2's evidence then the appellant must be said to have succeeded in rebutting such presumption. Clearly, the learned trial magistrate misdirected herself on the burden cast on the appellant, and a retrial should therefore be ordered.

Mohamed Alias v Public Prosecutor [1983] 2 MLJ 172 High Court, Kota Kinabalu (Charles Ho J).

This was an appeal against the conviction and sentence of the appellant under s 4(a) of the Prevention of Corruption Act 1961. The prosecution proved that the appellant received RM5 from the complainant. The President of the Sessions Court convicted the appellant as he did not accept the appellant's story that the money had been planted on him.

Held, dismissing the appeal: (1) in a charge under the Prevention of Corruption Act 1961, once the prosecution has proved that money has been given or received by an agent and employee of the government, the burden of proof shifts to the accused to rebut the presumption under s 14 of the Act that the money was obtained corruptly or as an inducement or reward for doing an act in relation to the principal's affairs. The burden is, however, not so great as that placed on the prosecution. All that the accused has to do is to show that his defence is probably true; (2) in this case, the learned President was correct in rejecting the defence of the appellant and the conviction must therefore be confirmed; (3) in the exceptional circumstances of this case, as the charge had been hanging over the appellant's head for the last two years, the sentence of five months' imprisonment would be reduced to one day's imprisonment and a fine of RM2,000 or in default six months' imprisonment.

Balakrishnan v Deputy Public Prosecutor [1969] 2 MLJ 61 High Court, Kuala Lumpur (Abdul Aziz J).

In this case, the respondent had been in the employment of a public body and it was found that a gratification had been paid or given to him. His defence was that it was not paid or given and accepted corruptly. He was acquitted by the President, Sessions Court, Mr W Satchithanandhan, who found the agent provocateur who delivered the money to be a witness wholly unworthy of credit, that in respect of the respondent's alleged corrupt motive there was no corroboration of the evidence of the prosecution witness and that the respondent's explanation was not only 'probable and credible in all the circumstances of the case' but also 'consistent and compatible with the superior probability of his innocence'. The acquittal was upheld on appeal to the High Court by Ali J. The following question of law was however reserved for the decision of the Federal Court under s 66 of the Courts of Judicature Act 1964 (Act 91): 'Whether in a prosecution under s 4(a) of the Prevention of Corruption Act 1961 (Act 57), a presumption of corruption having been raised under s 14 of the said Act the burden of rebutting this presumption can be said to be discharged by a defence as being reasonable and probable or whether that burden can only be rebutted by proof that the defence is on such fact (or facts) the existence of which is so probable that a prudent man would act on the supposition that it exists (s 3, Evidence Ordinance).' The Federal Court preferred the description in the first part of the question and held that the burden of discharging the presumption may be discharged by a defence which is reasonable and probable ([1968] 1 MLJ 238). On appeal to the Privy Council,

Held, (1) dismissing the appeal: upon the true construction of the Evidence Ordinance 1950 (Act 56), and the Prevention of Corruption Act 1961, there is no relevant difference between the two descriptions of the burden of rebutting the presumption of corruption which are contained in the question if 'the burden of rebutting this presumption can be said to be discharged by a defence as being reasonable and probable' is understood as meaning 'the burden of rebutting such presumption is discharged if the court considers that on the balance of probabilities the gratification was not paid or given and received corruptly as an inducement or reward as mentioned in ss 3 or 4 of the Prevention of Corruption Act 1961.'; (2) (semble) the Evidence Ordinance applies to civil and to criminal proceedings alike and the definitions of 'proved' and 'disproved' draw no explicit distinction between facts required to be proved by the prosecution in criminal proceedings and facts required to be proved by a successful party to civil proceedings. Yet it cannot be supposed that the Evidence Ordinance intended by a provision contained in what purports to be a mere definition section to abolish the historic distinction fundamental to the administration of justice under the common law, between the burden which lies upon the prosecution in criminal proceedings to prove the facts which constitute an offence beyond all reasonable doubt and the burden which lies upon a party in a civil suit to prove the facts which constitute his cause of action or defence upon a balance of probabilities. Where an enactment creating an offence expressly provides that if other facts are proved, a particular fact, the existence of which is a necessary factual ingredient of the offence, shall be presumed or deemed to exist 'unless the contrary is proved', the test is the same as that applied in civil proceedings: the balance of probabilities.

Public Prosecutor v Yuvaraj [1968] 1 MLJ 238 Federal Court, Kuala Lumpur (Barakbah LP, Azmi CJ (Malaya).

[Annotation: See also the decision of the Privy Council, [1969] 2 MLJ 89.]

This was a reference to the Federal Court on the question of law as to the degree of proof necessary to rebut a statutory presumption raised against an accused person. Under s 14 of the Prevention of Corruption Act 1961 (Act 57) ('the Act'), once it has been proved that a person prosecuted under s 4(a) of the Act has received any non-legal gratification, a presumption of corruption is raised against him. The question was whether the burden on the accused person is discharged by a defence which is reasonable and probable or a defence which is so probable that a prudent man would act on a supposition that it exists.

Held: (1) where either by statute or by common law, some matter is presumed against an accused person, the burden of rebutting the presumption may be discharged by a defence which is reasonable and probable. Section 3 of the Evidence Ordinance 1950 does not affect the quantum of proof; (2) (per curiam) 'If ÒproofÓ were held to imply satisfaction to the point of belief in the very existence of a fact, instead of belief in the reasonable probability of its existence, then there can be no practical difference between the quantum of proof required of the defence and that laid on the prosecution. We do not think that is the law.'

Public Prosecutor v Yuvaraj [1969] 2 MLJ 89 Privy Council Appeal from Malaysia (Lord Hodson, Lord Guest, Lord Pearce, Lord Pearson and Lord Diplock).

The appellant was charged under s 4(a) of the Prevention of Corruption Act 1961 (Act 57). It was alleged that in the capacity of agent of the government of the Federation, he accepted various sums as gratification in respect of his principal's affairs. The main evidence against him came from the complainant who was held to be an accomplice. The learned President of the Sessions Court believed the complainant's evidence as a whole and in particular, to the sums which were alleged to have been paid to the appellant. He looked for corroboration and found the required corroboration from the evidence of the wife of the complainant, as well as another witness. The appellant was convicted and he appealed. The main grounds of appeal were that: (a) the charge was erroneously framed as the appellant, being a penghulu attached to the State Land Office and discharging his duty in connection with lands, was in fact a servant or agent of the state rather than the federal government; (b) there were variations in the evidence of the complainant and his wife and his evidence should have been rejected; (c) the wife was an accomplice and one accomplice could not corroborate another; and (d) the matters on which she was able to testify did not amount to corroboration.

Held: (1) the misdescription of the word 'federation' instead of the word 'state' in the charge had not in any way prejudiced the appellant's defence and the mistake was an irregularity which was curable by s 422 of the Criminal Procedure Code (FMS Cap 6); (2) the learned President had the advantage of having seen and heard the witness and there was no reason to disagree with his findings as to the credibility of the complainant; (3) the mere fact that a witness happens to be a wife of an accomplice does not ipso facto turn her into an accomplice. The learned President was right in this case in holding that the wife of the complainant was not an accomplice; (4) the learned President, after considering the various circumstances under which the payments were demanded and received, came to the correct conclusion that the moneys were accepted by the appellant as gratification. Having invoked the presumption under s 14 of the Prevention of Corruption Act, the learned President had applied the correct test and found that the appellant had failed to raise a reasonable doubt on a balance of probabilities. There was no reason therefore to interfere with his findings.

Pie Bin Chin v Public Prosecutor [1985] 1 MLJ 234 High Court, Melaka (Wan Yahya J).

This was an appeal against the conviction of the appellant for an offence under s 4(a) of the Prevention of Corruption Act 1961 (Act 57).

Held, dismissing the appeal: (1) as it was proved in this case that the gratification had been received by the appellant, the presumption under s 14 of the Prevention of Corruption Act 1961 arose that the gratification was paid or given or received corruptly; (2) in the circumstances, the appellant had not rebutted the presumption and therefore the appeal must be dismissed.

Attan bin Abdul Gani v Public Prosecutor [1970] 2 MLJ 143 High Court, Malacca (Sharma J).

The respondents had been acquitted of a charge under the Prevention of Corruption Act 1961, s 4(a) read with the Penal Code (FMS Cap 45), s 34 for corruptly receiving RM100 to refrain from taking action against PW1 for not having valid travel documents. The two respondents had called on PW1's house and asked to see her travel documents and when it was discovered that she had no valid travel documents, PW1 was told by the second respondent that she had to pay a fine or else she would be taken to the police station. PW1 then borrowed the RM100 from her neighbour which she gave to the second accused who in turn handed it to the first accused. The trial judge, though satisfied that the two respondents had received the RM100, came to the conclusion that the money was not received corruptly and that therefore the presumption in the Prevention of Corruption Act 1961, s 14 had been rebutted. He concluded that s 4 of the Prevention of Corruption Act 1961 was in pari materia with s 161 of the Indian Penal Code and relied on a passage from Upenda Nath Chondhurry v Emperor 1917 AIR 850 which held that in order for public servants to be convicted of the offence in s 161, they had to be exercising official functions when accepting money. The first respondent was a marine policeman while the second respondent was a member of the police field force and the scope of their duties did not usually include the checking of passports. He held that the checking of passports could not be regarded as the official duties of the respondents because there had been no operation to ferret out illegal immigrants and that they also had not been ordered by their superiors to carry out the task of checking passports. The public prosecutor appealed against their acquittal.

Held, allowing the appeal and convicting the respondents: (1) the trial judge was wrong in concluding that s 161 of the Indian Penal Code and s 4(a) of the Prevention of Corruption Act were in pari materia. Unlike the Indian provision, s 4(a) does not impose a condition that an accused person must be on 'official duty' before he can be guilty of the offence under that section. It would not even have mattered if the respondents had been off-duty or not acting on the instruction of their superiors; (2) even if it could be read into s 4(a) that the respondents must have been on official duty, on the facts of the case the respondents were in fact on official duty. The respondents were empowered by s 20(3)(a) of the Police Act 1967, by s 23(a) of the Criminal Procedure Code (FMS Cap 6) and s 51(3) of the Immigration Act 1959/1963 to arrest PW1 when they were aware she had no valid travel documents and were in fact duty bound to do so without having to await the orders of their superiors. The facts of Upenda Nath Chondhurry v Emperor were entirely different from those in the present case.

Public Prosecutor v Abdul Malik bin Marahaji & Anor [1994] 2 MLJ 430 High Court, Tawau (Ian Chin J).

The two appellants appealed against their conviction of corruptly receiving a sum of RM20 contrary to s 4(a) of the Prevention of Corruption Act 1961. The facts were that the appellants and PW2 had stopped PW1 at about 9.30pm for riding a motor cycle without a valid licence and without road tax for the motor cycle. PW1 was told that he would be issued a summons. PW1 told the appellants that he was on his way to his stepbrother's house. The first appellant then told PW1 to leave the motor cycle and to tell his stepbrother to see the appellants. They also detained PW1's identity card. When the stepbrother was told of what had happened, he sought the help of a neighbour (PW4) who was an officer of the Anti-Corruption Agency. PW4 also had PW8 and PW9 who were also officers of the Anti Corruption Agency as guests in his home at the time. PW4 suggested that PW8 accompany PW1 to pose as PW1's stepbrother to find out the purpose for the appellants wanting to see PW1's stepbrother. PW1 was told to appeal to the appellants not to issue the summons, but if one was to be issued, he was to receive it. Two marked RM10 notes were also given as trap money to PW1 in case the appellants solicited for any gratification. At the meeting with the two appellants, the two appellants agreed that the matter could be settled with a cash gratification. The marked notes were placed in a book on the appellants' motor cycle and they returned PW1's motor cycle keys and identity card. The two appellants were subsequently arrested by PW4 and PW9 who had been observing the transaction. There were 3 issues to be considered in the appeal: (a) the appellants were not agents of the government of Malaysia as they had not signed a declaration required by the Police Ordinance 1952 rendering their appointment as voluntary policemen invalid. Further the Police Ordinance 1952 which was referred to in their record of service had been repealed by the Police Act 1967; (b) the evidence of PW1 had to be corroborated as he was an accomplice and there were contradictions between PW1's testimony and that of PW8; (c) the prosecution had failed to prove its case as the money had not been shown to have been received by the appellants as it was found in the book.

Held, upholding the conviction: (1) the first issue had not been specifically raised as a ground of appeal as required by s 307(6) of the Criminal Procedure Code and could not be considered by the court. Even so the form of the declaration of office in the 1967 Act and 1952 Ordinance were almost similar. The failure of a voluntary police officer to make the declaration did not vitiate his appointment. The main issue was whether the appellants were 'agents' within the Prevention of Corruption Act 1967 as defined in s 2. The appellants were agents as they were police officers who were 'public officers' as provided in art 132 of the Federal Constitution. By virtue of Pt VIII of the Police Act 1967 voluntary police officers who were mobilised could be regarded as temporary employees and thus they were clearly 'public officers'; (2) PW1 was not an accomplice of the appellants. He had taken no active part nor suggested that he was willing to give a bribe to avoid the consequences of his traffic offence. He only made an appeal to the appellants. His role was that of trap witness. Section 18 of the Prevention of Corruption Act 1967 provided that no witness was to be disbelieved only by virtue of the fact that he had given any gratification to any agent. Even so there was ample corroboration in the evidence of PW8, PW4 and PW9 and the fact that the money was found in the book. PW8 had witnessed the transaction and his evidence was not weakened by cross-examination. The contradiction in the evidence of PW1 and PW8 was relatively small and immaterial; (3) the fact that the money was not found on the person of the appellants was immaterial and the third submission was without merit. The main issue was whether the appellants had received the gratification and the evidence of PW1 and PW8 that the appellants had instructed PW1 to put the money in the book on the appellants' motor cycle showed this clearly.

Sidek bin Mat Tan & Anor v Public Prosecutor Criminal Appeal No 41-82-92 High Court, Johor Bahru (Mohd Ghazali JC).

[Annotation: The judgment was delivered in Bahasa Malaysia.]

This was a reference to the Federal Court on the following questions of law: (a) whether the presumption under s 14 of the Prevention of Corruption Act 1961 (Act 57) is a specific presumption; (b) whether the presumption under s 30(1) of the Bills of Exchange Ordinance 1949 is a general presumption; (c) whether the presumption under s 14 of the Prevention of Corruption Act 1961 as an alleged specific presumption, prevails over the alleged general presumption under s 30(1) of the Bills of Exchange Ordinance 1949; (d) whether the gratification of RM600 mentioned in the charge against the appellant as cheque No S 759320 drawn on the Indian Overseas Bank Ltd, Mountbatten Road, Kuala Lumpur, by another firm other than the firm of Kapur Sawmill which latter firm was alleged to have given a bribe of RM600 to the appellant in consideration of the appellant's alleged arrangement with Kapur Sawmill to refrain from collecting royalty on timber conveyed to Kapur Sawmill, can be said to be a corrupt gratification in terms of the Prevention of Corruption Act 1961. The appellant had been convicted in the sessions court and his appeal to the High Court had been dismissed. The alleged gratification was in the form of a cheque drawn by a third party which was received by the appellant.

Held: (1) the presumption under s 14 of the Prevention of Corruption Act prevails over the presumption under s 30(1) of the Bills of Exchange Ordinance. There was in fact no conflict between the two presumptions as each deals with a different matter. The presumption under the Bills of Exchange Ordinance deals with civil claims based on cheques and it cannot arise in proceedings under the Prevention of Corruption Act 1961; (2) it is an offence for an agent to receive from any person gratification as a reward for showing favour to that person or to any other person, not necessarily the giver of the gratification; (3) in this case, there was evidence to show that the cheque was handed over to the appellant at the request of the party alleged to be framed by the appellant; (4) in the circumstances, the appellant was rightly convicted; (5) both the learned President and the learned judge when disposing the matter overlooked the mandatory provisions of s 13 of the Act. In addition to the sentence imposed by the learned President, the appellant had to pay as penalty to the Forestry Department within 15 days the sum of $600 he accepted in contravention of the Act.

Mohamed bin Long v Public Prosecutor [1972] 1 MLJ 76 Federal Court, Kuala Lumpur (Suffian, Gill and Ong Hock Sim FJJ).

Mohamed Din v Public Prosecutor [1985] 2 MLJ 251 High Court, Kuala Lumpur (Gunn Chit Tuan J).

Held: on a charge of corruptly receiving money or goods, it is not necessary to prove that favour had been shown by the accused person.

Gurbachan Singh v Public Prosecutor [1966] 2 MLJ 125 High Court, Alor Star (Yong J).

The accused was charged in the sessions court on two counts, both under s 4(b) of the Prevention of Corruption Act 1961, alternatively ss 116 and 165 of the Penal Code. At the close of the case for the prosecution, the learned President acquitted and discharged the accused. His record reads: 'Doubtful. Accused acquitted and discharged in both cases.'

Held: (1) merely to record the word 'doubtful' is not sufficient. It is ambiguous and does not convey any sense; (2) once the prosecution has proved that any gratification has been paid, the presumption under s 14 of the Act arises. In this case, the prosecution had adduced sufficient evidence for the defence to be called.

Public Prosecutor v Ng Nee Tiak [1962] MLJ 421 High Court, Kota Bharu (Hashim J).

The appellant was convicted of giving a bribe to a police inspector after he had been caught in a speed trap. He was sentenced to four months' imprisonment.

Held: while the law makes the giver of bribes equally culpable with the receiver, in considering sentence, the court should take the circumstances of the case into consideration. In this case, the sentence of imprisonment was obviously excessive and should be substituted with a fine of RM300.

Ng Kok Jooi v Public Prosecutor [1974] 2 MLJ 150 High Court, Kuantan (Arulanandom J).

The appellant, who had been charged with an offence under s 4(b) of the Prevention of Corruption Act 1961 (Act 57), had pleaded guilty as it appeared that it had been agreed that, if the accused pleaded guilty, the prosecution would leave the matter of sentence to the court. After the defence counsel had given his plea in mitigation, the Deputy Public Prosecutor prayed for a deterrent sentence. Counsel for the accused then applied for the plea to be withdrawn, but this was refused. The accused was sentenced to six months' imprisonment and he appealed

Held: (1) plea bargaining between the prosecution and the defence could only form a ground for appeal if the accused has been misled as to the consequence of the plea. The onus is on the appellant in this case to satisfy the court that he had been labouring under such a mistaken belief of law or fact at the time when he pleaded guilty to the charge and, in this case, he has failed to do so; (2) the power to impose sentence lies with the court and not with counsel for the prosecution or the defence; (3) in this case, the consequences of pleading guilty to the charge had been explained to the appellant and the learned President was satisfied that the appellant understood them; (4) the learned President in this case exercised his discretion correctly in refusing the plea of guilty to be retracted; (5) the appellate court will not alter the sentences of the trial court unless the sentences are manifestly wrong, and as in this case there was no manifest error shown, the appeal against sentence should be dismissed.

New Tuck Shen v Public Prosecutor [1982] 1 MLJ 27 High Court, Malacca (Wan Yahya J).

The accused was charged and convicted on two counts: (a) he resold 17 cinema tickets, which is an offence under r 8(3) of the Entertainments Duty Rules 1953, and (b) he corruptly offered a gratification of RM29 to a police constable as an inducement for forbearing to take action against the accused under the Entertainments Duty Rules, an offence under s 4(b) of the Prevention of Corruption Act 1961 (Act 57) ('the Act'). On the first charge, he was fined RM200 in default one month's imprisonment. On the second charge, he was fined RM500 in default four months' imprisonment and in addition, he was ordered to pay RM29 to the government in default one week's imprisonment. The order to pay RM29 was made under s 13 of the Act.

Held: (1) s 13 of the Act is restrictive in its scope and it can apply only where a person is convicted of an offence committed by the acceptance of any gratification in contravention of any provision of the Act. In this case, however, the accused was convicted of offering gratification and therefore, the provisions of s 13 were irrelevant and inapplicable; (2) in any event, the penalty ordered under s 13 of the Act is to be treated as a fine only to the extent and for the purpose of its recovery and is not to be treated as a fine in default of which a term of imprisonment may be imposed.

Public Prosecutor v Lai Sien Kon [1978] 2 MLJ 110 High Court, Seremban (Ajaib Singh J).

This was an appeal against the decision of the learned magistrate who acquitted the accused of the charge under s 4(b) of the Prevention of Corruption Act 1961 (Act 57). In the course of investigations, the accused was alleged to have offered PW1 a bribe of RM2,000 and a plan was devised to trap him. This occurred on 23 June at a hotel at which place the accused had handed an envelope containing RM500 as part payment to PW1. The accused was arrested as soon as he appeared at the hotel lobby. The learned magistrate found that PW1 was a trap witness, and because there was no corroboration he acquitted the accused without calling for his defence.

Held, allowing the appeal: (1) in law, there is nothing to prevent a police inspector from instituting an investigation into a crime involving his senior officers under the Prevention of Corruption Act 1961, especially when he was under the direction of his OCCI; (2) the accused's defence was one of denial. A mere denial without other proof to reasonably dislodge the prosecution's evidence is not sufficient; (3) a magistrate is entitled to believe a witness at a trial, but a general reference to the demeanour of witnesses without more gives rise to suspicion that an attempt is being made to bolster up a verdict which is contrary not only to the weight of the evidence but to the probabilities, and which could not be supported on a detailed examination of the evidence.

Public Prosecutor v Ling Tee Huah [1982] 2 MLJ 324 High Court, Sibu (Yusoff Mohamed J).

The first respondent was charged as manager of Hume Industries (Malaya) Ltd, Petaling Jaya, that by authorizing the delivery of a batch of 126 6Ó Class 'C' Asbestos Cement Pressure Pipes manufactured by 'B' shift on 31 March 1967, he did knowingly give to one Zainuddin bin Ariffin, an agent of the government of Malaysia, 26 documents bearing '31 MAR 67B 50P 42 HPJ BSS 486 1956 HUME 6' Class C JKR 67' marks expressed upon 26 lengths of the said batch of the pipes, to the value of $632.84, supplied and delivered to Jabatan Kerja Raya, vide Contract No PWD FED HQ 237 of 1966, in respect of which his principal representing the government of Malaysia was interested, and which documents contained statements which were false in material particulars and thereby committed an offence punishable under s 4(c) of the Prevention of Corruption Act 1961 (Act 57). The second respondent, was charged with the abetment of the same offence, punishable under s 4(c) read with s 11 of the Act. The respondents were acquitted by the sessions court. The Public Prosecutor appealed. One of the grounds of appeal was that the learned President erred in law and on the facts when he held: 'Even if the pipe is a document it is not ejusdem generis with the genus contemplated by s 4(c) of the Prevention of Corruption Act 1961.' Counsel for the appellant submitted that 'pipe' in this particular case was a document for the purposes of s 4(c) of the Act. He drew the attention of the court to the definition of 'document' in s 29 of the Penal Code, s 3 of the Evidence Ordinance and s 3 of the Interpretation Act 1967 (Act 23/1967). Counsel for the respondent inter alia submitted that the meaning of 'document' in s 4(c) of the Act was clear and required no rule of construction.

Held, dismissing the appeal: (1) in considering the construction to be placed upon the word 'document', the court should not lose sight of the fact that the Prevention of Corruption Act 1961 is a penal statute and a person convicted under s 4(c) is liable not only to a pecuniary penalty, but to a term of imprisonment or to both pecuniary penalty and imprisonment. The court shall, in construing any words in that penal statute within which a case may be held to fall, apply the rule of strict construction; (2) for purposes of s 4(c) of the Prevention of Corruption Act 1961, the words 'other document' do not include pipe or pipes on which writing or marks are expressed.

Public Prosecutor v AG Kyle-Little & Anor [1971] 1 MLJ 125 High Court, Kuala Lumpur (Abdul Hamid J).

The appellants had been convicted of offences under the Prevention of Corruption Act 1961 (Act 57). The President of the Sessions Court in his grounds of judgment merely stated that the story of the appellant had cast no doubt on the prosecution's story and that he was convinced beyond doubt that there was a conspiracy between them to cheat the Federation Government.

Held: the grounds of decision were insufficient as the learned President had not stated his findings of fact and therefore the convictions must be quashed.

Hashim & Anor v Public Prosecutor [1966] 1 MLJ 229 High Court, Kuala Lumpur (Ong Hock Thye FJ).

The appellant was found guilty on the charge that he 'knowingly gave Chew Kim Joo who was an agent of the government of the State of Selangor, to wit, a financial clerk in the District Office, Ulu Langat, a document, to wit, Indent No 13/64, in respect of which the principal was interested and which document contains a statement which is false in a material particular namely it stated that the work had been completed when in fact it had not been performed and which to your knowledge was intended to mislead the principal and that you have thereby committed an offence punishable under s 4(c) of the Prevention of Corruption Act 1961 (Act 57)'. He appealed on a number of grounds, inter alia, that the prosecution failed to prove that the indent was false to the knowledge of the appellant, that the evidence of a certain witness should not have been admitted when he denied the issue of fact on which he was convicted by a court of competent jurisdiction, and that the indent which was the subject matter of the charge could not be regarded to come within the words 'other document' in s 4(c) of the Prevention of Corruption Act ('the Act').

Held: (1) in this case, on the facts, the President rightly came to the conclusion that there was no intention on the part of the appellant to do any work at all on the land; (2) the essence of issue estoppel or res judicata is that the issues must be between the same parties. This does not mean that when an accused person has been convicted in a trial in which he denied the charge and gave evidence contrary to the evidence for the prosecution he would not be allowed to give the same evidence in another case where he was not a party; (3) knowledge, like intention, is a question of fact which generally may be inferred from the circumstances of the case;it is not necessary to decide whether the words 'other document' in s 4(c) of the Act should be interpreted ejusdem generis or not because in this case, the second part of the document can be interpreted to come under the word 'account'. The gist of the offence was the falsity of that part namely by implication to the knowledge of the appellant that the work had been completed and subsequent order to pay to the appellant. It was false because no work had in fact been done.

Hashim v Public Prosecutor [1967] 1 MLJ 251 High Court, Kuala Lumpur (Azmi CJ (Malaya).

The petitioner, a registered medical practitioner, was charged before the sessions court with three offences under s 4(c) of the Prevention of Corruption Act 1961 (Act 57). Each of the three charges alleged, in effect, that he, on the day and time specified, issued a bogus medical certificate to a government servant recommending him for medical sick leave. He claimed trial to the charges. The learned President proceeded to hear the case for the prosecution. Arguments ensued as to whether or not the medical certificate that had been produced was a document within the meaning of s 4(c) of the Prevention of Corruption Act 1961. The learned President held that it was not such a document and ruled that the charges were groundless and made the following order for each charge: 'discharged not amounting to an acquittal', by virtue of s 173(g) of the Criminal Procedure Code (FMS Cap 6) ('the Code'). A few months later, the prosecution brought the same charges against the petitioner in the same court but before another President. The succeeding President ruled that she could proceed to hear the case. The petitioner sought the court to hold, in effect, that the decision of the succeeding President was invalid and that in view of the order of the preceding President, the succeeding President should not proceed to hear the case further on the same charges.

Held: (1) the power of the magistrate to discharge the accused under s 173(g) of the Code is at any stage before the prosecution opens its case and under s 254 on application by the prosecution at any stage of the trial before judgment; (2) the preceding President did not conduct the trial in the manner required by s 173 of the Code. Thus, the order of the preceding President was bad because it was not made in accordance with law and at a stage of a trial contrary to the requirements of law. Therefore, the order was to be set aside and the trial before the succeeding President to be proceeded with.

Chu Chee Peng v Public Prosecutor [1972] 1 MLJ 262 High Court, Johore Bahru (Syed Othman J).

Voon Ah Shoon v Public Prosecutor [1979] 2 MLJ 131 High Court, Kuching (Yusoff J).

This was an appeal against the conviction of the appellant on three charges under s 4(c) of the Prevention of Corruption Act 1961 (Act 57) ('the Act'). The charges arose out of the piling work on the low-cost housing scheme undertaken by the Kuala Lumpur Municipality. The appellant was employed by the municipality as a clerk-of-works. The charges were in relation to three specific acts and three specific piles, including allegations that the appellant knew the actual depth of penetration of the piles, but falsely submitted record sheets showing a greater penetration than the actual depth.

Held, allowing the appeal: for the purposes of s 4(c) of the Act, personal knowledge that the three piles were short driven was an essential ingredient of the charge and in the absence of any specific finding of the learned President of personal knowledge by the appellant that the statement in the document was false, the conviction cannot stand and the appellant must be acquitted.

Lai Fook Kee v Public Prosecutor [1970] 1 MLJ 134 High Court, Kuala Lumpur (Abdul Aziz J).

The first appellant was convicted and sentenced on two charges under s 4(c) of the Prevention of Corruption Act 1961 ('the Act') for 'giving an agent of the Government of Malaysia, to wit, Polis Raja Malaysia' documents containing false statements. He appealed on the ground, inter alia, that both charges were defective because they did not specify who the 'agent' was. 'Agent' in s 4(c) of the Act was defined in s 2 to mean 'any person employed by or acting for another ... and a person serving under any public body'. The 'agent' therefore had to be a natural person and must be named in his official designation in the charges. In contrast, 'Polis Di Raja Malaysia' was only an abstract body. The respondent agreed but countered that the documents had to be processed by the finance section of the Police and that fulfilled the requirement of human persons in the definition of 'agent'. The defect in the charges was therefore curable under ss 156 and 422 of the Criminal Procedure Code. The respondent maintained that the Polis was the agent of the government of Malaysia. The second appellant was convicted and sentenced on two charges of abetting the first appellant. The appellants appealed against their convictions.

Held, allowing the appellants' appeal: (1) the Polis Di Raja Malaysia was a public service listed in art 132(1) of the Federal Constitution. It was also a 'public body' under s 2 of the Act and not a functionary or 'agent' under s 2. Thus the Polis was not an agent of the government of Malaysia. Section 3(1) of the Polis Act 1967 and art 132(2A) of the Constitution mention 'members' of the Polis, who were therefore in law public servants of the government, and were functionaries and 'agents'. The particular member of the Polis discharging the duties of the Polis Commander to whom the documents were addressed should have been specified as the agent of the government of Malaysia, and the evidence should then have been adduced directly from the Commander; (2) the error in the charges was material as both the first appellant and the court below were mistaken into concluding that the Polis was the agent of the government; (3) the second appellant had certified the documents containing false particulars in the course of his duty as quartermaster and representative of the Commander. In his individual, personal and private capacity, he had no business or power to make those certifications. In his official capacity as an 'agent' of the government, he could not have abetted the first appellant because the certifications were acts required of him by the Treasury Instructions (which apply to public officers); (4) the second appellant could have been charged as an 'agent' of the government under s 4(c) of Act 57 for 'knowingly (using) with intent to deceive his principal' the documents which contained false particulars.

Law Tzy Ping & Ors v Public Prosecutor Criminal Appeal No KG 11 of 1988 High Court, Kuching (Dennis Ong J).

Held: a medical certificate must be construed as coming in the category of receipt, account, etc and for the purposes of s 4(c) of the Prevention of Corruption Act 1961 (Act 57), the words 'other document' include such medical certificate.

Nadimuthu v Public Prosecutor [1973] 1 MLJ 74 High Court, Kuala Lumpur (Abdul Hamid J).

This was a reference to the Federal Court on the following question: 'Whether a medical certificate used in the circumstances described in the judgment in Selangor Criminal Appeal No 25 of 1972 ([1972] 1 MLJ 74) is a ÒdocumentÓ within the meaning assigned to it under s 4(c) of the Prevention of Corruption Act 1961.' The appellant, who was an employee of the Malayan Railways, had been charged and convicted on two charges of knowingly using with intent to deceive his principal, sick certificates which contained statements false in material particulars, which to his knowledge was intended to deceive his principal, constituting offences under the Prevention of Corruption Act 1961 (Act 57).

Held: as in this case, the certificates were clearly used to claim monetary benefits to which the applicant was not entitled, they were 'documents' within the meaning of s 4(c) of the Prevention of Corruption Act 1961.

Nadimuthu v Public Prosecutor [1974] 1 MLJ 20 Federal Court, Kuala Lumpur (Suffian, Gill and HS Ong FJJ).

The respondent had been charged under s 4(c) of the Prevention of Corruption Act 1961 (Act 57) and convicted and sentenced in the sessions court. The respondent appealed to the High Court, which reversed the decision of the sessions court and acquitted and discharged the respondent. One of the points considered by the learned appellate judge was the question of the proper interpretation of the words 'other document' appearing in s 4(c) of the Prevention of Corruption Act. The allegation against the respondent was that he had prepared and knowingly used, with intent to deceive the Malayan Railway, a time-sheet record of his working hours and allowances in respect of which the Malayan Railway was interested and which document contained statements which were false in material particulars in that the respondent claimed allowance for working in Kuala Lumpur during a certain period, whereas in fact he was attending a military training course elsewhere during the same period for which he was already paid. The Public Prosecutor referred to the Supreme Court the question of whether the time-sheet record used in the circumstances in the case is a 'document' within the meaning assigned to it under s 4(c) of the Prevention of Corruption Act 1961.

Held: in the instant case, the facts clearly showed that the time-sheet record was clearly used as a basis for the respondent's claim to monetary benefits to which he is not entitled and it was therefore a 'document' within the meaning assigned to it under s 4(c) of the Prevention of Corruption Act 1961.

Public Prosecutor v Wilson [1988] 1 MLJ 243 Supreme Court, Kuala Lumpur (Salleh Abas LP, Hashim Yeop A Sani and Wan Hamzah SCJJ).

The respondent was charged in the lower court under s 4(c) of the Prevention of Corruption Act 1961 (Act 57). He was the Secretary of the Kalaka District Council, and had applied for leave and for free passages to visit Semenanjung Malaysia during his leave. Both were granted to the respondent. The prosecution alleged that he did not make use of the free passages granted because no air tickets had in fact been bought by him or on his behalf. Hence, in certifying the payment voucher (Ex P 6) that he had lost all the relevant air tickets issued to him at a cost of $1,264.00, he had knowingly used Ex P 6 with intent to deceive his principal, the Kalaka District Council, in that Ex P 6 contained false material particulars, namely that the said sum had been incurred by him and his family when they had not been so incurred. The case for the defence was that the air tickets had been bought by the respondent through Chop Thong Hwa, a shop which sometimes obtained air tickets on behalf of others from Sin Hua Travel Agent, Sibu. While in the course of making preparations in Kuching to visit Kuala Lumpur with his family, the respondent received news that one of his children was ill and he had to rush back to his house during the course of which he lost the air tickets. Hence, in certifying this in Ex P 6, he was merely certifying a fact, and the cost of the air tickets having been incurred by him and his family, he had not committed the offence charged against him. The learned trial magistrate acquitted the accused of the said charge. The prosecution appealed.

Held, allowing the appeal: (1) and (d) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses; (2) in the light of the conflicting evidence on material matters in the respective testimonies of PW5, PW6 and the respondent, the learned trial magistrate could not have been in a position to properly weigh the evidence of PW5 and PW6 against that of the respondent, particularly on such material matters as he seemed to have done. This material defect in the judgment of the lower court made it unsound and was sufficient to cast doubt on its correctness and reliability, and justified the setting aside of the order of acquittal of the lower court; (3) an appellate court can interfere with a finding based on inference; an appellate court before reaching its conclusions upon matters of fact, should and will always give proper weight and consideration to such matters as (a) the views of the trial judge as to the credibility of the witnesses; (b) the presumption of innocence in favour of the accused; (c) the right of the accused to the benefit of any doubt;a magistrate should discuss the evidence and the probabilities arising from the circumstances of the case. The reasons for his findings should be stated. The grounds should indicate that he had in fact applied his mind to the evidence produced in the case. In the present case, the learned trial magistrate had not adequately done that in his judgment, rendering it defective.

Public Prosecutor v Abang Abdul Rahman [1982] 1 MLJ 346 High Court, Sri Aman (Tan Chiaw Thong J).

The appellant was a district officer and was charged together with his brother-in-law and one other who was a penghulu for offences contrary to s 4(c) of the Prevention of Corruption Act 1961. The charge against him read as follows: 'That you on 6 April 1964 at District Office, Ulu Langat, in the State of Selangor, being an agent of the government of the State of Selangor, to wit, a district officer of Ulu Langat District, knowingly used with intent to deceive your principal, a document, to wit, Indent No 13/64 in respect of which your principal is interested and which document contains a statement which is false in material particular, namely it stated that the work had been performed and which to your knowledge was intended to mislead your principal and that you have thereby committed an offence punishable under s 4(c) of the Prevention of Corruption Act 1961.' At the first hearing all three were convicted. The appellant and his brother-in-law appealed against their conviction and Ong Hock Thye FJ ([1966] 1 MLJ 229) allowed their appeal and ordered a retrial. At the retrial, they were jointly tried and at the conclusion of the hearing the appellant was convicted and sentenced to six months' imprisonment. The appeal was, inter alia, on the following grounds: (a) as Ong Hock Thye FJ had ordered a retrial the joint trial at the retrial was a nullity as there was no power of consolidation of cases; (b) issue estoppel was raised as a convicted accomplice (the penghulu) was called by the prosecution to allege that he was innocent in contradistinction to his conviction; he was therefore estopped from giving evidence on the facts on which his conviction was based.

Held: (1) but in this case all the elements were present which would justify the exercise of discretion in favour of a joint trial; (2) this was not a case of consolidation of cases but of two separate persons being charged and tried in respect of two separate offences committed in the same transaction; the question was one for the discretion of the learned President, whose decision could only be reversed if it was done capriciously;issue estoppel as enunciated in Sambasivam v Public Prosecutor [1950] MLJ 145 is not applicable in this case as it does not apply to a retrial of the same accused in respect of the same charge.

Syed Ismail v Public Prosecutor [1967] 2 MLJ 123 High Court, Kuala Lumpur (Raja Azlan Shah J).

In this case, the applicant had been charged under the Prevention of Corruption Act 1961 (Act 57), with making false travelling claims with intent to deceive the Government. He was acquitted in the sessions court at the end of the prosecution's case. The Public Prosecutor appealed and the learned judge of the High Court allowed the appeal and ordered that the defence be called. The applicant thereupon applied that certain questions of law of public interest raised in the appeal be reserved for the determination of the Federal Court. The questions related to the powers and principles applicable to a view of the locus in quo and to the principles and powers which govern the jurisdiction of the High Court to reverse the trial court where the acquittal is based on the credibility of witnesses. The learned judge dismissed the application and application was made to the Federal Court.

Held: in this case, the most convenient procedure would be that the order of the learned judge should be upheld, so that the case should continue before the sessions court.

Cecil Rajah v Public Prosecutor [1981] 1 MLJ 147 Federal Court, Kuala Lumpur (Suffian LP, Wan Suleiman and Chang Min Tat FJJ).

This was an appeal against the conviction of the appellants on charges under the Prevention of Corruption Act 1961 (Act 57). The evidence showed that there was a conspiracy to defraud the government by means of forged vouchers. The appellants were charged with and convicted of abetment of the offence of defrauding the government. On appeal it was argued, inter alia: (a) the learned President was wrong in treating a witness who had been originally charged with the appellants and who had given evidence under s 19 of the Prevention of Corruption Act 1961 (Act 57), as a 'peripheral accomplice'; (b) there was no or insufficient corroboration of the evidence of the witness; (c) the statements made by the second appellant which had been rejected by the learned President on the ground that they had been obtained by compulsion, was wrongly admitted under s 27 of the Evidence Ordinance; (d) typewriting evidence was wrongly admitted in this case; (e) evidence of the subsequent conduct of the second appellant was wrongly admitted; (f) the learned President was wrong in denying the first appellant his statutory right to a copy of a statement by a witness to the police for the purpose of cross-examination.

Held, dismissing the appeal: (1) as the witness had given evidence against a co-accused in the hope of receiving a pardon, his evidence must be closely scrutinized and must meet the twin tests of credibility and corroboration, ie he has to satisfy the court not only that his evidence is in general credible but also that there is independent corroboration in material particulars; (2) although the learned President had appeared to treat the witness as a peripheral accomplice he in fact treated him as an accomplice and stressed the need for corroboration. The learned President had not misdirected himself in the law and there was no irregularity, but if there was, such irregularity had not occasioned any failure of justice; (3) the evidence of the witness in this case fully incriminated the first appellant and there was also in this case sufficient evidence in corroboration connecting or tending to connect the first appellant with the crime; (4) the statement made by the second appellant relating to the discovery of the typewriter was admissible under s 27 of the Evidence Ordinance; (5) the expert evidence on typewriting was admissible in this case under s 45 of the Evidence Ordinance 1950 (Act 56); (6) evidence of the subsequent conduct of the second appellant was admissible under s 8 of the Evidence Ordinance; (7) as the learned President had referred to the police statement of the witness and had come to the conclusion that there was no material for serious challenge to the credibility or reliability of the witness, he had rightly rejected the application for a copy of the statement to be supplied to the first appellant.

Chandrasekaran & Ors v Public Prosecutor [1971] 1 MLJ 153 High Court, Kuala Lumpur (Raja Azlan Shah J).

Jazuli bin Mohsin v Public Prosecutor [1990] 2 MLJ 190 High Court, Malacca (Wan Yahya J).

On about November 1964, the third respondent had put up two unauthorized buildings on his land within the Town Council, Seremban, and received notices from the said public body to demolish them. In February 1965, it was alleged that he saw the second respondent who was Deputy President of the town council about it and he gave him RM200 as deposit for the council for 'things to be in order'; payment was by cheque. Despite this, he received sometime later another notice from the council requiring him to demolish the buildings. He then approached the first respondent, who was President of the said council, who after inspection of the buildings asked him and received from him a further deposit of RM2,500, which was paid by cheque, undated but endorsed on the back. After this cheque was paid, a change of policy by the town council took place the council would not carry out the demolition orders, but it would summon the owners instead. These facts led to police investigation which resulted in joint trial of the three respondents in the sessions court, Seremban on the following charges: (a) the first respondent as President of council received gratification of RM2,500 for preventing the performance of an official act, an offence under s 9(ii) of the Prevention of Corruption Act 1961, alternatively bribery under ss 161 and 165 of the Penal Code; (b) the second respondent was similarly charged in respect of RM200 which he received; (c) the third respondent was charged with two offences of offering inducement to prevent performance of an official act under s 9(ii) of the Prevention of Corruption Act. At the trial, the prosecution made use of cautioned statements taken from the third respondent, which being self-inculpatory, implicated the second respondent but in respect of the first respondent said the RM2,500 was a loan to him. All three accused were acquitted without their defence being called.

Held: (1) as to the first respondent, the evidence was circumstantial and it did not point irresistibly to his guilt; (2) in regard to the second respondent, there were gaps and omissions in the prosecution evidence, which only the cautioned statements could fill. As the trial was not a joint trial of the respondents for the same offence, the cautioned statement was precluded from being taken into consideration against the second respondent; (3) as there was inconsistency and contradictions between the two cautioned statements themselves and with the other evidence in the case, the rejection of the cautioned statements as confession was justified.

Public Prosecutor v Lai Pong Yuen & Ors [1968] 1 MLJ 12 High Court, Seremban (Ismail Khan J).

The appellant had been charged with accepting a gratification of RM25, an offence punishable under s 9(ii) of the Prevention of Corruption Act 1961 (Act 57). The learned President convicted the appellant and in his grounds of decision, stated that he believed the story of the prosecution and did not believe the defence given by the accused and therefore, he found the accused guilty.

Held: (1) if the President did not believe the story of the defence, he was nevertheless bound to consider whether the defence, though disbelieved by him, had not raised any reasonable doubt in his mind and as he had failed to do so, the conviction must be quashed; (2) where the prosecution has adduced all the evidence it has and the evidence has established a prima facie case against the accused which unrebutted would warrant his conviction, then, the failure of justice occasioned by the trial President in placing the wrong burden of proof on the accused cannot be laid to the door of the prosecution.

Mahadi v Public Prosecutor [1970] 1 MLJ 16 High Court, Ipoh (Chang Min Tat J).

Held: before hearing a case under the Prevention of Corruption Act 1961, the court should first see that the provisions of s 26 of the Act with regard to the consent of the Public Prosecutor have been complied with so as to avoid all the difficulties which may arise from such omission. The following procedure should be adopted when dealing with statements under s 15(1) of the Prevention of Corruption Act: the court should bear in mind the provisos to that subsection. It should only admit the statement when it is satisfied that the provisions of that subsection have been complied with. Once the statement is admitted, the court must accept the contents of such statement.

Public Prosecutor v Jusoh [1962] MLJ 387 High Court, Kuala Trengganu (Hashim J).