In this case, the respondent had been charged with rape. At the end of the prosecution case, the learned President found that the prosecution had established a prima facie case and he called on the respondent to enter on his defence. The defence of the respondent was an outright denial and nothing more. The learned President acquitted the respondent as he stated he was left in a real state of doubt as to the case for the prosecution and the respondent's guilt. The Public Prosecutor appealed.

Held: in the circumstances, the order of acquittal must be reversed. What the learned President termed to be a real state of doubt was in fact fanciful doubt.

Public Prosecutor v Ku Lip See [1981] 1 MLJ 258 High Court, Johore Bahru (Yusof Abdul Rashid J).

In this case, the President of the Sessions Court had acquitted the respondent as he held that the 'petitioner has failed to prove beyond any shadow of doubt that the accused took part in the robbery'.

Held: (1) the learned President had misdirected himself on the degree of proof required and therefore in the circumstances the appellate court was entitled to reverse the finding of the learned President, which was based on inferences from the evidence; (2) on the facts, the evidence adduced by the defence far from casting any doubt on the prosecution case had strengthened it and the accused should therefore be convicted.

Public Prosecutor v Khong Soh [1966] 2 MLJ 137 High Court, Ipoh (MacIntyre J).

On appeal by the Crown against acquittal, it is sufficient for the court to declare that having reviewed all the evidence in the case, and having formed an opinion of its weight and reliability different from that of the learned magistrate, the court has unhesitatingly come to the conclusion that the accused ought to have been convicted.

R v Low Toh Cheng [1941] MLJ 1 High Court, Straits Settlements (Terrell Ag CJ).

Public Prosecutor v Liik Ching Kwong [1988] 1 MLJ 398 High Court, Sibu (Chong Siew Fai J).

Ment & Ors v Public Prosecutor [1994] 1 MLJ 201 High Court, Penang (Vincent Ng JC).

Ng Hong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri & Anor [1994] 3 MLJ 285 Supreme Court, Kuala Lumpur (Gunn Chit Tuan CJ (Malaya).

The Court of Appeal has no jurisdiction to entertain a second appeal from the decision of the judge on appeal from a magistrate. There is no general or residual power to review the decisions of other courts. Quaere: whether a judge hearing an appeal from a magistrate has power to alter a conviction for evasion of duty to one of counterfeiting under a different enactment. The powers of the appellate court under s 267 of the Criminal Procedure Code considered. If there is any danger that the alteration of a conviction on appeal may cause injustice, a new trial should be ordered.

Teh Say Yeow v Public Prosecutor [1924] 5 FMSLR 57 Court of Appeal, Federated Malay States (Farrer-Manby, Reay and David JCC).

[Annotation: This case also considered, inter alia, the practice with respect to the records for the appellate court. As to lack of jurisdiction, see also Khor Swee Khoon v Public Prosecutor [1953] MLJ 117.]

The appellants were tried and convicted under s 4(2) of the Undesirable Publications Act (Cap 358) (the UPA) of charges of being in possession of publications published by the Watch Tower Bible & Tract Society (WTBTS), which were prohibited by gazette notification No 123 dated 14 January 1972 (Order 123), made pursuant to s 3 of the UPA. The contents of the prohibited publications were related to the doctrine of the sect known as the Jehovah's Witnesses. Part of the doctrine of the Jehovah's Witnesses advocated that its adherents should refuse to do any form of military duty. As a result, a number of Jehovah's Witnesses refused to do national service. It was on this basis that the Jehovah's Witnesses were de-registered as a society by the Minister for Home Affairs pursuant to s 24 (1) of the Societies Act (Cap 311) and via gazette notification No 179 (Order 179) on 14 January 1972. At the same time, O 123 was passed by the Minister for Culture banning all publications by WTBTS, the parent body of the Jehovah's Witnesses. The appellants did not dispute possession of the prohibited publications. The appeal proceeded on arguments which challenged the respective orders of de-registration and prohibition on the grounds that they were ultra vires the enabling Acts and art 15 of the Constitution of the Republic of Singapore. It was alleged that the appellants and other Jehovah's Witnesses were unlawfully denied the free exercise of their religious liberty as guaranteed under the Constitution. The appellants contended that the two orders were null and unenforceable as having been promulgated arbitrarily and by a denial of natural justice, without notice or hearing, on secret evidence wholly irrelevant to the public interest. In the lower court, O 123 was challenged. However, being a subordinate court, its jurisdiction was limited as it had no powers of judicial review. The district judge accordingly ruled that he had no jurisdiction to review the exercise of discretion by a minister but held that the appellants were entitled to raise as a defence the validity of the order to the extent of whether there was a patent invalidity in the sense of being ultra vires its parent Act. The district judge found no patent invalidity in O 123. At the same time, he did not order a reference to the High Court on the constitutional questions which arose pursuant to his powers under s 56A of the Subordinate Courts Act (Cap 321). As the submissions in the appeal were broader and were centred on constitutional issues, the appellants contended that the appellate court had unlimited jurisdiction to determine all the issues which were raised. The prosecution adopted a similar view of the court's jurisdiction in the matter. Prior to the hearing of the appeal, the appellants applied by criminal motion for various orders seeking leave to adduce additional evidence (Criminal Motion No 16 of 94). These applications were generally for an order under s 257(1) of the Criminal Procedure Code (Cap 68) (CPC) that certain articles and publications on the Jehovah's Witnesses be adduced, an order under s 58 of the CPC directing the production of the files and documents of the respective ministries in making O 123 and O 179, a full response from the respective ministries to interrogatories which the appellants intended to send with respect to the making of O 123 and O 179 and an order for the adducing of expert evidence on the beliefs and practices of the Jehovah's Witnesses. At the same time, the prosecution applied to adduce additional evidence by way of affidavits of the Permanent Secretaries of the Ministry of Home Affairs, the Ministry of Information and the Arts, the Assistant Director of Manpower of the Ministry of Defence and the Director of Personnel, Ministry of Education (Criminal Motion No 19 of 94).

Held, dismissing the appeal: (1) a court's powers, when sitting as an appellate court, are necessarily limited to that of the subordinate court from which the appeal emanated; (2) a criminal court has jurisdiction to consider a defence alleging that a subsidiary legislation is substantially invalid but cannot consider whether it is procedurally invalid. Subsidiary legislation can therefore only be challenged if it is ultra vires its enabling Act or is invalid on the face of it; (3) [1983] 3 All ER 1124. The facts of this case being undoubtedly exceptional, in the interests of justice and in consideration of the fact that the invalidity of the orders, if proved, would constitute substantive defences to the charges, this court, despite sitting as an appellate court in a criminal proceeding, was competent to address itself to all the issues; (4) any additional evidence may only be adduced if it is necessary, ie 'necessary in the interests of justice'. The purpose of adducing additional evidence was only to show that the Jehovah's Witnesses were a respectable religious group whose fundamental tenets could not have been in any sense objectionable and contrary to public order and the public interest. Since this was not in issue, the publications and articles and expert evidence on the beliefs and practices of the Jehovah's Witnesses were irrelevant; (5) ss 125 and 126 of the Evidence Act (Cap 97, 1990 Ed) provides a general prohibition against disclosure of official records relating to affairs of State which the appellants have failed to surmount. In any event, it had not been shown that there was any public interest which dictated that such documents be produced before the court; (6) there is no legal provision in Singapore with respect to criminal proceedings which allows either the prosecution or the defence to obtain evidence from the opposite party by interrogatories. The appellants therefore had no legal basis for their application. Further, the only response which the appellants could get from such interrogatories would be the statement that the de-registration and prohibition orders were based on the Jehovah's Witnesses' refusal to do national service. The appellants' motion was accordingly dismissed; (7) the additional evidence sought to be tendered by the respondent was relevant as it would enable the court to inquire fully into the challenges raised. The contents of the various affidavits amounted to the explanations and reasons for the making of the respective orders. Further, there was no objection to admitting the additional evidence The respondent's motion was accordingly granted; (8) cross-examination of the deponents of affidavits is never allowed in judicial review proceedings, save for very special circumstances. Although the proceeding at hand was not strictly a judicial review, this rule was clearly applicable as the court was essentially exercising the same powers. There was neither a dispute of facts nor any exceptional circumstance which required the cross-examination of the deponents of the affidavits and the proposed cross-examination could not have in any way been relevant to the legal issues raised in this appeal. The appellants' application for such cross-examination was therefore dismissed; (9) the court has the power and duty to ensure that the provisions of the Constitution are observed. The court also has a duty to declare invalid any exercise of power, legislative and executive, which exceeds the limits of the power conferred by the Constitution, or which contravenes any prohibition which the Constitution provides. The Constitution should, however, be primarily interpreted within its own four walls only and not from analogies from other jurisdictions; (10) the basic proposition in judicial review is that the court will not question the merits of the exercise of the ministerial discretion. There can be no enquiry as to whether it was a correct or proper exercise or whether it should or ought to have been taken. The court cannot substitute its own view as to how the discretion should be exercised with that actually taken. In addition, the presumption is that the orders were valid and the burden of proving that they were ultra vires or unconstitutional therefore lay on the appellants who challenge them on such grounds. The appellants had to show that the ministers had acted ultra vires in the sense that they had exercised their discretion on irrelevant grounds, or that they had exceeded their powers under the enabling statutory provisions, or that the actions were unconstitutional as contravening the right of freedom of religion under art 15(1) of the Constitution; (11) religious beliefs ought to have proper protection, but actions undertaken or flowing from such beliefs must conform with the general law relating to public order and social protection. The right of freedom of religion must be reconciled with 'the right of the State to employ the sovereign power to ensure peace, security and orderly living without which constitutional guarantee of civil liberty would be a mockery'. The sovereignty, integrity and unity of Singapore are undoubtedly the paramount mandate of the Constitution and anything, including religious beliefs and practices, which tend to run counter to these objectives must be restrained. Article 15(4) of the Constitution clearly envisages that the right of freedom of religion is subject to inherent limitations and is therefore not an absolute and unqualified right; (12) the adherents of the Jehovah's Witnesses clearly believed that military service was prohibited by their religion, and, as a result, refused to do national service. The evidence produced before the court clearly showed that the relevant ministers had, at the relevant time, considered that the continued existence of a group which preached as one of its principal beliefs that military service was forbidden was contrary to public peace, welfare and good order. This court was not here to review the merits of the decision and conclude that the Jehovah's Witnesses were or were not a threat to public order. The concept of public order as envisaged under art 15(4) was not dissimilar to the notion of public peace, welfare and good order within s 24(1)(a) of the Societies Act (Cap 311). Order 179 could therefore not have contravened art 15(1) or be ultra vires s 24(1)(a); (13) the appellants' submission that there needed to be a clear and immediate danger to public order before the right of freedom of religion could be curtailed, and that the de-registration orders were therefore unjustified since there was no such threat at all, was misplaced. Beliefs, especially those propagated in the name of 'religion', should be put to a stop before the damage sought to be prevented could transpire; (14) the court can only interfere with the exercise of the discretion of the minister under s 3(1) under the UPA to the extent of ensuring that the minister exercises his discretionary powers according to the statutory limitations. The minister's reasons for the ban emanated from considerations of national sinued existence of the Jehovah's Witnesses 'would be prejudicial to public welfare and good order in Singapore'. Such considerations were clearly related to the public interest, and there could therefore be no objection that the prohibition order was ordered on an irrelevant ground. In the circumstances, O 123 was not ultra vires; (15) the evidence clearly showed that the process of de-registration and the prohibition of the publications were a joint operation by the two relevant ministers. As such, the contention that O 123 was flawed in the sense that the Minister for Culture did not himself exercise his discretion but had acted on the basis that the Minister for Home Affairs had made a decision under a different statute, being the Societies Act, and that this therefore amounted to a failure to exercise on a lawful basis the discretion that belonged to him was without merit; (16) there was no express requirement in either s 24 of the Societies Act or s 3 of the UPA for the relevant minister to give the affected parties a right to be heard before the orders are made. The objective of the orders here was clearly for the preservation of national security and the ordinary principles of natural justice have to be modified accordingly. The requirements of natural justice therefore did not have to be complied with fully. Further, since the basis for the orders clearly could not be disputed, no purpose would be achieved if a hearing was held; (17) the respective ministers were clearly of the view that the continued existence of the Jehovah's Witnesses was prejudicial to the national interest. The basis for the de-registration clearly flowed from the danger of allowing absolute freedom of religion which might create a complete denial of a government's authority and ability to govern individuals or groups asserting a religious affiliation. The Jehovah's Witnesses were not mere conscientious objectors to national service but were engaging in conduct which was prejudicial to national security. Their activities were therefore restricted on the basis that they were against the 'public order'. Equally, the prohibition on their publications was a natural consequence and was therefore in the 'public interest'. As such the orders were not irrational or disproportionate; (18) it is clearly not proper to raise ultra vires issues which extend beyond substantive validity, in the sense of being clearly wrong on the face of it, in subordinate court proceedings. Nevertheless, the court had to still take into account the fact that both parties were ad idem with each other as to the court's competence in determining all the issues raised. This was, therefore, an appropriate case for the application of Lord Diplock's second exception in O'Reilly v Mackman [1983] 2 AC 287;(per curiam) the making of a reference under s 56A of the Subordinate Courts Act (Cap 321) is at the discretion of the subordinate courts and not a mandatory one. This was to prevent unnecessary stays of proceeding each time a party purports to raise a constitutional issue. The merits of the case can then be considered by the district judge before deciding whether such a reference ought to be made to the High Court.

Chan Hiang Leng Colin & Ors v Public Prosecutor [1994] 3 SLR 662 High Court, Singapore (Yong Pung How CJ).

Ramli bin Salleh v Inspector Yahya bin Hashim [1973] 1 MLJ 54 Federal Court, Kuala Lumpur (Ong Hock Thye CJ, Suffian, Gill, Ali and Ong Hock Sim FJJ).

[Annotation: See the Editorial Note for this point.]

The appellant claimed to be the holder of a Singapore identity card. He applied to the registration officer for an exchange of his Singapore identity card. He was interviewed and he presented his Singapore identity card to the registration officer as evidence. That card was later verified from the Singapore registration office to be a forgery. He was charged with dishonestly using as genuine the Singapore identity card in order to exchange it for a Federation identity card and that he knew or had reason to believe it to be forged. He was found guilty and was sentenced to 6 months' imprisonment.

Held, dismissing the appeal: (1) in this case, there was sufficient 'use' of the forged document as genuine; (2) the duty of a court hearing an appeal from the decision of a lower court is to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of the witnesses come in question but with full liberty to draw its own inference from the facts proved, and to decide accordingly; (3) on the facts, any court acting reasonably would have come to the inescapable conclusion that at the time the identity card was alleged to be used, the appellant knew that it was a forgery.

Cheong Khean Sheng v Public Prosecutor [1970] 2 MLJ 175 High Court, Kuala Lumpur (Raja Azlan Shah J).

In criminal appeals, an appellate court should weigh the evidence, always giving proper weight and consideration to such matters as: (1) the views of the trial magistrate as to the credibility of witnesses; (2) the presumption of innocence in favour of the accused; (3) the right of the accused to the benefit of any doubt; (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a magistrate who had the advantage of seeing the witnesses. The weight of the prosecution evidence may be affected by different things, by the seriousness of the discrepancies in the evidence, by the conduct of the witnesses and by the evidence given by and on behalf of the defence.

Lee Sang Cheah v R [1946] MLJ 22 High Court, Straits Settlements (McElwaine CJ).

An appellate court should but rarely interfere with the conclusions arrived at by the judge or magistrate who has had the advantage of hearing the witnesses and obtaining an impression of their veracity from their demeanour. But it is the duty of an appellate court to be a judge of fact as well as of law, and it would be abrogating its functions if it made a hard and fast rule never to interfere with findings of fact, and felt bound to support a judgment which, on a review of all the evidence, it considered to be clearly wrong.

Chia Han Kiat v R [1937] MLJ 261 High Court, Straits Settlements (Terrell Ag CJ).

It is not the function of the Court of Criminal Appeal to examine in microscopic detail the summing-up of a trial judge to see whether there has been any inaccuracy in summarizing all the evidence given at the trial. It is not for the Court of Criminal Appeal to usurp the functions of the jury and to say that it would not have arrived at the same verdict as the jury on the evidence.

Syed v R [1958] MLJ 126 Court of Criminal Appeal, Singapore (Whyatt CJ, Chua and Wee Chong Jin JJ).

The respondent was charged with criminal breach of trust. After the witness for the prosecution had given evidence, the judge stopped the case and acquitted the respondent because this was the only material witness as to the alleged falsifications. The Public Prosecutor appealed on the ground that the court should have heard all the witnesses tendered by the prosecution.

Held: it is the duty of a court to hear all the evidence that the prosecution desires to be heard. But if a judge acquits without hearing all the evidence and no objection is taken at the time, the Court of Appeal will not interfere.

Public Prosecutor v Perianan Chetty [1923] 4 FMSLR 30 Court of Appeal, Federated Malay States (Woodward CJC and Reay JC).

Letchumy v Public Prosecutor [1930] 1 MC 129 High Court, Federated Malay States (Burton J).

Caldeira v Gray [1936] MLJ 137 Privy Council Appeal from Trinidad and Tobago (Lord Alness, Lord Maugham and Sir Sidney Rowlett).

Public Prosecutor v Vijaya Raj [1981] 1 MLJ 43 High Court, Malacca (Wan Yahya J).

In this case, the respondents were jointly charged with some other persons for murder. The respondents were acquitted by the trial judge at the end of the prosecution's case. The Public Prosecutor appealed and it was argued that: (a) the learned trial judge had drawn wrong inferences from the facts as found and accepted by him; (b) the provisions of the Essential (Security Cases) Regulations 1975 mandatorily require the defence to be called in every case when the prosecution's case is closed, notwithstanding the absence of a prima facie case; (c) the learned trial judge failed to give due weight to the statement of the co-accused in the case.

Held: (1) in a security case, the court is not obliged at the end of the prosecution's case to call on the accused to enter on his plea unless the prosecution has then proved a prima facie case against him; (2) in this case, the statement of the co-accused may be taken into consideration against the accused but the prerequisite to this is that there must be some cogent evidence against them quite apart from the statement of the co-accused; (3) the nature of this evidence which would be extraneous to the confession of a co-accused and its qualitative and probative value in relation to the charge must be a factual matter in the context and circumstances of the particular case; (4) the approach of an appellate court in a case like this is well established. In such a case, it is its duty to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of the witnesses comes into question but with full liberty to draw its own inference from the facts proved or admitted and to decide accordingly; (5) in this case, on the basis of the facts which the learned judge had found and accepted, his decision was one which any reasonable tribunal properly directed could have reached; (6) the evidence against the respondents in this case, apart from the confession of the co-accused, was not sufficient to satisfy the requirements of the charge against them and calling on their defence would not only go beyond taking into consideration the co-accused's statement but be tantamount to virtually relying on it to an extent that would not be permissible for the purposes of s 30 of the Evidence Act 1950 (Act 56).

Public Prosecutor v Nordin bin Johan & Anor [1983] 2 MLJ 221 Federal Court, Kuala Lumpur (Raja Azlan Shah LP, Abdul Hamid and Abdoolcader FJJ).

On an appeal from the decision of a district judge when the matter in question is one of fact, it is the duty of the appellate court to be a judge of fact as well as of law, and the appellate court would be abrogating its functions if it made a hard and fast rule never to interfere with findings of fact and if it felt bound to support a judgment which, on a review of all evidence, it considered to be clearly wrong.

Chia Han Kiat v R [1937] MLJ 261 High Court, Straits Settlements (Terrell Ag CJ).

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: (1) that it was admitted by PW2 that the extra payment was for extra work to be carried out on the house allotted; and (2) 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 (Selventhiranathan J).

Although an appeal is dismissed, the appellate judge is not functus officio until after the certificate of result of the appeal has been prepared and issued. He may, before the certificate is prepared, allow the appeal, if, upon mature consideration, he thinks fit to do so.

Goh Ah San & Ors v R [1938] MLJ 95 High Court, Straits Settlements (McElwaine CJ).

The Court of Appeal has power to dismiss an appeal notwithstanding a misdirection in law where no failure of justice has been occasioned by such misdirection.

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

Michael Ben anak Panggi v Public Prosecutor [1979] 2 MLJ 65 High Court, Kuching (Yusoff J).

Apart from the provisions of s 422 of the Criminal Procedure Code (FMS Cap 6) where a case falls within the proviso to s 29(1) of the Courts Ordinance 1948, the Court of Appeal might, notwithstanding that it was of the opinion that a point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considered that no substantial miscarriage of justice had occurred.

Osman v Public Prosecutor [1958] MLJ 12 Court of Appeal, Penang (Thomson CJ (FM).

[Annotation: See Chiu Nang Hong v Public Prosecutor [1965] 1 MLJ 40 and Lim Sing Hiaw v Public Prosecutor [1965] 1 MLJ 85 at p 89.]

Where the question is whether or not a magistrate or judge sitting without a jury properly directed his mind to the consideration of a relevant point of law and his reference to such direction is as meagre as in the present instance (ie regarding the danger of convicting on the uncorroborated evidence of an accomplice) the rest of his judgment must be unobjectionable in the matter of direction in order that the appellate court may be satisfied as to the propriety of the direction in question.

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

One of the points raised in the appeal was that the proviso to s 29(1) of the Courts Ordinance 1948 should not be applied to a capital case. It was contended by counsel that the proviso to s 4(1) of the Criminal Appeal Act 1907, which is the same as the local proviso, had never been applied in England in a capital case. This contention was rejected by the Court of Appeal which pointed out that the proviso was in fact applied in England by the Court of Criminal Appeal in the case of Woolmington v Director of Public Prosecutions [1935] AC 462, in which case the House of Lords refused to follow the Court of Criminal Appeal on the point not because the case with which they were concerned was a capital case, but because they did not think it was an appropriate one.

Tan Buck Tee v Public Prosecutor [1961] MLJ 176 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Good JJA).

In a proper case, the Court of Appeal has power to allow an appeal, even when the evidence has been fairly and accurately summed up by the trial judge, if the case against the prisoner has not been proved with that certainty which is necessary in order to justify a verdict of guilty.

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

Sau Soo Kim v Public Prosecutor [1975] 2 MLJ 134 Federal Court, Kuala Lumpur (Suffian LP, Lee Hun Hoe CJ (Borneo).

Quek Ching Kim v R [1956] MLJ 54 High Court, Singapore (Whyatt CJ).

Lee Swee Tee v Public Prosecutor [1960] MLJ 161 High Court, Penang (Rigby J).

Public Prosecutor v Sharikat Perusahan Makanan Haiwan Berkerjasama2 [1969] 2 MLJ 250 High Court, Malacca (Sharma J).

Public Prosecutor v Yeoh Teck Chye; Lim Hong Pung & Anor v Public Prosecutor [1981] 2 MLJ 176 Federal Court, Kuala Lumpur (Raja Azlan Shah CJ (Malaya).

In this case, the appellant was charged with criminal breach of trust of a sum of $1,411.25 betwen 1 May 1972 and 29 May 1972. The learned President of the Sessions Court found as a fact that some money had been handed to the appellant which had not been accounted for. As he found that the appellant had failed to satisfy beyond merely denying that he had misappropriated the money, he convicted the appellant. On appeal, the learned judge found some doubt as to the actual sum handed over to the accused. He found however that the money received by the appellant amounted to $392.21 and he varied the conviction to one of criminal breach of trust of that sum. He then reserved certain questions for the decision of the Federal Court.

Held, inter alia: it was not competent for the learned judge on appeal to amend the charge.

Yoong Hock Pin v Public Prosecutor [1977] 1 MLJ 178 Federal Court, Kuala Lumpur (Ali Ag CJ (Malaya).

In this case, the appellant appealed against his conviction on five charges of corruption. The facts as found by the learned district judge showed that the appellant, who had since 1965 held ministerial office had, beginning from November 1970 until October 1974, personally interceded on many occasions with civil servants in various departments of government and on one occasion with a fellow Minister on behalf of a wealthy Indonesian citizen, Lauw, or Lauw's company, in connection with matters which these civil servants were dealing with. These intercessions were not made at the direct request of Lauw, but at the request of Ong Keng Kok, a friend whom he had known since school, the secretary and a director and the person in charge of the day to day running of the business of Lauw's company. The matters in which the appellant interceded were promptly considered and decided and in one instance in which the decision was an adverse one, the appellant interceded still further with eventually a favourable result. It appeared to be the common practice for members of Parliament to communicate directly with civil servants on behalf of the members of the public within their respective constituencies. During the period 1972 to the end of 1974, Lauw's company paid for the cost of new galvanised roofing for the appellant's house; Lauw and his company guaranteed to the extent of $300,000 the overdraft of the appellant's father with a bank, the overdraft facilities being for shares purchased by the appellant in the name of his father; Lauw's company offered and the appellant agreed to accept a bungalow house to be built by Lauw's company valued at $532,000; and lastly, Lauw paid for the cost of seven return air fares to Jakarta when the appellant flew to Jakarta with his family for a holiday as Lauw's guest. On appeal it was contended, inter alia, that the charges were defective for lack of essential particulars. It was also contended by the appellant and conceded on behalf of the Public Prosecutor that the conviction of the appellant on the fourth charge that he did corruptly 'accept' the bungalow could not be supported, but it was contended that the court could substitute a conviction on the charge of 'did corruptly agree to accept' the bungalow, which was the original charge, before it was amended by the trial court.

Held, inter alia: (1) the conviction on the fourth charge was wrong and ought to be set aside. Section 246 of the Criminal Procedure Code (Cap 113, 1970 Ed) did not give power to the appellate court to alter or amend a charge; (2) although the charges in this case did not give certain particulars, there was nothing to show that the appellant was misled by the omission or that it prejudiced the defence.

Wee Toon Boon v Public Prosecutor [1976] 2 MLJ 191 High Court, Singapore (Wee Chong Jin CJ).

An appeal is merely a continuation of the trial, and throws open all the evidence to re-examination in order to determine whether or not the various findings of the trial court are correct. In a case where it is doubtful which of several offences has been committed, an appeal from a conviction for any one of the offences must lay the whole case open to the interference of the appellate court, notwithstanding any order of acquittal by the trial court in regard to any of the other offences.

Tan Boon Teck v Public Prosecutor [1950] MLJ 44 High Court, Muar (Laville J).

Lim Chow Keng v Public Prosecutor [1973] 1 MLJ 156 Federal Court, Kuala Lumpur (Azmi LP, Ong Hock Sim FJ and Syed Othman J).

The powers of an appellate court, on an appeal from a subordinate court, are contained in s 316 of the Criminal Procedure Code, and they include a power vested in the appellate court to interfere with and, if necessary, alter, the exercise, or failure to exercise, of any discretionary power vested in the lower court. The appellate court is placed in the same position as the trial court.

Public Prosecutor v Chiam Liang Kee [1960] MLJ 163 High Court, Penang (Rigby J).

Lum Weng Kay v Public Prosecutor Criminal Appeal No 33 of 1993 Cour (Yong Pung How CJ, Karthigesu and LP Thean JJA).

In this country, the Court of Appeal has power in all criminal cases to order a retrial and frequently does so, with the result that any comments in the press upon a criminal case pending appeal may affect the minds not only of the judges of the Court of Appeal but also of those laymen who may be called as assessors at the retrial.

Public Prosecutor v Straits Times Press Ltd [1949] MLJ 81 High Court, Kuala Lumpur (Spenser-Wilkinson J).

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

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

Although an appellate court is reluctant to reverse a magistrate's decision based on a finding of fact, it should set aside the orders of the lower court if it is of opinion that such decision is against the weight of evidence.

Goh Ah San & Ors v R [1938] MLJ 95 High Court, Straits Settlements (McElwaine CJ).

An appellate court will always hestitate to overrule the decision of the judge who has seen and heard the witnesses. The appellate court will interfere only when a trial judge has relied upon the demeanour of witnesses in a case where other evidence indicate that such reliance was misplaced.

Yap Fook Yew & Anor v Public Prosecutor [1949] MLJ Supp 3 High Court, Kuala Lumpur (Spenser-Wilkinson J).

While an appellate court will always hesitate to overrule the decision of a trial judge based upon the demeanour of the witnesses whom he had had the opportunity of seeing in the witness-box, nevertheless, having considered the case as a whole, it appeared that the learned magistrate in this case, when coming to the conclusion that he was impressed by the complainant's demeanour, did not give sufficient consideration to the evidence before him or take into consideration the great number of discrepancies and contradictions in his evidence, or test it with the evidence of the only other witness against which it could be tested. It was unsafe to convict the appellant upon the uncorroborated evidence of the complainant who was an accomplice

Thong Hong Kee v Public Prosecutor [1952] MLJ 110 High Court, Johore Bahru (Storr J).

[Annotation: For further cases on the powers of appellate courts as regards the credibility of witnesses, see under the subject heading Criminal Procedure (Appeal) (Evidence).]

Lim Kheak Teong v Public Prosecutor [1985] 1 MLJ 38 Federal Court, Kuala Lumpur (Salleh Abas LP, Mohamed Azmi and Hashim Yeop A Sani FJJ).

In this case, the appellant was convicted of rape. This decision was affirmed by the Court of Appeal which decided that it could not interfere with the trial judge's decision, as the trial judge had seen and heard the witnesses; he was aware of the danger of convicting without some corroborating evidence of the complainant's story and knew that there was no such evidence; nevertheless he was convinced of the truth of the complainant's story and was therefore entitled to convict the appellant. The appellant appealed to the Privy Council. One of the grounds of appeal was that the Court of Appeal erred in not applying its own mind afresh to the evidence. In the course of its judgment, the Board observed: 'The passage in the learned Chief Justice's judgment which is relied upon by the appellant is as follows: "...So far as we are concerned, however, it is not for us to criticize the limits which the law imposes on the judicial power; it is our duty to accept them and if necessary to interpret them. And, so long as the authority to which that power is delegated keeps within these limits and observed the rules appointed by the law for the exercise of that power, then his decision must be accepted". It was argued that this meant that even if the Court of Appeal thought that the verdict of the trial judge was wrong, the court could not interfere unless he had committed some error, and that in the absence of such error, the court could not examine the evidence afresh with a view to altering his decision if the court considered that justice required it to do so. Their Lordships do not so interpret the judgment of the Court of Appeal. By s 29(1) of the Courts Ordinance 1948, the court may "confirm, reverse or vary the decision of the trial court or may order a retrial or may remit the matter with the opinion of the Court of Appeal thereon to the trial court or may make such other order in the matter as to it may seem just..." The width of the jurisdiction thus conferred is inconsistent with the limitation alleged by the appellant to have been imposed by the court upon itself in the present case. Their Lordships do not further elaborate the point since it is not necessary to their conclusion to do so.'

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

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

On an appeal against an acquittal, the appellate court has power to substitute a charge for that of which the appellant was acquitted.

Spirit Farmer v Tok Kim Tong [1889] 4 Ky 546 High Court, Straits Settlements (Wood Ag CJ).

[Annotation: See s 64 of the Courts of Judicature Act 1964 (Act 91), for the power of the Federal Court in an appeal against an acquittal by the High Court in the exercise of its original criminal jurisdiction.]

Teh Say Yeow v Public Prosecutor [1924] 5 FMSLR 57 Court of Appeal, Federated Malay States (Farrer-Manby, Reay and David JCC).

In this case, the applicant had been charged before the sessions court for an offence under s 420 of the Penal Code (FMS Cap 45), and found guilty and sentenced to one year's imprisonment. He appealed against the conviction and sentence. The appellate judge found that an offence under s 420 was not proved but was satisfied that an offence under s 409 had been established. He therefore substituted the charge to one under s 409 of the Penal Code. The conviction remained and the sentence was maintained. The applicant moved the High Court to refer the question of law to the Federal Court but was rejected. The applicant applied to the Federal Court which allowed the application. The question of law reserved for the decision of the Federal Court was as follows: 'That when an accused is convicted and sentenced for an offence under s 420 of the Penal Code in a sessions court and then appeals against conviction and sentence to the High Court, the question arises whether in law, the appellate judge in dismissing the appeal against conviction and sentence can then proceed to substitute the principal charge under s 420 to a distinct charge under s 409 of the Penal Code without having regard to s 158 and s 162 of the Criminal Procedure Code (Cap 6).'

Held: (1) in hearing an appeal from a conviction, the power of the judge to alter a finding must be exercised subject to ss 166 and 167 of the Criminal Procedure Code. The requirements of ss 166 and 167 of the Criminal Procedure Code must therefore be satisfied before a High Court in the exercise of its appellate jurisdiction alters or substitutes a conviction for a different offence; (2) to warrant a substitution, there must be clear evidence that a case for the substituted offence would have been made out or established in the court below; (3) in this case, the substitution of a conviction under s 409 of the Penal Code cannot be said to have been validly made having regard to the circumstances of the case and on the evidence before the High Court. The conviction and sentence should therefore be set aside.

Sivalingam v Public Prosecutor [[1982] 2 MLJ 172 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

'The provisions of s 316(b) of the Criminal Procedure Code (Cap 6) which empower this court in an appeal from a magistrate's court to "alter the findings..." do allow of the substitution of a conviction under a different provision of the law for the conviction found by the magistrate, to substitute the right section for the wrong section. It is, of course, a power to be exercised with great caution, and only where it is clear beyond all doubt, from the nature of the offence and the record of the evidence in the case, that to do so can in no way prejudice the case of the accused; it must be clear that if the substituted charge had in fact been the original charge that the proceedings at the trial would have taken the same course, and the evidence recorded been the same that the prosecution evidence would have been unchanged (substantially) and the accused's defence the same': per Cussen J.

Ng Ee v Public Prosecutor [1941] MLJ 180 High Court, Federated Malay States (Cussen J).

The power of an appellate court to alter a finding by substituting conviction under a different provision of the law for the conviction found by the magistrate is a power to be exercised with great caution. The learned President, at the conclusion of the evidence before him, had no jurisdiction to convict the appellant upon a charge of extortion without having amended the charge at an earlier stage and calling upon the appellant to plead to the amended charge, to enter upon his defence upon that charge and enabling him to recall any of the prosecution witnesses and to call such other evidence as he might wish so to do in his defence upon that amended charge. As it was not possible for the learned President to convict the appellant of the offence of extortion, a charge upon which he was never called upon to plead, it was not open to the High Court sitting in its appellate jurisdiction to do an act which was not within the competence of the trial court.

Loh Kwang Seang v Public Prosecutor [1960] MLJ 271 High Court, Penang (Rigby J).

[Annotation: See also Abu Hassan v Public Prosecutor [1962] MLJ 61, where it was also held that the appellate court could not do an act which was not within the competence of the trial court. Reference may usefully be made to the Editorial Note in [1961] MLJ xvii under the heading 'Appellate Court's Power to Alter Verdict and Substitute Conviction'; and to Unggi v R [1955] SCR 64. In R v Tan Woo Tin [1932] MLJ 124, it was held that the appellate court has power to order forfeiture of liquor the subject matter of the offence, though no such order was made by the trial court.]

Ordinarily, where the jury have been properly directed by the learned trial judge in his summing-up and, in a case where the prosecution rely upon an accomplice's evidence, he has warned them strictly and with emphasis that they should not proceed upon the evidence of the accomplice unless it is corroborated, the Court of Criminal Appeal will not interfere if the jury convict. But if the court thinks that the verdict is on the whole, having regard to everything that took place in the court of trial, unsatisfactory, the conviction cannot be allowed to stand.

Teo Peen Soon & Ors v R [1956] MLJ 241 Court of Criminal Appeal, Singapore (Whyatt CJ, Knight and Tan Ah Tah JJ).

By s 6 of the Court of Criminal Appeal Ordinance, the powers of the court are strictly limited. The court has no power to substitute its own verdict where it disagrees with the verdict of the jury.

Othman Ghany v R [1952] MLJ 217 Court of Criminal Appeal, Singapore (Murray-Aynsley CJ (Singapore).

'I never interfere with a magistrate's sentence unless a very strong case of error, prejudice, and severity based on wrong principles, can be shown to me': per Jackson JC.

Re Vir Singh [1898] SSLR Supp 6 High Court, Federated Malay States (Jackson JC).

[Annotation: See also the cases digested under the subject heading Criminal Procedure (Appeal) (Sentence, Against).]

The Court of Criminal Appeal will not interfere with the decision of the court below on the question of sentence, unless the judge has proceeded on wrong principles or given undue weight to some of the evidence.

R v De Cruz [1935] MLJ 1 Court of Criminal Appeal, Straits Settlements (Huggard CJ).

See the observations of Spenser-Wilkinson J.

Abu Baker v R [1953] MLJ 19 High Court, Penang (Spenser-Wilkinson J).

Md Zuki bin Bakar v Public Prosecutor Criminal Appeal No 52-30-91 High Court, Taiping (Abdul Malik Ishak JC).

Carl Elias Moses v Public Prosecutor [1995] 3 SLR 748 High Court, Singapore (Yong Pung How CJ).

The appellant, a dental surgeon and the sole proprietor of Oliver Dental Surgery, was convicted of having used the premises at 294 Tanjong Katong Road, Singapore ('the premises') as an unregistered factory contrary to and punishable under s 9(1) of the Factories Act 1973 ('the Act'). The appellant employed two dental technicians to manufacture dentures on the premises. He disputed that the technicians were 'employed in manual labour' within the meaning of that expression in s 6(1) of the Act. He appealed against his conviction as not all the ingredients of the charging section have been made out.

Held, dismissing the appeal: (1) what is 'manual labour' is a question of law and, in approaching the construction of the words in the Act, it is neither helpful to be emotional nor permissible to allow ourselves to be a prisoner of the colloquial usage and meaning of the words 'manual labour'; (2) the application of the Act is not limited to unskilled manual labour. Skilled manual labour is not exempted; (3) on the facts as found by the learned district judge, it is tolerably clear that the two dental technicians in this case were employed in manual labour and, accordingly, the premises where they had worked was a factory.

Oliver Hennedige v Public Prosecutor [1986] 2 MLJ 81 High Court, Singapore (Lai Kew Chai J).

The evidence showed that the appellant was brought in the company of some armed Indonesian soliders in an aircraft and that they landed by means of parachutes in Johore. The appellant was arrested the same morning and was found in possession of a sten-gun and hand-grenades. The evidence against the appellant consisted of the evidence of the Indonesian soldiers in the aircraft, the evidence of his capture and his statement. The appellant was convicted and appealed against his conviction.

Held: (1) on the facts the statement of the appellant was properly admitted in evidence; (2) although the learned trial judge was wrong in not examining the statements of the Indonesian soldiers at the request of the defence counsel and deciding whether copies should be supplied to the defence, this error did not lead to a miscarriage of justice and therefore the case falls within the proviso to s 60(1) of the Courts of Judicature Act 1964.

Tan Hua Lam v Public Prosecutor [1966] 1 MLJ 147 Federal Court, Kuala Lumpur (Thomson LP, Ong Hock Thye Ag CJ (Malaya).

The appellant appealed against his conviction for an offence under s 34(A)(1) of the Road Traffic Ordinance 1958 for causing death by dangerous driving. His case was first heard on 23 December 1991 and evidence from three prosecution witnesses was recorded on that day by the presiding magistrate (the first magistrate). The trial however could not resume on the next hearing date as the first magistrate had been transferred. On the next date, counsel for the appellant informed the court that the case was de novo on the order of the Supreme Court and on the date set for the new trial it was the prosecution who informed the court that the case was de novo . The second magistrate however proceeded with the trial under s 261 of the Criminal Procedure Code ('the Code'). Evidence from five more prosecution witnesses was recorded before the close of the prosecution's case. The appellant chose not to adduce any evidence when his defence was called and he was subsequently convicted. It was the appellant's contention that his defence should never have been called.

Held, allowing the appeal: (1) the conviction had been based substantially on the evidence of PW2, the mother of the deceased, which went to make out an essential element of the offence. This evidence had been recorded by the first magistrate. Although the second magistrate held that there was no reason why the evidence should not be believed as PW2 herself was involved in the accident that killed her son, the issue was not whether the evidence could be believed, but that the court should make a maximum evaluation of the evidence. As the evidence of PW2 had been recorded by the first magistrate, there could not have been a maximum evaluation of the evidence; (2) the discretion of a magistrate who succeeds another magistrate to act on the evidence recorded by his predecessor under s 261 of the Code should be exercised only in exceptional circumstances. These circumstances are not capable of specific definition here but are dependent on the facts surrounding the case, with account being taken that the accused should not be prejudiced by such exercise of the discretion. PW2 was the main witness for the prosecution and it was very important that she should have been observed by the second magistrate while giving evidence as her evidence had been the cornerstone of the second magistrate's decision while PW3 was also an important witness, being the investigating officer. PW2 was a local resident and the re-recording of her evidence as well as the evidence of PW3 would not have been a problem. Bearing in mind that there were material contradictions in PW2's evidence and the failure of the second magistrate to make a personal evaluation of the witness, the defence should not have been called; (3) the magistrate was correct in refusing to allow the prosecution to call a witness under s 425 of the Code to give testimony in support of the post-mortem report (exhibit P6) as to the identity of the deceased after it had closed its case. There was no record on the report that the identity of the deceased had been made known to the medical officer conducting the post-mortem. Neither was this fact established through any of the prosecution witnesses' testimony. The identity of the deceased was an important element in a charge under s 34(A)(1) of the Road Traffic Ordinance. The failure of the prosecution to call the witness to give secondary evidence on the report or to offer him to the defence raised a doubt as to the prosecution's case.

Gunasekaran s/o Buchia v Public Prosecutor Criminal Appeal No 51-15-94 High Court, Ipoh (Abdul Hamid Embong JC).

The fact that the newspaper has printed and published an article under the heading 'Expert Picks Wrong Bullet' concerning a witness for the defence is no ground for the court to infer either that the jurors who tried the case had read it or that, if they had read it, they were unfit to try the case or biased against the prisoner for the purpose of trial. Although such a publication is a contempt of court, it is by itself not a ground for quashing the conviction.

Lee Ah Cheong v R [1959] MLJ 123 Court of Criminal Appeal, Singapore (Tan Ah Tah Ag CJ, Wee Chong Jin and Ambrose JJ).

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 (1) was wrong in holding that the Malaysian Government Officers' Cooperative Housing Society Ltd was a 'public body'; (2) failed to direct himself on the need for corroboration; (3) 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; (4) 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 onus that lies on an appellant who seeks to attack the verdict of the jury is not just to show that the verdict is against the weight of evidence; what he must show is that it is unreasonable or cannot be supported having regard to the evidence.

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

The appellant and his wife were jointly charged with the offence of trafficking in dangerous drugs, namely 542.6g of cannabis, in contravention of s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). The wife was acquitted and discharged but the appellant was convicted and sentenced to death. Acting on a tip-off, a police party had gone to an unnumbered dwelling house at Jalan Masjid, Gua Musang ('the house') on 2 January 1986 at about 1pm. The appellant was in front of the house when the police arrived. Another male Malay was seen sitting in the lounge whilst four or five children were in the kitchen. A search of the house did not reveal anything incriminating. However, on the police's instructions, the wife opened a wooden box on a shelf. A yellow plastic bag inside the box was opened in the wife's presence. It was found to contain dried leaves suspected to be cannabis. The appellant on hearing of the discovery immediately took to his heels but was arrested. In total, 159 sticks of dried leaves were discovered, all of which were certified to be cannabis within the meaning of s 2 of the Act. It was proved and freely admitted that the house belonged to the appellant and his wife and that they lived there. Further, it was admitted that the appellant was a carpenter and that certain carpenter's tools found in the box were his personal property. The learned judge rejected the appellant's version that he did not run from the house. The judge found that he did run, and that he did so only after the police had announced the discovery of the drugs. The appellant appealed against his conviction.

Held, allowing the appeal: (1) the learned judge was of the view that though the house was still under construction, there was no evidence to show that there had been access to the house through the uncompleted part. Given the fact that this was a case where the police were acting on a tip-off by an informer who might have been a paid informer, and the further fact that the house was still under construction, the onus was not on the defence to prove possibility of access by others but on the prosecution to exclude such possibility; (2) there was also evidence that the other Malay who was present at the house on the day of the search stayed with the appellant, viz he had liberal access to the house. He was therefore a possible suspect; (3) there was more substance in the point (not raised by counsel nor considered by the judge) that the appellant's wife might have concealed the drugs in the box without the appellant being a party to such act even though he might have known about it; (4) the judge did not give any reasons why he acquitted the wife at the close of the case for the defence even though it was the conduct of the wife which led to the discovery of the drugs; (5) another distinct possibility (not considered by the judge) was that the informer who had given the tip-off might have planted the drugs in the box. This was not a fanciful possibility, bearing in mind that the house was still under construction and unfenced at the material time, and both the appellant and his wife were engaged in a trade which took them out of doors; (6) as for the fact that the appellant's old and unused tools were discovered in the box, this might be precisely why, if it was a case of a plant, that the person who did so chose the box in order to implicate the appellant; (7) the appellant's conduct in running upon the police inspector announcing the discovery of the drugs in the box could indicate a sense of guilt. On the other hand, it was conduct equally consistent with the appellant having been in a state of pure panic, bearing in mind that it was only after the discovery was announced that he ran. An innocent man faced with the prospect of arrest on a capital charge might foolishly react in that way; (8) although there were several strands of evidence pointing to the appellant's guilt, there was insufficient evidence to support a verdict of guilty; (9) the appellant is to be acquitted and discharged.

Abdullah Zawawi bin Yusoff v Public Prosecutor [1993] 3 MLJ 1 Supreme Court, Malaysia (Jemuri Serjan CJ (Borneo).

Khoo Hi Chiang v Public Prosecutor and another appeal [1994] 1 MLJ 265 Supreme Court, Malaysia (Abdul Hamid Omar LP, Jemuri Serjan CJ (Borneo).

The appellant in this case together with two other passengers in a taxi entered Singapore from Johore Bahru. At the customs checkpoint, a customs officer noticed that his trousers were bulging and he touched both pockets. The customs officer asked the appellant to take out the contents of the right trousers pocket. The appellant took out a parcel found to contain 20 plastic packets of whitish powder. The appellant said that it was 'obat' which means medicine in the Malay language. He was arrested and brought to the customs office at Woodlands where he took out from his left and rear trousers pockets two more parcels. The latter parcels contained another 24 plastic packets of whitish powder and brownish solid. On analysis, they were found to contain 292.6 gms of diamorphine. The appellant claimed that he was unaware that the three parcels contained diamorphine. He believed that they contained powder for whitewashing and said that they were given to him by his friend for delivery to Singapore. The trial judges rejected his evidence. They found that he had not succeeded in rebutting the onus cast upon him of rebutting the presumptions raised against him by virtue of s 16 of the Misuse of Drugs Act 1973.

Held, dismissing the appeal: it was a clear case, on the evidence and the findings of fact by the trial judges, of trafficking in Class 'A' controlled drug, diamorphine, and as the quantity of diamorphine exceeded beyond doubt 15 gms, the sentence of death was mandatory.

Tan Ah Lam v Public Prosecutor [1979] 1 MLJ 155 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Choor Singh JJ).

The appellant was convicted of two charges under the Prevention of Corruption Act 1967 ('the Act'), ie under s 4(a) of the Act for corruptly accepting a gratification of RM3,000 (the first charge), and under s 3(a)(i) of the Act for corruptly soliciting a gratification of RM5,000 (the second charge) to ensure the release of three detained persons along with their identity cards. He was sentenced to four months' imprisonment on each charge and also ordered to pay RM3,000 to the Federal Consolidated Fund. He appealed against his conviction while the Public Prosecutor appealed against the sentence.

Held, allowing the appeal against the first charge but upholding the conviction on the second charge: (1) the evidence with regard to the first charge showed that there was reasonable doubt as to the appellant's guilt. The appellant had been handed some trap money in the amount of RM3,000 in a car but drove off when the arresting party moved in. When the appellant was apprehended at his house, no money was found on his person or in his car. Although RM2,000 in two bundles together with the envelope that had allegedly been handed to the appellant was recovered on the road traversed by the appellant almost immediately after the trap party had driven off in pursuit of the appellant, the failure to locate the other RM1,000 despite the fact that there was no wind blowing would cast a shadow of a doubt on the evidence that RM3,000 was given to the appellant, unless the missing RM1,000 could be explained. This point, despite being raised, was not dealt with by the learned sessions court judge. Furthermore, no evidence was given on whether fingerprints were lifted from the envelope recovered. This was a vital missing link in the chain of evidence; (2) the second charge would be upheld as, despite the argument that the appellant was not in a position to ensure that the purpose for the gratification being sought would be achieved as the final authority to make the order rested with someone else, the appellant was in a position to influence the decision and it was thus probable that the appellant had made the solicitation. However, the sentence of imprisonment on the second charge would be set aside as the appellant's trial had been conducted in a staggered and broken manner over ten sessions and over a period of two and a half years, which is how justice should not be dispensed. This, coupled with a long delay in supplying the notes of proceedings to the appellant after the notice of appeal was filed had prejudiced the appellant. The appellant was instead fined RM3,000.

Simon Chua Kim Hock v Public Prosecutor Criminal Appeal No T (42).

The appellant was convicted of raping a girl aged 12 who subsequently gave birth to a child. A DNA test revealed that the probability of the appellant being the biological father of the girl's baby was 99.7%. The appellant appealed against the conviction contending that the judge had wrongly considered as evidence the appellant's alleged statement, 'if I did it once, how can she be pregnant?' The appellant further appealed against the DNA evidence used to corroborate the girl's evidence, contending that the judge should not have accepted the expert evidence without considering whether the expert had given all the data upon which the expert's opinion had been based.

Held, dismissing the appeal: (1) in considering the appellant's alleged statement, as the judge had settled for the version most favourable to the appellant, ie 'if only once, how can she be pregnant' and taking into account that when the statement was made there was nothing to indicate that the parties intended criminal charges and the fact that the appellant had walked out without denying that the act of intercourse could have led to the girl's pregnancy, the learned judge was right in admitting the evidence and giving it its due weight; (2) as the expert had given sufficient data to support the findings, notwithstanding the fact that the expert could have gone into more detail, in the light of the uncontradicted expert evidence the learned judge was right in admitting the DNA evidence.

Zulkifli bin Sabang v Public Prosecutor Criminal Appeal No 3 of 1993 (Kutlu Fuad President).

The appellant appealed against his conviction and sentence on a charge under s 4 of the Firearms (Increased Penalties Act) 1971 ('the Act'). The appellant had, together with other accomplices, entered the house of one Ooi and robbed the family of jewellery and other items. The appellant was seen wielding a revolver. At the time of arrest by the police, the revolver was seized from the appellant by PW7 and found to contain three live bullets and one casing. Jewellery, two watches and some cash were also recovered from the appellant's trouser pocket. All the exhibits were handed to Insp Mohd Zain Ismail (PW14). The learned counsel for the appellant raised a number of grounds of appeal which were not itemized in the petition of appeal. The four major points of appeal related to: (1) the break in the chain of evidence in regard to the revolver; (2) the application of s 425 of the Criminal Procedure Code (FMS Cap 6); (3) the search list; and (4) the failure to tender the police report.

Held, dismissing the appeal: (1) the appellant should abide by the petition of appeal and the appellant's counsel, in all fairness to the learned prosecutor, should submit solely on the points of law or fact as set out in the petition of appeal and should not dabble on points not set out in the petition of appeal. Section 307(vi) of the Criminal Procedure Code is couched in mandatory terms and failure to observe it is fatal; (2) the court, however, could exercise its revisionary powers. A judge sitting in his revisionary capacity is not confined to matters raised by the parties only, but may in appropriate cases pry into deeper aspects of the case so as to ensure that substantial justice subsists between the accused and the accuser; (3) the revolver which was recovered had a serial number whereas the pistol was unnumbered. It was easy to differentiate the two arms. The situation at the time of arrest must have been tense. In such a situation, PW7's failure to inform PW8 in regard to the serial number of the revolver should not be made the subject of an adverse comment by the appellant's counsel. PW7 held the revolver all the way until he reached the police station and had prepared the search list. He then handed the exhibits to PW14. The appellant's counsel's adverse comment was therefore misconceived; (4) 'in weighing the evidence of witnesses, human fallibility in observation, retention and recollection are often recognized by the court' (Chean Siong Guat v PP [1969] 2 MLJ 63). The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent to accept one part of a witness' testimony and to reject the other; (5) it is not to prove the accused's guilt beyond any shadow of a doubt or to any mathematical accuracy; (6) when PW7, who seized the revolver from the appellant, produced and identified it as that very object, that was sufficient; (7) the decision whether or not to call a witness is always the prosecution's prerogative. The court cannot dictate to the prosecution as to the number of witnesses they want to call or which particular witness is to be called. The court's duty is essentially to decide whether on the evidence adduced the prosecution has proved its case; (8) the fact that the search list incorporated the discovery of the revolver and not the pistol was not fatal. The appellant faces a charge in relation to the revolver and not the pistol. Furthermore, PW7 could not incorporate the pistol in the search list as he did not seize the pistol; (9) the police report in question was not the first information report and therefore should not be admitted in evidence; (10) there was no break in the chain of evidence pertaining to the revolver. The prosecution's burden of proof is to prove its case beyond all reasonable doubt;the ingredients of s 4 of the Act had been made out. There was overwhelming evidence of the active role of the appellant throughout the robbery.

Yan Wing Lee v Public Prosecutor Criminal Appeal No 52-70-92 High Court, Taiping (Abdul Malik JC).

This was an appeal against the conviction of the appellant on a charge under the Prevention of Corruption Act 1961 (Act 57). The main ground of appeal was whether the main witness to the charge on which the appellant was charged, was an accomplice and whether as such he came within the protection of s 18 of the Act. The learned President was of the view that it was too early to treat the witness as an accomplice considering the frame of mind that he was in and that mere concurrence short of some actual participation in the crime was not sufficient to make the person an accomplice.

Held: (1) in this case, the witness played a more active part in the transaction, apart from the bare corrupt payment as he was quite prepared to bribe the appellant and negotiated with other persons for the purpose, and therefore he was not protected by s 18 of the Prevention of Corruption Act and the ordinary rules as regards accomplices therefore applied; (2) the learned President misdirected himself when he concluded that it was too early a stage to treat the witness as an accomplice; (3) the learned President was wrong in holding that the silence of the appellant when questioned by the police pointed to his guilty mind; (4) in the circumstances of this case and taking into consideration the evidence of the appellant and his witness and in the light of the various irregularities in the prosecution's case, the learned President had failed to consider the defence adequately in accordance with accepted principles and therefore the appeal must be allowed.

Rattan Singh v Public Prosecutor [1971] 1 MLJ 162 High Court, Seremban (Syed Agil Barakbah J).

The appellant appealed against his conviction and sentence on a charge under s 6(1) of the Corrosive and Explosive Substances and Offensive Weapons Act 1958 ('the Act'). The appellant was sentenced to five months' imprisonment. On 10 May 1988 the appellant opened the door of the Romantic Karaoke owned by PWI holding an offensive weapon, namely, a parang or a long knife similar to a Samurai sword. PWI saw the appellant standing at the door as PWI was about 10ft away and the light at the door was bright and thus enabled him to see the weapon carried by the appellant. The learned magistrate stated that she believed the prosecution's witnesses' version, especially that of PWI, and that the appellant's version did not cast any reasonable doubt on the prosecution's case. The grounds of appeal, inter alia, were that: (1) the magistrate erred in law and fact in admitting the appellant's cautioned statement after the trial-within-a-trial in that she had totally ignored and failed to consider the established legal principle of the rule against bias, and failed to take into consideration the evidence of PW7 vis-a-vis the conflicting evidence of PW8, PW9 and that of the appellant; (2) the learned magistrate erred in law and fact in accepting in totality the uncorroborated evidence of PW1, and failing to consider PW1'S report tendered in evidence, which report runs counter to PW1's own evidence in relation to the question of who actually appeared at the door of the pub; (3) the learned magistrate erred in fact in finding that it was the appellant who was holding the parang based on the sole uncorroborated evidence of PW1; (4) the learned magistrate erred in law in the interpretation of one of the essential ingredients under s 6(1) of the Act on possession or control, contrary to established legal principles governing the law on possession or control; (5) in any event, the conviction was wrong and the sentence passed was excessive in the circumstances.

Held, dismissing the appeal against conviction but varying the sentence passed: (1) it is beyond dispute that the learned magistrate failed to give her 'ruling' in admitting the cautioned statement of the appellant after finding that it was voluntarily given. The learned magistrate did not give her reasons for her finding on the voluntariness of the statement; (2) it is in the interest of justice that a presiding court should at least indicate in its judgment the aspects of the evidence given at the trial-within-a-trial or at least give the reason why it chose the evidence for the prosecution. There should be some basis for its conclusions, failing which it might occasion a miscarriage of justice if the cautioned statement is admitted to the prejudice of the accused; (3) an appellate court in the interest of justice can intervene in the findings of fact by a trial court if the findings of the trial court are against the weight of evidence or the inference drawn cannot find support from the primary facts as found; (4) having examined the evidence in detail, there are undoubtedly discrepancies between the evidence of PW6, PW7, PW8 and PW9. But having considered them, there is not much that can be made out of them on the issue of voluntariness of the cautioned statement; (5) the alleged assault by PW6 on the appellant the day before could not have caused any effect on the appellant's mental condition so as to have made him feel threatened, induced or promised before giving his cautioned statement; (6) the court could not find any oppressive circumstance on the evidence which affected the giving of the cautioned statement by the appellant; (7) there was no merit in the argument that there was a breach of the rule against bias. There was no evidence to indicate that PW8 had other sources of prior knowledge of this case. As to the contention that PW8 saw the swords prior to recording the statement, such knowledge, if true, is not sufficient to constitute bias on PW8's part so as to disqualify him from recording the cautioned statement. Firstly, there is no evidence that such knowledge has prejudiced the appellant or affected the question of his voluntariness in making the statement. Secondly, PW8 was not the investigating officer of this case and would have no personal interest in it; (8) the appellant's cautioned statement was taken as corrobarative evidence; (9) there was no reason to interfere with the magistrate's finding of fact that it was that appellant who was at the door holding a parang; (10) there was no merit in the third ground of appeal. It is solely on a finding of fact and it has not been shown to be contrary to the evidence adduced or unreasonable in the circumstances; (11) having considered the appellant's counsel's submission, the court was of the view that the dissatisfaction was not so much on the interpretation of 'possession' under the Act but on the finding of the learned magistrate that the appellant was in fact in possession, custody and control of a parang at the material time. That being a finding of fact, the court should not interfere with it without valid reason; (12) the court rejected the submission that since the appellant was discharged and acquitted on the first charge under s 506 of the Penal Code, it should be taken to be more likely that the appellant never carried a parang to the pub at the material time. This submission is based on a false premise that a conviction or acquittal under s 506 of the Penal Code must necessarily support a conviction or acquittal under s 6(1) of the Act. The two offences are not inter-dependent; (13) the learned magistrate concluded that s 6(1) of the Act carried a mandatory imprisonment sentence. But on reading s 6(1), the court does not think so as the phrase used is '..on conviction be liable to imprisonment for a term not exceeding two years...'. In passing the sentence, the learned magistrate has erred in law which warrants the court to review the sentence passed; (14) in view of the state of mind of the learned magistrate with regard to the imposition of a sentence of imprisonment, it is doubtful if a similar sentence or length of sentence of imprisonment would have been imposed if she had thought otherwise; (15) there is nothing wrong in law in the acceptance of the uncorroborated evidence of PW1, if true. Having heard and seen PW1 in the witness box, the magistrate was in the best position to assess his credibility. In fact, the learned magistrate had considered both PW1's and the defendant's versions and she accepted the former's. Further, it is not true that she did not look for corroboration;having considered the mitigation as recorded in the Appeal Record and the circumstances of this case, the sentence of five months' imprisonment is excessive. The sentence is reduced to three months.

Teo Siow Peng v Public Prosecutor [1993] 2 MLJ 364 High Court, Kuching (Richard Malanjum JC).

The appellants and another Suppiah were charged under s 148 of the Penal Code ('the Code') for participating in a riot armed with a knife and a stick, being deadly weapons which, if used, were likely to cause death. The charge was subsequently amended by substituting the said knife and stick with a rotan. The key witness for the prosecution was the complainant and except for the police witnesses, no other witness testified at the trial. Suppiah pleaded guilty and was convicted accordingly. At the trial, Suppiah gave evidence that the appellants were not present at the scene of the incident, but that he was with another person. The appellants were found guilty and were sentenced to one day's imprisonment and a fine of RM3,000, in default, imprisonment for two months. The appellants appealed against their conviction and sentence. On appeal, counsel for the appellants contended, inter alia, that the learned magistrate had erred in law and in fact in that the findings were not substantiated by any evidence. In fact, it was based entirely on the uncorroborated evidence of the complainant which, in any event, was riddled with inconsistencies.

Held, quashing and setting aside the conviction and sentence of the three accused: (1) without considering the merits of the arguments raised, it is pertinent for the court to consider whether the charge was defective, in exercise of its revisionary powers under the Courts of Judicature Act and the Criminal Procedure Code; (2) there is an error in the charge as framed against the accused. Section 148 of the Code does not deal with the use of a deadly weapon in a riot which is likely to cause death. It would appear that the prosecution has in fact wrongly invoked s 148 of the Indian Penal Code which is entirely different from s 148 of the Code; (3) or (c) dismiss the appeal against conviction and sentence, and proceed to substitute the offence stated in the charge with another offence under a different section of the Code; (4) from the notes of evidence, it is unclear whether it could be established beyond a reasonable doubt that the accused persons were present at the incident and whether they were responsible for the injuries caused to the complainant. There is further doubt as to the actual weapon used in the commission of the offence, and there were also inconsistencies in the complainant's story; (5) rioting as defined in s 146 of the Code is an unlawful assembly where any member thereof uses force or violence. The prosecution therefore ought to have considered whether there was an assembly of five or more persons as required under s 141, and whether the common object of those persons was one of the objects specified in s 141; (6) only three persons were charged as the other persons were not found by the police. The prosecution at that stage should have considered whether, in the absence of the other persons who allegedly participated in the commission of the crime, the ingredients of the offence of unlawful assembly were present; (7) further, it would appear that just because the complainant had said he was hit with a knife and stick, and later that it was a rotan, the prosecution was satisfied that a weapon was used, and therefore decided to prosecute the accused for an offence of rioting with the use of a weapon; (8) in the light of the inconsistencies in the complainant's testimony, and in the absence of any other evidence to establish that the accused did participate (a) in an unlawful assembly, (b) had a common object, (c) had used force or violence, and (d) had possession of a weapon, it was unsafe for the magistrate to have convicted the accused as charged; (9) Suppiah was a competent and compellable witness for those tried jointly with him (s 133 of the Evidence Act 1950), and his evidence appears to be sufficient to create some doubt on the prosecution's case; (10) the question is then whether the defect in the charge as framed is material within the meaning of s 156 of the Criminal Procedure Code. There are three courses the court may take: (a) declare the trial a nullity; (b) order a retrial with the charge being amended to another offence;a grave miscarriage of justice has been occasioned against the three accused persons in this case. The defect in the charge cannot be cured by substituting the offence specified in the original charge to one of unlawful assembly under s 141, or even of causing hurt.

Periasamy & Anor v Public Prosecutor [1993] 2 MLJ 551 High Court, Kuala Lumpur (Visu Sinnadurai J).

The accused was discharged and acquitted of the first charge but found guilty and convicted on the second charge. He was sentenced to six months' imprisonment with RM5,000 and penalty RM1,000. He appealed against both the conviction and sentence. In this case, the complainant (hereinafter 'SP7') made an insurance claim for loss and damages incurred in a fire. The insurance company appointed an adjuster company to investigate the fire and the claim made. The accused was the manager of the adjuster company. The accused informed SP 7 that there was a salvage value from the fire at RM15,000 upon which SP 7 agreed to buy. SP 7 alleged that the accused requested for a sum of RM6,000 ('the money') from him - RM5,000 being the balance for the salvage and RM1,000 for 'the clerks at the insurance company to facilitate quick payment'. A trap was set up by the Anti Corruption Board (hereinafter 'BPR') when the sum was received by the accused. The accused denied that he had receive the money corruptly. The accused admitted the receipt of RM5,000 as the balance for the salvage sum but denied the receipt of the additional RM1,000. The accused further submitted that since the sessions court judge acquitted the accused on the first charge under s 4 (a), he should have rejected the evidence of SP 7 on the prosecution of the second charge under s 3 (a)(i) of the same Act.

Held, dismissing the appeal: (1) only a minimum evaluation of evidence was to be made at the end of the prosecution's case to ascertain whether the evidence can be believed (ie, not inherently incredible or any of the ingredient of the charge not proved); (2) when an accused who faced multiple charges is discharged and acquitted on any one of the charge, this does not mean that he should be discharged and acquitted on the other outstanding charges if there is sufficient evidence which, if unrebutted, can bring about a conviction; (3) the evidence of a trap witness must still be corroborated; (4) therefore the judge had not directed himself wrongly in arriving at the decision and the conviction based on the whole evidence in the case; (5) the sessions court judge decided the case before the decision of Khoo Hi Chiang [1994] 1 MLJ 265. He would therefore be bound by what had already been decided by the case of Haw Tua Tau [1981] 2 MLJ 49;the sessions court judge had given reasons why he believed the evidence of SP 7 and why he could not accepted the denial of the defence;although the sessions court judge realized that the accused was a first offender, he was of the opinion that the offence of receiving bribe was a serious offence and therefore there should be a sentence which will be a lesson and which will prevent the spread of such practice.

The judgment was delivered in Bahasa Malaysia.

Public Prosecutor v Chellappa Pillai a/l Govindasamy Criminal Appeal No 42-48-1991 High Court, Kuala Lumpur (Hashim J).

The appellant was charged for corruptly soliciting a bribe under s 3(a)(ii) of the Prevention of Corruption Act 1961 ('the Act') and for corruptly accepting a bribe under s 4(a) of the Act. The sessions court judge acquitted him of the first charge but convicted him on the second charge. The judge sentenced the appellant to one day's imprisonment and a fine of RM4,000, in default one year's imprisonment. The appellant was also ordered to pay a penalty in the sum of RM500 to the Government of Malaysia. The appellant appealed against the order of conviction and sentence. He, however, paid both the fine and the penalty. Unfortunately, the appellant died during the pendency of the appeal and his widow sought to continue the appeal. The question for decision was whether the appeal abated upon the death of the appellant. In deciding the issue, it was necessary to decide whether an appeal against a composite order of sentence could be construed not to be an appeal from a sentence of fine within the meaning of the second limb of s 320 of the Criminal Procedure Code (FMS Cap 6) ('the CPC').

Held, ruling in the affirmative: (1) the imprisonment term and the fine plus the penalty must be considered together and must not be dissected into two. The composite sentence imposed on the deceased appellant cannot be construed to be a sentence of fine within the meaning of the second limb of s 320 of the CPC. The clear words in bracket of the second limb in s 320 refer only to an appeal against a sentence of fine and cannot be read to include a composite sentence of both imprisonment and a fine plus a penalty; (2) considered together, it would mean that an appeal against the composite order of sentence would abate on the death of the appellant; (3) the widow has no legal interest in the outcome of the appeal and since the fine and the penalty were paid by the deceased appellant before his death and without the benefit of an equivalent provision like s 70 of the Indian Penal Code, the widow has no locus standi to prosecute this appeal.

Yap Eu Leong Sunny v Public Prosecutor [1994] 3 MLJ 434 High Court, Taiping (Abdul Malik Ishak JC).

A was charged with murder of V. At the trial, A did not challenge the admissibility of his statements. In the statement A claimed that he had stabbed V during a struggle and was provoked by V. At the close of the prosecution case he chose to remain silent. He was convicted as charged. A appealed, contending that his statement had been wrongly treated as wholly inculpatory, that the trial judges had failed to consider the exceptions under s 300 of the Penal Code (Cap 224) and that parts of his statement which showed bad character should not have been admitted.

Held, dismissing the appeal: (1) the trial court had correctly considered the whole statement and rejected the defence of provocation. It did not follow from the judge's silence as to a possible defence that he had ignored it; (2) the defences in Exceptions 2 and 4 to s 300 the Penal Code (Cap 224) were incompatible with the express findings of the trial judges that A had inflicted the stab wounds when V had failed to pay her debt, and was plainly incompatible with the pathologist's evidence that any of the six stab wounds was sufficient by itself to cause death; (3) there was no basis to suggest that the trial judges had been adversely influenced in any way by the statements concerning A's character; (4) s 396 of the Criminal Procedure Code (Cap 68) makes it clear that no finding of the trial court should be reversed unless the wrongful admission of evidence had resulted in a miscarriage of justice; (5) there was no miscarriage of justice caused by the admission of the entire statement.

Wong Kim Poh v Public Prosecutor [1992] 1 SLR 289 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Chan Sek Keong and Chao Hick Tin JJ).

The appellant was convicted, in the High Court of Hong Kong, of conspiracy to traffick in dangerous drugs, namely, heroin. The appellant and his accomplices had been arrested by use of an agent provocateur. The appellant's defence had been that he acted throughout, not as a trafficker promoting the sale of heroin to the agent, but as an informant working for them and on their behalf and solely in that capacity. This defence was denied by the agent. The Court of Appeal of Hong Kong refused to grant the appellant leave to appeal against the said conviction. The main ground of appeal was the refusal to allow the appellant leave to call fresh evidence that he acted as an informant. The appellant claimed, inter alia, that the said fresh evidence was not adduced at trial because of the incompetence of his counsel.

Held, dismissing the appeal: (1) the appellant had failed to show that the evidence sought to be admitted was not available at the trial or that there was good reason for its not then being called. No adjournment was sought to enable a witness to be called after the agent had denied that the appellant was not an informant. The evidence of the witness was known to the appellant's counsel at that time but he was not called. A conscious tactical decision not to call a witness because of the danger of doing so, when compared with the facts to be proved by him, did not leave it open to the appellant, once convicted, to apply to call the witness; (2) 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, had never been regarded as a proper ground for appeal. There was no reasonable explanation for the failure to call at the trial the admissible evidence which the defence wished to adduce at the hearing of the appeal. A conscious decision not to adduce evidence, unless it amounted to flagrantly incompetent advocacy, did not provide a reasonable explanation.

Rodolpho de los Santos v R Privy Council Appeal No 42 of 1991 Privy Council Appeal from Hong Kong (Lord Templeman, Lord Bridge, Lord Oliver, Lord Lowry and Lord Slynn).

A was charged in the magistrate's court with abetting X in the commission of an offence. X pleaded guilty to the principal offence and was convicted and sentenced. A however claimed trial but he was convicted and sentenced. A then appealed to the High Court. During A's trial in December 1988 and July 1989, X gave evidence for the prosecution in a coherent and intelligent manner. There was not even a suggestion by A that X was mentally unwell. After the trial, A alleged that he noticed X's abnormal behaviour while in police custody. A subsequently obtained a report from the mental hospital certifying that X was admitted to the hospital in 1987 during which he was found to be suffering from schizophrenia. The report also stated that since X was discharged, he was seen to be keeping well. A applied to the High Court for leave to adduce additional evidence at his appeal regarding X 's mental state and capability to give credible evidence.

Held, dismissing the application: (1) s 317 of the Criminal Procedure Code (FMS Cap 6) gives discretionary power to a High Court judge to admit additional evidence if it is necessary in the interest of justice. Such a discretion has to be exercised sparingly; (2) A must firstly prove that the additional evidence sought to be adduced was not available at his trial. A was first detained in June 1988 and had knowledge of X's strange behaviour since then. A however did not inform his counsel about this matter and no reason was given for his failure. The additional evidence was thus available and could have been obtained but for lack of reasonable diligence on A's part. An appellate court should not allow additional evidence to be adduced merely because it is alleged to have been discovered after the conclusion of the trial when such additional evidence was at all material times available; (3) A had also to prove that the additional evidence was relevant to the issue. To ascertain its relevancy, A had to show the nature and the substance of the additional evidence. In this case the nature and substance of the additional evidence sought to be adduced by A, remained a matter of guess. The court was therefore unable to reasonably conclude that the additional evidence was relevant to the issue involved; (4) the court was also unable to consider whether the additional evidence, if given at the trial, might raise a reasonable doubt as to A's guilt.

John Sze Lee v Public Prosecutor Criminal Appeal No KG 7 of 1990 High Court, Kuching (Chong Siew Fai J).

The appellant appealed against his conviction for trafficking in dangerous drugs. The only evidence of trafficking was in the cautioned statement, which it appeared was recorded by the investigating officer. The cautioned statement was missing and did not form part of the appeal record.

Held: (1) in the circumstances, as the cautioned statement was recorded by the investigating officer who was actively involved in the investigation, the learned President should have as a matter of law and fact held that the cautioned statement was inadmissible in evidence as it might result in a miscarriage of justice; (2) in any event, the cautioned statement did not form part of the appeal record and on the recorded evidence in the appeal records, there was therefore only evidence to prove that the appellant was guilty of an offence of possession of dangerous drugs; (3) the conviction of the appellant for trafficking in dangerous drugs would be quashed and a conviction for the offence of possession of dangerous drugs substituted and the appellant sentenced to three years' imprisonment and sux strokes of whipping.

Lee Look v Public Prosecutor [1985] 1 MLJ 240 High Court, Kuala Lumpur (Gunn Chit Tuan J).

A was charged with trafficking in cannabis. X, a customs officer, gave evidence that A was arrested while carrying a brown bag containing cannabis at a customs check point. Y, also a customs officer, however admitted under cross-examination that A was carrying two bags, one being the brown bag containing cannabis and the other an empty green bag. Upon A's defence being called, he testified that the green bag belonged to him but he was merely carrying the brown bag for another person, Z, who was also at the check point. A claimed that when he was asked by X about the brown bag, he disclaimed knowledge of it and pointed at Z. A further alleged that as he pointed at Z, the latter fled and escaped. The High Court convicted A of the charge and he appealed to the Supreme Court.

Held, allowing the appeal: (1) upon an issue depending on conflicting evidence an appellate court ought to be greatly influenced by the opinion of the trial judge who has seen and heard the witnesses. However, where the trial judge has failed to observe inconsistencies or to take account of material circumstances or probabilities, an appellate court can act upon its own view of the conflicting evidence; (2) the question whether or not A was carrying two bags was crucial having regard to his defence that he was an innocent carrier at Z's behest. On this question there was corroboration of the most potent kind of A's version which came from Y; (3) there was also an acute conflict of evidence for the prosecution between the evidence of X and Y. This gave rise to more than a reasonable doubt as to whether A carried one or two bags, the benefit to which A was entitled; (4) the trial judge made no mention of the fact that Y had admitted that A was indeed carrying two bags. The trial judge had therefore failed to take into account or give proper weight to or draw proper inferences from the fact that A might have carried two bags. In the circumstances the trial judge had not taken proper advantage of having seen and heard the witnesses. Accordingly this case came within the range where the appellate court was at liberty to act upon its view of the conflicting evidence.

Yusoff bin Kassim v Public Prosecutor [1992] 2 MLJ 183 Supreme Court, Malaysia (Abdul Hamid Omar LP, Peh Swee Chin and Edgar Joseph Jr SCJJ).

A was a school teacher charged with having outraged the modesty of one of his pupils. The prosecution's case was based almost entirely on the evidence of V. A was convicted. He appealed, on the grounds that the magistrate had failed to consider his evidence.

Held, allowing the appeal and quashing the conviction: (1) it is not enough at the close of the case to consider only the evidence adduced by the prosecution and assess its credibility, the court must also consider the defence evidence and likewise asses its credibility; (2) fairness dictated that the court must consider fully the evidence of the prosecution and the evidence of the defence; (3) the case turned essentially on the testimony of V and A. The learned magistrate had considered the evidence of V and accepted it, but it did not necessarily follow from this that he had considered the evidence of A and had rejected it. He had not expressed any views on the evidence of A, and, in particular, on the credibility of A's evidence; (4) there was grave doubt as to whether the conviction could be sustained.

Mumod Ali bin Mahmood v Public Prosecutor Magistrate's Appeal No 445 of 1989 High Court, Singapore (Thean J).

The appellants had been convicted of charges of wrongful confinement and robbery. At the preliminary inquiry, evidence was given of the holding of an identification parade at which certain witnesses failed to identify either of the accused. This evidence was not given at the trial.

Held: if the evidence of the non-identification had been given at the trial, the verdict might well have been different, especially in view of the most unsatisfactory features of the trial; and having regard to this evidence which the appellate court would in the circumstances take into account, the prosecution had failed to prove the guilt of the appellants beyond reasonable doubt and therefore, the convictions and sentences must be set aside.

Ismail & Anor v Public Prosecutor [1967] 1 MLJ 241 Federal Court, Singapore (Wee Chong Jin CJ, Tan Ah Tah FJ and Winslow J).

Where the appellant had pleaded guilty and there was no proof before the court that a copy of the chemist's report had been delivered to the appellant as required by s 427(1) of the Criminal Procedure Code (Cap 21),

Held: as the appellant had pleaded guilty to the charge as amended, no question then arose of the prosecution proving this case and there was no failure of justice.

Eng Song Hai v Public Prosecutor [1954] MLJ 38 High Court, Malacca (Bellamy J).

Packiam & Anor v Public Prosecutor [1972] 1 MLJ 247 High Court, Penang (Chang Min Tat J).

The principles to be applied where objection to the admissibility of evidence is not taken at the trial were enunciated by Viscount Simon LC in Stirland v Director of Public Prosecutor [1944] AC 315 at p 328, where he states: '...The court must be careful in allowing an appeal on the ground of reception of inadmissible evidence when no objection has been made at the trial by the prisoner's counsel. The failure of counsel to object may have a bearing on the question whether the accused was really prejudiced. It is not a proper use of counsel's discretion to raise no objection at the time in order to preserve a ground of objection for a possible appeal, but where...the reception or rejection of a question involves a principle of exceptional public importance, it would be unfortunate if the failure of counsel to object at the trial should lead to a possible miscarriage of justice... If there is substantial reason for allowing a criminal appeal, the objection that the point now taken was not taken by counsel at the trial is not necessarily conclusive.'

Hamsa Kunju v R [1963] MLJ 228 High Court, Singapore (Buttrose J).

[Annotation: See Pitting bin Haji Mohammed Ali v Public Prosecutor [1979] 2 MLJ 136 where a similar point is discussed.]

A was convicted of rape with hurt (see 1991 MMD [Apr] 392). On appeal, he applied to adduce additional evidence in the form of a specialist report on the effects of certain drugs on the complainant.

Held, dismissing the appeal: (1) and (c) that it is apparently credible; (2) in order to justify the reception of fresh evidence by an appellate court, three conditions must be fulfilled: (a) that the evidence could not have been obtained with reasonable diligence for use at the trial; (b) that it would have an important influence on the result of the case;the evidence sought to be adduced in the instant case met none of the three conditions. It was available at the time of the trial with due diligence. The specialist report proceeded upon a misinterpretation of the facts found by the trial judge nor was it relevant to the proceedings. The motion to admit the fresh evidence was therefore dismissed, as was the appeal itself.

Rajendra Prasad v Public Prosecutor [1991] 2 MLJ 1 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Lai Kew Chai and Chao Hick Tin JJ).

The applicant was charged with abetting one Rashid in trafficking 76.3g of diamorphine. Both were jointly tried, convicted and sentenced to death by the High Court. Their appeals to the Court of Appeal were dismissed as were their petitions for clemency to the President. Three days before they were due to be executed, Rashid informed the applicant that his statement to the CNB, as well as his evidence given at the trial, both of which implicated the applicant, were fabricated. The applicant immediately informed his counsel who took out an application to adduce Rashid's retraction as fresh evidence. Counsel also sought leave to make further submissions on s 30 of the Evidence Act (Cap 97), on the grounds that he was not informed at the hearing of the applicant's appeal that the Court of Appeal was intending to overrule the narrow construction of s 30 it had adopted in an earlier decision. He argued that had he been so informed, he would have been able to make further submissions to convince the court to follow its earlier decision.

Held, dismissing the motion: (1) the Court of Appeal is a creature of legislation and its criminal jurisdiction must necessarily be defined solely by and limited to the provisions of the Supreme Court of Judicature Act (Cap 322) ('the Act'). The relevant provisions that set out the court's criminal jurisdiction are ss 29A(2), 44, 59 and 60 of the Act; (2) a distinction must be made between those provisions in the Act which confer jurisdiction and those that define the Court of Appeal's powers (for example, ss 29A(4) and 55(1)) where it already has jurisdiction over a matter. The word 'jurisdiction' is used in the sense to denote the types of subject matter which the Court of Appeal may deal with and in relation to which it may exercise its powers. It cannot exercise its powers in matters over which it has no jurisdiction; (3) with the additional function of determining questions of law of public importance. Parliament has not defined the function of the court so as to maintain continuous supervision over convicted persons or to act after the event because of a change of circumstance; (4) accordingly, where the Court of Appeal had heard and disposed of an appeal, as it had previously done in the applicant's case, it is functus officio in so far as that appeal is concerned. There is no express provision which affords the Court of Appeal the jurisdiction to hear fresh evidence, thereby re-opening the case after it has heard and disposed of the appeal; (5) the main function of the Court of Appeal as set out by the jurisdictional provisions of the Act is a supervisory one, to review and correct the decisions of the lower courts;the Court of Appeal's interpretation of s 30 of the Evidence Act did not in any way create any procedural rights in favour of the applicant which would allow his counsel to make further submissions after his appeal has already been heard and disposed of. In fact, his counsel had already argued on the proper interpretation of s 30 at the hearing of his appeal, an issue which stood at the heart of the appeal. In any event, there cannot be any requirement for the Court of Appeal to serve notice on all affected parties with pending appeals whenever it intends to review the law in a particular area.

Abdullah bin A Rahman v Public Prosecutor [1994] 3 SLR 129 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

To justify the court in ordering a new trial in a criminal cause on the ground of fresh evidence coming to the knowledge of the accused subsequent to the trial, it must be shown that the evidence is such that it is reasonably likely that it would be believed and that such evidence at least raises the probability that the verdict might have been reversed if such evidence had been before the court of trial.

R v Ng Guan Thong [1935] MLJ 25 High Court, Straits Settlements (Terrell J).

Goh Teng Lok v R [1939] MLJ 309 High Court, Federated Malay States (Pedlar J).

Jamali bin Adnan v Public Prosecutor [1986] 1 MLJ 162 Supreme Court, Kuala Lumpur (Salleh Abas LP, Seah and Hashim Yeop A Sani SCJJ).

In a case affecting the liberty of the subject, the plaintiff should have every opportunity of putting forward his case, but if he neglects to call the defendents at the trial he cannot be allowed on appeal to start his evidence afresh.

Yap Hon Chin v GL Jones Parry & Anor [1911] 2 FMSLR 70 Privy Council Appeal from the Federated Malay States (Lord MacNaghten, Lord Mersey and Lord Robson).

In this case, it was

Held, following Perkins v Jeffrey [1915] 2 KB 702 that further evidence by the prosecution was inadmissible unless and until the defence of accident or mistake was put forward; and that as no such defence was relied on, the appeal should be allowed and a new trial ordered.

Chew Nyuk Fah v R [1957] SCR 91 Supreme Court, Sarawak, North Borneo and Brunei

It is only in the most exceptional circumstances, and subject to exceptional conditions, that the appellate court is willing to listen to additional evidence. These exceptional conditions are (i) the evidence that it is sought to call must be evidence which was not available at the trial; (ii) it must be evidence relevant to the issues; (iii) it must be evidence which is credible evidence in the sense that it is well capable of belief; (iv) the court will after considering that evidence go on to consider whether there might 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. The ignorance of counsel who defended the appellant at the trial as to the very existence of one of the principal statutory defences available to a person charged with murder was a wholly exceptional circumstance which fell within the first exceptional condition mentioned above and therefore, leave to call additional evidence should be granted.

Mohamed v Public Prosecutor [1964] MLJ 254 Federal Court, Singapore (Thomson LP, Tan Ah Tah FJ and Chua J).

The appellant had been convicted on a charge under s 4(a) of the Prevention of Corruption Act 1961. On the hearing of the appeal, the appellant sought to introduce further evidence for the admission of a police inquiry paper. A certificate had been issued by the Minister of Home Affairs objecting to the production of the file and it was stated that the objection to production was made only on principle. A large number of grounds were adduced on the appeal, among them being that the learned President's finding of facts were wrong on the ground that he erred on the facts and misdirected himself;

Held: (1) in cases where the Minister claims privilege over a class of documents, the court can inspect the document in question to ascertain whether in point of fact its production in court would be injurious to the public interest and as in this case, the court after inspecting the contents of file had come to the conclusion that they do not substantially relate to affairs of state nor give any reasonable grounds for believing that the production of the file would be injurious to the public interest, it would order the production of the file; (2) in this case, the appellant had not satisfied the court that the President of the Sessions Court had in any way misdirected himself or that any advantage enjoyed by him by reason of his having seen the witnesses was not sufficient to explain or justify his conclusions and therefore, the appellate court will not upset his findings of fact.

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

An application was made to call further evidence at the hearing of the appeal of the appellants who had been convicted under reg 4(1)(b) of the Emergency Regulations 1948. It appeared that after the trial of the appellants, the police took statements from two Chinese. In them, both these Chinese alleged that the two appellants had been wrongly convicted and that it was the other Chinese named in the statements who were the real offenders.

Held: (1) the application must be refused as the court would not be an appropriate tribunal to hold the inquiry that would be necessary to arrive at a decision whether the statements were probably true; (2) such an inquiry could more properly be taken by the proper executive authority.

Tan Choon Chuar & Anor [1950] MLJ 200 Court of Appeal, Federation of Malaya (Willan CJ, Pretheroe and Russell JJ).

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 has 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 summarized 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).

This was an application under s 311, Criminal Procedure Code (SS Cap 21) for additional evidence to be adduced at the hearing of this appeal. The appellant was charged in the magistrate's court under s 353 of the Penal Code (Cap 45) for having assaulted a field assistant in the discharge of his duties as a public servant. The appellant was not represented in the lower court, but he claimed trial, cross-examined the prosecution witness and put up his own defence. The accused sought to set up the plea of insanity.

Held: the taking of additional evidence becomes necessary only if a failure of justice would result if such additional evidence was not taken. It is allowed when additional facts have come to light since the date of the trial. However, in this case, there was no evidence to support the plea of insanity.

Khamis v Public Prosecutor [1971] 2 MLJ 267 High Court, Malacca (Sharma J).

After the defence has been closed, no further evidence should be called either by the court or by either party unless the cause for such evidence is one which no human ingenuity could have foreseen.

Yap Fook Yew & Anor v Public Prosecutor [1949] MLJ Supp 3 High Court, Kuala Lumpur (Spenser-Wilkinson J).

In this case, the applicants had been charged with offences under the Prevention of Corruption Act 1961 (Cap 57). The learned President of the Sessions Court acquitted and discharged the applicants at the end of the prosecution case on the 1st charge. He called them for their defence on the 2nd charge and eventually after hearing the defence acquitted them. On appeal, the learned judge of the High Court called the chemist to demonstrate the effect of anthracene powder on documents. He subsequently allowed the appeal and found the applicants guilty on the 2nd charge. The applicants applied for leave to refer several questions to the Supreme Court and the Supreme Court allowed one question as follows: 'In the appeal against acquittal from the decision of the subordinate courts to the High Court, can the High Court call for a demonstration by a chemist and if so whether the High Court can disregard the result and/or effect of the demonstration in its judgment.'

Held: (1) the learned judge in this case had considered the result and effect of the demonstration, but there was no evidence that the chemist in this case was sworn or affirmed,, nor was there evidence to show whether the parties were given the opportunity to examine the chemist; (2) an appellate court should be slow to substitute its own view of the facts for that of the trial judge and therefore in this case, the order of the learned President should be restored.

Dol bin Lasim v Public Prosecutor; Mohamed Sharif bin Matan v Public Prosecutor [1987] 1 MLJ 116 Supreme Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

On a reference to the Federal Court on a certificate of a judge of the High Court under s 66 of the Courts of Judicature Act 1964 (Act 91) as to whether, in an appeal to the High Court against a conviction by a subordinate court on a charge of unlawfully importing Indian hemp contrary to s 4(1) of the Dangerous Drugs Ordinance 1952 (Act 234) where it is found that the report of the government chemist under s 427 of the SS Criminal Procedure Code is insufficient, it is legally permissible for the High Court to call the chemist to give oral evidence to supplement such report by stating reasons for his findings,

Held: (1) the learned judge gave undue weight to the Indian decisions as to the necessity for reasons being given by the chemist and the instant case was not one where additional evidence should have been called, on the principles stated in R v Parks [1961] 3 All ER 633; (2) there cannot be any general rule of universal application laid down that every report under s 427 of the Criminal Procedure Code stating a finding or conclusion must be supported by reasons. The weight or value of every such report must depend on the report itself and the circumstances of each case. If any party thinks it is in his own interest to impugn it, he may either rely on any inadequacy or infirmity in the report himself or he may require the examiner produced for cross-examination. The option is in his hands and nothing can be fairer. It is not for the judge to assist either party in adducing evidence. Per Curiam: 'We would deprecate generally the admission of additional evidence on appeal except in clearly exceptional circumstances. The adversary system in our trials is hardly compatible with allowing lacunae in the case of any party to be filled in by afterthoughts or countenancing reconstruction of any case after it has failed at the trial.'

Lo Fat Thjan & Ors v Public Prosecutor [1968] 1 MLJ 274 Federal Court, Kuala Lumpur (Barakbah LP, Azmi CJ (Malaya).

The principles on which the appellate court will exercise its discretion to allow additional evidence under s 317 of the Criminal Procedure Code (Cap 6) are: (1) the evidence that is sought to be called must be evidence which was not available at the trial; (2) it must be evidence relevant to the issues; and (3) it must be evidence which is credible evidence in the sense that it is well capable of belief.

Tan Koh Keng v Public Prosecutor [1962] MLJ 193 High Court, Johore Bahru (Adams J).

[Annotation: R v Parks [1961] 1 WLR 1486; [1961] 3 All ER 633 followed. See also the Editorial Note under the heading 'Taking Further Evidence' in [1962] MLJ lix.]

Liew Wah Ming v Public Prosecutor [1963] MLJ 82 Court of Appeal, Ipoh (Thomson CJ, Hill and Barakbah JJA).

A was charged with and convicted of 24 counts of corruption under s 6(a) of the Prevention of Corruption Act. The charges fell into four sets relating to different matters. A appealed against both the convictions and the sentences.

Held, allowing the appeal in part: (1) the value of having heard the witnesses will of course vary according to the class of case; (2) just because points raised by counsel are not expressly dealt with in the judge's grounds of decision does not mean that the decision of the judge is bad. The appellate court is entitled to review the evidence to determine whether there is sufficient evidence to sustain the charge and whether on the evidence the charge is bad; (3) although one of the prosecution witnesses was an accomplice, the court could convict on the uncorroborated evidence of an accomplice. In this case another witness's testimony corroborated that of the accomplice; (4) with regard to the fourth set of charges, the judge had misconstrued the evidence of one of the prosecution witnesses and had placed on it a significance which was not warranted. In addition, there were important discrepancies in the evidence of two of the main witnesses The judge had also failed to consider a material question. All these factors compelled the setting aside of the convictions relating to the fourth set of charges; (5) although there had been a long delay between the trial and the present decision, there had been no prejudice to A as he had been on bail; (6) the circumstances under which an appellate court may disturb a finding of fact are limited. If the appellate court feels that the trial judge has not taken proper advantage of having seen and heard the witnesses, then the matter will be at large for the appellate court;in the light of the mitigating factors, it was felt that the sentences imposed were manifestly excessive. The sentences were reduced so that A would serve a total of 12 months' imprisonment.

Krishna Jayaram v Public Prosecutor [1989] 3 MLJ 272 High Court, Singapore (Chao Hick Tin JC).

When a case is remitted to the magistrate with directions that further and more satisfactory evidence be taken it is the duty of the magistrate to take all the evidence tendered by both sides and return it to the High Court to decide on the evidence. It is no part of the magistrate's duty to pronounce an opinion on such further evidence, nor is he justified in refusing to take further evidence because he is satisfied.

Etam v Baboo [1889] 4 Ky 445 High Court, Straits Settlements (Wood J).

Where persons had been convicted of being managers of a dangerous society under Ordinance 19 of 1869, but the evidence did not show that the society consisted of ten or more members under s 1, the court refused to quash the conviction, but remitted the case under s 25 of the Appeals Ordinance, for further evidence on the point.

R v Wee Sim Tian & Ors [1887] 4 Ky 238 High Court, Federated Malay States (Ford CJ).

[Annotation: On remission of the case, counsel for the appellants submitted on the law as regards 'further evidence', contending inter alia that the true meaning of 'further evidence' to be taken, was the further evidence of the same witnesses, who were 'examined, offered, or named for examination' in the court below before the case was remitted, and not the evidence of fresh witnesses who were neither examined, offered, or named for examination. Such witnesses would, in fact, constitute a new trial upon the same charge; the first trial having failed. Ford Ag CJ held inter alia that he would rest upon the decision of the magistrates who saw and heard the witnesses and who had enough evidence before them, even though the learned judge would have a different opinion himself on reasonable and sufficient evidence. See the report in 3 SLJ 10.]

The appellant was convicted under s 392 of the Penal Code and sentenced to two years' imprisonment. He appealed against both conviction and sentence. Only one ground was taken on appeal, viz that the identification of the accused by the complainant five days later was not satisfactory.

Held: on the facts, the evidence in this case was most unsatisfactory.

Chan Koo Fong v Public Prosecutor [1971] 4 MC 190 High Court, Kuala Lumpur (Raja Azlan Shah J).

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 $1,500 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 $1,500 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 $1,500. 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 $1,500 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 (Azmi J).

The appellant appealed against his conviction and sentence for murder. The substantial point for the consideration of the court was the evidence of identification of the accused by a prosecution witness, to the effect that the accused was the person alleged to be at a certain place and certain time on a certain date. The fact was that this witness had been given an opportunity by the police to see the accused prior to the formal identification at the identification parade.

Held: (1) since the witness had opportunity to see the accused beforehand, the evidence of subsequent identification at the parade by him was vitiated; (2) the other evidence being of circumstantial nature, it could not be said that such evidence pointed irresistably to the guilt of only the accused; (3) the onus on the prosecution when the evidence is of a circumstantial nature is a very heavy one and that evidence must point irresistably to the conclusion of the guilt of the accused.

Chang Kim Siong v Public Prosecutor [1968] 1 MLJ 36 Federal Court, Kuching (Pike CJ (Borneo).

The appellant had been convicted on a charge of failing to declare his interest in a contract entered into by a company of which he was the managing director. The vital fact needed to be proved in this case to show the guilt of the accused was his knowledge of the contract. The evidence on this was purely circumstantial.

Held: in this case, the learned President, Sessions Court, had not considered the whole evidence from all angles as she ought to have done and it was impossible to say whether had she not failed to do so she would nevertheless have been compelled to the one conclusion of the appellant's guilt and held that the circumstantial evidence must point irresistibly to the guilt of the accused.

Lim Foo Yong v Public Prosecutor [1976] 2 MLJ 259 High Court, Kuala Lumpur (Chang Min Tat J).

Where a magistrate has upon a mere question of fact acquitted a defendant, the Supreme Court will not interfere.

R v Teo Ah Soon [1894] 2 SSLR 82 High Court, Straits Settlements (Cox CJ).

In an appeal against acquittal on a point of fact, the appellant in order to succeed, must satisfy the Court of Appeal that the decision of the trial judge was perverse and wholly unreasonable.

Public Prosecutor v Wajid Khan [1923] 4 FMSLR 166 Court of Appeal, Federated Malay States (Woodward CJC, Whitley and Reay JJC).

[Annotation: This case is contrary to the Privy Council decision in Sheo Swarup v King-Emperor AIR (1934) PC 227; 61 IA 398 and see Public Prosecutor v Abdul Rahman [1936] FMSLR 128.]

Upon an appeal against an acquittal by a district court or police court, the findings of facts should not be interfered with unless there has been such stupidity, or perversity, by the district judge, or he has so obstinately blundered, or gone wrong, that a miscarriage of justice has occurred.

R v Ramasamy [1930] SSLR 104 High Court, Straits Settlements (Murison CJ).

[Annotation: See the observations of Worley J in Arumugam & Anor v R [1947] MLJ 45 at p 47.]

The Privy Council decision in Sheo Swarup v King Emperor AIR (1934) PC 227; 61 IA 398 has overruled the decision in Public Prosecutor v Wajid Khan 4 FMSLR 166, and should be followed in an appeal against an acquittal by a magistrate on questions of fact.

Public Prosecutor v Abdul Rahman [1936] FMSLR 128 High Court, Federated Malay States (Pedlow J).

This was an appeal against the acquittal of the respondent on two charges of having under his control a firearm and of possession of ammunition, offences under s 57(1)(a) and 57(1)(b) respectively of the Internal Security Act 1960 (Act 82). The trial judge acquitted the respondent as the evidence left the court in doubt that the gun and ammunition were found in the possession or exclusive control of the respondent.

Held, dismissing the appeal: the question raised in the appeal was related to the credibility of the witnesses and as the appellate court did not have the advantage of seeing and evaluating them, as the learned judge had, it would be slow to interfere. There were also serious gaps in the prosecution evidence.

Public Prosecutor v Lim Eng Chye [1978] 1 MLJ 200 Federal Court, Penang (Ong Hock Sim, Raja Azlan Shah and Chang Min Tat FJJ).

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).

There was no foundation for the view, apparently supported by the judgments of some courts in India, that the High Court had no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower court had 'obstinately blundered', or had 'through incompetence, stupidity, or perversity' reached such 'distorted conclusions as to produce a positive miscarriage of justice', or had in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice, or had been tricked by the defence so as to produce a similar result. The relevant sections of the Criminal Procedure Code give to the High Court full power to review at large the evidence on which the order of the acquittal was founded, and to reach the conclusion that on the evidence the order of acquittal should be reversed.

Arumugam & Anor v R [1947] MLJ 45 High Court, Singapore (Worley J).

[Annotation: R v Ramasamy [1930] SSLR 104 commented upon and not followed.]

In this case, the respondents had been charged for an offence under the Dangerous Drugs Ordinance 1952 and tried before a judge and jury. The jury unanimously returned a verdict of not guilty and the respondents were acquitted. The Public Prosecutor then appealed against the acquittal.

Held: (1) the Federal Court had jurisdiction to entertain the appeal; (2) the verdict in this case depended entirely on the weight to be given to the conflicting versions from the evidence and as there was nothing wrong in the summing-up, the appeal should be dismissed. Public Prosecutor v Tai Chai Geok [1978] 1 MLJ 166 considered no longer good law.

Public Prosecutor v Ooi Khai Chin & Anor [1979] 1 MLJ 112 Federal Court, Kuala Lumpur (Suffian LP, Gill CJ (Malaya).

It is open to the appellate court to reverse a finding which amounts to an acquittal and substitute therefor a finding of conviction if the facts so warrant and the acquittal was based on wrong grounds.

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

The applicant had been charged in the sessions court, Kuala Lumpur on two counts under s 4(c) of the Prevention of Corruption Act 1961 (Act 57). In essence, the charges were that he did knowingly use with intent to deceive the Malaysian Government two documents claiming subsistence allowances for two days in December 1975 and January 1976, the total amount for each claim being $36. At the close of the prosecution case, the learned President of the Sessions Court called on the defence and the applicant gave evidence. In his evidence, the applicant did not dispute that the dates mentioned in the charges were incorrect but stated that it was an honest mistake, firstly because when he prepared the claims he merely relied on dates on the new hotel receipts since he had lost the old receipts, and secondly he was very busy with his work at that time. After hearing the defence, the learned President of the Sessions Court acquitted the applicant of both charges. In his judgment, he stated that after considering the evidence and after observing the demeanour of the applicant, he found that the applicant had succeeded in giving an explanation which was consistent with his innocence. He accepted the explanation of the applicant that it was an honest mistake. On appeal to the High Court, the learned judge in his appellate capacity found that there could not be any question of a genuine mistake as the applicant had sufficient time to prepare the claims. He also rejected the learned President's assessment of the demeanour of the applicant since no particulars were set out as basis of the assessment. The appellate judge substituted a conviction for the acquittal in respect of both charges. The applicant was given leave to refer the following question to the Federal Court: 'In an appeal against the acquittal from the decision of a subordinate court to the High Court raising only questions of fact, where there is evidence to support the defence and there has been no misdirection by the subordinate court can the High Court substitute its own finding for that of the subordinate court?'

Held: the answer must be in the negative. In this case on the facts, the President of the Sessions Court had not misdirected himself and the decision was not plainly unsound. The acquittal entered by the learned President should therefore be restored.

Lim Kheak Teong v Public Prosecutor [1985] 1 MLJ 38 Federal Court, Kuala Lumpur (Salleh Abas LP, Azmi and Hashim Yeop A Sani FJJ).

A magistrate's decision should not be reversed on the ground of its being against the weight of evidence; however, there is no reason why this should not be done if it were found that the decision was grossly against the weight of the evidence.

Public Prosecutor v Ma'Arif [1969] 2 MLJ 65 High Court, Seremban (Abdul Hamid, J).

The accused and two others were apprehended at about 1.15am on 9 October 1986 at the National Stadium. One of them, Low, was seen throwing a knife and another, Goh, was found to have a knife tucked in his waist. The accused was unarmed. All three were charged under the Corrosive and Explosive Substances and Offensive Weapons Act (Cap 65, 1985 Ed). Low and Goh pleaded guilty after their defence was called. The accused gave evidence in his defence and was found guilty. During the trial, the accused's statement was admitted in evidence after it was found to be taken voluntarily. The accused appealed.

Held, dismissing the appeal against conviction but varying the sentence: (1) there was uncontroverted evidence that the appellant, an 18-year-old, was interrogated without rest from 10.48am to 3.05pm and was not given lunch. The statement did not show that the appellant knew the charge against him or that he was invited to make any alterations or corrections to the statement. The statement should not have been admitted; (2) an appeal court would not generally interfere with the finding of a trial court. But if the conclusion reached by the trial court was against the weight of evidence, an appeal court would, in the interests of justice, intervene; (3) the evidential presumption that the appellant knew that his companions had offensive weapons with them was compelling. The appellant, in his defence, was unable to offer any plausible explanation why he was at the entrance of the National Stadium at 1.15am amidst armed companions; (4) in addressing the question whether there was any failure or miscarriage of justice or whether a conviction was unsafe, the court had to ask itself the subjective question of whether it was content to allow the verdict to stand, or whether there was some lurking doubt; (5) notwithstanding the errors in the court below, there was no failure of justice; (6) the sentence was varied to one month's imprisonment and six strokes of the cane.

Tan Choon Huat v Public Prosecutor [1991] 3 MLJ 230 High Court, Singapore (Rubin JC).

A was charged with trafficking in not less than 220.62g of diamorphine. He was found in possession of the said drugs and the presumptions of trafficking in the Misuse of Drugs Act (Cap 185) ('the Act') were evoked. He was convicted and sentenced to death. He appealed on the ground that he had rebutted the presumption.

Held, dismissing the appeal: (1) A was the owner of the car in which the drugs were found. He was also in charge of the vehicle at the material time. This caused the presumption under s 21 of the Act to arise. Once that presumption arose, A by virtue of s 17 of the Act was presumed to have had, until the contrary was proved, the heroin in his possession for the purpose of trafficking therein. Accordingly, A had the burden of proving, on a balance of probabilities, that he was not in fact trafficking; (2) the trial judges had rejected A's evidence and found that he had not on a balance of probabilities rebutted the presumption that he was in possession of drugs for the purpose of trafficking; (3) an appellate court would not disturb findings of fact unless they are clearly reached against the weight of the evidence. In examining the evidence, an appellate court had always to bear in mind that it had neither seen nor heard the witnesses and had to pay regard to the trial judges' findings and their reasons therefor.

Lim Ah Poh v Public Prosecutor [1992] 1 SLR 713 Court of Criminal Appeal, Singapore (Yong Pung How CJ, LP Thean and FA Chua JJ).

A was convicted of murder in the High Court (see [1988] 3 MLJ 437). He appealed to the Court of Criminal Appeal on two grounds. Firstly, it was argued that a statement he had made to the police should not have been admitted in evidence as the charge and warning had not been explained to him. Secondly, it was argued that the trial judges had erred in finding that A had stabbed the deceased intentionally.

Held, dismissing the appeal: (1) it was admitted that the statement had been made voluntarily. Non-compliance with the requirement to explain the charge and warning under s 122(6) of the Criminal Procedure Code (Cap 68) does not render the statement inadmissible. Such non-compliance may affect the inferences drawn by the court under s 123(1) from an accused's failure to mention certain facts. As the prosecution was not relying on s 123(1), non-compliance with s 122(6) could not affect the verdict; (2) the requirement in s 122(6) that the charge be explained to an accused is satisfied if an accused person is told in general terms what the charge and warning mean; (3) the question of whether the stabbing was done voluntarily was a question of fact. An appellate court will not disturb findings of fact unless they are clearly reached against the weight of the evidence. There was no reason to disturb the trial judges' findings of fact.

Tsang Yuk Chung v Public Prosecutor [1990] 3 MLJ 264 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Yong Pung How JJ).

Public Prosecutor v Hla Win [1995] 2 SLR 424 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

Dol bin Lasim v Public Prosecutor; Mohamed Sharif bin Matan v Public Prosecutor [1987] 1 MLJ 116 Supreme Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

In this case, the respondent had been convicted by the learned magistrate for an offence under s 197 of the Penal Code (Cap 45) for issuing a certificate which is required by law to be given knowing that it was false on a material point. On appeal, the High Court allowed the appeal on the sole ground that the special pass issued in this case was not a certificate required by law to be given under s 197 of the Penal Code. The Public Prosecutor applied that the point of law be referred for the decision of the Federal Court and the Federal Court decided that the special pass was a certificate required by law within the meaning of s 197 of the Penal Code: see [1979] 2 MLJ 286. The whole case was then regarded as a regular appeal.

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

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

In this case, the appellant had been convicted on a charge under s 326 of the Penal Code (Cap 45) read with s 34. His appeal was mainly based on the findings of fact by the learned President of the Sessions Court. An application by the appellant to adduce evidence of alibi was refused, as the provisions of s 402A of the Criminal Procedure Code (Cap 6) had not been complied with.

Held: (1) the appeal was based on the findings of fact by the trial court and as it had not been shown that the judgment of the trial court was against the weight of the evidence, the appeal must be dismissed; (2) it had not been established that the learned President had in any way misdirected himself on any questions of law; (3) the evidence of alibi was rightly not allowed to be adduced, as the provisions of s 402A of the Criminal Procedure Code had not been complied with.

Chee Chi Tiam v Public Prosecutor [1982] 1 MLJ 88 High Court, Johore Bahru (Yusof Abdul Rashid J).

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

Held: the appeal against the grounds of judgment in this case dealt too much on findings of fact rather than on substantial points of law. The appellate court has not had the advantage of seeing or hearing the witness and unless it could be shown that the trial court had misused its advantage, it was not for the appellate court to reverse the trial court's findings. In this case, not one of the numerous points alleging misdirection of facts taken alone or all those taken together could justify the appellate court to interfere with the findings of the trial court.

Jayaraman & Ors v Public Prosecutor [1982] 2 MLJ 273 High Court, Selangor (Syed Othman FJ).

[Annotation: On appeal, the above decision was affirmed by Federal Court on 10 June 1982.]

The appellant was the former manager of South British Insurance Co Ltd. He was convicted by the first district judge on each of four charges of corruption under s 6(1)(c) of the Prevention of Corruption Act (Cap 104, 1970 Ed) and a charge of criminal breach of trust in respect of some $102,000 under s 408 of the Penal Code and sentenced to two years' imprisonment on each of the five charges. All the charges related to one transaction, namely, that the accused had made a profit of some $102,000 as a result of knowingly practising a deception on his principal company at their office at Auckland. The allegation was that he deceived the company into the belief that he had sold some 201,250 rights (which the company had been entitled to) to one Choudhury in March 1969 at 25 cents per right when in fact they were sold to others at a profit. On appeal, the main question for determination was whether Choudhury was an absolutely truthful witness when he denied in evidence that he had never been approached to buy these rights in March 1969. It was contended on behalf of the appellant that the district judge: (i) did not consider the confession made by Choudhury on 31 May 1971 after lunch at the Tanglin Club with the appellant's version of what had happened at the meeting; (ii) did not consider the fact that Choudhury had told a lie as to his reason for not going to his usual stockbrokers, Fraser & Co, for the sale of his own shares, and (iii) misdirected himself when he found that on 5 March 1969, far from Choudhury owing money to Robert Wee, it was Robert Wee who was owing money to him.

Held: (1) the appellant's version of the meeting at Tanglin Club was not considered at the end of the whole case by the district judge, who had accepted the evidence of Choudhury on the point at the conclusion of the case for the prosecution. The district judge did not also examine the evidence relating to the alleged confession by Choudhury in any detail and he misdirected himself on the point; (2) the learned district judge had failed to consider item (ii) and had misdirected himself regarding item (iii) above. In view of this, the appellate court could not be sure that if the district judge had considered and adopted the right approach to these matters, he would nevertheless have found the charges proved beyond reasonable doubt at the end of the case as a whole. The convictions on the four charges must therefore be quashed; (3) with or without Choudhury's connivance and/or complicity in the scheme to make a profit, the charge of criminal breach of trust was proved beyond reasonable doubt. The conviction on this charge by the district judge was well founded notwithstanding the criticisms relating to the evidence of Choudhury.

PG Ralph v Public Prosecutor [1973] 1 MLJ 81 High Court, Singapore (Winslow J).

The appellant was found guilty of theft because the learned magistrate believed the prosecution witnesses and disbelieved the appellant's evidence. He treated the case purely as one of theft in relation to an article and failed to consider the evidence relating to the hostility between the respective employers of the main witnesses who spoke of the actual alleged theft.

Held: (1) this was a case where at the very least the evidence adduced by the defence would create a reasonable doubt whether or not the appellant had committed the offence as alleged by the prosecution; (2) the appellate court was not precluded from looking at the matter afresh and as the learned magistrate had failed to consider the defence evidence, the conviction should be set aside.

Mohamed Shariff v Public Prosecutor [1964] MLJ 64 High Court, Singapore (Wee Chong Jin CJ).

[Annotation: This case is of interest as it is an appeal solely on facts. One of the cases referred to by counsel was Letchumy v Public Prosecutor (1930) 1 MC 129 which was dissented from in Low Seng Wah v Public Prosecutor [1962] MLJ 107.]

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

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

Muniandy & Ors v Public Prosecutor [1966] 1 MLJ 257 Federal Court, Kuala Lumpur (Barakbah CJ, Pike CJ and Ong Hock Thye FJ).

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

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

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

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

The appellant had been convicted on charges of unlawful possession of a revolver. The learned trial judge was satisfied beyond reasonable doubt that the appellant was seen and chased by the police in the vicinity and that the appellant was armed with a revolver and fired at the police officer and was subsequently arrested. The prosecution did not use the cautioned statement of the appellant.

Held, dismissing the appeal: (1) the appeal court could not interfere with the finding of fact of the trial judge who saw and heard the witnesses and was in a better position to assess their credibility; (2) it was alleged that the learned judge had taken into consideration inadmissible and highly prejudicial evidence resulting in a miscarriage of justice, but the appellant had no reason to complain of prejudicial evidence when these arose as a result of cross-examination. No substantial miscarriage of justice had occurred; (3) it was strictly a matter for the prosecution to decide whether to use the cautioned statement or not. If the prosecution considered that the other evidence was sufficiently strong to establish guilt, they were entitled to use their discretion not to introduce the cautioned statement.

Law Tim Wah v Public Prosecutor [1978] 1 MLJ 167 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

In this case, the first appellant had been convicted of the offence of discharging a firearm in the commision of an offence and the second appellant with being an accomplice in the case of discharge of the firearm. The defence of the first appellant was an alibi, which was not accepted by the trial judge. The appeal was based purely on facts. The defence of the second appellant was also an alibi and here too the trial judge rejected the defence. In addition the appeal of the second appellant was based: (a) on an alleged defect in the charge; (b) on the mistake of the learned judge in ruling that the notice of alibi was bad as it was given by the solicitor on behalf of the second appellant; and (c) on the allegation that the statement of the second appellant was wrongly admitted to impeach his credit.

Held: (1) the first appellant's appeal was based on the finding of fact and as there was no reason to disagree with the finding of the learned judge, the appeal must be dismissed; (2) the appeal of the second appellant was also based on the findings of fact and there were no merits in the attacks made on the finding of the learned judge; (3) the omission to make any reference in the charge to the knowledge of the second appellant that the first appellant had a pistol did not render the charge against the second appellant defective. Knowledge is a matter of inference and unless it is clear that the law requires knowledge to be stated in the charge, its omission did not render the charge defective; (4) the learned judge was wrong in rejecting the notice of alibi signed by the solicitor but this erroneous ruling made no difference at all as to the result of the case, as the defence of alibi was rejected not on account of the ruling but on the basis of his credit being impeached; (5) although the learned judge did not make a specific finding that the cautioned statement of the second appellant used by the prosecution to impeach his credit was voluntarily made, the prosecution had adduced enough evidence in the inquiry held for the purpose to enable the learned trial judge to make such finding and such evidence was in no way contradicted. Such omission in the circumstances of the case did not constitute a miscarriage of justice.

Krishnan & Anor v Public Prosecutor [1981] 2 MLJ 121 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

The appellant was convicted by the High Court on a charge of murder and sentenced to death. At his trial, the appellant admitted that he and R planned to steal oil from a barge upon which the deceased was employed as a watchman. In his statement recorded under s 121(6) of the Criminal Procedure Code (Cap 113, 1970 Ed), he said that while he and R were stealing the oil, the deceased woke up and it was R who then suggested that the deceased be killed. He appealed against the conviction to the Court of Criminal Appeal on the grounds that: (a) the trial judges were wrong in holding that the appellant's s 121(6) statement was admissible in that there were no threats, promises or inducements on the part of the investigating officers; (b) the appellant had not formed a common intention with R to murder the deceased, as the appellant's intention was, from the outset, to steal his employer's oil and that this intention did not extend at any time to an intention to kill the deceased.

Held, dismissing the appeal: (1) it was clear from the trial judges' grounds of decision that they gave careful consideration to the evidence relating to the basis upon which it was sought to exclude the appellant's s 121(6) statement. There was no basis whatsoever for disturbing the findings of fact on the part of the learned trial judges. The appellant accordingly failed on his first ground of appeal; (2) the trial judges had in mind that common intention was to be inferred from the surrounding circumstances and the conduct of the parties. There was no basis upon which the court could conclude that the learned trial judges' finding as to the existence of common intention was unjustified. There was ample evidence to support it. The appellant's second ground of appeal therefore failed.

Ramli bin Awang v Public Prosecutor [1988] 3 MLJ 435 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua J and Grimberg JC).

Where the only complaint was that the accused had, in consequence of certain arrangements made with the complainant's mother-in-law, received certain jewellery for sale, and had refused to render accounts, but contained no allegation that he had in fact sold and dishonestly misappropriated the proceeds and where the complaint was obviously made for the purpose of forcing the accused to render accounts, yet the court refused to disturb the conviction of the magistrate on questions of fact.

Mohamed Ismail v Mohamed Kanny [1891] 4 SLJ 36 Supreme Court, Straits Settlements (Goldney J).

N was found in possession of three lorries soon after they were stolen. He was charged with three counts of theft of motor vehicles. N's foreman gave evidence that in respect of two of the lorries N had given him instructions to repaint the lorries and change the chassis numbers. At the end of the prosecution case the trial judge amended the charge to one of dishonestly retaining stolen property. N gave evidence that he had purchased two of the lorries in question and in respect of the third, he was buying it on hire-purchase but was unable to complete the last two payments. Consequently the lorry was repossessed, but later was found near his worksite by one of his employees. N was convicted. He appealed.

Held, allowing the appeal in respect of one charge and dismissing the rest: (1) N's wife had given evidence that in respect of one of the lorries she had called the police and informed them that the lorry had been recovered by N; (2) the trial judge had not given due weight to this piece of evidence. The conviction on that charge was unsafe; (3) in respect of the other two charges, the owners of the respective lorries were able to positively identify their lorries from various identifying marks; (4) the trial judge had accepted the evidence of the foreman; (5) where property sufficiently identified to be property of one person is found to be in the possession of another without leave or licence or any legal permission of the owner, it is for the party in whose possession the property is found duly to account for its possession, and unless he can do so, a jury might fairly infer in such circumstances that it was with guilty knowledge that the accused took that which he knew to be not his own.

Neo Hong Huat v Public Prosecutor [1992] 1 SLR 312 High Court, Singapore (Rubin JC).

The first appellant was charged with voluntarily assisting in disposing of stolen property, to wit, 3 transistor radios, 1 TV-shaped cigarette lighter, one pair of binoculars and one wall clock and the second appellant was charged with dishonestly retaining them. Both were tried in a joint trial and convicted and each was sentenced to three months' imprisonment. They appealed against their convictions. Objection to the conviction was taken on the submission that the stolen articles had not been properly identified as belonging to the complainant. The prosecution evidence rested mainly on the evidence of a police personnel. He testified that: 'When accused No 2 produced box and things in it, he said something about it and contents. He said these things were brought by KM Packiam for him to keep in safe custody. This was what he said before leaving to collect the box and contents'. No objection was taken by the defence counsel to the admissibility of this evidence, and the learned magistrate considered that the prosecution had established a prima facie case against the appellants, and held that on the evidence, the first appellant was guilty of voluntarily assisting in the disposal and the second appellant of dishonestly retaining the stolen property. The question to be considered was whether this piece of evidence was admissible.

Held, allowing the appeal and quashing the convictions: (1) the finding on the identification of the stolen articles was primarily a finding of fact based on the evidence of a witness whom the learned trial magistrate had the privilege of hearing and seeing. In matters of such evidence, the appellate court does not normally override the findings of the trial court; (2) inadmissible evidence does not become admissible by reason of the failure of counsel to object thereto, and the appellate court must disregard all such evidence; (3) the said piece of evidence was nothing more than an admission that the second appellant was constituted a bailee of the said goods. Therefore, without there being any evidence that he knew of their dishonest origin, the second appellant could not be said to have been dishonestly in possession; (4) as the said words were not limited to and did not relate to the fact of the discovery, they were inadmissible under s 27 of the Evidence Ordinance; (5) thus, once the words were removed, there was no evidence that the first appellant disposed of the property to the second appellant or that the second appellant dishonestly retained the property. Therefore, the convictions cannot stand and must be quashed.

Packiam & Anor v Public Prosecutor [1972] 1 MLJ 247 High Court, Penang (Chang Min Tat J).

A, a contractor and supplier of foreign workers, was convicted of three charges of having cheated three Bangladeshis by providing them with forged work permits. He was sentenced to four months' jail on each charge, two of the sentences to run consecutively. A appealed against the convictions and sentence on the ground that the magistrate had misdirected himself on the nature and ingredients of the charges. It was also argued that there was no evidence linking A to the cheating and that certain evidence was wrongly admitted and highly prejudicial to him. Appeal against the sentence was on the grounds that the amounts involved were small, that this was A's first offence, his role in the crime was minor and that he had co-operated with the police.

Held, dismissing the appeal: (1) reading the whole of the magistrate's grounds of decision, it was clear that the magistrate was aware of the nature of the charges. He had made a finding of fact that A and his confederate had planned to cheat the three complainants. There was overwhelming evidence establishing beyond reasonable doubt that A had planned to cheat the complainants; (2) the amount involved in the cheating was not insignificant to the complainants. There was a need to deter other like-minded people who might be tempted to prey on foreign workers. The sentence was not manifestly excessive and would have been enhanced by the court except for two factors, viz that A's wife suffered a miscarriage as a result of the proceedings and secondly, that four years had elapsed since A stood trial during which he must have suffered mental anguish.

Seah Kok Huah v Public Prosecutor [1989] 2 MLJ 466 High Court, Singapore (Lai Kew Chai J).

A was charged under s 13(1) of the Food Act 1983 with the offence of selling to X a bottle of beer containing fungal growth. The learned magistrate rejected the defence of A that all reasonable steps had been taken in the brewing and bottling of the beer and that the bottles were purchased from reputable suppliers. The magistrate took the view that the bottle scanning procedure was defective at the time when the bottle was capped. A appealed to the High Court against the decision of the learned magistrate.

Held, allowing the appeal: (1) in the instant case, the prosecution had failed to discharge the onus of proving that the fungus was foreign to the beer as required under s 13(1) of the Food Act 1983. Furthermore, A was not given the required notice under s 6 of the Act by any authorized officer; (2) the learned magistrate erred in rejecting A's defence as the onus on A to rebut the constructive liability imposed on him under s 28 of the Act was on the balance of probability. To succeed in his defence under s 23 of the Act, A need only show that he had taken reasonable measures to prevent the product from being adulterated with foreign matter. A need not prove that his method of production was 100% safe. The inferences drawn by the magistrate in the instant case were unjust and unsustainable; (3) although an appellate court should be slow to interfere with the findings of fact by a lower court, it should, nevertheless, review the findings of the lower court where such findings are based on wrongful or unjust inference drawn by the trial judge; (4) for the above reasons, the court allowed the appeal by A and quashed the conviction.

Manager, Tuborg (Malaysia) Sdn Bhd v Public Prosecutor [1990] 2 MLJ 173 High Court, Shah Alam (Wan Yahya J).

Two charges were brought against the appellant who was the chairman of the board of directors and the chairman of the executive committee ('Exco') of Koperasi Sepadu Bhd ('KSB'). The first charge was that the appellant had committed criminal breach of trust in respect of RM2.6m which was entrusted to him in his capacity as KSB's chairman, an offence which was punishable under s 409 of the Penal Code (FMS Cap 45). The appellant was also charged with committing criminal breach of trust in respect of RM500,000 which was also entrusted to him in his capacity as KSB's chairman. The appellant had instructed Wong Wee Loon ('Wong'), the administration and finance manager of KSB, to prepare applications for two loans amounting to RM2.6m and RM500,000 from KSB in the names of Justin Gomez ('Gomez') and Ong Siew Kok ('Ong') respectively. The appellant also instructed Wong to prepare the necessary approval forms and the cheques for the loans to Gomez and Ong. The appellant who was one of KSB's authorized signatories, then signed the approval forms and the cheques for the loans. The approval documents and the cheques for the loans to Gomez and Ong were also signed by two other Exco members of KSB. Wong then cashed the cheques issued for the loans to Gomez and Ong and handed the money to the appellant's brother as instructed by the appellant. At the trial in the sessions court, the prosecution tendered notes of proceedings in an Australian court ('the exhibit'). The exhibit was a record of extradition proceedings which showed that the appellant had used the money lent by KSB to Gomez and Ong for the purpose of purchasing shares in the appellant's name in Australia. The defence objected to the admissibility of the exhibit but the sessions court judge admitted it on the ground that it was a 'public document' under s 74(a)(iii) of the Evidence Act 1950 ('the Act'). The prosecution also adduced as evidence, the minutes of a meeting of KSB's board of directors which showed that the appellant's purchase of shares in Australia was never discussed ('exh P34'). There was, however, another set of minutes of the same meeting which showed that there was a discussion of the appellant's purchase of shares ('exh P36'). Exhibit P34 was never signed but exhibit P36 was signed by the appellant as chairman of KSB's board of directors. The prosecution also adduced evidence through the Exco members and staff of KSB to show that exh P34 was genuine. The prosecution witnesses testified that the particular meeting of KSB's board of directors was tape-recorded and based on such a tape-recording, exh P34 was stated to be true. The prosecution, however, did not produce the tape-recording. The sessions court convicted the appellant on both charges and the appellant appealed to the High Court. The sessions court judge admitted exh P34 but rejected exh P36. The prosecution firstly argued that the money taken out from KSB did not constitute loans from KSB because of improper documentation. The prosecution also contended that the exhibit could be admitted under s 74 of the Act because it had been certified under s 78 of the Act. The prosecution made a statement from the bar that notice of the proceedings in Australia had been served on the appellant's solicitors and not on the appellant. The appellant's defence was that he had bought the shares in Australia for the benefit of KSB.

Held, allowing the appeal: (1) an appellate court does not interfere with the findings of fact of the trial court. An appellate court, however, is empowered to interfere if the findings of fact of the trial judge suffer from some serious error or the decision is against the weight of evidence; (2) Wong was instrumental in applying for the loans and the cashing of the cheques. As such, Wong was to be treated as an accomplice just like Gomez and Ong. Even if Wong was not an accomplice, he was a tainted witness because there was evidence to show that he was trying to protect himself and put the whole blame on the appellant; (3) when the appellant and two other Exco members of KSB signed the cheques, the act of signing was tantamount to an approval of the loans. It was not the concern of the court that after the loans were given, KSB's board of directors discovered some defects or irregularities in the applications or processing of the loans. The recourse for KSB was to recall the loans or to take action against its officers who had processed and approved the loans; (4) from the evidence, the sessions court judge had thus erred in holding that the money taken out from KSB did not constitute loans; (5) s 74 of the Act only provides for the categorizing of a public document and nothing more than that. Section 78 of the Act is only for the purpose of certification of a public document; (6) the only way any evidence given by a witness can be used in a subsequent and different judicial proceeding is by way of s 33 of the Act; (7) the prosecution had not given any reason why the witnesses who had given evidence as recorded in the exhibit could not be called to give evidence in the trial court. The court, on its own, could not imply the reasons why such witnesses were not called; (8) under proviso (b) to s 33 of the Act, the appellant should be given the right and opportunity to cross-examine the witnesses who had given evidence as recorded in the exhibit. The required notice notifying the appellant of such a right must be personally served on him, bearing in mind that this was a criminal trial where the liberty of a person was at stake; (9) accordingly, when the prosecution claimed that notice was served on the appellant's solicitors, the prosecution did not comply with s 33 of the Act. As such, the appellant was not given the right and opportunity to cross-examine the witnesses who had given evidence as recorded in the exhibit. In any case, apart from a mere statement from the bar by the prosecution, there was no proof that the appellant's solicitors were ever legally served with the notice; (10) the prosecution did not also adduce any evidence to show that the public prosecutor was a party to the proceedings which were recorded in the exhibit. Accordingly, the requirement under proviso (a) to s 33 of the Act was not satisfied as well; (11) the sessions court judge had therefore erred in law when she admitted and used the exhibit; (12) without the exhibit, there was no evidence to show that the appellant had used the money. As such, there was no evidence of conversion of the money for the appellant's own use; (13) (14) assuming that there was evidence for a prima facie case against the appellant, the appellant's defence that the money had been used for the benefit of KSB was highly probable, if not true. At the very least, the defence had raised a reasonable doubt; (15) the tape-recording was not produced and no reason was given by the prosecution why it was not produced. As such, an adverse inference should be drawn on the non-production of the tape-recording; (16) the Exco members and staff of KSB had their self-interests when they gave evidence. Theitimonies must be treated with care and close scrutiny of their evidence must be made. This the sessions court judge had failed to do when she accepted exh P34 and rejected exh P36; (17) based on the evidence as a whole, the proper thing for the sessions court judge to do was to admit exh P36 and reject exh P34. Then it should be the prosecution's duty to prove that exh P36 was a fraud, forgery or was not genuine; (18) on the whole, the sessions court judge had erred when she called for the appellant's defence at the close of the prosecution case;with exh P36, it was clear that the appellant bought the shares in Australia on behalf of KSB.

Dato' Yap Peng v Public Prosecutor [1993] 1 MLJ 337 High Court, Kuala Lumpur (Mokhtar Sidin J).

The accused was a van driver and the complainant (AB), an Indian national, was at the material time in Singapore on a social visit pass. The accused was charged with having committed the following offences: (i) abduction of AB with the intention of forcing her into illicit sexual intercourse (under s 366 of the Penal Code (Cap 224)); (ii) having carnal intercourse with AB against the order of nature under s 377; (iii) rape of AB and putting her in fear of hurt to herself under s 376(2)(b); (iv) robbery under s 392 of the Code; and (v) theft of other items belonging to AB under s 379 of the Code. The accused pleaded guilty to the fifth charge only and claimed trial on all the other charges. The prosecution's case was this. On 22 January 1995, AB while walking along Hampshire Road was accosted by the accused, who drove his van and stopped by her side. He represented to her that he was a police officer and demanded to see her passport. She produced her passport, and having inspected it he placed it in front on the dashboard and asked her to board the van, as he wanted to bring her in for further investigation. Under threat of being handcuffed, she boarded the van. He drove her all the way to Changi Coast Road and at a certain point he stopped the van and asked her to board the rear compartment and thereafter he drove the van to an isolated vacant land. He then entered the rear compartment and forced her to commit an act of fellatio on him and he also raped her. Thereafter whilst she was dressing, he noted that she had some money tied in a knot in her saree and he forcefully took her money. In his defence, the accused admitted that he had accosted her while he was driving along Hampshire Road. A conversation between them ensued, as a result of which she willingly boarded the van and he drove her to Changi Coast Road. At a certain point along the way he stopped the van and asked her to board the rear compartment which she did. He then drove to a vacant land where he stopped the van and joined AB in the rear compartment. At his request the complainant performed the act of fellatio on him and thereafter they had sexual intercourse. While they were dressing, he noticed her money tied in a knot in her saree and he took the money from her. In snatching the money back from him, AB ripped off his pocket and fell in a sitting position on the floor. The learned trial judge found the accused's evidence closer to the truth and that the accused came across as an honest witness. He did not believe AB, whom he found to be not entirely forthright. Not only had the learned trial judge some doubts as to whether AB had consented to travel in the accused's van and to the sexual acts but he was convinced that in all probability she did consent. Accordingly, he acquitted the accused on the first and third charges and found him guilty on the second charge. As for the fourth charge, he amended it and found the accused guilty of theft. The prosecution appealed.

Held, allowing the appeal: (1) the evidence of AB and the accused had to be tested against the primary facts which were not in dispute and the material evidence before the court. So tested, the evidence of the accused was inherently incredible and the evidence of the complainant was more consistent with the primary facts. On the evidence, the accused had, by deceitful means, induced AB to board the van and brought her all the way to a spot off Changi Road to which she would otherwise not have gone. This constituted abduction under s 362 of the Penal Code. The accused abducted her with the intent that she might be compelled to have illicit intercourse with him. The necessary ingredients of the offence under s 366 of the Penal Code had, therefore, been established beyond any reasonable doubt; (2) the absence of injury on an alleged victim of rape, though a relevant consideration, was not fatal to the charge of rape. In the case before the court, despite the absence of a scratch on either the accused or AB, and in spite of the fact that no weapon was used, the evidence of AB tested against all the evidence led to the irresistible conclusion that she had been raped by the accused and had been put in fear of him; (3) certain degree of force must have been used by the accused on AB to restrain her from getting back her money, which accounted for the ripping off of his pocket and her fall onto the floorboard. She did not persist in making a further attempt to get back her money because she had been put in fear of further hurt to herself. What the accused did in those circumstances amounted to robbery under s 390(2).

Public Prosecutor v Victor Rajoo [1995] 3 SLR 417 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu JA and LP Thean JA).

If, upon an analysis of the evidence, it appears that a magistrate ought to have had a reasonable doubt, then it is the duty of the appellate court to discharge the accused. Where, however, there is nothing on the record to indicate whether or not any particular piece of evidence ought or ought not to be believed, the appellate court will ordinarily not interfere with the opinion of the magistrate who saw and heard the witnesses. Again, where the appellate court entertains grave doubts whether the magistrate weighed the evidence properly and where there are grave discrepancies in the evidence, it should quash the conviction.

Letchumy v Public Prosecutor [1930] 1 MC 129 High Court, Federated Malay States (Burton J).

[Annotation: The above case was dissented from in Low Seng Wah v Public Prosecutor [1962] MLJ 107.]

In an appeal upon a question of fact, the court will not interfere, unless the balance of evidence is greatly against the conviction.

Opium Farmer v Chin Ah Quee [1890] 4 SLJ 33 Supreme Court, Straits Settlements (O'Malley CJ).

Where the appellant was convicted on a charge of causing grievous hurt by driving a motor car negligently, an offence punishable under s 338 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 evidence.

Ong Joo Chin v R [1946] MLJ 1; [1941-42] SSLR 178 High Court, Straits Settlements (Worley J).

[Annotation: See also Mohamed Ghouse v R (1909) 11 SSLR 31, overruling R v Goh Sin Koh (1900) 6 SSLR 15, where it was held that on appeal against a conviction, the onus is on the appellant to show that the conviction appealed from is wrong in law or against the weight of evidence. Reference may also be made to R v Wong Kai Chin [1955] MLJ 39 at p 42.]

Public Prosecutor v Khong Soh [1966] 2 MLJ 137 High Court, Ipoh (MacIntyre J).

In an appeal on a question of fact, the appellant has to satisfy the appellate court that the judgment was against the weight of evidence.

Arumugam & Anor v R [1947] MLJ 45 High Court, Singapore (Worley J).

[Annotation: R v Ramasamy [1930] SSLR 104 commented upon and not followed. See also Goh Ah Too v R [1956] MLJ 139.]

An appellate court may allow an appeal from a determination on a question of fact if it appears to the court that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal.

Re AB Ltd [1957] MLJ 143 Court of Appeal, Singapore (Whitton, Buhagiar and Tan Ah Tah JJ).

Public Prosecutor v Nordin bin Johan & Anor [1983] 2 MLJ 221 Federal Court, Kuala Lumpur (Raja Azlan Shah LP, Abdul Hamid and Abdoolcader FJJ).

The Public Prosecutor referred to the Federal Court the following question under s 66(2) of the Courts of Judicature Act 1964 (Act 91): 'If a magistrate, without misdirecting himself, has made a finding of fact based on actual evidence before him, which finding of fact is corroborated in material particulars by inferences reasonably and properly drawn by him from other evidence adduced before him, and such magistrate has convicted the accused as a result of such finding of fact, such conviction not being against the weight of evidence in the case, is it open to a judge of the High Court, on hearing an appeal against such conviction, to upset or interfere with such finding of fact?' The learned judge who heard the appeal in this case had quashed the conviction of the accused. He said that the evidence against the accused was dependent merely on inferences of fact and that in this case the learned magistrate should have drawn the inferences which were favourable to the accused person. The learned judge was also influenced by the fact, as he put it, that the accused had specifically noted the number of the insurance policy in the station diary but in fact this was not true.

Held: an appellate court should be slow to interfere with the finding of fact by a lower court, as an appellate court does not have the advantage of seeing and hearing the witnesses and therefore of assessing their credibility. In this case, on the evidence, the learned judge was wrong in quashing the conviction. Therefore the answer to the reference is in the negative.

Public Prosecutor v Wan Razali Kassim [1970] 2 MLJ 79 Federal Court, Kuching (Azmi LP, Ismail Khan CJ (Borneo).

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 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).

Where the appellant is exercising a right of appeal which is his right, the appellate court cannot, merely because the question is one of fact and because it has been decided in one way by the trial judge, abdicate its duty to review his decision and to reverse it if it deems it to be wrong. Nonetheless, the functions of a Court of Appeal, when dealing with a question of fact, and a question of fact in which questions of credibility are involved, are limited in their character and scope. In an appeal from the decision of a trial judge based on his opinion of the trustworthiness of witnesses whom he has seen, the Court of Appeal must in order to reverse, not merely entertain doubts whether the decision below is right, but be convinced that it is wrong. In assessing the relative value of the testimony of expert witnesses, as compared with witnesses of fact, their demeanour, their type, their personality, and the impression made by them upon the trial judge eg whether they confined themselves to giving evidence, or acted as advocates may powerfully and properly influence the mind of the judge who sees and hears them in deciding between them. These advantages, which are available to the trial judge, are denied to the Court of Appeal.

Caldeira v Gray [1936] MLJ 137 Privy Council Appeal from Trinidad and Tobago (Lord Alness, Lord Maugham and Sir Sidney Rowlett).

The first appellant Loh Shak Mow met one Lee Kwong Fai of Broadview Finance Pte Ltd of Hong Kong (BVF). Lee Kwong Fai was the chairman of BVF. BVF was a registered member of the Hong Kong Commodities Exchange Ltd. In Hong Kong, both Lee and Loh discussed setting up a company in Singapore to trade in spot gold and gold futures. In April 1981, Loh and Lee incorporated a commodities firm in Singapore called Broadview Commodities Pte Ltd (BVC) in order to trade in spot gold, gold and gold futures and other commodities. The second appellant, Alan Wong Hoi Ping, was then practising as an advocate and solicitor in the firm of Lee & Lee. He was engaged in March 1981 to incorporate BVC. BVC was incorporated on 20 April 1981. Thereafter, the second appellant became the chairman and director of BVC. Two weeks after its operations had started, both Lee and Loh became aware that BVC was getting low profits. Therefore, sometime in June 1981, Loh and Lee decided to 'bucket' clients' orders which meant that BVC was to retain the margin deposits paid by these clients without placing their orders on the market at the various international exchanges and was to meet the clients' orders itself. It kept the commissions paid to BVC on each lot of orders and also absorbed all their clients' losses in gold trading as its own profits. They succeeded in doing this without being discovered by their clients and brokers by adopting various measures. The secret profits derived from the bucketting operations of BVC were shared amongst the directors. To avoid detection of these drawings, documents were manufactured and accounting books adjusted to give the impression that the moneys were remitted to BVF in Hong Kong as payment of margin deposits or that they were returns of loans made by the directors of BVC. The first appellant was charged with and convicted on six charges of abetment of cheating under s 420 read with s 109 of the Penal Code (Cap 103, 1970 Ed) and fourteen charges of criminal breach of trust as an agent under s 409 of the Penal Code. The second appellant was charged with and convicted on three charges of criminal breach of trust as an agent and one charge of dishonestly retaining stolen property. Both appellants appealed against their convictions and sentences.

Held: (1) having regard to the evidence, the trial judge was entitled to find that the first appellant and Lee Kwong Fai were in fact engaged in a conspiracy to cheat and that subsequently, they secreted the proceeds of the cheating by disguising them as margin payments to BVF and then obtaining the money unlawfully through all these means and putting them into their respective bank accounts as evidenced by the bank documents; (2) on the evidence adduced, distinct offences of abetment of cheating and criminal breach of trust were committed by the first appellant. The acts alleged constituted offences falling within two separate definitions of law by which offences are defined or punished. The provisions of the Criminal Procedure Code (Cap 113, 1970 Ed) permit the first appellant to be charged and tried at one trial for each of those offences; (3) the law regarding the functions of an appeal court when dealing with a question of fact in which questions of credibility are involved is clear. In an appeal from the decision of a trial judge based on his opinion of the trustworthiness of witnesses whom he has seen, the appeal court must, in order to reverse, not merely entertain doubts whether the decision below is right to the evidence, the decision of the trial judge was not wrong. The appeal of the first appellant against conviction should be dismissed; (4) having regard to the first appellant, the sentences imposed were manifestly excessive in the circumstances. The sentences should be set aside and substituted with a sentence of two years' imprisonment on each charge, the sentences on the first two charges to run consecutively and the sentences on the other charges to run concurrently, making a total of four years' imprisonment; (5) it was for the trial judge to decide whether the two accused should be tried together or separately. The discretion must be exercised judicially. The usual tests applied to decide whether different acts are parts of the same transaction (to bring it within s 175 of the Criminal Procedure Code) are proximity of time, unity of place, unity of purpose or design and continuity of action. In the present case, all the six charges of abetment of cheating which the prosecution elected to proceed against the first appellant were before the first criminal breach of trust charge against the second appellant. There was no proximity of time and no unity of purpose and continuity of action; (6) the trial judge did not consider the case on the basis of the evidence admissible against each accused separately. He treated the second appellant as a conspirator in a conspiracy with which he was not charged and in which he was not named; (7) a joint trial should not have been ordered as it was not fair and just to the appellant and the joinder has occasioned a failure of justice. The second appellant's convictions must be quashed.

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

This was an appeal against the conviction of the appellant on a charge of accepting an illegal gratification, an offence under the Prevention of Corruption Act 1961 (Act 57). The learned President of the Sessions Court had convicted the appellant on the uncorroborated evidence of the complainant, as he accepted the complainant as a witness of truth.

Held: on the facts, the complainant in this case was an accomplice whose whole interest in giving evidence against the appellant must have been to make his case as black as possible to achieve his objective. Since the learned President had failed to take a critical appreciation in his examination of the complainant's evidence, he had not taken proper advantage of his having seen and heard him, so that his mistaken view had coloured his approach to the issue of credibility so gravely that there was such a misdirection that made the judgment wholly unsatisfactory. The appeal must therefore be allowed and the conviction quashed.

Tengku Mahmood v Public Prosecutor [1974] 1 MLJ 110 High Court, Kota Bharu (Raja Azlan Shah FJ).

Where the magistrate had decided a case on the evidence as one of simple assault, and the prosecutor was dissatisfied therewith, and contended that the evidence disclosed an assault with intent to murder, the court refused to disturb the magistrate's decision.

Towers v Mustan & Ors [1876] 3 Ky 92 High Court, Federated Malay States (Phillippo J).

R was charged with two counts of corruption. At the conclusion of the prosecution case R was called upon to enter his defence. He elected to remain silent. The district judge found the evidence of the two main prosecution witnesses to be doubtful because of material discrepancies in their evidence. He acquitted R. The prosecution appealed.

Held, allowing the appeal in respect of the second charge, and dismissing the other: (1) it was well settled law that when a trial judge had made a finding of fact based on the credibility of witnesses whom he had the opportunity to see and assess, an appellate court would generally defer to the conclusion which the trial judge had formed. An appellate court if it wished to reverse the trial judge's decision must not merely entertain doubts whether the decision was right but must be convinced that it was wrong; (2) in respect of the first charge, when the respondent chose to remain silent, it was open to the district judge to consider the credibility of the prosecution witnesses, and if he was not satisfied as to their credibility, it was open to him to come to the conclusion that the charge against the respondent had not been proved beyond a reasonable doubt; (3) in the case of the second charge, there was clear evidence that an attempt was made by the respondent to obtain a tiling sub-contract for his brother-in-law's company. A written quotation was in fact handed over with a grossly inflated price, and that part of the evidence as to the repeated follow-up queries by R was not seriously challenged. This evidence required explanation. R having declined to do so, the evidence against him remained, and an adverse inference should have been drawn gainst him; (4) R was sentenced to six months' imprisonment and to pay a fine of S$10,000, in default three months' imprisonment.

Public Prosecutor v Poh Oh Sim [1991] 3 MLJ 416 High Court, Singapore (Yong Pung How CJ).

A magistrate has no power, on conviction of an employer for an assault on his servant, to order the contract for service to be cancelled. The court being satisfied that an excessive sentence imposed by a magistrate had caused a failure of justice, reduced the sentence, though the sentence was not larger than legally awardable for the offence.

Thum Chee v Ho Ah Fah [1890] 4 Ky 606 High Court, Straits Settlements (Wood J).

The accused was convicted under s 40 of the Liquors Revenue Ordinance for storing on his licensed premises dutiable liquor. The only point taken on appeal was that the certificate of the chemist was not admissible in evidence under s 424 of the Criminal Procedure Code. It was argued that the fault was covered by this section, and that the error in the certificate merely amounted to this, that there was improper admission of evidence and that this omission had not occasioned a failure of justice. For the appellant, it was pointed out that if the certificate had not been admitted in evidence there was no case at all.

Held: it could not be said that the improper admission of the disputed evidence in this case had not occasioned a failure of justice and the appeal was allowed.

R v Tay Choon Huat [1947] MLJ xxiii High Court, Singapore (Murray-Aynsley CJ).

Improper admission of evidence would occasion a failure of justice if it resulted in a decision different from that which would have been given had the evidence not been admitted. The improper admission of evidence will have no effect unless it has occasioned a failure of justice and in order to discover whether there has been a failure of justice, one must be guided by s 167 of the Evidence Ordinance 1950. The test as to whether or not a judgment of the court below should be reversed or altered on account of wrongful admission of a certificate is whether or not without that evidence, there was sufficient evidence to justify the conviction.

Wong Kok Keong v R [1955] MLJ 13 High Court, Penang (Spenser-Wilkinson J).

[Annotation: See also R v Tay Choon Huat [1947] MLJ xxiii.]

A police witness in giving evidence said that he asked the person onboard a sampan where they got the sugar from. He then went to say: 'I was told in reply that the sugar onboard the motor sampan was purchased from the lighter'.

Held: as this statement led to the inference that the appellants were guilty of the offence for which they were charged, it amounted to a confession and ought to have been excluded; but as the statement did not operate on the magistrate's mind and there was other independent evidence against the appellant, the improper admission of the statement did not occasion a failure of justice.

Soh Peng Thiam & Ors v R [1948] MLJ 146 High Court, Singapore (Brown J).

Whitton Ag J quashed the conviction and refused to order a retrial on the grounds that some of the evidence which had been brought against the appellant on the original charges, dealing with events before May 1949 were inadmissible on the amended charges which related only to the month of May 1949 and that in the circumstances of the case, the improper admission had caused a failure of justice.

Mohamed Kassun v Public Prosecutor [1950] MLJ 295 High Court, Seremban (Whitton Ag J).

In this case, there were two cross-summonses for voluntarily causing hurt which with the consent of counsels for the parties were consolidated and heard together by the learned magistrate. After hearing both parties and their witnesses, the learned magistrate convicted the appellant.

Held: (1) where there are two cross-summonses in which the complainant in one is the accused in the other, the magistrate has no jurisdiction to hear them together; (2) even if it were correct to regard the procedure adopted in the present case as a mere irregularity, it could not be said with reasonable certainty that the irregularity had not occasioned a failure of justice and therefore, it could not be cured by the provisions of s 440 of the Criminal Procedure Code 1955.

Mohamed bin Ibrahim v R [1955] MLJ 221 High Court, Singapore (Whyatt CJ).

[Annotation: See also Papathy v Public Prosecutor [1956] MLJ 18]

Whether the magistrate, at the request of the accused, refused to order the production of the statement of the witness to the police for reference,

Held: the magistrate was wrong in refusing to order the production, and the omission had prejudiced the accused and thereby caused a failure of justice.

Yohannan v R [1963] MLJ 57 High Court, Singapore (Chua J).

One Lee Kim Ching, a juvenile, was charged under s 380 of the Penal Code (FMS Cap 45) with committing theft of two gold rings. In the course of the trial, one of the prosecution witnesses was going to testify about an admission made to her by the offender. The President of the Juvenile Court ruled that the admission by the offender to the prosecution witness was inadmissible. The offender was acquitted and discharged without his defence being called. The President of the Juvenile Court subsequently forwarded the case record to the High Court with a view to revision.

Held: (1) under s 24 of the Evidence Act (Act 56), a confession is irrelevant only if it had been caused by inducement, threat or promise proceeding from a person in authority and since the prosecution witness in question was not a person in authority in relation to the offender, s 24 did not apply in this case; (2) under s 422 of the Criminal Procedure Code (FMS Cap 6), no finding or order made by a lower court is to be reversed or altered on account of improper rejection of evidence unless such improper rejection has occasioned a failure of justice. In the present case, the rejection of the offender's admission had occasioned a failure of justice in that if the admission had been admitted, the court would probably have found the offender guilty instead of acquitting her; (3) in this case, the offender should be discharged, such discharge not amounting to an acquittal, so that the prosecution can bring fresh proceedings against the offender if they wish to do so.

Re Lee Kim Ching [1974] 2 MLJ 44 High Court, Ipoh (Wan Hamzah J).

The appellant was convicted of murder under s 302 of the Penal Code. The evidence showed that he with others, beat the deceased to death in October 1944 and that they all had the common intention of beating the deceased with sticks to obtain information from him. At the trial, counsel for the defence specifically raised the question that one of the possible verdicts was a conviction under s 331 of the Penal Code, that is, causing grievous hurt with a view to extorting a confession or information. In spite of this specific submission, the learned trial judge in his summing-up directed the assessors that there were only four possible verdicts: (a) murder (b) culpable homicide not amounting to murder (c) causing grievous hurt and (d) acquittal.

Held: (1) since the evidence clearly showed that the beating which caused the death was inflicted with the object of obtaining a confession or information, and also since a possible verdict under s 331 of the Penal Code was specifically raised by counsel for the defence, the learned judge should have directed the assessors on that point and left it to them to decide whether the facts as proved amounted to the lesser offence under s 331 of the Penal Code rather than the offence of murder; (2) his omission to do so amounted to a clear misdirection and such misdirection occasioned failure of justice; (3) the court had no option but to quash the conviction and sentence for murder and substitute a conviction under s 331 of the Penal Code.

Karthigasu v Public Prosecutor [1946] MLJ 124 Court of Appeal, Malayan Union (Willan CJ).

The appellant, with two other men, entered a shop in Tanjong Katong Road, Singapore. He produced a revolver and told Chia Mui Song, its owner, to come out from behind the counter. Chia Mui Song did so and the appellant asked him for his keys and tried to search him. Chia Mui Song brushed his hands away and the appellant then fired a shot in the direction of Chia Mui Song which hit him in the arm. After a struggle, Chia Mui Song tried to get hold of the telephone which was on the counter behind which he had been sitting. The appellant fired again and Chia Mui Song died. Three bullets had struck his body and two on his right arm; one or both of these which went through his arm might have entered his body, but there was no evidence to that effect. The appellant was tried before a jury and the trial judge in summing up, having explained the first, third and fourth limbs of s 300 of the Penal Code (Cap 119, 1955 Ed), said: 'If you take the same view as myself, you will decide that the injuries to the chest and abdomen were not intentionally inflicted by the accused... the irresistible inference is that he had the knowledge that the act of shooting at the deceased's forearm was so imminently dangerous that it must in all probability cause death or bodily injury likely to cause death... It seems to me, therefore, that the prosecution has established beyond reasonable doubt one of the states of mind required for the offence of murder... Your main task is, therefore, to decide whether you fully accept the evidence... that it was the accused who fired the bullets which penetrated the deceased's chest and abdomen'; and just before the end of his summing-up the learned trial judge said: 'If you are fully satisfied on this point, that is, satisfied beyond reasonable doubt, you will find the accused guilty of murder.' The appellant was convicted of murder and his conviction was upheld by the Federal Court (Barakbah CJ (Malaya), Wylie CJ, (Borneo) and Tan Ah Tah J) (22 February 1965). By special leave in forma pauperis in an appeal to the Privy Council,

Held: (1) the four limbs of s 300 of the Penal Code were not mutually exclusive, and the words used by the trial judge near the end of his summing-up, following as they did his firm expression of opinion that the appellant, if he fired the shots, had the state of mind necessary to constitute the offence of murder, might have led the jury to conclude that in substance the only issue for them was whether the accused fired the shots. That amounted to a misdirection and the conviction should not be allowed to stand; (2) the contrast between the use of the words 'likely to cause death'Êin s 299 and the words 'sufficient in the ordinary course of nature to cause death' in the third limb of s 300 of the Penal Code indicated that a high degree of certainty was required to justify a conviction under that limb for murder. Where the question whether a case comes within the third limb of s 300 is in reality left to a jury, it is difficult to envisage a case in which reference ought not to be made to the contrast in the words aforesaid and it is difficult to envisage a case in which it would not be right to leave the question of a verdict of culpable homicide to the jury. In this case, although the trial judge did tell the jury that they had to consider the third limb of s 300, his direction was such as to amount to a direction that that part of s 300 did not apply; (3) the proviso to s 60(1) of the Courts of Judicature Act 1964 was not applicable, because it could not be said that a reasonable jury properly directed would inevitably have reached the conclusion that the person who fired the shot was guilty of murder because the learned judge who heard the evidence formed the view that the accused's intention was only to shoot the deceased in the forearm and their Lordships were therefore unable to exclude the possibility that a reasonable jury properly directed would have reached the same conclusion.

Chung Kum Moey v Public Prosecutor [1967] 1 MLJ 205 Privy Council Appeal From Singapore (Viscount Dilhorne, Lord Hodson and Lord Pearce).

The trial judge in the course of his summing-up and in reference to statements made by witnesses to the police made use of the expressions 'his evidence is recorded in the statement' and 'that does corroborate the prosecution story roughly as regards time'.

Held: (1) statements to the police can only be used to impeach the credit of witnesses and, when proved, do not become independent evidence of facts contained in them; (2) in view of the evidence as a whole and particularly as the facts concerned were proved by other evidence, the use of the expressions by the trial judge could not have had any effect on the minds of the jury and therefore in accordance with the provisions of s 448 of the Criminal Procedure Code (Cap 21), the appeal against conviction must be dismissed.

Jones v R [1948] MLJ 182 Court of Criminal Appeal, Singapore (Murray-Aynsley CJ).

Lim Kim Chai v Public Prosecutor [1963] MLJ 26 High Court, Johore Bahru (Adams J).

The appellant was convicted of murder and was sentenced to death. During the progress of the trial, two articles appeared in two local newspapers giving four particulars which must inevitably have identified the appellant in the minds of any member of the jury who read the articles as being the person concerned in the offence. The four particulars were (a) the place; (b) the venue; (c) the month in which the alleged offence was committed; and (d) a description of the occupation of the deceased. It was also stated that the source of information upon which the newspapers relied was a senior police officer.

Held: a substantial miscarriage of justice occurred during the progress of the trial and as the evidence against the appellant was not overwhelming, the proviso to s 6(2) of the Court of Criminal Appeal Ordinance (Cap 129, 1955 Ed) should be applied to order a new trial.

Ghani bin Jonit v R (No 2) [1959] MLJ 225 Court of Criminal Appeal, Singapore (Tan Ah Tah Ag CJ, Chua and Wee Chong Jin JJ).

The magistrate held an inquiry of death under Chapter XXXII of the Criminal Procedure Code (FMS Cap 6). After the accused had given his account of what had happened at the collision in which he was involved, the magistrate announced his verdict in the following terms: 'Misadventure caused by the negligent act of Ahmad bin Din. I direct that Ahmad bin Din be arrested and charged with negligent driving.' In pursuance of this direction, the accused was arrested and on the following day, he appeared before the same magistrate. He pleaded guilty and was convicted and fined $75 and had his driving licence endorsed.

Held: the trial in this case amounted to a miscarriage of justice; it cannot be said that justice is manifestly and undoubtedly seen to be done when an accused person appears for trial before a magistrate who had already judicially announced his belief in his guilt.

Public Prosecutor v Ahmad bin Din [1956] MLJ 235 High Court, Ipoh (Thomson J).

In an appeal to the Court of Criminal Appeal, leave is not required to file additional grounds of appeal, when the original notice has been filed in time. Statements, however, sent in at the last moment may result in the application being adjourned and the loss of time would run against the appellant.

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

[Annotation: See the Editorial Note in [1935] MLJ xxix under the heading 'Additional grounds of appeal in criminal cases'. See also Veerasingam v Public Prosecutor [1958] MLJ 76.]

The appellant was convicted of an offence under s 4(a) of the Prevention of Corruption Act 1961 (Act 57). The retrial started on 13 June 1972 and was carried on for seventy-seven days over a period of fourteen months. It was concluded on 20 August 1973, and on 29 August 1973 the appellant filed his notice of appeal. But the grounds of decision dated 20 July 1974 were not supplied to counsel until 2 July 1976.

Held: the delay of another two years before receiving the grounds of decision was most unsatisfactory and has prejudiced the appellant.

TN Nathan v Public Prosecutor [1978] 1 MLJ 134 High Court, Penang (Gunn Chit Tuan J).

[Annotation: This case is a sequel to Nathan v Public Prosecutor [1972] 2 MLJ 101.]

The first respondent was charged with having committed criminal breach of trust ('CBT') of RM1m, and the second respondent with abetting him. At the trial, upon conclusion of the appellant's case, the court found that no prima facie case against the respondents had been made out which if unrebutted would warrant their conviction and an order of acquittal was recorded pursuant to s 173 of the Criminal Procedure Code (FMS Cap 6) ('the Code'). The presiding judge stated her reasons for arriving at such a conclusion briefly to the extent of four foolscap pages, prefacing her reasons by expressly stating that the reasons were an 'oral judgment' in respect to which she purported to reserve a right to amend or add to in the event of an appeal. The appellant appealed against the court's decision and the judge acting under s 307(3) of the Code then furnished detailed grounds of decision 30 pages long, independently but not inconsistent with the four-page grounds made earlier. On appeal, the appellant submitted that in considering the appeal, the court should have regard only to the judge's four-page grounds and to disregard those grounds given thereafter, citing authorities in support of the submission.

Held, rejecting the appellant's submission: (1) the judge had a duty pursuant to s 307(3) of the Code to provide grounds of decision, which should be provided as soon as reasonably possible after the notice of appeal and which ideally should be as detailed and comprehensive as reasonably possible. It is only upon giving detailed and comprehensive grounds that the judge becomes functus officio in which case those grounds cannot be supplemented by further grounds at a later stage; (2) nothing prevents the judge giving a precis of reasons for an order at the time of making thereof followed by detailed and all-embracing reasons consequent upon appeal. Thus, in the circumstances, the course taken by the judge (summary reasons on the spot, upon appeal detailed grounds) was appropriate and well balanced; (3) the judge does not have the right she expressly reserved to alter or add to the brief grounds given before the order was made. To avoid any misunderstanding the judge should have described what she stated before making the order as brief reasons for making the order, adding that in the event of appeal grounds of decision amounting to a written judgment would be forthcoming. The court believed that that in truth was what she meant to say.

Public Prosecutor v Dato' Rahmat bin Asri & Anor Criminal Appeal No 42-5-1991 High Court, Muar (Richard Talalla J).

The absence of counsel for a prisoner, although unavoidable, is no ground for postponing the trial of a case, and the refusing to do so by a magistrate is no ground for an appeal although the prisoner be convicted.

Vello Pillay v Kadier & Anor [1870] 3 Ky 50 High Court, Straits Settlements (Hackett J).

An objection showing merely an irregularity or error, in the course of a trial, which has not occasioned a failure of justice, will not be reserved for the consideration of the Court of Appeal.

R v Mun Bomoh & Ors [1882] 2 Ky Cr 110 High Court, Straits Settlements (Wood J).

In this case, it was alleged in an appeal against a conviction that the learned magistrate was wrong in his findings of fact and that the verdict was therefore against the weight of evidence.

Held, dismissing the appeal: it was not a sufficient ground of appeal to allege that the verdict was against the weight of the evidence. Under s 259(2) of the Criminal Procedure Code 1959, it is for the appellant to show that the 'conviction is unreasonable or cannot be supported having regard to the evidence'.

Ooi Teik Chin v Public Prosecutor [1971] 1 MLJ 51 High Court, Kota Kinabalu (Lee Hun Hoe J).

In this case, one of the grounds of appeal was stated to be that the 'verdict of the jury was against the weight of the admissible evidence.' The court drew counsel's attention to the provisions of s 6(1) of the Court of Criminal Appeal Ordinance (Cap 129, 1955 Ed) and to the decision of the Privy Council in Aladesuru v R [1955] 3 WLR 515; 39 Cr App R 184, where it was laid down that in order to succeed an appellant must show, in the words of the statute, that the verdict 'is unreasonable or cannot be supported having regard to the evidence.' The Privy Council was of the opinion that it was not a sufficient ground to allege that the 'verdict is against the weight of evidence', and that the phrase was inaccurate and could not properly be substituted for the words of the statute. Counsel then applied for leave to amend the grounds of appeal so as to conform with the words of the ordinance and this application was granted. The court granting the application said: 'We would like it be known, however, that in future any ground of appeal which is worded similarly to the one originally filed in this case will be struck out.'

Held: the appellant must show, in the words of s 6(1) of the Court of Criminal Appeal Ordinance, that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice. In this case, there was no ground upon which it could be held that there was a wrong decision on any question of law or that there was a miscarriage of justice.

Goh Ah Too v R [1956] MLJ 139 Court of Criminal Appeal, Singapore (Whyatt CJ, Taylor and Tan Ah Tah JJ).

[Annotation: See the Editorial Notes in [1933] MLJ viii and [1934] MLJ lxi. See also Teo Pcen Soon & Ors v R [1956] MLJ 241.]

In this case, the applicants and another person had been charged with an offence under the Prevention of Corruption Act 1961 (Act 57). They were found guilty and convicted and sentenced. The applicants appealed to the High Court but as there were no grounds of judgment available (as the learned President of the Sessions Court who had tried the case had left the service), the learned judge treated the case as a revision case. After hearing arguments, he dismissed the appeal and confirmed the convictions and sentences. The applicants applied to have the following questions of law for the decision of the Supreme Court: (a) When there is an appeal pending and no grounds of judgment are available, can the High Court act in revision? (b) If the answer is yes, what is the proper order the learned judge should make.

Held: (1) there can be no doubt that the learned judge in this case has complete jurisdiction to act as he did, that is, to treat the case as a revision case; (2) if the learned judge has complete jurisdiction, then he is entitled to make such order as he deems fit in the circumstances.

Jaafar bin Abu & Anor v Public Prosecutor [1988] 2 MLJ 363 Supreme Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

The appellate court will treat the misdirection by a magistrate or district judge in the same way as an erroneous direction to a jury.

Tan Yook Suan v R [1954] MLJ 116 High Court, Singapore (Murray-Aynsley CJ).

[Annotation: See also R v Marr [1946] MLJ 77, Arumugam v R [1947] MLJ 45 and Koay Teik Choo v R [1956] MLJ 52.]

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

It is not sufficient in a petition of appeal to state that the appeal is for 'error in point of law or wrong determination of point of law'; the specific ground of appeal should be set forth.

Sherifa Shaika v Haughton [1889] 4 Ky 533 High Court, Straits Settlements (Wood Ag CJ).

[Annotation: See also the Editorial Notes in [1933] MLJ viii, [1934] MLJ lxi and [1936] MLJ xiii under the heading 'Petition of Appeal' as well as the cases cited therein.]

If it is alleged in a petition of appeal that the conviction is against the weight of evidence, the petition should specify in what way the conviction is against the weight of evidence.

R v Ong Chwee Hoh & Anor [1933] MLJ 39 High Court, Straits Settlements (Murison CJ).

Where the appellant is represented by counsel, the memorandum must contain definite particulars of the points of law or fact in regard to which the trial judge is alleged to have erred. If these requirements are not complied with, the appeal may be rejected or adjourned till the next sitting and the appellant will be ordered to pay the costs of the appeal or the costs of the day as the case may be. Where the appellant is not represented by counsel, the formal allegation that the trial judge erred in law and fact or either will be accepted, without the particulars above-mentioned.

Lye Boon Hong v Ishihara Sangyo Kaiun Goshi Kaisha [1932] MLJ 175 Court of Appeal, Johore Bahru (Murison CJ and Terrell J).

[Annotation: See also Abdul Mutalib v R [1949] MLJ 121 where Taylor J held that particulars of the grounds of appeal should have been given in that case.]

Public Prosecutor v Dato' Rahmat bin Asri & Anor Criminal Appeal No 42-5-1991 High Court, Muar (Richard Talalla J).

In determining whether any error, omission or irregularity has occasioned a failure of justice within the meaning of s 414 of the Criminal Procedure Code 1900, the court hearing an appeal is entitled to take into consideration the fact whether the objection could and should have been raised at an earlier stage of the proceedings.

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

The appellant was the owner of a junk which was forfeited as having been used for the commission of an offence against the Customs Enactment 1936. He appealed against the forfeiture to the High Court which reserved the appeal for the consideration of three judges.

Held: (1) as the appellant had not been a party to the case in the first place, he had no right of appeal from the order made; (2) s 448 of the Criminal Procedure Code (Cap 21) cannot be relied on to enable a person who was not a party to the original charge to intervene at a later stage and constitute himself an appellant; (3) the matter was not properly before the court and the appeal must therefore be dismissed.

Koay Ban Siew v Public Prosecutor [1948] MLJ 54 Court of Appeal, Malayan Union (Murray-Aynsley CJ).

The appellant was charged: (i) with being in possession of a revolver, an offence contrary to reg 4(1)(a) of the Emergency Regulations 1948; and (ii) with being in possession of fifteen rounds of .38 ammunition and a hand grenade, an offence contrary to reg 4(1)(b) of the said regulations. After the learned trial judge had completed his summing-up, both assessors expressed their opinions that the appellant was guilty on the first charge. As regards the second charge, one assessor expressed his opinion that the appellant was not guilty in respect of the ammunition; the other assessor expressed his opinion that the appellant was guilty in respect of the ammunition and stated that as regards the hand grenade his opinion was neutral. Thereupon, the learned trial judge amended the second charge by deleting all reference to the hand grenade and took the opinions of both assessors on the amended second charge. On this amended charge, the first assessor expressed the opinion of not guilty and the second the opinion of guilty. The learned trial judge agreed with the second assessor and convicted the appellant on the second charge as amended. On appeal, it was argued that the alteration of the charge after the opinions of the assessors had been expressed was illegal and that since this illegality had occurred, the whole trial, including the conviction on the first charge, was void.

Held: (1) the amendment of the second charge in this case was in direct contravention of s 158 of the Criminal Procedure Code (FMS Cap 6) and this amounted to an illegality which could not be cured; (2) the opinions of the assessors expressed after that illegality had occurred were null and void, as also the purported conviction by the learned trial judge and the conviction and sentence on the second charge should be set aside; (iii) as no injustice was caused to the appellant in the proceedings relating to the first charge, there were no grounds for interfering with the conviction on that charge.

Ahmad v Public Prosecutor [1950] MLJ 1 Court of Appeal, Federation of Malaya (Willan CJ, Pretheroe and Spenser-Wilkinson JJ).

The appellants were convicted and sentenced to three months' imprisonment for unlawful possession of rubber. The charge against each of them read as follows: 'That you on 1 January 1955 at about 10.20 am at Jalong Tinggi Estate, Sungei Siput North in the State of Perak did have in your possession to wit 95 katties of scrap rubber valued at $28.50 which was fraudulently obtained and that you thereby committed an offence under reg 4(1) Emergency (Rubber Control) Regulations 1951 and punishable under reg 5(2) as amended by LN 536/53.' The evidence against the appellants was that in broad daylight they were riding on their bicycles along the road leading from the estate on which they were then employed as rubber tappers and each of them was carrying on the back of her bicycle a sack containing scrap rubber. They were seen by two police officers who for some purpose or another were hiding in the neighbourhood of the road and they were stopped. Under the regulation, the charge must be with being in 'unlawful possession' of rubber. Counsel for the appellant contended that the charge of 'fraudulently' obtaining the rubber was defective and that the convictions were against the weight of evidence.

Held: by reason of s 422 of the Criminal Procedure Code (FMS Cap 6) the defect in the charge, although an irregularity, could not possibly be said to have occasioned a failure of justice and therefore, it was an irregularity which was not fatal to the subsequent proceedings.

Moh Yee Chong & Anor v Public Prosecutor [1955] MLJ 115 High Court, Ipoh (Thomson J).

[Annotation: See also Wong Ah Kee v Public Prosecutor [1948-49] MLJ Supp 23, where Evans J held that the omission of the word 'knowingly' in the charge did not embarrass the accused in making his defence and could be cured under s 422 of the Criminal Procedure Code (FMS Cap 6), and in Public Prosecutor v Ginder Singh [1948] MLJ 194 at p 196, Callow J said 'I should state, as regards the charge, that it does not appear to have misled the defendant-respondent, and where, I think, could be cured by virtue of s 422 of the Criminal Procedure Code.' In Pitchaykutty v Public Prosecutor [1961] MLJ 293, Rigby J held that although the sanction to prosecute was defective by reason of a wrong date having been inserted, this was an error and no more and was therefore curable under s 448(a) of the Criminal Procedure Code (Cap 21), the defect in no way occasioning a failure of justice.]

This was an appeal against the conviction of the appellant on the following charge 'That you between 7 and 8 pm on 20 May 1948 on Chuan Moh San Estate, Tenang, in the State of Johore, robbed Tee Puet Kiat and Tee Kern and at the time of committing the said robbery you were armed with a deadly weapon, to wit, a revolver and that you thereby committed an offence punishable under s 392 and 397 of the Penal Code.' The appellant contended that the framing of one charge in respect of two robberies was an illegality and that the trial was thereby vitiated.

Held: (1) the duplicity of charges was merely an irregularity which could be cured under the provisions of s 422 of the Criminal Procedure Code provided that the accused was not prejudiced and there was no failure of justice occasioned by the irregularity; (2) in fact, the framing of the charge in the case caused confusion in the mind of the learned judge and that therefore, there was the possibility of a failure of justice.

See Yew Poo v Public Prosecutor [1949] MLJ 131 Court of Appeal, Kuala Lumpur (Willan CJ, Spenser-Wilkinson and Russell JJ).

Duplicity of charges is an irregularity, not an illegality and is cured under s 419 of the Criminal Procedure Code 1926, provided that such irregularity has occasioned no failure of justice.

Lee Chin Kee v Public Prosecutor [1935] MLJ 157 High Court, Federated Malay States (Thomas CJ).

[Annotation: This case was dissented from in Jagar Singh v Public Prosecutor [1936] MLJ 114; [1936] FMSLR 84, and disapproved in Yap Liow Swee v Public Prosecutor [1937] MLJ 225; [1937] FMSLR 71.]

In a charge for the offence of cheating under s 420 of the Penal Code, it is necessary to set out not merely the fact that the accused had obtained goods by dishonest means, but also the deception which has been practised. Failure to do so amounts to an illegality.

Liew Min Poh v Public Prosecutor [1962] 3 MC 316 High Court, Ipoh (Azmi J).

The appellant was convicted of possession of distilling apparatus for distilling intoxicating liquor, an offence under s 13(i) of the Excise Enactment (Cap 133). On appeal, it was argued that: (a) that the charge was bad as the word 'knowingly' was left out in it; (b) there was insufficient proof that the articles found were component parts of a still.

Held , inter alia: the defect in the charge did not embarrass the accused in making his defence and could be cured under s 422 of the Criminal Procedure Code (FMS Cap 6).

Wong Ah Kee v Public Prosecutor [1948-49] MLJ Supp 23 High Court, Malayan Union (Evans J).

[Annotation: As to additional words in the charge, see Public Prosecutor v Sim Moh Ee [1946] MLJ 88.]

Omission of place and wrong weight in the charge is an irregularity which is curable.

Public Prosecutor v Ginder Singh [1948] MLJ 194 High Court, Seremban (Callow J).

Failure to amend a charge is an irregularity which is curable.

Ramalingam Pillay v R [1905] 9 SSLR 99 High Court, Straits Settlements (Cox CJ).

Not reading and explaining to an accused an amended charge is an irregularity which is curable

Lim Tuan Hong v Hermann Jebsen & Co [1885] 4 Ky 79 High Court, Straits Settlements (Wood J).

Wee Toon Boon v Public Prosecutor [1976] 2 MLJ 191 High Court, Singapore (Wee Chong Jin CJ).

The appellant was convicted on a charge of 'assisting in the management of a public lottery.' On appeal, it was argued that the decision was wrong in law in that the appellant was found guilty on a charge which did not disclose an offence known to law.

Held: (1) there is no such offence under s 4(i)(c) of the Common Gaming Houses Enactment as 'assisting in the management of a public lottery' and therefore, the conviction in this case was a nullity; (2) as the proceedings in the court below were a nullity, a retrial could not be ordered. Obiter: In the event of further proceedings, a plea of autrefois convict would be unavailing, for the appellant had not been in peril.

Chong Chee Pak v Public Prosecutor [1948-49] MLJ Supp 45 High Court, Seremban (Callow J).

A charge under one section of an ordinance followed by a conviction under another is an irregularity which is incurable.

R v Shaik Hossain [1877] 3 Ky 98 High Court, Straits Settlements (Phillips J).

When charges are tried together in contravention of any provisions of the Criminal Procedure Code, there is an illegality which cannot be cured, and any conviction cannot be sustained.

Cheong Sik Kwan v Public Prosecutor [1959] MLJ 189 Court of Appeal, Kuala Lumpur (Thomson CJ, Smith and Ong JJ).

Chin Choy v Public Prosecutor [1955] MLJ 236 Court of Appeal, Kuala Lumpur (Mathew CJ, Wilson and Abbott JJ).

Where the accused were charged with committing affray under s 160 of the Penal Code and with disorderly behaviour in public places under s 25 of the Minor Offences Enactment in the alternative, but upon an objection being raised at the hearing as to the propriety of the joinder of the charges the magistrate charged the accused with an offence under which they had been charged in the alternative,

Held: any irregularities that might have occurred in the events that had happened came within and were curable by s 422 of the Criminal Procedure Code (FMS Cap 6).

Supramaniam & Ors v Public Prosecutor [1939] MLJ 229 High Court, Federated Malay States (Murray-Aynsley J).

The misjoinder of charges is not such an irregularity that it can be cured by s 428 of the Criminal Procedure Code 1910.

R v Shaik Mohamed [1930] SSLR 256 High Court, Straits Settlements (Murison CJ).

Want of consent of the Public Prosecutor under the provisions of the Prevention of Corruption Ordinance is not an omission that can be cured by reason of s 422 of the Criminal Procedure Code (FMS Cap 6).

Lyn Hong Yap v Public Prosecutor [1956] MLJ 226 Court of Appeal, Kuala Lumpur (Matthew CJ (FM).

Conviction against a company in the company's name is an irregularity which is incurable.

The King v Yong Lee Seng [1902] 7 SSLR 31 Court of Appeal, Straits Settlements (Cox CJ, Law, Leach and Hyndman-Jones JJ).

[Annotation: See s 57 of the Criminal Procedure Code (Cap 68, 1985 Ed). This section makes provisions for the representation of corporations accused of offences. See also R v Lee Printing Co Ltd [1937] MLJ 6.]

A conviction awarding costs which does not show the amount thereof is bad. Such an error might be amended by the case being remitted to the magistrate to state a definite amount.

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

A conviction awarding costs which does not show the amount thereof is bad. Such an error might be amended by the case being remitted to the magistrate to state a definite amount.

Municipal Commissioners v Chuah Seng & Ors [1882] 3 Ky 140 High Court, Straits Settlements (Ford J).

A conviction based on a joint plea of guilty is bad and irregular.

Fong Siew Poh v Public Prosecutor [1933] 1 MC 155 High Court, Federated Malay States (Gerahty J).

The appellant was tried for being in possession of a hand-grenade. At the close of the evidence, the learned trial judge summed up to the assessors and both the assessors gave their opinions that the appellant was guilty of the offence charged. The learned trial judge recorded these opinions and also recorded his own opinion that he agreed with them. But there was nothing in the record to show that the learned trial judge gave judgment by convicting the appellant as required by s 198(i) of the Criminal Procedure Code (FMS Cap 6). The record only showed that the appellant was sentenced to death.

Held: the failure of the learned trial judge to record that he gave judgment by convicting the appellant was an irregularity but such irregularity could be cured under s 422 of the Criminal Procedure Code.

Wong Heng v Public Prosecutor [1949] MLJ 127 Court of Appeal, Kuala Lumpur (Willan CJ, Spenser-Wilkinson and Briggs JJ).

[Annotation: Govindasamy v Public Prosecutor [1949] MLJ 101 distinguished.]

A conviction which does not record with certainty the offence committed is an irregularity which is incurable.

Lim Beh & Ors v Opium Farmer [1842] 3 Ky 10 Court of Judicature of Prince of Wales' Island, Singapore and Malacca (Norris R).

A conviction imposing one sentence for two offences is good but at all events might be amended under ss 25, 32 and 33 of the Appeals Ordinance 1879.

Opium Farmer v Chua Ah Tong [1886] 4 Ky 188 Court of Appeal, Straits Settlements (Ford CJ, Sheriff and Pellereau JJ).

[Annotation: R v Ooi Tim (1879) 3 Ky 119 and Cartan v Meenachee (1882) 3 Ky 151 overruled.]

The appellant was charged in a district court with giving false evidence contrary to s 193 of the Penal Code and in the alternative, with giving false information to a public servant with intent to cause such public servant to take action which he ought not to take if the true state of facts were known to him, contrary to s 182. At the trial, the prosecution proved the statement given in evidence and the statement made to the public servant, and that both statements were made by the accused. The two statements were irreconcilably contradictory, but the prosecution did not lead any evidence to establish affirmatively which of the two statements was false. The district judge held at the trial that there could not be a conviction in the alternative and convicted on the main charge under s 193 alone. In his grounds of judgment, he stated that had he been aware of the decisions in Ramamoorthy v Public Prosecutor [1948] MLJ 43, and Govindasamy v Public Prosecutor [1948] MLJ 46, he would have had no hesitation in convicting in the alternative.

Held: (1) there was no evidence to show that the evidence given by the accused in the district court was false and the conviction on the main charge under s 193 could not be upheld; (2) the principle of convicting in the alternative without affirmative proof of which of two contradictory statements is false does not apply, unless the making of each statement is capable of being an offence under the same section of the Penal Code, and a conviction in the alternative under s 182 and s 193 could not be substituted.

Seow Keh Meng v R [1952] MLJ 215 High Court, Singapore (Brown J).

A conviction in the alternative is bad; but it may be altered by the Court of Appeal provided the evidence shows clearly which of the alternative statements should be sustained.

Opium Farmer v Chua Ah Tong [1886] 4 Ky 188 Court of Appeal, Straits Settlements (Ford CJ, Sheriff and Pellereau JJ).

The accused were charged with playing a prohibited game of 'pai kow'. It appeared that before the hearing, the learned magistrate instructed the court clerk to tell the accused persons that if they pleaded guilty, the magistrate would impose a fine of $5 on each accused person and the money found would be returned to them. They accordingly pleaded guilty. They were fined $5 each, but the sum of $2,589.05 found was ordered to be forfeited.

Held: it was irregular and improper for a magistrate to compromise with accused persons that if they pleaded guilty, he would impose on each a small fine and that accordingly, the conviction and sentence must be quashed.

Public Prosecutor v Wong Sik Chung & Ors [1965] 1 MLJ 4 High Court, Sibu (Lee Hun Hoe CJ).

Conviction under a wrong clause of an ordinance is an irregularity which is curable.

R v Koomah [1874] 3 Ky 67 High Court, Straits Settlements (Ford J).

A joint trial of several cross-summonses is illegal.

Asiah binte Baginda Raja v Public Prosecutor [1933] 1 MC 153 High Court, Federated Malay States (Hereford J).

This was a criminal reference under s 34 of the Courts Ordinance 1948 on a certificate of the Public Prosecutor. The point raised for determination was whether the joint trial of cross-summonses is an illegality or an irregularity. The procedure adopted by the learned magistrate was to hear one of the two cases, ie PP 2080/53 first. The complainant and his witnesses gave evidence and they were cross-examined by counsel for the defence. At the close of the case for the prosecution, the learned magistrate made the following note 'Complainant in PP 7/54 to state her case and answer the charge'. The two complainants in that case and one of the defence witnesses were then examined and cross-examined by counsel for the complainant in case PP 2080/53. The learned magistrate then found the present appellants who were the accused in case PP 2080/53 guilty.

Held: the procedure followed by the magistrate was not in accordance with the provisions of the Criminal Procedure Code (FMS Cap 6) and therefore, the trial was bad and could not be cured by recourse to s 422 of the code.

Papathy v Public Prosecutor [1956] MLJ 18 Court of Appeal, Ipoh (Mathew CJ, Spenser-Wilkinson and Hill JJ).

[Annotation: See also Charter Singh v Public Prosecutor (1931) 1 MC 132, where it was held that a magistrate cannot, where there are two cross-summonses in which the complainant in one is the accused in the other, consolidate and hear them together. Each charge should be tried separately.]

Mohamed bin Ibrahim v R [1955] MLJ 221 High Court, Singapore (Whyatt CJ).

Failure of the magistrate to intimate the existence of the application made under s 91(i) of the Town Board Enactment to the accused was an irregularity which was capable of being cured under s 422 of the Criminal Procedure Code (FMS Cap 6).

Sinnu v Public Prosecutor [1955] MLJ 134 High Court, Ipoh (Thomson J).

When there is an appeal against a finding of fact depending on the credibility of the witnesses, and no reason having been advanced that such finding was wrong having regard to the evidence, the appellate court would have no hesitation in dismissing the appeal. A statement from the dock is evidence for what it is worth, but nevertheless evidence which thereafter entitles the accused or his counsel to address the court. Failure to afford accused or his counsel an opportunity to address the court is a serious irregularity entitling the accused to a retrial. The irregularity is, however, curable under s 448 of the Criminal Procedure Code (SS Cap 21) where counsel for the defence had previously made an address to the court in the same case and, if he had not been shut out, he would have quite clearly merely repeated his address. There being no failure of justice having been occasioned in this case, the appeal was dismissed.

Ng Hoi Cheu & Anor v Public Prosecutor [1968] 1 MLJ 53 High Court, Penang (Chang Min Tat J).

Calling evidence for the prosecution after the case for the defence has been closed is an irregularity which is curable.

Versay v Mohamed Hanif [1875] 3 Ky 79 High Court, Straits Settlements (Ford J).

A mere irregularity in the trial of a case before a magistrate such as calling new witnesses for the prosecution after the prisoner has been called on for and stated his defence is not such as will induce the court to quash the conviction.

Chooashary v Cassim [1877] 3 Ky 98 High Court, Straits Settlements (Phillips J).

This was an appeal against the appellant's conviction on a charge under s 411 of the Penal Code. In the court below he was unrepresented by counsel and gave evidence denying knowledge of how the goods in question came to be where they were found. The record of the proceedings did not show that the requirements of s 257 of the Criminal Procedure Code (FMS Cap 6) had been complied with. One of the grounds of appeal was that since the appellant was not represented by counsel, there was failure in complying with the requirements of the section and the trial was thereby vitiated.

Held: in this case, although the learned magistrate had failed to explain the main points of the evidence against the appellant, he (the appellant) was able in his defence to give an intelligent reply; therefore, having regard to what had taken place subsequent to that, the accused had not been prejudiced in his defence; the failure to comply with the provisions of s 257 of the Criminal Procedure Code had not occasioned any prejudice or a reasonable probability of prejudice, but was an omission curable under s 422 of the code.

Shaari v Public Prosecutor [1963] MLJ 22 High Court, Ipoh (Azmi J).

When failure to record questions and answers in no way prejudiced the appellant, it was held that it was a mere irregularity curable under s 448 of the Criminal Procedure Code (Cap 21).

Chua Sek Leng v R [1953] MLJ 25 High Court, Penang (Spenser-Wilkinson J).

The introduction of the evidence of previous conviction is not a mere irregularity which could be passed over under s 422 of the Criminal Procedure Code (FMS Cap 6), but a breach of a cardinal principle in the administration of justice.

Adlan v Public Prosecutor [1965] 1 MLJ 142 High Court, Ipoh (Ong J).

The three respondents in this case and one other were jointly charged with the murder of one G on 7 January 1939 and were acquitted by the trial judge on 22 March, the fourth accused being discharged but not acquitted. At the trial, certain statements made by the respondents to a magistrate on affirmation were tendered in evidence by the prosecution but they were rejected by the trial judge. The Public Prosecutor appealed mainly on the ground that the trial judge was wrong in law in rejecting those statements.

Held: as the statements were made on affirmation and this was contrary to the provisions of s 115(v) of the Criminal Procedure Code (Cap 6), s 420 of the Criminal Procedure Code (Cap 6) did not apply and the statements were rightly rejected.

Public Prosecutor v Raman I and Raman II [1940] MLJ 163 Court of Appeal, Federated Malay States (Poyser CJ (FMS).

The admission of a statement made by a witness during a police investigation, a copy of which is not furnished to the accused and which is not proved in any way, is an irregularity which cannot be cured under s 422 of the Criminal Procedure Code (FMS Cap 6).

Public Prosecutor v Dris bin Taib [1939] MLJ 288 High Court, Federated Malay States (Murray-Aynsley J).

At the trial, a statement made to the police in the course of an inquiry was put to a witness without the necessary formalities being followed. Further, the record of certain proceedings before the Protector of Chinese was produced without being proved. On appeal, it was contended that these were irregularities which came within the scope of s 422 of the Criminal Procedure Code (FMS Cap 6).

Held: (1) before that section can be applied, an appellate court should be reasonably certain that the court below would have arrived at the same conclusion if the irregularity complained of had not occurred; (3) what is complained of must be an irregularity as distinct from an illegality. Both these matters were illegalities.

Tong Ke Kee v Public Prosecutor [1941] MLJ 139 High Court, Federated Malay States (Murray-Aynsley J).

[Annotation: See also Lim Chong Kooi v Public Prosecutor [1965] 2 MLJ 169, where it was held that the error was of no consequence.]

The appellant was charged with the murder of one Paullette by shooting her with a .44 revolver. The material witnesses at the trial were, Zadie, the husband of the deceased, and Matadial, the deceased's sister. Zadie had testified that the appellant had threatened the deceased on several occasions prior to the shooting and that the appellant had actually confessed to the murder after the incident. Matadial testified that the appellant had threatened the deceased. The appellant's defence was that the shooting was an accident. His appeal against his conviction was dismissed by the Jamaican Court of Appeal and he appealed to the Privy Council. His main ground of appeal was that the police statements of Zadie and Matadial were not made available to him after it became apparent that there were discrepancies between the statements and their testimony.

Held, allowing the appeal: (1) where there were discrepancies between the statements of a prosecution witness and their evidence in court, the defence was entitled to see the statement, not by virtue of any rule of law, but by virtue of the prosecution's duty to inform the defence of statements in their possession made by a witness whose evidence at the trial differs substantially from the statement. The principal consideration must be one of fairness to the accused person. In a civilized community, the most suitable way of achieving such fairness was best left to, and devised by, the legislature, the executive and the judiciary which served that community and were familiar with its problems; (2) a comparison of the statements with the evidence of Zadie and Matadial revealed a small but not insignificant number of discrepancies, only one of which was disclosed by the Crown to the defence. Evidence had been adduced which was not foreshadowed in the committal depositions. It was the Crown's duty to give advance warning of that evidence by furnishing the statements to the defence. Failure to do so was a material irregularity; (3) the trial judge had also failed to adequately direct the jury on the appellant's previous good character by failing to point out that this was primarily relevant to the question of credibility. Such case as the defence was able to make out depended almost entirely on the appellant's credibility if it was to have any prospect of success, and therefore the misdirection was material; (4) the case against the appellant was indeed a strong one and for that reason, their Lordships were not prepared simply to recommend that an acquittal be ordered. The appeal was allowed but the case was remitted to the Jamaican Court of Appeal with the direction that the court should quash the conviction of the appellant and either enter a verdict of acquittal or order a new trial, whichever course it considered proper in the interests of justice.

Linton Berry v R [1992] 3 All ER 881 Privy Council Appeal from Jamaica (Lord Keith, Lord Roskill, Lord Ackner, Lord Jauncey and Lord Lowry).

The record of the learned trial judge in this case did not show that he gave any judgment or that there was any agreement between him and the assessors. The record only showed that the trial judge passed sentence of death following the opinion of the assessors that the accused was guilty of murder.

Held: (1) as the learned trial judge had not complied with the provisions of s 198 of the Criminal Procedure Code, the conviction and sentence must be quashed; (2) the omission in this case to comply with the mandatory provisions of the code was not a mere irregularity which could be cured by recourse to s 422 of the Criminal Procedure Code.

Govindasamy v Public Prosecutor [1949] MLJ 101 Court of Appeal, Federation of Malaya (Willan CJ, Russell and Briggs JJ).

[Annotation: See also Goh Ah Yew v Public Prosecutor [1949] MLJ 150, where two charges were joined in one trial, one of which was a charge for which assessors were required and the other not, and it was held that such a trial was a 'trial with assessors' in respect of both charges and the opinion of the assessors must be asked for on both charges. In that case, the accused was convicted on the second charge by the judge alone without his having first asked the assessors for their opinion and the Court of Appeal held the conviction was an illegality which could not be cured under s 422 of the Criminal Procedure Code (FMS Cap 6).]

It is irregular for a juryman, sitting on the trial of a criminal charge, to visit the locus in quo on his own and there to take observations with the view of testing the evidence of certain witnesses, and thereafter, to communicate the result of his observations to his fellow jurors; but such irregularity does not, of itself, without occasioning a failure of justice, vitiate the trial.

R v Mun Bomoh & Ors [1882] 2 Ky Cr 110 High Court, Straits Settlements (Wood J).

The importation by a magistrate of his knowledge acquired in one case into another is an irregularity which is incurable.

Merican & Ors v Mahamed [1882] 3 Ky 138 High Court, Straits Settlements (Wood J).

[Annotation: See also Public Prosecutor v Lee Ee Teong [1953] MLJ 244 and cases cited therein. But see Teoh Ng Choon & Ors v Public Prosecutor [1955] MLJ 58 where it was held that a magistrate should not be denied the use and benefit of his own knowledge and experience.]

In cases where security for keeping the peace and for good behaviour is required to be furnished, omission to make an order under s 76 of the Criminal Procedure Code (SS Cap 21) setting forth the substance of the information received by a magistrate, the amount of the bond to be executed, etc is an irregularity which cannot be cured under s 428 of the code.

Mohamed Kaus bin Haji Aman v R [1934] MLJ 179 High Court, Straits Settlements (Gerahty J).

[Annotation: Kylasam v Public Prosecutor (1916) 1 FMSLR 276 considered and distinguished.]

The omission in an order under s 68 of the Criminal Procedure Code 1902 to set out the substance of the information received, the amount of the bond, the term for which security is to be found, and the number and class of sureties required is an irregularity under s 335, but does not vitiate the trial unless such omission has occasioned a failure of justice.

Kylasam v Public Prosecutor [1916] 1 FMSLR 276 High Court, Federated Malay States (Innes JC).

[Annotation: In another appeal heard shortly afterwards, Earnshaw J declined to follow this decision and held similar irregularities to be fatal: McCabe Reay's Digest p 28.]

The remedying of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say, when the code positively enacts that such a trial as that which has taken place here shall not be permitted, that the contravention of the code comes within the description of error, omission or irregularity.

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

[Annotation: Not followed in R v Sakandar Khan [1939] MLJ 123.]

The fact that the prosecution was conducted by the complainant and not by any of the officers mentioned in s 377 of the Criminal Procedure Code (FMS Cap 6) was an irregularity, but as it did not prejudice the appellant, it was cured by the provisions of s 422.

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

The appellants were charged with the offence of putting a person in fear of injury in order to commit extortion, an offence punishable under s 385 of the Penal Code (Cap 119, 1955 Ed). At the conclusion of the prosecution case, the learned counsel for the appellants submitted that there was no case to answer against any of the three appellants. The learned district judge rejected his submission and ruled that all the appellants had cases to answer. In the event, all three elected to remain silent; no witnesses were called on behalf of the defence, but an application was made by learned counsel under s 172(j) of the Criminal Procedure Code (Cap 132, 1955 Ed) for the recall of the complainant for cross-examination. The learned district judge disallowed the application on the ground that it was out of time, convicted the appellants and sentenced them to 12 months' imprisonment, together with six strokes of the rattan each. On appeal,

Held: (1) at the time of the application, the appellants were still making their defence and, therefore, it should have been treated on its merits; (2) the fact that they elected neither to give evidence on oath nor to make an unsworn statement from the dock nor to call any witnesses on their behalf is immaterial; (3) the defect in the proceedings of the trial court was substantial and the convictions, therefore, could not stand.

Ong Boon Siang & Ors v R [1961] MLJ 4 High Court, Singapore (Rose CJ).

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

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

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

[Annotation: Hassan v Public Prosecutor [1948-49] MLJ Supp 179 discussed and applied.]

Where counsel had a specific authorization to prosecute an accused under a particular section, his justification for appearing on behalf of the Crown in court was that authorization. If he elected to proceed under a different section carrying a heavier maximum sentence than the one which was authorized, then it was an illegality that could not be cured.

Lim Seo v R [1962] MLJ 304 High Court, Singapore (Rose CJ).

When an enactment provides that no prosecution under it can be instituted without the sanction of an officer appointed under it, and the enactment is subsequently repealed, the legal existence of the officer comes to an end and conviction under his sanction will be illegal.

Yong Ni Chai v Public Prosecutor [1913] 1 FMSLR 130 High Court, Federated Malay States (Innes JC).

Want of sanction or complaint, and wrong joinder of charges, are irregularities which are curable.

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

In this case, in a charge under the Tobacco Duties Ordinance, a sanction to prosecute was put in, but it was not signed by an officer who had authority to do so.

Held: the lack of the sanction in this case deprived the court of jurisdiction, s 448 of the Criminal Procedure Code applying only to sanctions required by s 139 of that Code.

Ng Chuan & Anor v R [1948] MLJ 185 High Court, Singapore (Murray-Aynsley CJ).

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

Held: by virtue of the provisions of s 422 of the Criminal Procedure Code, the conviction of the appellant in the sessions court should not be set aside unless it can be shown that the want of sanction has occasioned a failure of justice. In this case, there was not the slightest suggestion whatsoever that the want of sanction had occasioned a failure of justice. Per curiam: 'In the case of Hassan bin Isahak v Public Prosecutor [1948-49] MLJ Supp 179, the court had expressed its opinion that s 448(b) of the Criminal Procedure Code (SS Cap 21) should be repealed as was done in India in 1923 when the equivalent of this provision in the Indian Criminal Procedure Code of 1898 was repealed by Act XVIII...speaking for myself, I would say that there is no valid reason why there should be any repeal as suggested in the case of Hassan bin Isahak. Justice is well served by s 422 of the Criminal Procedure Code (FMS Cap 6) for it enables a superior court sitting in appeal or in revision to remedy technical defects, which may have inadvertently arisen in a trial, 'defects which ought not to be made the means of culprits escaping the just penalties of their crimes.'

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

The appellant in this case was charged in the alternative with committing offences contrary to ss 177 and 181 respectively of the Penal Code. The case originally came up for trial before the district court judge at Butterworth on 24 July 1947. After the evidence of the witnesses for the prosecution had been recorded, the learned judge realized that the requirements of s 139 of the Criminal Procedure Code (Cap 21) had not been fulfilled. That section provides, inter alia, that no court shall take cognizance of any offence punishable under ss 177 and 181 of the Penal Code except with the previous sanction of the Public Prosecutor or on the complaint of the public servant concerned or of some public servant to whom he is subordinate. In this case the Public Prosecutor had not given his previous sanction and the complaint was not made by the public servant concerned or by a public servant to whom he was subordinate. Before calling on the defence, the learned district court judge terminated the proceedings and 'released' the accused. The sanction of the Public Prosecutor was then obtained and the appellant was again charged in the alternative with committing the same offences as those before the court on 24 July. He pleaded autrefois acquit, but the plea was rejected and on 6 October 1947 he was convicted in the alternative of committing either an offence contrary to s 177 or contrary to s 181 of the Penal Code and sentenced to six months' rigorous imprisonment. The appellant then appealed to the High Court against both conviction and sentence, and the learned judge of that court sitting at Penang exercised his power under s 306(3) of the Criminal Procedure Code to reserve the hearing of the appeal for a court of three judges.

Held: (1) in the absence of the sanction of the Public Prosecutor, the proceedings in the district court on 24 July 1947 were null and void and consequently the appellant was never in peril on that day; (2) s 176 of the Criminal Procedure Code is phrased in broad terms and clearly authorizes alternative charges under different sections provided it is doubtful which offence the facts to be proved will constitute. An illustration to a section cannot be used to restrict the plain and unambiguous wording of the section itself; it merely explains and does not qualify the section.

Hassan bin Isahak v Public Prosecutor [1948-49] MLJ Supp 179 High Court, Penang (Pretheroe Ag CJ, Jobling and Hill JJ).

[Annotation: See also Re Tan Ah Chuan [1954] MLJ 135.]

Section 414 of the Criminal Procedure Code 1900 cannot be prayed in aid by the court of first instance to cover an irregularity in the proceedings to which objection is taken it is a section only applicable to the question as to whether or not the judgment is to be reversed on appeal. But as the objection was not a good one, the reason given for overruling it was immaterial.

R v Paboodas Herjavandas [1907] 10 SSLR 56 High Court, Straits Settlements (Fisher J).

The appellant was charged with five others with an assault upon another person. They were acquitted and discharged. The magistrate then made an order calling upon four of them including the appellant to show cause why they should not be ordered to execute a bond for a sum of $100 each with two sureties for a period of six months. The officer-in-charge of the police district was ordered to investigate the case. Subsequently, a summons was issued under s 67 of the Criminal Procedure Code (FMS Cap 6). The summons did not contain the substance of the information on which it was issued as required by s 71 of the code. On 6 March 1941, three persons went before the court on this summons. Two were discharged but the appellant was called upon orally to show cause under s 69(c) of the code. No fresh summons was issued and no formal amendment was made. The appellant gave evidence and had not finished when the case was adjourned. When the case was resumed, the advocate appearing on behalf of the appellant submitted that since the summons had been issued under s 67, an order under s 69(c) could not be made thereon. The magistrate ruled against this submission whereupon the advocate stated he did not propose to proceed with the defence and that he withdrew the evidence given by the appellant. The magistrate then ordered the appellant under s 69 of the code to execute a bond. The appellant appealed.

Held, inter alia: (1) the omission to state the substance of the information on the summons was an irregularity; (2) the calling upon the appellant orally to show cause under s 69 of the code was an illegality. The appellant should have been discharged under s 75 of the code and a fresh summons issued.

Ramasamy v Public Prosecutor [1946] MLJ 58 High Court, Federated Malay States (Horne J).

Not trying a case in open court is an irregularity which is incurable.

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

[Annotation: See Haji Shaik Abdul Cader v Aisha (1886) 4 Ky 151.]

Not trying a case in open court is an irregularity which is incurable.

R v Chin Ah Chi [1890] 4 Ky 589 Court of Appeal, Straits Settlements (O'Malley CJ, Pellereau and Goldney JJ).

Tan Choon Huat v Public Prosecutor [1991] 3 MLJ 230 High Court, Singapore (Rubin JC).

Placing a witness for the prosecution in the dock together with the accused, charging him with the accused and convicting him is an irregularity which is incurable.

Lim Tuan Hong v Hermann Jebsen & Co [1885] 4 Ky 79 High Court, Straits Settlements (Wood J).