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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See CRIMINAL LAW, Vol 4, para 904.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See CRIMINAL LAW, Vol 4, para 725.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See CRIMINAL LAW, Vol 4, para 771.

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

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

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

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

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

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

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

See CRIMINAL LAW, Vol 4, para 777.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See CRIMINAL LAW, Vol 4, para 789.

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

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

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

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

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

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

See CRIMINAL LAW, Vol 4, para 900.

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

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

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

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

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

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

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

See CRIMINAL LAW, Vol 4, para 782.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Held:

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

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

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

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

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

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

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

See CRIMINAL LAW, Vol 4, para 928.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The respondent was charged with voluntarily causing hurt.

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

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

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

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

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

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

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

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

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

See CRIMINAL LAW, Vol 4, para 899.

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

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

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

See CRIMINAL LAW, Vol 4, para 1012.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See CRIMINAL LAW, Vol 4, para 786.

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

See CRIMINAL LAW, Vol 4, para 717.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See CRIMINAL LAW, Vol 4, para 387.

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

See CRIMINAL LAW, Vol 4, para 211.

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

See CRIMINAL LAW, Vol 4, para 206.

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

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

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

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

See CRIMINAL LAW, Vol 4, para 388.

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

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

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

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

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

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

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

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

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

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

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

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

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

See evidence, x-ref 33.

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

See CRIMINAL LAW, Vol 4, para 728.

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

See CRIMINAL LAW, Vol 4, para 899.

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

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

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

See CRIMINAL LAW, Vol 4, para 114.

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

See CRIMINAL LAW, Vol 4, para 184.

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

See CRIMINAL LAW, Vol 4, para 198.

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

See CRIMINAL LAW, Vol 4, para 211.

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

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

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

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

See CRIMINAL LAW, Vol 4, para 1002.

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

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

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

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

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

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

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

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

Held: appeal against conviction and sentence dismissed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See CRIMINAL LAW, Vol 4, para 1240.

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

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

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

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

See CRIMINAL LAW, Vol 4, para 698.

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

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

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

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

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

Held: the conviction must be quashed.

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

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

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

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

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

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

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

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

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

The appellant had pleaded guilty to a charge of theft of a motor car. He was sentenced to two and a half years imprisonment and a fine of RM3,000 or in default six months' imprisonment. The appellant appealed against the sentence.

Held: if it was really necessary to impose a fine in addition to the custodial sentence, then the trial magistrate should have taken into consideration, inter alia, the financial circumstances of the appellant, the profit arising from the offence, the value of the subject matter and the amount of injury, if any, inflicted. In this case, the sentence was manifestly excessive and the order of the fine in addition to imprisonment should be set aside.

Zakariya bin Musa v Public Prosecutor [1985] 2 MLJ 221 High Court, Kuala Lumpur (Gunn Chit Tuan J).

Held: on a charge of theft, the prosecution having established a prima facie case which, if unrebutted, would have warranted the accused's conviction, a magistrate is not justified in acquitting the accused without calling upon the defence. Where an accused is found technically guilty of theft, the magistrate may, if he considers it expedient, record no conviction.

Public Prosecutor v Goo Kian [1939] MLJ 291 High Court, Federated Malay States (Raja Musa Ag J).

The accused pleaded guilty to the theft of three fowls contrary to s 379 of the Penal Code. He was sentenced to two years' imprisonment and ten strokes of the rotan.

Held: corporal punishment should not be imposed against adults except in cases involving violence and therefore, the sentence of corporal punishment in this case should be set aside.

Re Loo Moh Sai [1957] MLJ 16 High Court, Penang (Rigby J).

The respondent was acquitted at the close of the prosecution case on a charge under s 379 of the Penal Code for the theft of a motorcar on the inner surface of glass pane on which were found his fingerprints. On appeal by the Public Prosecutor,

Held: the weight of evidence of fingerprints can never be decried. In this case, a clear prima facie case had been made out which, if unrebutted, warranted a conviction. Case remitted back for the learned President to call on the defence.

Public Prosecutor v Toh Kee Huat [1965] 1 MLJ 76 High Court, Kuala Lumpur (Ong J).

The respondent was charged with the theft of a motor car to which he pleaded guilty, and on his plea he was convicted and bound over under s 173A of the Criminal Procedure Code (Cap 6). The Public Prosecutor appealed.

Held, allowing the appeal: (1) an order of a binding over under s 173A of the Criminal Procedure Code after recording a conviction is illegal and the defect cannot be cured by s 422; (2) having regard to the number of cases of car theft, a sentence of binding over is neither appropriate nor relevant enough. Sentence varied to 18 months' imprisonment.

Public Prosecutor v Tan Eng Hock [1970] 2 MLJ 15 High Court, Kuala Lumpur (Abdul Aziz J).

The appellant pleaded guilty in the magistrate's court to two cases of theft viz, the theft of the spare tyre and sports rim of a Datsun 120Y on 22 January 1982, and the theft of the spare tyre together with the rim of a Ford Laser on 1 February 1982. At the time of committing the offences, the appellant was 23 years old and had had no previous convictions. Both cases were heard on the same day and the respondent was fined RM200 and RM300 respectively for the first and second offence. The Public Prosecutor appealed against the inadequacy of the sentence imposed on the respondent for both offences.

Held, allowing the appeal: (1) in ordinary circumstances, petty theft would not attract any immediate sentence of imprisonment. However, when one considers the extent to which the stealing of motor car parts and accessories is rife at the present day, then the courts inevitably must view such an offence as a serious crime; (2) the public is entitled to be protected against such offenders and they are not likely to be protected if lenient sentences are passed. This is because offenders are not likely to be discouraged by sentences which do not involve loss of liberty; (3) in the present case, an immediate prison sentence consistent with the duty to protect the interests of the public and to punish and deter the criminal is necessary. In the premises, a sentence of 18 months' imprisonment in addition to the RM200 fine is proper in respect of the first offence and in respect of the second offence, a concurrent sentence of two years' imprisonment in addition to the RM300 would be appropriate.

Public Prosecutor v Wong Chak Heng [1985] 1 MLJ 457 High Court, Kuala Lumpur (Chan J).

Held: the word 'whipping' used in the Penal Code does not include whipping with a cat-o-nine tails, unless it is so specifically prescribed.

Wong Siew v Public Prosecutor [1933] 1 MC 154 High Court, Federated Malay States (Hereford J).

[Annotation: In Singapore, the provision for whipping for second or subsequent offences under this section and s 380 was abolished by the Criminal Justice (Punishment-Amendment) Ordinance 1954. See also Mohamed Ali v Public Prosecutor [1956] MLJ 84.]

The appellant was charged under s 380 of the Penal Code for the theft of 45 cartons of Scotch Whisky committed in a vessel used for the custody of property some time between 20 and 23 December 1963; alternatively under s 411, that between the same dates he dishonestly retained such stolen property knowing or having reason to believe them to be stolen property. The evidence showed that he was the wharfman on duty between 7am to 11pm on 21 December, and the vessel which was towed to the wharf in question about 10.45 pm on 20 December was discovered missing at 11am on 23 December, ie 60 hours later. The prosecution alleged that the appellant led prosecution witnesses to the place where on the previous day, the investigation officer had recovered some of the stolen goods. Then, proceeding further along the beach, he led the detectives into the mangrove where more of the stolen goods were found. In his cross-examination of the prosecution witnesses, the appellant challenged their testimony that he led them 'into the mangrove and pointed out the stolen property to them'. In his own evidence, he stated that he was brought by police launch to the place and by following footprint tracks they came to the spot where the stolen goods were stacked. The learned magistrate held that the appellant as wharfman on duty on 21 December 1963 must have known what happened to the vessel and where the rest of the whisky and other goods were and that therefore he was guilty under the provisions of s 27 of the Evidence Ordinance 1950.

Held: (1) there was no evidence whatsoever on the record to warrant the assumptions made by the magistrate; (2) evidence of the discovery of the stolen property was admissible without having to invoke s 27 of the Evidence Ordinance, the only purpose of which is to render self-incriminatory statements admissible, if such statements can properly be regarded as information relating to the fact thereby discovered. As the appellant was never alleged to have made any statement, negative evidence on this point must necessarily be held in his favour, because had he given any information, such information should have been given in evidence by the police officer who heard it; (3) all the facts were in favour of the appellant as wholly consistent with his innocence and the appeal should be allowed.

Gurusamy v Public Prosecutor [1965] 1 MLJ 245 High Court, Kuala Lumpur (Ong J).

The appellant was convicted for an offence under s 454 of the Penal Code (FMS Cap 45) and sentenced to four years' imprisonment. He appealed against sentence. The prosecution pointed out that from the evidence in the appeal record, the appellant could not have been convicted for an offence under s 454 of the Penal Code. Instead, he should have been convicted for theft in a dwelling house under s 380 of the Penal Code. The prosecution requested the court to exercise its revisionary powers under the Criminal Procedure Code (FMS Cap 6) by substituting a conviction for a charge under s 380 of the Penal Code.

Held: (1) in order to satisfy the requirements of ss 166 and 167 of the Criminal Procedure Code, the two main tests as laid down in Lew Cheok Hin v R [1956] MLJ 131 must be satisfied; (2) applying these two tests to the present case, the unframed charge was available, but the trial magistrate failed to scrutinize carefully the effect of the evidence of PW1 when he stated that he saw the accused coming out from the back part of his towkay's house. PW1 stressed the fact that he saw the accused coming out from the compound and not from the house. For this reason alone, the accused should have been convicted for theft in a dwelling house; (3) the evidence has raised the same issues of fact, ie theft, which is relevant to both ss 454 and 380 of the Penal Code; (4) the requirements of ss 166 and 167 of the Criminal Procedure Code are satisfied; (5) the court therefore allowed the substitution of the conviction to one under s 380 of the Penal Code and reduced the sentence to three years' imprisonment.

Gurdit Singh v Public Prosecutor [1983] 1 MLJ 264 High Court, Kuala Lumpur (Mohamed Dzaiddin J).

The accused was tried by the magistrate, Johore Bahru, under s 380 of the Penal Code (FMS Cap 45). The magistrate, though finding the charge proved, proceeded to exercise his powers under s 173A(ii)(b) of the Criminal Procedure Code (FMS Cap 6) ('the Code') and imposed the conditions provided in s 294A of the Code. The Deputy Public Prosecutor drew the attention of the learned judge in revision that the conditions of the bond which the accused was ordered to execute were illegally imposed.

Held: the conditions provided in s 294A of the Code are not applicable to a bond ordered under s 173A of the Code and accordingly, there should be an order that the offensive conditions be omitted.

Public Prosecutor v Onn [1969] 1 MLJ 4 High Court, Johore Bahru (Ali J).

The appellant was charged with housebreaking by night by entering to commit theft under s 457 of the Penal Code. At the end of the prosecution case, the learned President amended the charge to one under s 380 of the Penal Code, ie theft in a dwelling house. Counsel for the appellant withdrew from the case on refusal by the court to adjourn the hearing for 12 days on the amended charge, though court was willing to grant a short adjournment. There were two grounds raised in the appeal. First, that there was no evidence that the appellant was sufficiently in possession of the stolen property (26 bags of tea dust) to raise the presumption under s 114, Evidence Ordinance, and second, that the court should have given the appellant an opportunity of obtaining another counsel. Twelve of the bags had been stored with PW 6 and subsequently sold and delivered by the appellant to PW 7. Ten bags were found in an open space on being pointed out by the appellant to the investigating officer; two bags were found loaded on a tricycle which was being pedalled by some unknown person.

Held: (1) with regard to the 12 bags, there was evidence that they were very recently stolen property and that the appellant was in possession of them. Regarding the ten bags, the evidence given by the investigating officer should not have been admitted without evidence as to what the appellant had said which led to the officer to go with him to find the sacks; (2) on the second ground of appeal, in view of the strength of the evidence, it is clear that the presence of counsel for the defence at that stage would have made no difference and that therefore, the accused was in no way prejudiced.

Tan Teow Swee v R [1955] MLJ 76 High Court, Penang (Spenser-Wilkinson J).

Held: it is true that s 380 of the Penal Code permits the passing of the sentence of whipping, but it is not the policy of the courts to impose sentences of whipping unless the offence has been committed with substantial violence.

Mohamed Ali v Public Prosecutor [1956] MLJ 84 High Court, Kuala Lumpur (Buhagiar J).

[Annotation: In Singapore, the provision for the punishment of whipping for second or subsequent offences under s 380 was abolished by the Criminal Justice (Punishment-Amendment) Ordinance 1954.]

Held: it cannot be laid down as a proposition that there cannot be theft from the owner of property because that property was of no value to the owner and the owner did nto intend to make further use of the property. Sentence of six months' imprisonment was not manifestly excessive or wrong in principle.

Busrah bin Amin v R [1955] SCR 10 Supreme Court, Sarawak, North Borneo and Brunei (Williams CJ).

Sathasivam & Ors v Public Prosecutor [1949] MLJ 71 High Court, Ipoh (Storr J).

See CRIMINAL LAW, Vol 4, para 738.

Banta Singh v Public Prosecutor [1941] MLJ 154 High Court, Federated Malay States (Howes J).

See CRIMINAL LAW, Vol 4, para 1225.

This was a reference to the Court of Appeal under s 34(1) of the Courts Ordinance 1948, as to whether theft was committed in the following circumstances: the appellant, an employee of the Penang Port Commission had been given two packets of tea within the Penang Port Commission area by a servant of the consignee before they had been cleared. There was no evidence to show that the servant of the consignee did or did not have the permission of his employer, the consignee, to give away small quantities of damaged packets of tea.

Held: (1) in the circumstances, it could not be necessarily inferred that theft was committed; (2) (semble) the fact that the Penang Port Commission suffered no loss does not mean that the respondent did not cause a wrongful gain to himself.

Public Prosecutor v Tan Kooi Choo [1961] MLJ 85 Court of Appeal, Penang (Thomson CJ, Hill JA and Hepworth J).

Held: a charge under s 381 of the Penal Code must disclose who employed the accused and in whose possession the stolen articles were at the material time. Where technical words or expressions have to be used in drafting the charge, the proper words or expressions should be obtained from the expert. The prosecution must prove that those articles were taken without the consent of the person in possession of those articles. The expression 'on information received' should not be used by police officers when giving evidence, as its use may cloud the issue and/or prejudice the court against the accused. A magistrate or President of the Sessions Court, in rejecting the accused's defence, should show in his grounds of judgment that the defence had been carefully considered and give his reasons for rejecting it and not merely say that he accepted the evidence of the police witnesses.

Vijayaratnam v Public Prosecutor [1962] MLJ 106 High Court, Kuala Lumpur (Hashim J).

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

See CRIMINAL LAW, Vol 4, para 1973.

The appellant appealed against his conviction of a charge under s 385 of the Penal Code. He was charged that he, on 14 September 1988, in furtherance of a common intention with another person, had put the complainant in fear of a certain injury unless the latter delivered RM200 to him and thereby dishonestly induced the complainant to deliver the said sum to him. It was found that the complainant had informed an officer of the Anti-Corruption Agency before the said date and the agency had decided to lay a trap for the appellant.

Held, allowing the appeal: (1) because of the intervention of the Anti-Corruption Agency, the complainant was no more afraid of the threat. He was also not induced by the threat to deliver the money. As the essential ingredients defined under s 383 were not made out, the conviction under s 385 therefore could not stand; (2) a court may substitute one of the limbs of the offence of criminal intimidation under s 503 for the offence of extortion if clear evidence for the substituted offence has been established in the court below. However, there was no such clear evidence; (3) the findings of the magistrate were also vague and not specific enough for the offence under s 385 to be substituted with a conviction for an attempt to commit extortion.

Abdul Wahab bin Mohd Noor v Public Prosecutor Criminal Appeal No 41-171-91 High Court, Alor Setar (KC Vohrah J).

This was an appeal by the Public Prosecutor against the inadequacy of sentence imposed on the respondent, who as a special constable on duty at a gate check at a new village, had committed the offence of extortion from a female rubber tapper, for which he was sentenced to a fine. The magistrate's reasoning in passing the sentence was that the respondent was in receipt of a small salary and the fact that on conviction, he would be dismissed from the police force.

Held: (1) extortion is a most serious offence, and it would be a very alarming prospect if the smallness of income of special constables was to be taken as an excuse for extorting money from the public; (2) the fact that the respondent would be dismissed from the police force as a result of his conviction, which the magistrate took into account, had very little bearing, if any, upon the forensic consequences of his crime. In all the circumstances of the case, the sentence of a fine was set aside and a sentence of six months' imprisonment substituted therefor.

Public Prosecutor v Tahir [1959] MLJ 21 High Court, Ipoh (Good J).

This was an appeal against the order of acquittal and discharge of the accused made on 30 August 1979 by the magistrate of Kuala Lumpur. The accused was charged for extortion under the Penal Code. He was alleged to have extorted RM500 from one Low on 16 October 1978 at 2pm at No 22, Jalan Walter Grenier, Kuala Lumpur. The learned magistrate found that the prosecution had established a prima facie case under s 384 of the Penal Code which, if unrebutted, would warrant a conviction. The defence was one of alibi. It was contended that at the time the alleged offence was committed, the accused was in Slim Village, Perak, supervising workers in a rubber estate owned by his father and, as such, he could not have committed the offence in Kuala Lumpur. Four witnesses gave evidence in support of the alibi. One of the issues raised in the appeal was on the admissibility of evidence in support of the defence of alibi in view of the defence failure to give notice in writing to the Public Prosecutor at least ten days before the commencement of the trial as requested. At the trial, objection was raised by the prosecuting officer on this point after the accused's wife had given her evidence-in-chief. The magistrate overruled the prosecution's objection and admitted all evidence in support of the alibi.

Held, allowing the appeal: (1) having regard to the clear words in s 402A(1), particularly the words 'shall not be admitted' and 'shall have given notice', evidence in support of a defence of alibi, which previously was admissible, is now no longer admissible in evidence unless the condition precedent as to pre-trial notice has been complied with. Like s 399(i), the provisions of s 402A(1) are evidential and not merely procedural, and unless the defence has given at least ten days written notice before the commencement of the trial, no evidence in support of a defence of alibi can be admitted in evidence. The meaning of 'commencement of the trial' is the commencement of the actual trial itself and not the date when the accused was first charged in court; (2) the requirement of pre-trial notice is mandatory and the courts here have no discretion in the matter. Whether or not the police have taken statements from the alibi witnesses in the course of their investigation is irrelevant. Without the alibi evidence, the learned magistrate would not have found that the defence had created a doubt in the prosecution case.

Public Prosecutor v Lim Chen Len [1981] 2 MLJ 41 High Court, Kuala Lumpur (Mohamed Azmi J).

This was an appeal against the conviction of the appellants (who were detectives) for putting one Lim Sye Chin in fear of detention for himself and one Tay Say Geok for the purpose of committing extortion.

Held: the prosecution had failed to call evidence on many material points and had failed to establish beyond all reasonable doubt that it was by means of menaces that the two appellants sought to obtain money.

Lim Gern Kheng & Anor v Public Prosecutor [1949] MLJ 98 High Court, Muar (Laville J).

The three accused saw the complainant on 22 October 1961, and the second accused, who was the only one of the three who spoke, asked the complainant to join his gang for self-protection. The entrance fee was stated as RM7.20 and the monthly subscription RM2 per head. On 1 November 1961, the three accused returned to collect the money in accordance with the arrangements with the complainant. The demand for the money was again made by the second accused. All the three accused were arrested immediately thereafter and charged. The first and second accused were convicted in the sessions court. The learned President based his conviction of the first accused on the fact of his presence during both visits. The first accused appealed.

Held: the mere fact of presence could be equally consistent with innocence as with guilt. To sustain a conviction, it was necessary to show at the minimum that when the demand for money was made at the first visit, the first accused heard it made and knew of it. As there was no such finding of fact in the evidence, the appeal must be allowed.

Wong Nyet Wah v Public Prosecutor [1962] MLJ 312 High Court, Kuala Lumpur (Ong J).

The appellant, a customs officer, was convicted in the sessions court, Penang, of the offence of attempted extortion under s 385 of the Penal Code and sentenced to six months' imprisonment. The questions on appeal were whether, if the prosecution case was believed, (a) the offence disclosed was that of attempted extortion, and (b) whether it was open to an appellate court to substitute a conviction under the appropriate section of the Prevention of Corruption Ordinance 1950 if an offence under that ordinance was disclosed.

Held: (1) the offence disclosed was not that of extortion, and if the evidence adduced by the prosecution was to be believed, the offence was one under the Prevention of Corruption Ordinance; (2) for a conviction under the Prevention of Corruption Ordinance to be substituted, the test must be whether a charge under that ordinance could have been framed and tried concurrently with that of extortion. In this instance, it could not have been done as (a) the onus is different and (b) evidence admissible under one charge is not admissible under the other. As the learned President could not have convicted the appellant of an offence under the Prevention of Corruption Ordinance without first amending the charge from one of extortion to one falling under that ordinance, the appellate court could not do an act which was not within the competence of the trial court, and a conviction under the Prevention of Corruption Ordinance could not therefore be substituted.

Abu Hassan v Public Prosecutor [1962] MLJ 61 High Court, Penang (Hepworth J).

The appellants a senior police officer and two customs officers were convicted of the crime of extortion and sentenced to six months' imprisonment. The main grounds of appeal were that: (a) during the course of the trial, there was such a mass of irregularities committed that the conviction should not be allowed to stand, (b) the whole of the evidence with regard to the identification parades was inadmissible in evidence, and (c) a mass of evidence was wrongly admitted during the course of the trial by the magistrate.

Held: (1) on a review of all the evidence in this case, the conviction should not be allowed to stand; (2) the evidence regarding the identification parades is inadmissible in view of Nagalingam v Public Prosecutor [1957] MLJ 196; (3) evidence of oral statements made to the police inspector were inadmissible in evidence. Observations on undesirability of conduct and prosecution of serious criminal charge by junior police inspector.

Pawanteh & Ors v Public Prosecutor [1961] MLJ 214 High Court, Penang (Rigby J).

The appellants were convicted and sentenced to nine months' imprisonment in the sessions court for putting a person in fear of injury in order to commit extortion in contravention of s 385 of the Penal Code. They appealed against the conviction and sentence, contending that the learned President paid insufficient attention to certain considerations relating to the police report and that the report should have discredited the evidence of the complainant because of certain discrepancies and also because evidence was admitted of events which happened after the date of this report.

Held: (1) there were no discrepancies between the report and the subsequent evidence of the person who made it and as such, there was no material on which his evidence could be said to be discredited; (2) there is no authority that excludes evidence of events which occurred after the making of the report if it is relevant and admissible.

Thirumalai & Anor v Public Prosecutor [1961] MLJ 78 High Court, Kuala Lumpur (Thomson CJ).

In this case, the respondent had been charged with extortion. The complainant had made an oral report and the police had acted on it. The learned magistrate acquitted the respondent without calling on his defence on the ground, inter alia, that the report of the complainant had not been reduced to writing in the first instance, and the absence of the first information report made the arrest of the accused void in law.

Held, inter alia, allowing the appeal: however important a document a first information report is, it can never be treated as a piece of substantive evidence and the fact that no first information report was made is not in itself a ground for throwing out a case.

Public Prosecutor v Foong Chee Cheong [1970] 1 MLJ 97 High Court, Kuala Lumpur (Gill J).

Held: unless a sentence imposed by a lower court is manifestly excessive, an appeal judge should not interfere with the discretion of a magistrate otherwise there would be chaos in the lower courts in so far as exercising discretion in the matter of punishment is concerned.

Koay Hean Kim v Public Prosecutor [1969] 1 MLJ 125 High Court, Penang (Ong Hock Sim J).

The accused was charged with attempted extortion. The evidence showed that the accused was arrested nearly two years after the alleged offence and was then produced to the witnesses in the gaol. No identification parade was held.

Held: (1) the usual and proper way of identifying persons suspected of a particular crime is to hold a proper identification parade; (2) on the facts and apart from identification at the gaol, there was a reasonable doubt as to the accused's participation in the offence and he ought therefore to be acquitted.

Public Prosecutor v Amar Singh [1948-49] MLJ Supp 55 High Court, Ipoh (Storr J).

The appellant was convicted on an amended charge under s 387 of the Penal Code of writing certain letters threatening to kill one Teng Wah Fook unless RM14,000 ransom money was paid over by the mother of the said Teng Wah Fook, and sentenced to three years' imprisonment. The President also ordered that the car in which he was arrested be confiscated. On appeal, it was argued inter alia: (a) evidence introduced by the prosecution to show that the accused was in a state of financial embarrassment was purely evidence of bad character and therefore inadmissible under s 54 of the Evidence Ordinance, (b) the President should not have called upon the defence because the evidence negatived the fundamental elements of the charge, namely that the appellant was the person who put the complainant in fear of death or injury, (c) the President failed to direct his mind to whether a certain letter (exhibit P3) was written by the appellant and whether it put the complainant in fear, and (d) there was no justification for the confiscation of the accused's motor car.

Held: (1) the fact that a person is unable for the moment to satisfy his creditors is not evidence of criminal or grave moral misconduct and as such the evidence was admissible and did not prejudice the fairness of the trial; (2) from the evidence, the learned President's conclusion that the complainant was put in fear was a fair one; (3) there was ample evidence to show how and why the President found that the complainant had been put in fear; (4) there was no justification for the confiscation of the accused's motor car under the provisions of s 407 of the Criminal Procedure Code (Cap 6) as it was not used for the commission of the offence, but merely to collect the ransom money.

Lim Kong v Public Prosecutor [1962] MLJ 195 High Court, Johore Bahru (Adams J).

Lee Fah Sang v Public Prosecutor [1967] 2 MLJ 163 Federal Court, Kuala Lumpur (Azmi CJ (Malaya).

See CRIMINAL LAW, Vol 4, para 720.

Leong Ka Kong v Public Prosecutor [1976] 2 MLJ 21 High Court, Kuala Lumpur (Abdul Hamid J).

See CRIMINAL LAW, Vol 4, para 747.

The four appellants had pleaded guilty to charges under the Penal Code, s 392 read with s 34, to wit, in furtherance of a common intention, robbed one CTK of a lorry carrying 188 bags of tin ore valued at RM52,000. Each of them was convicted and sentenced to three years' imprisonment. On appeal against conviction and sentence,

Held: (1) as their pleas were unequivocal pleas of guilty made in open court in respect of facts which constituted the offence, their appeals against conviction and sentence must be dismissed; (2) (per curiam) 'The provision of s 173(b) of the Criminal Procedure Code seems to establish the salutary rule that before a court records a plea of guilty in reply to the common form question asking the accused to plead, it is necessary for the court as a matter of discretion to consider whether it is safe to accept the plea. The court can do that, firstly, by considering each and every ingredient of the charge; secondly, by satisfying itself by questioning the accused whether he really understands the charge and intends to admit without qualification each and every ingredient that constitutes it; and finally, that he clearly understands the nature and consequences of his plea. The court then records the facts as presented by the prosecuting officer to ascertain whether admission of the facts amounts to a plea of guilty in law. Detailed attention to the facts to be recorded must obviously depend on the nature of the charge and the seriousness of the case. If the facts establish the offence charged, the accused is asked whether he admits such facts. If he does admit, then the court records the plea and proceeds to consider the question of sentence. Once the accused is sentenced, then the plea ranks as a conviction. The plea must be an unequivocal plea of guilty. It is important that there should be no ambiguity in the plea. If there are elements in the case which indicate that the accused is really trying to plead not guilty or, as Lord Goddard put it, ÒGuilty, but...Ó, then the court has no discretion but to record a plea of not guilty.'

Chen Chong & Ors v Public Prosecutor [1967] 2 MLJ 130 High Court, Kuala Lumpur (Raja Azlan Shah 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).

In this case, the President of the sessions court had convicted the appellant on a charge of robbery under s 392 of the Penal Code. In his grounds of judgment, the learned President said that the defence given by the appellant was unconvincing and that in the circumstances, he was inclined to believe the case for the prosecution and he accordingly found the appellant guilty of the charge.

Held, allowing the appeal: the learned President, after holding that the appellant had not convinced him of the truth of his explanation, had failed to consider whether it might reasonably be true and probable, although not convinced of its truth. It was impossible to say with certainty that he would have convicted the appellant if he had not misdirected himself on the quantum of proof required of an accused person to rebut a prosecution case.

Nadarajah v Public Prosecutor [1969] 1 MLJ 109 High Court, Kuala Lumpur (Yong J).

The appellants were convicted under s 392 of the Penal Code of robbing money from one Chan Hock Seng. At the trial, a police photograph of one of the accused was put in evidence. It bore a police number and was a combined profile and full face photograph.

Held: the production of the photograph would be apt to prejudice a jury and to embarrass a judge. It was obviously a police record and putting it in evidence was tantamount to saying that the man was of bad character. On the facts of the case, the evidence pro and con of robbery was fairly evenly balanced and in the circumstances, it would be unsafe to convict.

Girdari Lal v Public Prosecutor [1946] MLJ 87 Court of Appeal, Federated Malay States (Terrell Ag CJ (FMS).

In this case, the appellants appealed against their conviction for gang robbery under s 395 of the Penal Code (Cap 45) on the grounds that: (a) the evidence of identification was unsatisfactory; and (b) the confession of one of the accused persons was not a confession and on that account should not have been taken into consideration against the appellants in the absence of other evidence implicating them and each of them.

Held, dismissing the appeal: (1) although the statement of the accused in this case contained self-exculpatory statements, they did not negative facts which constituted the offence and therefore the statement was a confession; (2) the learned trial judge was correct in taking the confession into consideration against the other accused to lend assurance to the other evidence against them and to fortify him in believing the accused to be guilty; (3) on the evidence there was sufficient independent evidence against the second appellant fortifying the naming of the second appellant in the confession to support the conviction; (4) on the facts there was sufficient identification of the first and third appellants in this case to support their conviction; (5) (per curiam) it is wrong to hold up the first information report as a sure touchstone by which the complainant's credit may invariably be impeached. It can only be used for that purpose with discrimination, in much the same way as previous statements by the witness are used, so that irrelevant errors in detail are not given exaggerated importance, nor omissions, objectively considered in the light of surrounding circumstances.

Herchun Singh & Ors v Public Prosecutor [1969] 2 MLJ 209 Federal Court, Kuala Lumpur (Ong Hock Thye CJ (Malaya).

The appellants were charged with robbing a goldsmith's shop. There was ample evidence at the trial to show that the appellants took active part in the robbery but at the trial a confession made by the first appellant while he was in the custody of the police was admitted in evidence. The appellants were convicted and they appealed.

Held: the confession was inadmissible and ought to have been excluded but as there was in this case ample evidence, independently of the confession, to justify the conviction, the improper admission of the evidence did not warrant an order for a new trial or a reversal of the decision of the trial judge.

Lee Yew Seng & Ors v Public Prosecutor [1967] 1 MLJ 215 Federal Court, Kuala Lumpur (Barakbah LP, Azmi CJ (Malaya).

Tan Bok Yeng v Public Prosecutor [1972] 1 MLJ 214 High Court, Ipoh (Sharma J).

See CRIMINAL LAW, Vol 4, para 730.

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

See CRIMINAL LAW, Vol 4, para 1012.

Held:{eb] where the accused is charged with an offence under s 395 of the Penal Code and it is not shown that the refusal to grant bail would prejudice the accused in the preparation of his defence, bail can properly be refused.

Public Prosecutor v Wee Swee Siang [1948] MLJ 114 High Court, Malacca (Callow J).

This application raised a fundamental question regarding the granting of bail in cases under the amendment to the Penal Code by the Penal Code (Amendment and Extension) Act 1975, making punishable offences hitherto punishable with life imprisonment with imprisonment extending to 20 years. It was argued that the effect of the amendment was to make the granting of bail in them a matter of course since they were now punishable with imprisonment for a period of 20 years instead.

Held: the nature and seriousness of these offences speak for themselves the necessity that the old rules, before the amendment in the application for bail for offences punishable with life imprisonment, must continue to apply if the administration of justice is to have any real effect.

Yanasengam & Ors v Public Prosecutor [1978] 1 MLJ 269 High Court, Kuantan (Abdul Razak J).

The five accused, applicants in these proceedings, were charged in the Sessions Court, Seremban, with gang robbery under s 395 of the Penal Code. Their application for bail was refused by the President of that court, who decided he had no jurisdiction, basing his decision on the judgment of Abdul Razak J in Yanasengam v Public Prosecutor [1978] 1 MLJ 269. The accused applied to the High Court for bail pending their trial fixed in March 1982. Counsel for the accused submitted in view of the amendment to the Penal Code, gang robbery is no longer punishable with imprisonment for life, while the Deputy Public Prosecutor submitted otherwise.

Held: (1) after the amendment to s 395 of the Penal Code, gang robbery is punishable with imprisonment for a term which may extend to 20 years, which expression cannot be said or construed to be imprisonment for life; (2) the sessions court has the jurisdiction to hear and decide the application for bail in respect of an offence under s 395 of the Penal Code; (3) in all cases (whether bailable or not), the High Court has the discretion to grant bail under ss 388 and 389 of the Criminal Procedure Code; (4) the accused should be granted bail of RM4,000 each on one surety.

Manickam & Ors v Public Prosecutor [1982] 1 MLJ 227 High Court, Seremban (Wong Kim Fatt JC).

The appellants in this case were convicted of gang robbery in contravention of s 395 of the Penal Code. The question in issue was whether the accused were persons who had taken part in it, and the only ground of appeal which the court felt it was necessary to deal at length with was that evidence was admitted of statements made to police officers at a police identification parade held in the course of the police investigation.

Held: (1) by reason of s 113 of the Criminal Procedure Code (Cap 6), statements made to police officers at a police identification parade held in the course of a police investigation, which must be taken to include actions such as the pointing out of persons in response to questions, were not admissible in evidence at the subsequent trial; (2) in this case, although the evidence in question was wrongly admitted, it was never questioned that the robbery was committed and there was an overwhelming body of evidence to show that the appellants were participants in it, therefore, the case was one which fell within the proviso to s 29(1) of the Courts Ordinance 1948.

Nagalingam & Ors v Public Prosecutor [1957] MLJ 196 Court of Appeal, Kuala Lumpur (Thomson CJ, Abdul Hamid and Buhagiar JJ).

In this case, the five appellants were young and first offenders. They pleaded guilty in the sessions court and were convicted of the offence of gang robbery, punishable under s 395 of the Penal Code (FMS Cap 45). The sessions court, having called for probation reports, sentenced the first, second, fourth, and fifth appellants to one year's imprisonment and two to three strokes of the rattan, and the third appellant to one year's detention in the Sarawak Boys' Home and two strokes of the rattan. The appellants appealed against sentence. Their three common grounds were: (a) there was no evidence to support the observation of the lower court that the offence was planned; (b) the lower court had given insufficient consideration to the probation reports on the appellants; and (c) the sentence in respect of each appellant was manifestly excessive, having regard to the facts of the case and the antecedents and character of each of the appellants. The basic issue in the appeal was whether the learned President of the Sessions Court had erred in the principle of sentencing and whether the High Court should interfere in the sentence.

Held, varying the sentence: (1) in ordering the third appellant, a youthful offender, to be detained in Sarawak Boys' Home for a period of one year, the learned President would appear to have dealt with him under the provisions of s 293(i), Criminal Procedure Code (FMS Cap 6), as amended by PU (A) 97/76. If the President had intended to resort to both s 395 of the Penal Code and s 293(i) of the Criminal Procedure Code for sentencing the third appellant, the lower court was debarred by that section from imposing a sentence of whipping under s 395 Penal Code. The sentence of whipping here has no basis in law and must be set aside; (2) in observing that the whole matter was planned, the President was not acting on the facts admitted by the appellants. He had placed more emphasis on the deterrent factor than on the reformative factor; (3) an appellate court does not alter the sentence of a lower court unless it has erred in principle or the sentence is manifestly excessive. In the particular circumstances, for the reasons that the reformative factors involved in sentencing and the probation reports and character and antecedents of the appellants do not appear to have been adequately considered, the lower court had erred in principle and therefore, the appellate court should interfere in the sentence. There is no conflict between the public interest and that of the young offenders and the public have no greater interest than that they should become good citizens; (4) each of the appellants was a fit case for probation. The sentences on the first, second fourth and fifth appellants were set aside and in substitution, an order made under s 294 of the Criminal Procedure Code that each appellant be released on his entering into a bond with two sureties, and during the period of three years to appear and receive judgment, if and when called upon, and, in the meantime, to keep the peace and be of good behaviour. During the period of the bond, each appellant should remain under the supervision of the senior probation officer or the probation officer, Kuching. In respect of the third appellant, s 294 Criminal Procedure Code, does not debar the court from invoking it if the appellant at the time of the appeal has ceased to be a youthful offender. Accordingly, the same order was made in respect of the third appellant. In respect of each of the appellants, there shall be two sureties in the sum of RM3,000 each. The first, second and third appellants shall each have his mother as one of the sureties. The fourth and fifth appellants shall have their respective parents as sureties; (5) gang robbery is a very serious offence and generally would merit the harshest of punishment if an offender is convicted and this case cannot by any means be regarded as a precedent.

Teo Siew Peng & Ors v Public Prosecutor [1985] 2 MLJ 125 High Court, Kuching (Tan Chiaw Thong J).

The appellant was convicted of gang robbery with murder contrary to s 396 of the Penal Code. The only evidence connecting the appellant with the offences was a confession he made before a magistrate. This confession was in a sense retracted at the trial in that the appellant set up a defence of duress. The confession was recorded by a process of double interpretation, the appellant speaking in his own language which was interpreted into Malay and from Malay into English. On appeal, it was argued that there was a possibility of misinterpretation which was so substantial as to introduce an element of doubt.

Held, dismissing the appeal: in the absence at the trial of any evidence to cast doubt upon the correctness of the appellant's statement it could not be said that there was any possibility of such substantial misinterpretation as to destroy the force of the confession.

Muka v Public Prosecutor [1964] MLJ 275 Federal Court, Jesselton (Thomson LP, Wee Chong Jin CJ (Singapore).

The appellant was charged that on 16 June 1948, he committed gang robbery and in the commission of the said gang robbery, murders were committed by one of the robbers and he thereby committed an offence under s 396 of the Penal Code. In directing the assessors, the trial judge said in effect that the accused could be guilty if there was a common intention to commit the robbery.

Held: the guilty act of a gang robber who commits murder in the case of a gang robbery is imputed to all the others who conjointly commit the gang robbery and there is, therefore, no need in such a case to have recourse to s 34 of the Penal Code or to consider the question of common intention.

Wong Kim Wah v Public Prosecutor [1948-49] MLJ Supp 134 Court of Appeal, Kuala Lumpur (Willan CJ, Pretheroe and Spenser-Wilkinson JJ).

In this case, the court, observing on the minimum sentence of seven years' imprisonment which the law requires to be imposed for armed robbery under s 398 of the Penal Code, said: 'Seven years' imprisonment is a very severe punishment. An infinite variety of circumstances may attend the commission of the offence. The requirement to pass this minimum sentence may compel the judge to pass a sentence which he feels to be unduly harsh. This is a case in point. The accused is about 18 years of age. The learned trial judge had told this court that if he had a free hand, he would impose a sentence of not more than three years. This court therefore thinks it right to bring this case to the notice of the Attorney General for consideration of the general question of minimum penalties and of this case in particular.

Amat bin Abdul v R [1956] SCR 100 Supreme Court, Sarawak, North Borneo and Brunei (Smith Ag CJ, Lascelles and Bodley JJ).

The appellants were convicted of assembling with others for the purpose of committing gang robbery, contrary to s 402 of the Penal Code. The allegation of the prosecution was that at about 1.3am on 10 December 1946, nine men assembled at a hut on a piece of high ground under scrub, for the purpose of committing robbery at the house of one Sulaiman about 100 to 200 yards away.

Held: on a charge of assembling with others to commit gang robbery, the purpose of the assembly must be proved. When the only evidence of this was technically inadmissible, the conviction would be set aside.

Nik Hassan v Public Prosecutor [1948] MLJ 74 Court of Appeal, Malayan Union (Willan CJ (Malayan Union).

In this case, the appellant was originally charged with the following charges: '(a) That you, between 15 May 1949 and 23 February 1950 at Messrs Guan Hoe & Co Ltd petrol pumping station, No C, Fort Road, Malacca, dishonestly misappropriated to your own use certain movable property, to wit, petrol, thus committing an offence punishable under s 403 of the Penal Code; (b) that you, between 2 June 1949 and 3 February 1950 at Malacca, cheated the Department of Public Relations of the Federation of Malaya by submitting various returns setting out that certain petrol had been used in motor vehicle No B5846, whereas it had been used in motor car No BA2910, with the knowledge that you were likely thereby to cause wrongful loss to a person, to wit, the aforesaid department, whose interest in the transaction you were bound by law to protect, thus committing an offence under s 418 of the Penal Code; (c) that you, between 15 May 1949 and 23 February 1950 at Messrs Guan Hoe & Co Ltd petrol pumping station at No C, Fort Road, Malacca, abetted the offence of failing by Guan Hoe & Co Ltd to observe the first condition attached to a retailer's licence issued to him on 18 October 1947 under the Fuel and Lubricants Control Proclamation No 41, by requesting that company to deliver petrol into the tank of motor car No BA2910, whereas authorization notes were presented with respect to motor vehicle No B5846, which offence was committed in consequence of the abetment, thus committing an offence under s 109 of the Penal Code and s 4 of the Fuel and Libricants Control Proclamation, and punishable under s 19 of the aforesaid proclamation.' At the close of the prosecution, the learned President of the sessions court held that the charges were bad for multiplicity and he amended the charges as follows: '(a) That you, on or about 16 May 1949 at Messrs Guan Hoe & Co Ltd petrol pumping station, No C, Fort Road, Malacca, dishonestly misappropriated certain movable property to wit one gallon of petrol belonging to the Department of Public Relations of the Federation of Malaya and thereby committed an offence punishable under s 403 of the Penal Code; (b) that you on or about 20 May 1949 at Messrs Guan Hoe & Co Ltd petrol pumping station, No C, Fort Road, Malacca, dishonestly misappropriated certain movable property, to wit, one gallon of petrol belonging to the Department of Public Relations of the Federation of Malaya and thereby committed an offence punishable under s 403 of the Penal Code; (3) that you, on or about 21 May 1949 at Messrs Guan Hoe & Co Ltd petrol pumping station, No C, Fort Road, Malacca, dishonestly misappropriated certain movable property to wit two gallons of petrol belonging to the Department of Public Relations of the Federation of Malay and thereby committed an offence punishable under s 403 of the Penal Code.' The appellant was convicted on the amended charges.

Held: (1) some of the evidence which had been brought against 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; (2) in the circumstances of the case, the improper admission of evidence had caused a failure of justice; (3) on the facts of the case, it was inequitable to order a retrial and therefore the convictions must be quashed.

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

This was an appeal by the Public Prosecutor against the acquittal of the respondents, who had been charged with criminal breach of trust alternatively, with criminal misappropriation of cash. It was contended on behalf of the Public Prosecutor that the learned President should have acted under s 173(b) of the Criminal Procedure Code (Cap 6) and amended the charge.

Held: the prosecution could not successfully maintain that the magistrate had failed in his duty in this matter because he did not make an amendment to a charge which they did not themselves in any way suggest and based on a legal view of the facts quite different from that which they themselves have put forward throughout the case.

Public Prosecutor v Ishak & Ors [1952] MLJ 151 High Court, Kota Bharu (Whitton J).

This is an appeal against the decision of the lower court in acquitting the respondent, a former headmaster of three charges of misappropriation of school funds. The respondent's duty as ex officio secretary to the board of managers of the school was to maintain account books, collect moneys and issue cheques on behalf of the school. With the implicit trust of the chairman of the board, he had complete control over the financial affairs of the school. As regards the first two charges, it was proved by the prosecution that the respondent had issued two cheques for RM127.77 and RM225.00 respectively unaccompanied by any voucher. The cheques for RM127.77 was paid to Wearne Brothers as monthly instalments towards the hire-purchase of his wife's car. A third cheque for the sum of RM1,964, filled up in the respondent's own handwriting and endorsed by the chairman, constituted the subject matter on the third charge. The respondent was acquitted on the first two charges at the close of the prosecution case on 15 July 1978. Defence was called in respect of the third charge only, on which he was finally acquitted on 6 November 1978. The appellant filed an appeal on 14 November 1978 on all the charges.

Held: (1) the discretion for intervention would only be proper on an application by the person debarred from appealing. As no such applications had been made in this case, the court could not overlook the strict formalities and requirements laid down under s 307(1)(ix) of the Criminal Procedure Code (Cap 6). Both appeals were therefore incompetent; (2) on the whole, the learned President in this case had failed to take proper consideration of facts which were immensely material towards the determination of the respondent's intention and consequently, the prosecution's case. Had he weighed the evidence, he would have arrived at a different conclusion entirely; (3) it is the duty of the court on appeal to review all evidence presented before the lower court and, if it feels that certain material facts have been missed or improperly considered by the presiding President or magistrate, then it should not hesitate from performing its duty as a judge of facts to consider and weigh those facts and decide whether those facts could have altered their judgment in one way or another; (4) the order of acquittal in respect of the third charge should be set aside and substituted with that of conviction. Observations made on duties and responsibilities of the teaching profession.

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

The accused, a credit controller of a bank, pleaded guilty to one charge of criminal breach of trust, an offence under s 408 of the Penal Code (FMS Cap 45), and to three charges of dishonest misappropriation of money under s 403 of the Penal Code. The accused admitted committing criminal breach of trust of RM20,000 belonging to the bank on 7 January 1976, and dishonestly misappropriating RM35,000 between 14 May 1975 and 15 May 1975; RM24,975 on 8 September 1975 and RM50,000 on 10 December 1975. On the criminal breach of trust charge, the learned President sentenced the accused to one day's imprisonment and a fine of RM2,000 in default of which he would have to serve two months' imprisonment. On the misappropriation charge of RM50,000, he sentenced the accused to one day's imprisonment and a fine of RM3,000 in default three months' imprisonment, and on the two other charges involving RM35,000 and RM34,975, the accused was sentenced to one day's imprisonment and a fine of RM2,000 in default two months' imprisonment on each count. The accused paid all the fines totalling RM9,000. The present court called for the records of the case to determine the propriety of the sentences passed by the sessions court.

Held: (1) although a trial court has the discretionary right and the duty to decide whether to be lenient or severe, such discretion and duty must be discharged according to established principles of assessing sentence; (2) where a person is charged with more than one offence, it is the duty of the court to pass sentences in such a way that each sentence should reflect adequately the seriousness of each particular charge. In the present case, whilst the learned President had assessed the sentences on the three charges for dishonest misappropriation inter se adequately, he had failed to appreciate that the offence of criminal breach of trust by a servant was serious in nature; (3) public interest demands that cases of this nature involving persons in positions of trust, particularly in financial institutions, must be dealt with severely, in the hope that would be offenders would be deterred; (4) this is a proper case where the court should exercise its revisionary power and enhance the sentence on the criminal breach of trust charge from one day's imprisonment to 18 months in addition to the fine of RM2,000. The sentences imposed on the other three charges of dishonest misappropriation were affirmed.

Public Prosecutor v Khairuddin [1982] 1 MLJ 331 High Court, Kuala Lumpur (Mohamed Azmi J).

The two appellants in this case were charged and convicted for six offences under the Penal Code (FMS Cap 45). The six offences were under ss 471 and 403 of the Penal Code. Both appellants pleaded guilty. Before sentence was passed, the respondent tendered about 112 outstanding offences amounting to a total of 56 charges under ss 171(A)(i) of the Criminal Procedure Code (FMS Cap 6). After considering the mitigating factors, both appellants were sentenced to 14 months' imprisonment for each of the six charges and the sentences were to run consecutively. Both appellants appealed against their sentences.

Held, allowing the appeal: (1) the learned magistrate had taken the outstanding offences into consideration in favour of the appellants and had also taken into consideration factors which were in favour of the appellants; (2) the restitution of money by Bank Bumiputra Malaysia Bhd could not be a mitigating factor. It was a separate exercise agreed to between the bank and the Tunku; (3) it was within the discretion of the learned magistrate to pass a consecutive sentence. However, bearing in mind all the mitigating factors (the plea of guilty, first offenders, the outstanding offences agreed to be taken into consideration and, most important of all, that the maximum term of imprisonment for each offence was two years), a sentence of 14 months' imprisonment was manifestly excessive and unreasonable. An appropriate or fair punishment for each offence would be one year's imprisonment; (4) the decision of the learned magistrate in ordering the sentence to run consecutively was not wrong in principle having regard to the offences and the totality of the sentences.

Hashim bin Pawanchee & Anor v Public Prosecutor [1988] 2 MLJ 66 High Court, Penang (Mohamed Dzaiddin J).

Held: an essential element of theft is that the property stolen must be taken out of the possession of some person lawfully entitled to the possession thereof.

Alin bin Sangki v R [1952] SCR 16 Supreme Court, Sarawak, North Borneo and Brunei (Smith J).

Under the Malacca Lands Customary Rights Ordinance ('the Ordinance'), a piece of land at Sungei Baru Tengah was held by Khamis bin Mamat, who mortgaged it to MRMM Ramasamy Chettiar. Subsequently, it was sold and transferred to one Salim bin Ja'amat, who really purchased the land with money belonging to the Chettiar and as the agent for the Chettiar, who was not a qualified customary land holder under s 3 of the Ordinance. As the land was rubber land, export coupons permitting the sale and export of rubber produced on the land were issued by the government to the customary land holder. The customary land holder neglected or refused to hand over these coupons to the Chettiar, who thereupon caused a prosecution to be instituted against Salim bin Ja'amat for criminal breach of trust in respect of a coupon given for the export of ten katis of rubber.

Held: (1) there had been no property or beneficial interest in the subject matter of the charge in any person other than the accused and there had not been an entrustment of any tangible property of the Chettiar to the accused, or any dishonest conversion of such propert; (2) (obiter) if the objects of the transaction between the Chettiar and Salim bin Ja'amat were illegal and for the purpose of defeating the statute so that land (which was by the ordinance restricted to the use and benefit of a specific class of persons) was being taken and used by persons not of that specific class, then: (a) a criminal offence, namely, furnishing false information to a public officer, must have been committed either by the transferor or transferee; (b) the Chettiar by so making use of Salim bin Ja'amat as his nominee to hold the land, had been aiding and abetting Salim bin Ja'amat in giving false information to the Collector, who under s 13 of the ordinance had to be satisfied that a transfer has taken place between the parties then appearing before him; (c) there had been an agreement to commit an illegal act and, therefore, a criminal conspiracy at common law, and under the Penal Code an offence would appear to have been committed, namely, abetment by conspiracy under s 107 of the Penal Code.

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

Goh Khiok Phiong v R [1954] MLJ 223 Court of Appeal, Kuching (Smith, Rogers and Bodley JJ).

See CRIMINAL LAW, Vol 4, para 1251.

The complainant lent the gold necklace, the subject matter of the charge, to the appellant in order that the latter's wife might wear it at a party. The necklace was not returned to the complainant, although she frequently asked for its return, and eventually, the appellant admitted that he had pawned it.

Held: as the essence of the offence of criminal breach of trust is the 'dishonest' misappropriation or conversion by a person of property entrusted to him, the appellant was rightly convicted.

Chin Wah v Public Prosecutor [1940] MLJ 292 Court of Appeal, Federated Malay States (Poyser CJ (FMS).

[Annotation: In the above case, the Court of Appeal was faced with two conflicting decisions, viz Ng Chye Giat v R [1938] MLJ 126, and Gen Beng v Public Prosecutor [1939] MLJ 314. It decided to follow the latter decision and was of the opinion that the wording of s 405 of the Penal Code was wide enough to include bailment.]

The appellant was convicted for criminal breach of trust of RM315 under s 406 of the Penal Code. A list setting out the names of nine persons from whom the appellant received various sums totalling RM315 was appended to the charge.

Held: as the appellant was charged for criminal breach of trust of money and not of articles and he was also not charged for cheating, the lumping of the various sums of money into one charge is good under s 153(ii) of the Criminal Procedure Code (Cap 6).

Ibrahim v Public Prosecutor [1955] MLJ 78 High Court, Kuala Trengganu (Hamid J).

The appellant appealed against his conviction and sentence on a charge of criminal breach of trust. The evidence showed that the appellant, a headmaster, deducted certain sums from the salaries of the teachers as their contributions to a co-operative society. The General Orders required the payment to the society to be made by crossed cheque, but the evidence showed that some cheques were made out payable in cash and indorsed by the appellant. The contributions had not been paid to the society.

Held: non-accounting or temporary retention of money is not evidence of an offence unless there is dishonest intention and in this case, the circumstances gave rise to an inference of dishonest intention and the appellant was rightly convicted.

Mohamed Adil v Public Prosecutor [1967] 1 MLJ 151 High Court, Malacca (Ismail Khan J).

Public Prosecutor v Ishak & Ors [1952] MLJ 151 High Court, Kota Bahru (Whitton J).

See CRIMINAL LAW, Vol 4, para 1159.

The facts, as set out in the judgment, were as follows: the complainant lent the appellant a bicycle, the latter promising to return it in two hours. Ten days later, the complainant received a letter from the appellant and afterwards met the appellant, but the bicycle was never returned. Proceedings were taken and the bicycle was only produced by the appellant when the present case came on for hearing before the magistrate. It then had a new seat, rear mudguard and fork. The defence at the court below was that the appellant did not misappropriate it.

Held: the appellant was rightly convicted.

Gan Beng v Public Prosecutor [1939] MLJ 314 High Court, Federated Malay States (Murray-Aynsley J).

[Annotation: On this point see also R v Lee Siong Kiat [1935] MLJ 53, per Terrell J at p 56; and R v Salim [1938] MLJ 210. Followed in Chin Wah v Public Prosecutor [1940] MLJ 292; [1940] FMSLR 271.]

Held: when money is given to a person in his official capacity, whether he has any right to take it or not, he is entrusted with it within the meaning of s 406 of the Penal Code.

Abdul Wahab v Public Prosecutor [1939[ MLJ 247; [1938] FMSLR 151 High Court, Federated Malay States (Murray-Aynsley J).

[Annotation: See also Bahru Zaman v Public Prosecutor [1949] MLJ 23.]

The accused was charged with criminal breach of trust of property belonging to her husband. At the trial, after the evidence of the witnesses had been given, the learned magistrate ruled that the charge was groundless, as he held that a wife has joint possession of her husband's property and cannot be charged with disposing of the property of her husband in any way.

Held: in Muslim law, there is no community of interest between husband and wife and therefore, it is possible for a Muslim wife to commit theft or criminal breach of trust of her husband's property.

Re Ketuna Bibi [1955] MLJ 166 High Court, Kuala Lumpur (Buhagiar J).

The appellant was charged with committing criminal breach of trust, an offence punishable under s 406 of the Penal Code (FMS Cap 45). The alleged facts were that the appellant took a TV set on hire purchase and had defaulted in paying the instalments. The owner then issued instructions to its repossessor to repossess the TV set. When the repossessor called on the appellant at his house, the appellant told the repossessor that the said TV set was not in the house but did not say anything else. The prosecution had also led evidence to show that the appellant had sought the assistance of two police constables, who were his colleagues, in selling the TV set to another person. At the conclusion of the trial, the magistrate convicted the accused and sentenced him to imprisonment and a fine. The appellant appealed on the ground that the magistrate had erred in law in holding that the prosecution had proved its case against the appellant beyond reasonable doubt.

Held, allowing the appeal: (1) the prosecution had not established conclusively that the TV set sold by the appellant was the same set he had taken under the hire-purchase agreement. The evidence showed that the TV set which the appellant sold with the help of his colleagues was apparently sold a day before he took possession of the set under the hire-purchase agreement. The set sold apparently belonged to the appellant's brother. There were therefore two TV sets involved, a discrepancy that the magistrate appeared not to have appreciated; (2) the prosecution had also failed to make out an essential element of the offence of criminal breach of trust, ie dishonest misappropriation. The appellant told the repossessor that the TV set was not in the house and did not mention anything else. Mere failure to account for the TV set, without more, was not sufficient evidence of dishonest misappropriation. There was no evidence to show that the appellant had disposed of the said TV set in any way, now that the allegation that it was the said TV set that was sold by the appellant with the help of his colleagues was shown to be inconceivable. The learned magistrate's failure to appreciate this was subsisting at the time she gave judgment and this was clearly reflected in the appeal record; (3) (per curiam) dishonest misappropriation of property means improperly setting apart for one's use to the exclusion of the owner with the intention of causing wrongful gain to one person or wrongful loss to another.

Patrick Dayey v Public Prosecutor Criminal Appeal No 2 of 1994 High Court, Sibu (Steve Shim J).

Held: he very essence of a charge of criminal breach of trust is that the offender, being entrusted with moneys belonging to another person, has converted such moneys to his own use. Where there is no adequate or proper evidence rebutting an accused's testimony as to the manner in which he spent the moneys in the course of the business, and establishing that he had converted those moneys, which formed the subject matter of the charge, to his own private use, a conviction thereon cannot be supported.

Yeoh Bah Kow v Public Prosecutor [1961] MLJ 6 High Court, Penang (Rigby J).

The accused was charged with criminal breach of trust, an offence under s 408 of the Penal Code and convicted on his plea and sentenced to one year's imprisonment. It was later realized that the charge contravened s 163(2) of the Criminal Procedure Code because the time included between the first and last dates mentioned in the charge exceeded one year and therefore was bad in law. On revision,

Held: the accused should be retried before the same or another magistrate. This was not a proper case to follow Cheah Yew Fatt v Public Prosecutor [1960] MLJ xlvi and merely quash the conviction and leave it to the Public Prosecutor to act thereafter in his discretion, having regard to ss 322 and 310 of the Criminal Procedure Code

Public Prosecutor v Lim Swee Guan [1968] 2 MLJ 169 High Court, Penang (Ong Hock Sim J).

The appellant was charged under ss 467 and 471 of the Penal Code with three offences of fraudulently using as genuine forged delivery orders in respect of three articles. He was also charged under s 408 of the Penal Code with three offences of criminal breach of trust as a servant and under s 418 of the Penal Code with three offences of cheating in respect of the same articles. It was contended for the appellant that the joinder of charges was illegal and that the trial was void.

Held: (1) all the acts dealt with in the charges formed one transaction within the meaning of s 163(i) of the Criminal Procedure Code 1902; (2) ss 162 and 163 of the Code are not mutually exclusive and ss 163(ii) and 164 can be resorted to in framing additional charges where the trial is for three offences of the same kind committed within the year. The appellant had not in reality been tried for more than three offences but had been tried for three offences only under nine charges.

Lim Tain Chye v Public Prosecutor [1915] 1 FMSLR 228 High Court, Federated Malay States (Innes and Farrer-Manby JJC).

[Annotation: This case was distinguished by Reay J in an unreported Johore case, where he said these sections, being exceptions to the general law of one trial for each offence, should be read strictly.]

The appellants had been convicted for criminal misappropriation of oil. The main evidence on which the conviction was based was the evidence of an accomplice. On appeal, it was argued that there was insufficient corroboration of the evidence of the accomplice.

Held: the corroboration that is required where the evidence is that of an accomplice, need not necessarily give independent support to every factor of the case against the accused, and it is sufficient if the corroboration corroborates some material part of the accomplice's story which identifies both him and the accused person with the offence charged, and goes towards the identity of the accused person.

Kassim v Public Prosecutor [1949] MLJ 70 High Court, Johore Bahru (Laville J).

Held: in a charge of criminal breach of trust, mere failure to account is not sufficient evidence of misappropriation. It is necessary to examine from the surrounding circumstances and to be satisfied whether misappropriation can be inferred.

Abdul Aziz v Public Prosecutor [1963] MLJ 16 High Court, Muar (Ali J).

Where charges are tried together in contravention of any provisions of the Criminal Procedure Code (Cap 6), there is an illegality which cannot be cured, and any conviction had cannot be sustained. In this case, the appellant was convicted for four offences of criminal breach of trust in contravention of s 408 and three offences of falsification of accounts in contravention of s 477A of the Penal Code. The only ground of appeal was that the charges against the appellant were joined and tried together in contravention of the provisions of the Criminal Procedure Code (Cap 6) and therefore by reason of the effect attributed to these provisions in the case of Subramania Ayyar v King-Emperor 28 IA 257, the convictions should be set aside.

Held: the whole series of operations on which the charges were based, was in fact a single transaction. On the facts proven, there was a settled purpose to cheat. In the circumstances of the case, the appeal must be dismissed.

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

The appellant was tried before the district court on a charge of criminal breach of trust under s 408 of the Penal Code and two charges of falsification of accounts under s 477A. These charges were tried together with a similar charge of criminal breach of trust against one EA Nunn. In the course of the proceedings, the first charge against the appellant was amended by the insertion of the words 'jointly with EA Nunn, the manager of the said Messrs Whiteaway, Laidlaw & Co Ltd'. He was convicted on the first charge as originally framed and on the other two charges. No application was made for a separate trial.

Held: where there is one charge of embezzlement and that embezzlement refers to the two charges of falsification of accounts, then those offences were so connected as to form part of the same transaction within the scope of s 165 of the Criminal Procedure Code (Cap 6).

Lim Khoon Aik v Public Prosecutor [1948-49] MLJ Supp 147 High Court, Ipoh (Thomson J).

The appellant was convicted of having committed criminal breach of trust of RM150 cash, an offence punishable under s 408 of the Penal Code, and sentenced to four months' imprisonment. He was 24 years old and had no previous convictions. From the facts, it appeared that it was not probable that a series of breaches of trust could have been committed by the appellant without the knowledge of the other employees. After the breaches of trust, the appellant's father had paid a sum of RM2,500 to make good the amount alleged to have been misappropriated by the appellant. He appealed against the sentence.

Held: in view of the circumstances of the case, particularly the appellant's age and clean record, the sentence of imprisonment was not an appropriate one. Accordingly, he should be released on a bond under s 173A of the Criminal Procedure Code to be on good behaviour for a period of one year with one surety in the sum of RM1,000.

Shanmuganathan v Public Prosecutor [1967] 1 MLJ 204 High Court, Kuala Lumpur (Azmi CJ (Malaya).

This was an appeal against the conviction of the appellant on three charges of criminal breach of trust. It was alleged that the appellant, who was a traffic clerk employed by the Malaysia-Singapore Airways Ltd, received moneys from consignees of cargoes, but had not made any relevant entries in the sales returns and had not submitted the moneys to the Kuala Lumpur head office of the company. At the trial, a statement made by the appellant was admitted in evidence. This statement, which was a confession, was retracted by the appellant in his evidence.

Held, dismissing the appeal: (1) the statement made by the appellant was a voluntary one and although it was retracted, it was open to the learned President, if he held that it was voluntary and true, to accept it; (2) the mere failure of the appellant to account for the moneys entrusted to him on the dates specified in the three charges might not be a foundation for his conviction in all cases, but where he was unable to account and render an explanation for his failure, an inference of misappropriation with dishonest intent might readily be made; (3) where the prosecution had proved that the appellant was entrusted with money for a specific purpose, and that he has failed to account for it or has done something which is clearly indicative of his dishonest intention, the charge of dishonest misappropriation must be held to have been established unless the appellant shows the existence of some fact or circumstance within his own knowledge which is consistent with his innocence. Observations on principles of general application in cases of criminal breach of trust.

Sathiadas v Public Prosecutor [1970] 2 MLJ 241 High Court, Kuala Lumpur (Raja Azlan Shah J).

The appellant was an employee of the PWD. He was convicted of criminal breach of trust of stone from a PWD quarry. One of the grounds of appeal was that there was no evidence that the appellant was in fact entrusted with any sort of dominion over the stone.

Held: s 408 of the Penal Code applies not merely in cases where the exercise of possession of dominion over property is one of the legal incidents of the contract of service, but in every case where by virtue of the existence of the contract of service, the accused person is in fact in a position to exercise dominion.

Sinnathamby v Public Prosecutor [1948-49] MLJ Supp 75 High Court, Ipoh (Thomson J).

The appellant, an accountant employed by Sime Darby & Co Malacca, was convicted on two charges of criminal breach of trust in respect of moneys he had received which were payable to the company. It was his duty, inter alia, to receive moneys payable to the company, to bank them, and to keep proper accounts. The two sums involved in this case related to credit sales by the company, the vouchers for which were removed by the appellant from the office without authority.

Held: (1) the mere non-accounting or temporary retention of money was not an offence unless there was dishonest intention; (2) in this case, the only inference that could be drawn from the surrounding circumstances was that the appellant deliberately withheld the vouchers to ensure that the amounts involved were not credited to the company accounts while he retained the money and that his intention in doing so was dishonest.

Wickrasooriya v Public Prosecutor [1964] MLJ 281 High Court, Malacca (Ismail Khan J).

Public Prosecutor v Khairuddin [1982] 1 MLJ 331 High Court, Kuala Lumpur (Mohamed Azmi J).

See CRIMINAL LAW, Vol 4, para 1161.

In this case, the Deputy Public Prosecutor appealed against the sentence imposed on the respondent. The respondent pleaded guilty to criminal breaches of trust of moneys belonging to a bank, of which he was the chief cashier. The total amount involved was RM165,000. The President of the sessions court sentenced him to one year's imprisonment on each of the three charges. The sentences were to run concurrently.

Held, allowing the appeal: in the circumstances, the sentences were inadequate and should be enhanced to one and a half years on each charge, the sentences to run consecutively, a total of four and a half years.

Public Prosecutor v Lim Swee Guan [1969] 1 MLJ 84 High Court, Penang (Ong Hock Sim J).

Held: the appellant was convicted on a plea of guilty in the Resident's Court, First Division, of criminal breach of trust as a clerk or servant, and sentenced to five years' imprisonment. On appeal against his sentence, the court quashed the sentence of five years' imprisonment and substituted a sentence of three years' imprisonment.

The Rajah v Samy [1928-41] SCR 13 Supreme Court, Sarawak

Held: when a person is charged with criminal dishonesty as a servant, eg theft, criminal misappropriation, criminal breach of trust, it must be shown that the accused was a servant, and even if there is no legally binding contract upon the servant, yet so long as he performs the duties requested, he will come under the category of a servant. Further, if a servant receives property on his employers' account and embezzles it, he may be convicted though his employers had no legal title to the property. But if the objects of the service are wholly illegal and are for the purpose of defeating a statute, so that, as in this case, land, which is by the statute or ordinance restricted to the use and benefit of a specific class of persons, is being taken and used by persons not of that specific class, then in the course of this service, a criminal offence, viz furnishing false information to a public officer, must have been committed either by the transferor or transfereee and the objects of the service are, at least indirectly, of a criminal character.

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

The first accused was charged for the commission of two offences. The first charge was for the offence of criminal breach of trust punishable under s 409 of the Penal Code (FMS Cap 45) (`the Code'). The second charge was for the offence of cheating punishable under s 420 of the Code. The first accused was a director of Koperasi Kewangan Perindustrian Malaysia Bhd (`the society'). He also sat in the committee of the society (`the committee') that made recommendations to the Board of Directors of the society (`the board') to approve applications for housing loan. A housing loan application was purportedly made by one Tan Eng Hong (`PW2') who was not eligible for the housing loan as the house to be financed did not belong to him. The house belonged to the first accused. PW2 had denied making the loan application but admitted that the loan application was signed by him after the application had been given to the officers of the society. Nevertheless, the housing loan application purportedly made by PW2 was approved by the board. One Ngeow Yin Ngee (`PW3'), an advocate and solicitor who appeared to have agreed to be a guarantor, also denied that the signature in the form was his. A cheque for the loan amount applied for (`the cheque') was issued in favour of the society's solicitors, Messrs Ngeow & Co, even before the board sat to consider the application. The cheque was signed by all three accused. PW3 gave evidence that he was instructed as solicitors by the first accused to use the money from the cheque received to pay the balance of the loan for a house that the first accused had bought earlier. The learned trial judge accepted the evidence of PW2 that he did not make the loan application. The evidence of PW3 that he did not agree to being a guarantor was also accepted by the learned trial judge. The learned judge found that the first accused was an agent of the society and that as a director he had dominion over the property of the society. Therefore when he signed the cheque without the approval of the board, he had committed breach of trust. The second and third accused, who were co-signatories of the cheque, were charged for abetting the first accused in the commission of the offence of criminal breach of trust. The learned trial judge found that the fact that the second accused and the third accused had signed the cheque together despite having attended the meeting of the committee and being aware that the loan had not been approved by the board meant that they assisted the first accused in the commission of the criminal breach of trust. All the accused were convicted of the charges against them. On appeal, the court had to consider inter alia, whether the first charge against the first accused was valid. In this respect, the question was whether the first accused was an agent of the society and whether he had dominion over the property of the society. Consequently, the validity of the first charge against the first accused would affect the conviction of the second and third accused of the offence of abetment. With respect to the second charge against the first accused, the deputy public prosecutor (`the DPP') conceded that it was bad in law because the charge specified that the cheating took place between 10 March 1984 and 17 April 1984 but the evidence showed that on 15 March 1984 the cheque for the loan sum had already been issued and delivered to PW3. In this respect, the court had to consider the DPP's submission that the charge for cheating punishable under s 417 should be substituted instead.

Held, allowing the appeals: (1) if a public servant was charged for criminal breach of trust under s 409 he would be charged with being entrusted with property or with dominion over property `in his capacity of a public servant'. If, however, an agent was charged he would be charged for being entrusted with property or with dominion over the property `in the way of his business as (an) agent'. The first charge against the first accused charged him for being `an agent of Koperasi Kewangan Perindustrian Malaysia Bhd, to wit, as director and in such capacity entrusted with dominion over property '. Such a charge was clearly bad; (2) the managing director of a company who either by his contract with his company or by general law, was entrusted with dominion over his company's property was not to be presumed to be falling within the terms of s 409 by reason of that fact alone. Although a managing director of a company had been held by the general law to be an agent of a company, he could not upon that sole consideration be held to be entrusted in the way of his business as an agent. Section 409, referred to persons who were professional agents and not to casual agents, such as a company director. In this case, there was no evidence that the first accused was an agent of the society; (3) in order to determine whether the man charged with the offence had dominion over the property and was entrusted with the money, oral evidence and documentary evidence needed to be carefully looked at. The evidence produced was that the first accused sat on a committee meeting as a member that recommended housing loan applications for approval by the board of directors and that he was a signatory with the other two accused of a cheque for an amount that was the subject matter of the charge. It would appear that the dominion over the property lay with the board since it had the power to approve housing loans; (4) the evidence that the second and third accused had signed the cheque without verifying in the first place whether it could be done may amount to negligence on their part but was not sufficient to establish that they were dishonest. As the offence of criminal breach of trust against the first accused was not made out, the charge of abetment had to necessarily fail; (5) in hearing an appeal from a conviction, the power of the judge to alter a finding had to be exercised subject to ss 166 and 167 of the Criminal Procedure Code (FMS Cap 6) and to warrant a substitution there had to be clear evidence that a case for the substituted offence would have been made at or established in the court below. As there was no evidence that the committee members or the board members were deceived, it did not warrant a substitution of the charge to one of simple cheating.

Tan Liang Chew & Ors v Public Prosecutor [1997] 5 MLJ 338 High Court, Kuala Lumpur (KC Vohrah J).

In this case, the applicant had been charged in the sessions court with two charges of criminal breach of trust punishable under s 409 of the Penal Code (FMS Cap 45). The applicant claimed trial and the court fixed the date of hearing in October 1988. After hearing the parties, the learned sessions judge fixed bail at RM300,000 in two sureties and ordered the passports of the applicant to be impounded. Subsequently on the application of counsel for the applicant, the restricted passport of the applicant was ordered to be released to him. His international passport, however, remained impounded. The applicant applied for his international passport to be released to him.

Held: (1) since the applicant was charged with a non-bailable offence, bail is at the discretion of the court and in exercising its discretion, the court must consider the gravity of the offence; (2) in non-bailable offences, the court has an absolute discretion under s 388 of the Criminal Procedure Code (FMS Cap 6) whether to allow bail or to refuse bail except in cases punishable with death or imprisonment for life. In granting bail, the court may, in addition to stating the amount of bail and the number of sureties, impose reasonable conditions, including a condition requiring the accused person to surrender his passport. When the court lays down the conditions for bail, it is left to the accused whether to comply with them or not. If, for example, he does not want to surrender his passport, then he opts to remain in custody; (3) if the court decides that one of the conditions of bail is to require the accused to surrender his passport, it is immaterial whether the accused is a citizen of this country or a foreigner or whether he is holding a Malaysian passport or a passport issued by a foreign government; (4) in this case, the sessions court ordered that the passport be impounded. The order was certainly not one of the conditions of bail. Therefore, the order made by the court in respect of the passport did not fall within the scope of s 388 of the Criminal Procedure Code; (5) in the absence of any law empowering the court to impound the applicant's passport, the order made by the learned sessions judge was not a valid order. The order must therefore be set aside.

Lim Kiap Khee v Public Prosecutor [1988] 1 MLJ 198 High Court, Kuala Lumpur (Zakaria Yatim J).

[Annotation: The surrender of the accused's passport was also made a condition for bail in Sek Kon Kim v Attorney General [1984] 1 MLJ 60. See also Zulkifflee bin Hj Hassan v Public Prosecutor [1987] 2 MLJ 527, where no objection was taken to the impounding of the accused's passport.]

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) on the whole, the sessions court judge had erred when she called for the appellant's defence at the close of the prosecution case; (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. Their testimonies 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) 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).

This was an appeal against the conviction of the appellant on a charge of criminal breach of trust of the sum of RM200,000 belonging to a company, of which the appellant was the chairman and managing director. The cheque had been issued in payment of an alleged debt to a company in Taiwan, but it had been paid into the account of a company, of which the appellant and his wife were the only shareholders. This was an appeal against the conviction of the appellant on a charge of criminal breach of trust of the sum of RM200,000 belonging to a company, of which the appellant was the Chairman and Managing Director. The cheque had been issued in payment of an alleged debt to a company in Taiwan but it had been paid into the account of a company, of which the appellant and his wife were the only shareholders.

Held, dismissing the appeal: the learned trial judge was justified on the evidence in calling upon the defence and in finding that the appellant had not cast any doubt upon the truth of the prosecution evidence.

Tan Sri Tan Hian Tsin v Public Prosecutor [1979] 1 MLJ 73 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah Ag CJ (Malaya).

See criminal law, para IX [72].

Chong Chiew Nam v Public Prosecutor Criminal Appeal No 42-31-95—High Court, Kuala Lumpur (KC Vohrah J).

The applicant (`the accused') was charged under s 409 of the Penal Code (FMS Cap 45) (`the Code') for criminal breach of trust by a public servant. He was convicted on the charge and sentenced to five years' imprisonment from 6 November 1995. He appealed to the High Court against the conviction and sentence and his appeal was dismissed. The accused was a court reporter and carried on duties as a clerk in the Registry of the Criminal Law Division of the High Court, Kuala Lumpur. One of his duties was to collect court fines and credit the moneys to the Federal Government. There were no disputes to certain facts, namely: (i) that the accused, as a public servant within the meaning of s 21 of the Code, received a sum of RM65,000 in cash on 6 July 1994 and that sum was a fine; (ii) that when the accused received the fine, no official receipt was issued; (iii) that the sum of RM65,000 was not credited by the accused to the Government on either the date it was collected or on any other date. In his defence, the accused admitted that he received the fine of RM65,000 but as he was caught up with other duties, he did not bring the money to the Finance Division that day. Instead he kept the money in his cabinet. Subsequently, he submitted that he was on leave and that he had some personal matters to attend to. Counsel for the accused submitted that: (i) it had not been shown that the accused had been legally entrusted with the collection of fines; (ii) that it had not been shown that there was misappropriation; and (iii) that the learned judge was wrong in disbelieving the accused's story as to why he did not deposit the fine with the Finance Division on the day the fine was collected; (iv) that the learned judge was wrong in drawing an adverse inference from the failure of the defence to call a witness in regard to the discretion given to the accused as to when to remit the collection of the fines to the Finance Division; (v) that the learned judge was wrong to state that the accused's defence was one of a bare denial and that she had failed to consider the defence of the accused as a whole.

Held, dismissing the appeal: (1) as soon as the cash of RM65,000 was paid over as a fine pursuant to the order of court to the accused, a public servant whose duty it was to collect fines, the money ceased to be that of the payer; the money became the property of the Federal Government. Clearly, the accused, as a public servant whose duty it was to collect fines, became entrusted with the cash of RM65,000, the property of the Federal Government; (2) the accused had ample time to pay the amount on the day it was paid but he did not do it. In fact he did not pay at all the money collected to the Finance Division or in any way credit it to the Federal Government. This was sufficient to rebut the argument that the learned judge failed to consider that there was no evidence of misappropriation; (3) it was highly improbable that the accused could forget that the sum of money was locked in the cabinet because he was carried away with his multifarious duties; (4) it was true that the accused's defence was not a bare denial. It was an elaborate defence but it was clear that the judge had carefully considered the story in the totality of all the evidence; (5) in the circumstances of the case, there was no reason for interfering with the learned judge's finding that the defence had not raised any reasonable doubt on the prosecution's case.

Chong Chiew Nam v Public Prosecutor Criminal Appeal No 42-31-95—High Court, Kuala Lumpur (KC Vohrah J).

This was an appeal against the conviction of the appellant for criminal breach of trust. The question for consideration in the case was whether the appellant took the money with a dishonest intention. He stated that he took the money to pay a lawyer who had been asked to act as defence counsel for the prisoner, to whom the money belonged.

Held: in this case, there was nothing in the prosecution evidence to dispute the truth of the appellant's statement that his intention in taking the money and keeping it in his flat was to pay the lawyer and therefore, the conviction in this case was unreasonable and cannot be supported.

Navaratnam v Public Prosecutor [1973] 1 MLJ 154 Federal Court, Kuching (Azmi LP, Ismail Khan CJ (Borneo).

In this case, the appellant was charged with the criminal breach of trust of a sum of RM1,411.25 between 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 RM392.21 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: (1) in a prosecution for a charge of criminal breach of trust of a specified sum of money, it is not sufficient for the trial judge to hold that some money had been handed to the accused in order to conclude that a prima facie case had been made out against him; (2) it is not incumbent or necessary for the accused to offer an explanation when the prosecution has not in fact shown a prima facie case against him; (3) it was not competent for the learned judge on appeal to amend the charge; (4) in this case, the court should go beyond answering the question of law posed and the conviction and sentence should be set aside.

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

The respondent was charged with committing three offences under s 409 of the Penal Code. In the lower court, he was acquitted and discharged without his defence being called. According to the statement of grounds of decision of the learned sessionscourt President, the reason for not calling the defence was that he held that the analysis cash books used in government Ddepartments for the purpose of recording cash receipts were secondary evidence falling under s 63(b) of the Evidence Act 1950 (Act 56). The ground submitted by the respondent in the course of this appeal was that there was no evidence of loss to the government of the sums stated in the charges and alleged to be entrusted to the respondent and therefore the prosecution had failed to prove misappropriation.

Held, dismissing the appeal: (1) carbon copies of the analysis cash books are not secondary evidence under s 63(b) of the Evidence Act as they are documents made by one and the same uniform process as the top copies and therefore they are admissible as primary evidence under s 62; (2) in the circumstances of the case, the prosecution had failed to prove misappropriation.

Public Prosecutor v Rengasamy [1974] 1 MLJ 223 High Court, Ipoh (Wan Hamzah J).

In this case, the applicant was the former manager of a Felda Scheme and as such, he was solely responsible for the financial affairs of the scheme. He personally kept and maintained cash books and also went personally to the bank to withdraw money and he held the key to the safe where the cash was being kept. There was a shortage of RM23,905.87 cts in the safe and the prosecution case was that the applicant himself took the money and that to cover his misdeed he faked a break in. The applicant was charged with the offence of criminal breach of trust by a public servant under s 409 of the Penal Code and convicted and sentenced to 18 months' imprisonment. His appeal to the High Court was dismissed. He thereupon applied for leave to refer questions of law of public importance to the Supreme Court. All the questions dealt with questions of fact and did not qualify for reference. However, upon examination of the records, the Supreme Court found there were some unsatisfactory features in the trial of the applicant, showing that the case against him fell short of proof beyond reasonable doubt. These were: (a) for some time the safe key was in the hands of the assistant manager when the applicant attended a course at the Universiti Pertanian and there was no evidence whether there was actual or physical checking of the money inside the safe by them when the key was handed over to the assistant manager and later when the key was returned to the applicant; (b) the assistant manager went to the office building on the night when the safe was broken into and there was no evidence as to what he did there and whether he noticed anything unusual in the building; and (c) there was unchallenged evidence that the safe could be opened by a duplicate key, which could have been made at the time when the key was with the assistant manager, if he wished to make one. These three matters could only be explained by the prosecution by calling the assistant manager himself. Instead the prosecution chose to offer him to the defence and the defence quite rightly declined to call him as its witness. Moreover, the office boy was not called to explain whether he had bolted all the windows that evening after the applicant and the assistant manager left. At the suggestion of the court, counsel for the applicant withdrew all the questions and substituted therefore the following question: 'Although the prosecution has the right not to call every witness from whom a police statement has been taken, the question is how far does the right extend?'

Held: (1) the prosecution's right not to call a witness from whom statements have been taken must always be guided by its duty to discharge the onus of proof; (2) in this case, the witnesses the assistant manager and the office boy should have been called to explain the gaps in the prosecution evidence and as they were not called, the court could not be sure and should not indulge in conjectures and possibilities.

Abdullah Zawawi v Public Prosecutor [1985] 2 MLJ 16 Supreme Court, Kuala Lumpur (Salleh Abas LP, Wan Suleiman and Syed Agil Barakbah SCJJ).

This was an appeal from the sentence imposed by the learned judge of the High Court on the appellant who had pleaded guilty to a charge under s 409 of the Penal Code. The learned judge sentenced the appellant to eight years' imprisonment plus a fine of RM100,000, in default a further six months' imprisonment. (See [1987] 2 MLJ 368.)

Held: (1) in criminal breach of trust cases in general, a term of immediate imprisonment would be inevitable, save in very exceptional circumstances or where the amount of money involved was small. This must be the current sentencing policy even if the accused pleaded guilty; (2) in assessing the length of custodial sentence, the court must look at the overall picture in perspective by considering, first, the gravity of the type of offence committed, secondly, the facts in the commission of the offence, thirdly, the presence or absence of mitigating factors, and further the sentences that have been imposed in the past for similar offences to determine the trend of sentencing policy, if any. The fact that a sentence of imprisonment is imposed as a deterrent does not justify the sentencer in passing a sentence of greater length than the facts of the case warrant. The gravity of the type of offence involved must be considered in the light of the particular facts of the offence; (3) in this case, certainly a sentence of immediate imprisonment for the offence of criminal breach of trust involving a sum of considerable magnitude had to be imposed and had to be one that was sufficiently long to signify the gravity of the offence; (4) in this case, the appropriate sentence if the appellant had claimed trial would have been around eight years, regard being had to the amount of money defalcated and the other circumstances of the case. It is generally accepted that the extent of the reduction on account of a plea of guilty would be between one-quarter and one-third of what otherwise would have been the sentence. In this particular case, apart from the plea of guilt, the sentence must also be discounted to reflect the full restitution and other mitigating factors. The sentence imposed on the appellant was therefore manifestly excessive and should be reduced to four years' imprisonment; (5) the fact that the Penal Code had prescribed a larger maximum sentence for a s 409 offence than for similar cases in England did not justify the imposition of a sentence more severe than the gravity and circumstances of the offence would warrant. It was wrong in principle to double, without any good reason, what would otherwise be an adequate and fair period of imprisonment. Since full restitution had been made and the appellant had not enriched himself personally by the crime, there was no purpose in imposing a fine in addition to the custodial sentence. The fine of RM100,000 imposed by the learned trial judge should be set aside.

Mohamed Abdullah Ang Swee Kang v Public Prosecutor [1988] 1 MLJ 167 Supreme Court, Kuala Lumpur (Mohamed Azmi, Hashim Yeop A Sani and Wan Hamzah SCJJ).

The appellant was convicted of the offence of criminal breach of trust under s 409 of the Penal Code (FMS Cap 45) with respect to a sum of RM156,000 and sentenced to three years' imprisonment. The main evidence against the appellant was the existence of receipts which the appellant had issued for which the stated sums had not been accounted for. No witnesses testified to actually paying those sums, although there was a report which alleged this and the maker of the report, an officer from the Treasury Headquarters of Kota Kinabalu ('Chong'), testified that three persons had confirmed to him that they had paid amounts stated in certain receipts to the appellant. There was further evidence by one staff member, in respect of a sum of RM4,500, that she had received the money from payers and that she had handed it over to the appellant. The written judgment of the sessions court judge indicated that she had not considered whether the defence of the appellant had, on a balance of probabilities, cast any reasonable doubt on the prosecution's case but on the assumption that the accused had a duty to rebut the case for the prosecution.

Held, allowing the appeal: (1) the sessions court judge had imposed on the accused a higher standard of proof than that of creating a reasonable doubt on the prosecution's case. This was a serious misdirection; (2) the mere production of receipts signed by an accused is not proof that the accused had been paid the sums stated therein by the persons named therein. Either the payers, or persons who had seen the payment being made, must be called; (3) the testimony of Chong regarding confirmations made to him of such payments by some payers was only hearsay and not evidence of the payments actually having been made; (4) it is wrong to admit reports in evidence in lieu of the oral testimony of the maker of such reports in criminal cases, except where the statutes allow this. The sessions court judge was wrong to have relied so heavily on a report in deciding that a prima facie case against the accused had been made out when it was not even admissible; (5) in this case, there was no presumption against the accused that she had to rebut;with respect to the smaller sum of RM4,500, there was prima facie evidence of criminal breach of trust warranting retrial on the same charge or some other charge.

Cheryl Wendy Omar v Public Prosecutor Criminal Appeal No T(42)-13 of 1993 High Court, Tawau (Ian Chin J).

The appellant was charged for the offence of criminal breach of trust by an agent under s 409 of the Penal Code. The prosecution alleged that the appellant being an agent, namely the Executive Director of Finance of Trengganu Development and Management Bhd (TDMB) and in such capacity entrusted with the funds of the said company, committed criminal breach of trust by transferring the funds amounting to RM390,000 to another company called Klang Jaya Baru Development Bhd (KJDB) without the approval of the board of directors. The appellant was convicted and sentenced to imprisonment for three years by the sessions court at Kuala Lumpur. The appellant appealed. It was contended that (a) the learned President erred in law and in fact in holding that the prosecution had at the close of the case for the prosecution, discharged the burden of proof upon it and that the learned President was wrong in holding that the appellant was entrusted with the funds of the TDMB; (b) the learned President erred in holding that the appellant had acted dishonestly in authorizing the four payments forming the subject matter of the charge; and (c) the learned President had failed to consider all the evidence that was before him and had also failed to consider fully the defence case.

Held: (1) if both the documentary and oral evidence in the case had been carefully considered, the learned President would have come to the conclusion that the appellant, even after he was appointed an executive director in charge of financial affairs, was not in a position to manage the funds of TDMB without the overall control of Tan Hooi Bing, who was the managing director of TDMB and the appellant was therefore in the circumstances of this case not entrusted with or had complete dominion over its funds; (2) in this case, a simple question should have been asked and that was whether one would have dishonest intention if the so-called withdrawals or transfers of funds were properly accounted for and recorded in the books of accounts of the companies concerned. If the learned President had asked the question and considered all the evidence adduced, both oral and documentary, in this case, she could have come to the conclusion that there was no dishonest intention on the part of the appellant to cause wrongful loss to TDMB or wrongful gain to KJDB and should not have called for the defence; (3) in this case, the appeal court was satisfied that not only was there no prima facie case proved against the appellant, but also that the evidence adduced by the defence had created a reasonable doubt, as to whether or not the appellant had committed the offence of criminal breach of trust by an agent as alleged by the prosecution; (4) the conviction should be set aside not only because it was against the weight of the evidence but also because the learned President had failed to consider all the evidence that was before her and in that sense, had failed to consider fully the defence evidence.

Chang Lee Swee v Public Prosecutor [1985] 1 MLJ 75 High Court, Kuala Lumpur (Gunn Chit Tuan J).

In this case, the accused pleaded guilty to a charge of criminal breach of trust by an agent, to wit, as Chairman of Koperasi Belia Bersatu Bhd. The Koperasi Belia Bersatu Bhd (KOSATU) was founded by the accused and the accused was in control of the management and had dominion over all money collected. The accused was also a director and major shareholder of Tee Holdings Sdn Bhd. Tee Holdings entered into an agreement to buy a piece of land for RM3,500,000 and part of the purchase was paid from the funds of KOSATU. The accused also entered into an agreement with Mount Pleasure Corporation Bhd to buy an apartment in Penang and again, part of the purchase price was paid out of the funds of KOSATU. The accused had no authority to use the funds. The accused was entrusted in his capacity as chairman with dominion over the total sum of RM603,700 belonging to KOSATU and he had dishonestly converted the money to his own use.

Held: having taken all factors into account, the appropriate sentence in this case is imprisonment for 12 years and a fine of RM50,000, or in default a further six months' imprisonment. The sentence is meant to be punitive. It is meant to reflect the court's abhorrence of this type of mean criminal conduct. It is a sentence passed in the interest of the public. It is also meant to deter others who are so minded to embark on so mean a crime.

Public Prosecutor v Tee An Chuan [1987] 2 MLJ 372 High Court, Kuala Lumpur (NH Chan J).

In this case, the accused had pleaded guilty to a charge of criminal breach of trust by an agent acting as such. The accused was the managing director of the Malayan Overseas Investment Corp (MOIC), a joint-venture company formed to co-operate with each other for the purpose of investing overseas. One of the parties to the joint venture was MAA Holdings Sdn Bhd (MAA) which owned 13.4% of the equity of MOIC. The accused and his wife owned shares in MAA amounting to one-third of its equity. MAA also held 20% of the equity in Narspro Sdn Bhd (NARSPRO), a joint-venture company to establish rubber manufacturing factories. NARSPRO had ordered machinery from Taiwan costing US$220,000. They had paid a deposit of US$66,000 and they needed to open letters of credit for the balance. However, NARSPRO did not have the financial means nor credit facilities to do so. The accused then agreed to authorize MOIC's bankers to open letters of credit in the name of MOIC for the benefit of NARSPRO. When the machinery arrived in Penang, NARSPRO did not have the money. The letters of credit had been opened in the name of MOIC and the accused instructed a sum of RM338,808.80 to be paid by the bankers of MOIC. The payment was not made for the benefit of MOIC and it was made without the knowledge of approval of the board of directors of MOIC. The amount of RM338,808.80 together with bank interest had since been repaid to MOIC by NARSPRO.

Held: (1) any judge who comes to sentence in a breach of trust case ought always to apply the two factors which operate in this type of case: the retributive factor in order to show the court's disapproval or abhorrence on behalf of the community, of this type of criminal conduct, and the deterrent factor so as to discourage likely offenders; (2) in criminal breach of trust cases, a term of immediate imprisonment is inevitable save in any exceptional circumstances or where the amount of money obtained is small. The sentencing court should impose a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence; (3) in this case, after considering all the matters in the case and after having given the appropriate discount for the plea of guilty, the court sentenced the accused to eight years' imprisonment plus a fine of RM100,000, in default a further six months' imprisonment.

Public Prosecutor v Mohammad Abdullah Ang Swee Kang [1987] 2 MLJ 368 High Court, Kuala Lumpur (NH Chan J).

[Annotation: On appeal to the Supreme Court (18 May 1987), the jail sentence was reduced to four years, and the fine imposed on the accused was set aside.]

In this case, the respondent, who was a sales representative of a company, was given the sum of RM100,000 by the complainant so that he could open an account with the company in her name. Instead, the respondent paid the money into his own savings account with the Hongkong and Shanghai Bank. It was only eight days later that the respondent put the money into the client's account of the company after the complainant had discovered that the money had not been paid into her trading account with the company. The respondent was charged for the offence of criminal breach of trust by an agent acting as such under s 409 of the Penal Code. He was convicted and sentenced to a day's imprisonment and fined RM3,000 in default six months. The Public Prosecutor appealed against the inadequacy of the sentence.

Held: (1) the two factors which operate in a case of this kind are retribution and deterrence. Public interest demands that crimes of this sort must be punished severely and discouraged; (2) the sentence of one day's imprisonment should be enhanced to three years. The fine is to remain.

Public Prosecutor v Muthu Lingam [1986] 1 MLJ 432 High Court, Kuala Lumpur (Chan J).

The applicants were directors of Yap Sing Hock Holdings Sdn Bhd ('Yap Sing Hock'). The first applicant was the beneficial owner of all the shares in Yap Sing Hock. The shareholders of Lien Hoe Sawmill Co Sdn Bhd ('Lien Hoe') decided to sell all their shares in Lien Hoe to Yap Sing Hock ('the sale'). The applicants were then appointed as directors of Lien Hoe by way of resolutions. The applicants, however, did not make any statutory declarations before their appointment as directors of Lien Hoe as required by s 123(4) of the Companies Act 1965 ('the Act'). After the appointment of the applicants as directors of Lien Hoe, the appellants instructed Lien Hoe to lend RM12m to Yap Sing Hock. Out of the RM12m, the applicants as directors of Yap Sing Hock paid RM6m to the shareholders of Lien Hoe to settle the balance of the purchase price in respect of the sale. Lien Hoe thus became the wholly-owned subsidiary of Yap Sing Hock. The applicants also instructed Yap Sing Hock to issue a cheque for RM2,500,751 ('the cheque') for the purpose of buying shares in a public listed company called Muda Holdings Bhd ('Muda'). The cheque was signed by the applicants and was paid to the first applicant who acknowledged receipt. The payment voucher in respect of the cheque was approved by the second applicant. The applicants were convicted in the sessions court of three charges. The first charge was that the applicants as directors of Lien Hoe had committed criminal breach of trust in respect of the RM12m, an offence punishable under s 409 of the Penal Code (FMS Cap 45). The second charge was that the applicants as directors of Yap Sing Hock had committed criminal breach of trust in respect of the RM2,500,751. The applicants were lastly convicted on the charge that they, as directors of Lien Hoe, had given financial assistance to Yap Sing Hock to purchase shares in Lien Hoe and had therefore committed an offence punishable under s 67(3) of the Act. The applicants were sentenced by the sessions court to imprisonment for the first two charges and were each fined RM2,500 for the third charge. The applicants' appeal against their convictions and sentences to the High Court was dismissed. In respect of the second charge, the sessions court and the High Court rejected the first applicant's claim that the RM2,500,751 was only a loan from Yap Sing Hock to him for the purpose of purchasing shares in Muda because it was held that the RM2,500,751 was wrongly gained by Yap Sing Hock out of the sum of RM12m borrowed from Lien Hoe. The applicants then referred the following four questions of law to the Supreme Court: (a) whether under the definition of 'director' under s 4 of the Companies Act 1965 a person can be held or deemed to be a director of a private limited company?; (b) whether in the non-compliance with s 123(1) and (4) of the Companies Act 1965, a person can be held or deemed to be a director of a private limited company?; (c) if the answer to question (b) is in the negative, can a person who is being charged as an agent or as a director of a private limited company and in that capacity be held to act as an ad hoc agent by the said company?; and (d) whether a director or member of a private limited company can be said to have committed an offence under s 409 of the Penal Code by paying out moneys from the said company's funds to a third party when he is the sole contributor of the paid-up capital and ultimately, the sole beneficial owner of all the issued shares of the said company? The prosecution argued in respect of the first charge that the applicants, by instructing Lien Hoe to lend the RM12m to Yap Sing Hock, had put on the mantle as directors of Lien Hoe and had come within the definition of 'director' under s 4(1) of the Act. The prosecution also submitted that on the evidence the appellants were agents of Lien Hoe in respect of the first charge.

Held, answering the first question in the negative and quashing the convictions and sentences of the applicants on the first two charges: (1) the definition of 'director' in s 4(1) of the Act has to be strictly construed in favour of liberty and cannot be applied to charges preferred under the Penal Code and any other law except under the Act itself. Since the first question was answered in the negative, the second and third questions would not arise; (2) considering the wording of the first charge, the applicants were charged as directors of Lien Hoe. This was the basis on which the case proceeded within the lower courts to which the parties had directed their energies. No application for amendment of the first charge by deleting the words 'to wit directors' had been made at any time. The court generally has to hold the scales between the interests of the prosecution on the one hand and those of the accused on the other hand. Accordingly, the court at this stage would not amend the first charge; (3) the court would not apply s 422 of the Criminal Procedure Code (FMS Cap 6) in respect of the first charge because the irregularity of the first charge involved the breach of a fundamental principle that the prosecution has to prove beyond a reasonable doubt every ingredient of the offence. Accordingly, the applicants' convictions under the first charge could not stand; (4) the second charge concerned the property of Yap Sing Hock and not Lien Hoe. It was therefore not appropriate to rely on the allegedly illegal origin of the RM2,500,751 so as to stamp the money lent to the first applicant as not available legally for lending; (5) the loan of RM2,500,751 to the first applicant was not prohibited by the Act. There was therefore no evidence of unlawfulness about the loan which could render the applicants liable to prosecution. This was because the first applicant could not cause loss by unlawful means to Yap Sing Hock because he could be sued in court. The applicants' convictions under the second charge accordingly could not stand; (6) the principle that a corporation is a legal entity distinct from its members applies inviolably in cases in which a company is a victim of fraud or in cases where there is wrongful deprivation of the company's assets and in offences against the company's property. The concept that a person is the company's directing mind cannot apply when the company is a victim of offences against the company but such a concept applies when the company is prosecuted for an offence where the prosecution cannot rely on any statute or statutory vicarious criminal liability; (7) the fourth question could not, however, be answered with a simple negative or affirmative answer because its wording was wide and ambiguous. Such a question could only be answered with reference to the ingredients of an offence. Accordingly, the court declined to answer the fourth question; (8) the third charge was under the Act which did not require strict proof of directorship. The applicants' convictions under the third charge should thus remain undisturbed; (9) had the applicants been rightly convicted on the first two charges, it was legitimate to accept by way of a plea in mitigation of sentence that the first applicant was the sole beneficial owner of all the shares in Yap Sing Hock and Lien Hoe, and that no other shareholders could be wronged. In such circumstances, it would also be legitimate to accept a further plea for a non-custodial sentence and a fine could be favourably considered.

Yap Sing Hock & Anor v Public Prosecutor [1992] 2 MLJ 714 Supreme Court, Malaysia (Abdul Hamid Omar LP, Peh Swee Chin SCJ and Anuar J).

The accused was charged with criminal breach of trust of cash entrusted to him in his capacity as Johore records officer. The only evidence the prosecution produced of misappropriation or misuse of the sum was the fact that the sum was not in the accused's safe, when it was examined.

Held: it is essential before criminality can attach to the non-accounting of sums entrusted to a government servant that there should be some evidence leading to the unmistakable inference that the non-accounting covered a deliberate misappropriation by the trustee, and as there was no such evidence in this case, the accused must be acquitted.

Public Prosecutor v Mohamed [1948-49] MLJ Supp 74 High Court, Johore Bahru (Laville J).

In this case, the learned trial judge found that the appellant as Director of National Bureau of Investigation, Sarawak, was a public servant and in that capacity he was entrusted with dominion over moneys belonging to the Government of Malaysia and was the operator of the funds known as the Secret Service Funds (SSF). It was in respect of moneys from such fund in the amounts stated in both of the charges that the learned judge found the appellant to have committed criminal breach of trust. In regard to the first limb of the first charge, the learned judge found that a sum of RM200 was handed to ASP Ibrahim then attached to NBI Sibu whereas the payment voucher showed there was a payment of RM300. The appellant claimed he paid RM300 to Sgt Paou who was sent to collect the money. The learned trial judge found that the words 'tiga ratus sahaja' and the figure of RM300 was not in the handwriting of Sgt Paou but appeared to come from the same pen used by the appellant to sign his name and write down the receipt number. In regard to the second limb, the learned judge found that certain payments of rewards were not received by the persons to whom they are alleged to have been paid. Payment vouchers were signed by the appellant and blank receipts were prepared which were signed by an Assistant Director Poh of Kuching. The second charge related to a payment to ASP Daniel Chai of RM500 which ASP Daniel Chai said he never received. The appellant stated that Daniel Chai had asked for the money to pay informers but as he was in a hurry no signature was taken. Subsequently, a temporary receipt was prepared by the appellant. He then contacted Daniel Chai for the refund of the money and eventually received RM500 back. The learned trial judge disbelieved the appellant and his witnesses and found the appellant guilty. The appellant appealed.

Held: (1) it is a settled principle that while a judge who sits alone is entitled to weigh all the evidence, to put his magnifying glass to determine the probabilities and form his own opinion or judgment, it would be erroneous for him to form a conclusion on a matter which could only be properly concluded with the aid of expert evidence. In this case, as the document was not examined by an expert in handwriting, it was not correct for the judge to come to a finding of fact that the writing on the receipt appeared to come from the same pen used by the appellant to sign his name and write the receipt number; (2) in view of the circumstances, the learned trial judge ought to have critically analysed the evidence of Sgt Paou and ought to have considered that Sgt Paou had every reason to lie to save his own skin; (3) in regard to the second limb of the first charge, ASP Poh was an accomplice. By reason of the character and conduct of Poh in the matter, his evidence should have been treated with greatest suspicion and the learned judge ought to have minutely and critically scrutinized it. The learned judge had not effected a microscopic scrutiny and embarked upon a critical appreciation of Poh's evidence to justify the appeal court to affirm his finding and sustain the conviction. Although the trial judge had the advantage of having seen and heard the witness his approach to the question of credibility was gravely erroneous and there was serious misdirection which occasioned a failure of justice; (4) in regard to the second charge again there was a real necessity for the learned judge to treat the evidence of Daniel Chai with great suspicion and then to critically assess it, test in its totality, and also to microscopically analyse it to determine what credit if any could be attached to his testimony. The omission or failure to take into consideration a factor such as this constitutes a serious misdirection as to occasion a failure of justice. Such a misdirection goes to the root of the matter and it materially affected the very foundation upon which the learned judge grounded his findings.

Syed Abu Bakar bin Ahmad v Public Prosecutor [1984] 2 MLJ 19 Federal Court, Kuching (Lee Hun Hoe CJ (Borneo).

The appellant was charged with criminal breach of trust in respect of RM23 paid to him on 23 separate occasions within the space of a year. To this charge were appended particulars of the person from whom the payments were made. The second charge alleged that with an intent to defraud, he committed falsifications of accounts by wilfully omitting to enter the 23 payments in his cash book. At the trial, a third charge was added of omitting to enter in the certificate books, particulars of the 23 marriages and divorces in respect of which each RM23 was received. The appellant was convicted on the first charge and acquitted on the other two.

Held, on appeal to the Court of Appeal: (1) the first charge was really of a general deficiency of RM23, the particulars being not so much particulars of separate misappropriations as indications as to how the deficit was arrived at and was a good charge under s 153(ii) of the Criminal Procedure Code (Cap 6); (2) the criminal breach of trust charge was one offence though made up of 23 items, and when the falsifications charged were confined to those items, the criminal breach of trust and the falsifications were so closely interrelated that the 23 falsifications became a single offence like the 23 breaches of trust which formed a single offence and that the falsifications were related to the criminal breach of trust items by community of purpose and they stood to one another in the relationship of cause and effect; hence the two charges were properly joined.

Sheikh Hassan v Public Prosecutor [1940] MLJ 69 Court of Appeal, Federated Malay States (Poyser CJ, McElwaine CJ(SS).

This was an appeal from the decision of the President of the sessions court where the accused was convicted on three charges of criminal breach of trust under s 409 of the Penal Code. It was argued that the joinder of the three charges was bad, and that there was evidence of dishonest intention.

Held: (1) the criminal intention of the accused in misappropriating money in this case became manifest when the shortage was discovered and therefore, the joinder of the charges was good; (2) though the general punishment in these cases is imprisonment, in the particular circumstances of this case, an exceptional course is to be taken by quashing the sentence of imprisonment; (3) (per curiam) 'if the accused had given an explanation which, even the court does not believe it, the court considers it consistent with truth on considering the whole of the evidence, then the court must give the accused the benefit of the doubt... In assessing the sentence, it is necessary that the court take into consideration all the circumstances...'

Mohamed v Public Prosecutor [1961] MLJ 170 High Court, Johore Bahru (Adams J).

Held: in cases where public officers, placed in a position of trust and by virtue of that position, handling public funds, think fit to misappropriate to themselves part of those public funds, the right and proper punishment, unless there are very good reasons to the contrary, is one of imprisonment.

Public Prosecutor v Mohamed Hashim [1961] MLJ 11 High Court, Penang (Rigby J).

The appellant, a public servant and postmaster of the post office at Scudai, Johore, was charged with criminal breach of trust of RM200 cash belonging to the government of Malaysia, being money deposited with the Post Office Savings Bank, Malaysia. The said offence was punishable under s 409 of the Penal Code (Cap 45). The facts revealed that the accused had received the sum of RM200 from the complainant and had made the relevant entry into the complainant's savings bank book, but had not made a corresponding entry into the register containing all the takings for the day, which it was the appellant's duty to keep and maintain. The said facts were admitted by the accused. He was then convicted and counsel made a lengthy plea of mitigation, but nowhere in the plea was there any attempt to explain what might have become of the missing RM200. The learned President sentenced the appellant to 18 months' imprisonment and she granted a stay of execution pending appeal. The issue before the court was whether the appellant should be allowed to retract his plea of guilty.

Held, dismissing the appeal: (1) whilst there is a discretion vested in the trial court to permit an accused person before sentence to withdraw a plea of guilty and to substitute a plea of not guilty, that discretion requires to be exercised judicially and for valid reasons. An accused person cannot be permitted merely at his whim to change his plea except on valid and sufficient grounds which satisfy the magistrate that it is proper in the interest of justice that he be allowed to do so; (2) in this case, there was no justification for permitting the appellant to indirectly seek to reverse his plea of guilty by inviting the court to exercise its revisionary powers; (3) an accused person should plead guilty or claim trial by his own mouth and not through his counsel or advocate. Once the plea of guilty is entered, it is the duty of counsel who still feels that the facts do not amount to an offence to say so in unequivocal terms to the court of first instance. No mileage can be gained by some half-hearted submission on appeal that the plea of guilty was made against counsel's advice.

Abdul Kadir bin Abdul Rahman v Public Prosecutor [1984] 1 MLJ 80 High Court, Johore Bahru (Shankar J).

The accused was convicted of the offence of criminal breach of trust as a public servant, an offence under s 409 of the Penal Code, and was bound over under s 294(i) of the Criminal Procedure Code (Cap 6).

Held: the sentence was inadequate and must be altered to one of six months' imprisonment. The first and foremost consideration of punishment is public interest. The object of punishing crime is not only to punish the offender but also to deter others. Although it is desirable that the first offender should, if possible, be kept from coming into contact with hardened criminals, nevertheless, other public servants submitted to temptation will not be deterred from succumbing to temptation if they see that the only punishment which it involves is some form of binding over.

Public Prosecutor v Ismail bin Loyok [1958] MLJ 223 High Court, Seremban (Smith J).

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

See CRIMINAL LAW, Vol 4, para 696.

The appellant was convicted under s 409 of the Penal Code for committing criminal breach of trust in respect of a sum of RM25,000 entrusted to him in his capacity as advocate and solicitor and was sentenced to three years' imprisonment. He appealed against the sentence and his counsel submitted that the sentence imposed was manifestly excessive and that certain material facts were not brought to the attention of the magistrate.

Held: public interest demands that a deterrent sentence be passed on any person who commits an offence of this nature, but it is equally true that each case should be dealt with according to its individual merits. In this case, the sentence imposed was manifestly excessive having regard to the facts and circumstances, and a short sentence of imprisonment and a fine would be adequate.

Lee Yew Siong v Public Prosecutor [1973] 1 MLJ 37 High Court, Kuala Lumpur (Abdul Hamid J).

Goh Khiok Phiong v R [1954] MLJ 223 Court of Appeal, Kuching (Smith, Rogers and Bodley JJ).

See CRIMINAL LAW, Vol 4, para 1251.

The second appellant had been convicted by the President of the sessions court on two charges of dishonestly retaining stolen property under s 411 of the Penal Code, and in one charge the stolen property was alleged to be a cheque, and in the other charge, moneys 'being the proceeds of sale of stolen property'. He appealed on the ground, inter alia, that the charge disclosed no offence known to law in that the proceeds of sale of stolen property are not themselves stolen property within the meaning of s 410 of the Penal Code. Before the President, D'Andrea v Woods [1954] 1 WLR 1307; [1953] 2 All ER 1028 was quoted as covering the point that the proceeds of stolen property are themselves stolen property. Before Mr Justice Hashim on appeal, it was pointed out that that case turned on the wording of s 46(1) of the Larceny Act 1916, which provides: 'The expression ÒpropertyÓ... includes not only such property as has been originally in the possession or under the control of any person, but also any property into or for which the same has been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise...', whereas s 410 of the Penal Code which defines stolen property, limits the expression to the identical goods and not to any proceeds thereof. On behalf of the Public Prosecutor, the point was conceded but a retrial was pressed for.

Held: where a person was convicted on a charge which disclosed no offence, the trial was a complete nullity and the court should not order a retrial on the same charge. All it could do was to quash the conviction and leave it to the Public Prosecutor to bring an appropriate charge in his discretion.

Cheah Yew Fatt & Anor v Public Prosecutor [1960] MLJ xlvi High Court, Kuala Lumpur (Hashim J).

[Annotation: See the Penal Code (Amendment) Act 1965 applicable only to the States of Malaya, s 7, of which enlarged the definition of 'stolen property' for the purposes of offences under ss 411 and 414 of the Penal Code to include 'any property into or for which the same has been converted or exchanged and anything acquired by such conversion or exchange'. The effect of this amendment was to render the above case no more good law only in the case of those states of the former Federation of Malaya and to make s 410 conform to s 46 of the Larceny Act 1946 (UK). The Singapore Penal Code was amended by Ordinance No 16 of 1961.]

The accused was charged with dishonestly receiving stolen property, to wit, 30 cases of milk, which were found in the possession of a proprietor of a shop. The proprietor stated that he had bought the milk from the accused at a price below the usual price and that he gave the accused a cheque in settlement which also included a sum stated by the accused. At the trial, the proprietor produced his account books after being asked in cross-examination and the books showed that the entries relating to the milk were extremely suspicious. The accused completely denied that he sold the milk. The question was whether the proprietor was an accomplice and whether there was sufficient corroborative evidence.

Held: (1) the proprietor was not only an accomplice, but an accomplice of a type upon whose evidence as a witness it is most unsafe to convict without strong independent corroboration; (2) it is imperative in a case of this kind for a magistrate to find which of the witnesses are accomplices (if there is any doubt about it) and whether there is any, and if so, what kind of corroboration of their evidence.

Lim Kwee Geok v R [1953] MLJ 50 High Court, Penang (Spenser-Wilkinson J).

The appellant was charged with, and convicted of dishonestly receiving stolen property under s 411 of the Penal Code (Cap 45). He was charged alternatively with having in his possession, property reasonably suspected of having been stolen under s 35(i) of the Minor Offences Enactment (Cap 46).

Held: the latter charge cannot be tried as an alternative to the former, as the onus under the two charges is different, and evidence, admissible under the latter charge, is not admissible under the former. Conviction under s 381 of the Penal Code substituted.

Banta Singh v Public Prosecutor [1941] MLJ 154 High Court, Federated Malay States (Howes J).

Held: on charges under s 411 of the Penal Code, the first accused was convicted under s 2(i) of the Johore Stolen Property and Habitual Criminals Enactment (Enactment No 34), and the second accused was convicted under s 411 of the Penal Code. On appeal, the conviction of the second accused was altered to a conviction under s 2(i) of the Johore Stolen Property and Habitual Criminals Enactment, the facts not justifying the original conviction.

Liang Huay Hoo v Public Prosecutor [1948] MLJ 39 High Court, Malayan Union (Bostock Hill J).

Held: the Penal Code makes special provisions as to the cases in which forfeiture of property is a proper punishment, and it is only those cases that the court can make an order for forfeiture or confiscation of property under s 407 of the Criminal Procedure Code (Cap 6). Forfeiture is not a punishment for an offence under s 411 of the Penal Code and therefore the court has no jurisdiction to make an order of confiscation.

Chee Ng v Public Prosecutor [1947] MLJ 112 High Court, Malayan Union (Evans J).

[Annotation: The above case was overruled by Lim Poon Pok v Public Prosecutor [1947] MLJ 172.]

Banta Singh v Public Prosecutor [1941] MLJ 154 High Court, Federated Malay States (Howes J).

See CRIMINAL LAW, Vol 4, para 1225.

Possession of property recently stolen, where no explanation is given, is evidence which can go to the jury that the prisoner received the property knowing it to have been stolen. It must be borne in mind that the onus is always on the prosecution; but if the prisoner gives an explanation which raises a doubt in the minds of the jury on the question of whether or not he knew that the property was stolen, then the ordinary rules apply and the case has not been proved to the satisfaction of the jury, and therefore, the prisoner is entitled to be acquitted.

Mohamed Yatin bin Abu Bakar v Public Prosecutor [1950] MLJ 57 High Court, Kuala Lumpur (Spenser-Wilkinson J).

Held: (per Spenser-Wilkinson J) 'Cases of theft or receiving where the only evidence against the accused is the possession of property recently stolen. These cases are really in a class by themselves they may be looked upon not so much as cases where the law has cast a burden of proof upon the accused, but rather as cases where the law has given special significance to a certain class of circumstantial evidence, namely, the possession of stolen goods. The law is that such possession is in itself evidence of the theft or receiving unless explained; and the numerous decisions dealing with the subject, from R v Abramovitch (1914) 24 Cox CC 591 onwards until the recent decisions of R v Garth [1949] 1 All ER 773, R v Aves (1950) 34 Cr App R 159 and Wang Kia Heng v Public Prosecutor [1951] MLJ 109, are all concerned with the degree of explanation which will entitle the accused to an acquittal.'

Mah Kok Cheong v R [1953] MLJ 46 High Court, Penang (Spenser-Wilkinson J).

The appellant was charged under s 411 of the Penal Code with dishonestly retaining stolen property, having reason to believe them to be stolen. The prosecution produced evidence that the investigating officer and his party were led by the accused to three different places where the stolen property allegedly kept by the appellant was recovered. The investigating officer also testified that because the accused led him to those places, he concluded that the appellant had 'kept' them there, despite the fact that no other proof was available. The appellant's defence was called but he chose to remain silent. He was found guilty and sentenced to three months' imprisonment. The appellant appealed against his conviction.

Held, allowing the appeal: (1) no incriminating statement of the nature admissible under s 27 of the Evidence Act had been uttered by the appellant leading to the recovery of the stolen property. Thus, the production or discovery or recovery of the goods did not by itself establish possession. Besides, the things were recovered from places not exclusively occupied by the appellant but accessible to other people. There was no credible evidence to sustain the element of possession by the appellant at the end of the prosecution's case; (2) there was also no evidence that indicated or suggested that the appellant had reason to believe that the recovered properties were stolen properties. His defence ought not to have been called. The learned magistrate did not appear to have conducted any or any proper evaluation or examination of the evidence adduced by the prosecution; (3) the magistrate's conclusion that the prosecution had established a prima facie case was wrong in law.

Tang Kee Poh v Public Prosecutor [1993] 2 CLJ 490 High Court, Sibu (Steve Shim J).

Held: (1) the phrase 'burden of proof' has two distinct meanings: (a) burden of establishing a case and (b) burden of introducing evidence; (2) the burden of establishing proof of guilt in a case of dishonestly receiving or retaining stolen property is the same in North Borneo as in England, ie it lies on the prosecution; (3) the burden of proof in the sense of burden of evidence may shift as evidence is introduced by one side or the other.

Yusof bin Matnor v R [1957] SCR 161 Supreme Court, Sarawak, North Borneo and Brunei (Williams CJ, Lascelles and Bodley JJ).

Three separate charges: (a) of having no ostensible means of subsistence, an offence under s 68(b) of the Criminal Procedure Code (Cap 6); (b) of dishonestly retaining stolen property, an offence punishable under s 411 of the Penal Code (Cap 45), and (c) of being in possession of property reasonably suspected of being stolen or fraudulently obtained, an offence punishable under s 35 of the Minor Offences Enactment (Cap 46), were preferred against the appellant. The proceedings under the Criminal Procedure Code were tried first and after hearing the whole case, the magistrate at Selama postponed sentence pending the trial of the charges for the substantive offences. The magistrate convicted the appellant on all the charges. On appeal,

Held: when an accused person is charged under s 68(b) of the Criminal Procedure Code and also with other offences under the Penal Code or the Minor Offences Enactment, the charge under the Criminal Procedure Code should be heard after the other charges had been dealt with, as evidence is admissible under these proceedings which would be carefully excluded from ordinary criminal proceedings. New trial before a different magistrate ordered.

Indut v Public Prosecutor [1939] MLJ 129 High Court, Federated Malay States (Murray-Aynsley J).

Held: a charge under s 411 cannot be tried as an alternative to a charge under s 2(1) of the Kedah Stolen Property Enactment.

Jusoh v Public Prosecutor [1949] MLJ 120 High Court, Kedah (Callow J).

This was a reference under s 34 of the Courts Ordinance 1948, of an appeal heard by the High Court against the conviction of the respondent on a charge under s 411 of the Penal Code. The point of law involved in the appeal which was to be determined by the Court of Appeal was certified by the Public Prosecutor as follows: whether or not Mr Justice Bellamy was correct in stating the law to be as follows: 'if he (the accused) gives an explanation which in the opinion of the jury may possibly be true, although they do not necessarily believe it, then the Crown cannot rely upon the presumption and it must prove the guilt of the accused, just as in any other criminal case.'

Held: the passage from the judgment of the learned judge was not a correct statement of the law and the proper test to be applied in such cases is that laid down in R v Aves [1950] 2 All ER 330; 34 Cr App R 159.

Public Prosecutor v Soong Chak Sung [1955] MLJ 144 Court of Appeal, Kuala Lumpur (Pretheroe Ag CJ, Wilson and Spenser-Wilkinson JJ).

[Annotation: R v Aves decided that when the only evidence on such a charge is that the accused person was found in possession of property recently stolen, the jury should be directed that they may infer guilty knowledge (a) if the prisoner offers no explanation to account for his possession, or (b) if they are satisfied that the explanation he does offer is untrue, but, if the explanation offered is one which leaves the jury in doubt whether he knew that the property was stolen, they should be told that the case has not been proved, and, therefore, the verdict should be 'not guilty'.]

The respondent was charged with dishonestly retaining stolen property contrary to the provisions of s 411 of the Penal Code. He was found wearing a wristwatch, which was conclusively identified as the property of the complainant and which was stolen from the complainant's premises a few months before. The respondent was the next door neighbour of the complainant. At his trial, before the President of the Sessions Court, the respondent gave evidence that he had purchased the watch from a friend named Ah Seok for RM20 about three months earlier. He failed however, to produce Ah Seok as a witness at his trial. The respondent also said that he borrowed money to buy the watch from his sister, and this evidence was corroborated by the sister. The President acquitted the respondent. On appeal by the Deputy Public Prosecutor on the ground that the learned President misdirected himself in law, and who as a direct result of that misdirection placed too high a value on the respondent's story without giving adequate and proper consideration to the intrinsic worth of that story,

Held: (1) it is not sufficient, on a charge of receiving stolen property, for the accused to give an explanation which the court thinks may possibly be true. The explanation must be such as to raise a genuine and reasonable doubt as to whether the accused was guilty. However, although the learned President described the respondent's story as one that 'could possibly be true', it is quite clear from his judgment as a whole that, having heard the respondent's explanation, he came to the conclusion that the explanation might not only possibly but reasonably be true. There could, therefore, be no question of the President having misdirected himself in law; (2) it may well be that a court differently constituted, bearing in mind that the respondent was the next door neighbour of the complainant and that he had failed to produce, or account for the absence of, the witness from whom he said he had bought the watch, would have come to a different conclusion in this case. But the President was the judge of fact, and on the facts before him, if he was left in honest and genuine doubt, he was perfectly entitled to acquit the respondent. Appeal dismissed. Observations made as to the discretion vested in a trial court to allow an accused person, before sentence, to withdraw a plea of guilty and to substitute a plea of not guilty.

Public Prosecutor v Sam Kim Kai [1960] MLJ 265 High Court, Penang (Rigby J).

Yee Ngok v Public Prosecutor [1947] MLJ 136 High Court, Malayan Union (Willan CJ).

See CRIMINAL LAW, Vol 4, para 414.

In this case, the evidence showed that the accused had purchased stolen property from the thief. The property was found in his possession. The learned magistrate acquitted the accused as he found there was some doubt in the prosecution case.

Held: as the evidence showed that the property had been stolen and that they were recovered from the possession of the accused soon after the theft, there was sufficient evidence to call on the accused for his defence on the charge under s 411 of the Penal Code and the case should be sent back for retrial.

Public Prosecutor v Hong Ah Huat [1971] 1 MLJ 52 High Court, Muar (Sharma J).

Held: having regard to the time elapsing between the theft and the identification, the presumption arising from recent possession can hardly apply. Even if the goods are satisfactorily identified as having been stolen (in this case seven weeks beforehand), it is not necessary for the accused to convince the magistrate of the truth of his explanation; it is sufficient if the explanation may reasonably be true even if the magistrate is not convinced of its truth.

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

This was an appeal against the conviction of the appellant on a charge of dishonestly retaining stolen property, to wit, orchid plants. The only evidence of possession of the orchids, which were proved to be stolen property, against the appellant was that they were found in a house which the appellant occupied with the other members of his family. There was no evidence to show how they got there or when or by whom they were taken.

Held: the evidence was insufficient to show that the appellant had possession of the stolen property and he should not have been called upon to enter on his defence.

Albakhar v Public Prosecutor [1960] MLJ 247 High Court, Alor Star (Rigby J).

The two appellants were convicted of dishonestly retaining 1,366 katties of flour, knowing the same to be stolen property contrary to s 411 of the Penal Code. The two appellants were found on the deck of a tongkang, in which the police found 13 bags of flour, in circumstances which indicated that they were intended to be concealed. Both appellants were members of the crew of the tongkang and it was proved that it was customary, when the tongkang was in the river unladen, for members of the crew to sleep ashore at their respective homes.

Held: in order to support a conviction under s 411 of the Penal Code, proof of possession is essential and as there was no such proof in this case, the convictions must be quashed.

Varia & Anor v Public Prosecutor [1948] MLJ 3 High Court, Malayan Union (Pretheroe J).

The appellant was charged for dishonestly retaining stolen property, an offence punishable under s 411 of the Penal Code (FMS Cap 45) ('the Code'). He pleaded guilty to the charge and was convicted and sentenced. The appellant, however, later appealed against his conviction and sentence. At the hearing of the appeal, upon objection by the respondent, the court dismissed the appeal against the conviction as the appellant had earlier pleaded guilty. The appeal against sentence was subsequently abandoned. Counsel for the appellant then made an oral application urging the court to exercise its discretionary power to revise the decision of the magistrate, contending that the brief facts given by the prosecution did not disclose the offence for which the appellant was charged. The brief facts stated that on 15 December 1992 at 1.50pm, the complainant reported to the police that at 7am on that same day, he discovered that his motor cycle, bearing registration plate no QKA 2990, valued at RM4,800 was missing. An investigation was carried out and the appellant was arrested and a motor cycle used by him was seized by the police. An inspection revealed that the motor cycle which was seized belonged to the complainant. Further investigation revealed that the appellant had bought the motor cycle from a person named John in exchange for his own wrist watch valued at more than RM100. The appellant admitted in his statement to the police that on 18 December 1992 at 10.30pm he had kept the motor cycle at Kampung No 6, Kuching. The brief facts nevertheless did not provide clear information as to when or where the appellant was arrested and when the motor cycle was seized. The respondent argued that unless the appellant formally applied to court for it to exercise its revisionary power, the court would not have such a power. The issues to be decided then were whether the court should entertain the oral application for revision and, if yes, whether the brief facts contained sufficient evidence to establish the case against the appellant beyond reasonable doubt which if unrebutted would warrant his conviction.

Held, affirming the conviction and sentence: (1) by the operation of s 325 of the Criminal Procedure Code (FMS Cap 6), a judge may on his own initiative exercise his discretion to revise once the record of the proceedings of an inferior criminal court is before him either on account of him calling for it or otherwise has come to his knowledge. The power to revise is, however, a discretionary power and should not be taken advantage of by parties urging the judge to exercise the power after an appeal for some reason had failed. In the present case, having had the opportunity to study the record of proceedings, the court would accept the oral application of counsel for a revision; (2) and (d) he had reason to believe that the said motor cycle was stolen property; (3) as to (a), from the brief facts, it could not be disputed that the motor cycle was stolen property being property belonging to the complainant. Thus when the motor cycle was seized from the appellant by the police, the appellant had in his possession stolen property; (4) as to (b), the appellant was using the motor cycle and had acquired it by way of an exchange with his wrist watch. The fact that he had acquired the motor cycle through such purchase went to show that he had the power to deal with and dispose of it to the exclusion of all others. This implied dominion and consciousness in the mind of the appellant that he not only had such dominion but also that he could exercise it; (5) as to (c) and (d), considering the nature of the property involved, it was reasonable to conclude that such possession was soon after the theft. Such being the case, it was reasonable to conclude that the appellant's possession of it was dishonest when he could not account satisfactorily for its possession. Considering that the motor cycle was purchased for a sum far below its real value, it was only reasonable to conclude that when the appellant entered into the transaction, he did so with a full understanding of the guilty mode by which the motor cycle had been acquired by John. By having possession of the motor cycle, in the circumstances, the appellant had intended to cause wrongful gain to himself and wrongful loss to the complainant; (6) based on the brief facts, therefore, the respondent had proven beyond reasonable doubt the case against the appellant as presented in the charge. Following the unqualified admission by the appellant and the brief facts presented, the magistrate was right in convicting the appellant upon his plea; (7) to sustain a conviction under s 411 of the Code, the prosecution had to prove that (a) the motor cycle in question was stolen property; (b) the appellant retained the said motor cycle; (c) he did so dishonestly;(per curiam) it is well advised that if a party intends to persuade the judge to exercise the power of revision, he should right from the start make such an application for revision or include it in the notice of appeal by way of an alternative to the appeal.

Razalitono bin Ropa'ai v Public Prosecutor Criminal Appeal No KG 2 of 1993 High Court, Kuching (Abdul Kadir Sulaiman J).

This was an appeal against conviction on a charge of dishonestly retaining stolen property. The evidence led was to the effect that the appellant received from the thief a box of 100 nozzles which had been stolen from Messrs Wearne Bros Ltd; the thief gave evidence that he gave them to the appellant; the appellant led the police inspector to a room and handed to him a box of nozzles. These facts, counsel for the appellant submitted, did not constitute a prima facie case in that the evidence of the thief was uncorroborated. In his grounds of judgment, the learned President made no reference to his relying in any way on the evidence of the accomplice but appeared to have relied on the fact that the appellant was in possession of the goods which had been recently stolen. The evidence given by the employees of Wearne Bros showed that the nozzles did not leave the workshops in the normal manner. The appellant, who was represented by counsel, when called upon for his defence, chose to make a statement. One of the grounds of appeal was that at the close of the defence, the President refused to allow counsel to make his submission. Counsel for the defence sought to file with his petition of appeal, an affidavit stating that after the appellant had made a statement from the dock, he was not allowed by the President to make any submission.

Held: (1) as the statement made by the appellant was inconsistent with his innocence, he was properly convicted; (2) the appellant had no right to make any submission whatever after making a statement from the dock since he had not given evidence. Observations on procedure when filing affidavit with petition of appeal.

Wong Heng Fatt v Public Prosecutor [1959] MLJ 20 High Court, Kuala Lumpur (Smith J).

Gurusamy v Public Prosecutor [1965] 1 MLJ 245 High Court, Kuala Lumpur (Ong J).

See CRIMINAL LAW, Vol 4, para 1092.

R v Koh Kwong & Anor [1953] MLJ 5 High Court, Penang (Spenser-Wilkinson J).

See CRIMINAL LAW, Vol 4, para 1097.

Held: it is necessary to prove four acts of receiving in all before it can fairly be said that an accused is a habitual receiver. It is not necessary before bringing a charge under s 413 of the Penal Code that the accused should have been convicted of receiving.

Annuar Hassan v R [1954] SCR 84 Supreme Court, Sarawak, North Borneo and Brunei (Smith Ag CJ, Rogers and Bodley JJ).

The proper way to draft a charge under s 413 of the Penal Code is to set out therein particulars of specific acts of receiving, which should show the date or approximate date when the property was received. It would be necessary to prove at least three prior acts of receiving, that is to say, four acts of receiving in all before it could fairly be said that the accused was a habitual receiver. It is not necessary that the accused should have been convicted of receiving, but it is necessary that the proof of these prior acts should be as convincing as if he had been convicted, for it is those acts which determine the applicability of the offence under s 413 of the Penal Code and the enhanced penalty provided therefor. Section 228(1) of the Sarawak Criminal Procedure Code (Cap 62) authorizes the court to visit the locus in quo. Section 228(2) enacts that the judge or magistrate shall direct that the accused shall be present when the court visits the locus in quo. Non-compliance with the provisions of sub-s (2) will be regarded a serious error since it disregards a mandatory direction of the code and also offends against the elementary principle of justice that nothing to the prejudice of a person should be done behind his back. The definition of 'stolen property' in s 410 of the Penal Code excludes property in respect of which cheating has been committed. In deciding whether a witness should be treated as an accomplice, the trial judge should ask himself this question: 'Is there any evidence upon which I can properly rule that the witness was a participant in the offence?'

Goh Khiok Phiong v R [1954] MLJ 223 Court of Appeal, Kuching (Smith, Rogers and Bodley JJ).

[Annotation: Section 413 of the Sarawak Penal Code was identical to s 413 of the Penal Codes of Singapore and the Federation. The Sarawak Penal Code, s 410, excluded 'cheating' in the definition of 'stolen property'.]

The appellant, a penghulu, was convicted on the charge that he voluntarily assisted in disposing of a cheque valued at RM2,000.90 which he knew or had reason to believe to be stolen property, thereby committing an offence punishable under the Penal Code. The cheque had been handed to the appellant by an office boy. It was a government cheque, crossed, and had been made out in the name of another person. The appellant had taken the cheque to a goldsmith's shop and had purchased gold ornaments and had taken the balance in cash. He was sentenced by the lower court to 12 months' imprisonment. On appeal by the appellant against conviction and sentence,

Held: (1) there was no doubt that the cheque was stolen; (2) the accused knew that the person from whom he had obtained the cheque was a mere office boy and that the sum made out thereon was considerable; (3) there was sufficient cause for the accused to have reason to believe that the cheque was stolen and the conduct of the accused tended to show that the cheque was stolen; (4) the presumption under s 114 of the Evidence Act was correctly applied. Observations on the sentencing of an offending government servant.

Ahmad bin Ishak v Public Prosecutor [1974] 2 MLJ 21 High Court, Kuantan (Arulanandom J).

The respondents were tried by the magistrate for offences under s 414 of the Penal Code. They were acquitted. They were then charged under s 35(i) of the Minor Offences Enactment. The magistrate held that because both the previous charge under s 414 of the Penal Code and the subsequent charge under s 35(i) of the Minor Offences Enactment were based on the same set of facts, the plea of autrefois acquit was available to the respondents.

Held, reversing the magistrate the true test is whether the acquittal on the first charge necessarily involves an acquittal on the second charge. In this case, the ingredients of the two offences differ considerably and the evidence to establish the commission of the one would not necessarily establish the other.

Public Prosecutor v Surjan Singh [1939] MLJ 109 High Court, Federated Malay States (Aitken J).

In this case, the appellant had been charged under s 414 of the Penal Code (Cap 45) on two charges that he 'voluntarily disposed' of certain properties. At the close of the defence, the learned magistrate ordered the charges to be amended by substituting the words 'assisted in disposing of' for the words 'disposed' but he did not read over and explain the amended charges to the appellant. The appellant appealed against his conviction and sentence.

Held: (1) the omission by the learned magistrate to read and explain the amended charges to the appellant was an irregularity which was not curable by s 422 of the Criminal Procedure Code (Cap 6) as it was contrary to a statutory requirement; (2) the conviction and sentence of the appellant must therefore be quashed and a retrial ordered.

Singah Mohamed Hussin v Public Prosecutor [1973] 2 MLJ 109 High Court, Kuantan (Syed Othman J).

This was an appeal against the conviction of the appellant for dishonestly disposing of stolen property, an offence under s 414 of the Penal Code. It was argued on appeal, inter alia, that there was not enough evidence to support the learned magistrate's findings of fact and that the presumption under s 114 of the Evidence Ordinance 1950 had been wrongly invoked in this case, as this was a case of disposal of stolen property.

Held: (1) it was open to the learned magistrate having invoked the presumption under s 114 of the Evidence Ordinance, to find that the appellant was a receiver of the property and subsequently, to hold that he had disposed of the property; (2) on the facts of the case, the learned magistrate was entitled to come to the conclusion that the appellant was guilty of the offence.

Abdul Manap v Public Prosecutor [1967] 1 MLJ 182 High Court, Raub (Raja Azlan Shah J).

Public Prosecutor v Ng Fee Leong [1939] MLJ 290 High Court, Federated Malay States (Murray-Aynsley J).

See CRIMINAL LAW, Vol 4, para 757.

Held: deception is only one element in the offence of cheating. There can be no cheating unless by reason of the deception, the person deceived is induced to part with any property or to do or to omit to do anything which he would not do or omit to do but for the deception, and the commission or omission caused or was likely to cause him some harm or damage in body, mind, reputation or property. The giving of a postdated cheque in lieu of money due with the knowledge that the drawer had no funds in the bank, does not amount to an offence of cheating in the absence of evidence to show that the person to whom the cheque was issued parted with any property or that he did or omitted to do anything which he would not have done or omitted to do if he had known that the cheque would be dishonoured. A postdated cheque in payment of goods already received is a mere promise to pay on a further date and a broken promise is not a criminal offence. A charge for cheating is defective if it does not specify the deception which has been practised. In this case, as the goods were delivered and payment was due on 15 August 1962, in accepting the postdated cheques on 18 August 1962, the complainant was in no worse a position than he had been after the delivery of the goods on 18 August 1962, and accordingly, he could not be said to have suffered any damage as a consequence of anything done on 18 August 1962.

Khoo Kay Jin v Public Prosecutor [1964] MLJ 22 High Court, Penang (Hepworth J).

[Annotation: In Lee Kang Wye v Ng Ah Min (1888) 4 Ky 335, it was held that before there can be a conviction for cheating under s 417 of the Penal Code, there must be conclusive evidence of a dishonest intent at the time of obtaining the money or goods; where the evidence does not necessarily show a dishonest intent at the time, but is consistent with such either being or not being the fact, no conviction can be had. This case was followed in Yong Yong Peng v R [1947] MLJ 40.]

Lim Tain Chye v Public Prosecutor [1915] 1 FMSLR 228 High Court, Federated Malay States (Innes and Farrer-Manby JJC).

See criminal law, Vol 4, para.

A, a school headmaster, was charged with committing criminal breach of trust under s 409 of the Penal Code (FMS Cap 45). X was a teacher in A's school who applied for no pay leave from 1 January 1985 until his retirement ('the application'). X handed the application to A to be forwarded to the Education Department. X then did not work as from 1 January 1985 on the belief that the application had been approved. A, however, did not forward the application to the Education Department. A instead certified to the Accountant General that X had been working since 1 January 1985. Consequently, seven cheques for X's salaries as from 1 January 1985 were issued and were paid into the school's bank account. The school then issued seven cheques in X's name and A cashed these cheques and appropriated the total sum to himself. All the seven transactions were executed within the period of 12 months. A was convicted in the sessions court and he appealed to the High Court. The prosecution argued that the appellate court could substitute a conviction for cheating for A's conviction on the charge of criminal breach of trust.

Held, allowing the appeal and ordering a retrial: (1) once property is acquired by trick or by false representation, there is an offence of cheating under s 420 of the Penal Code and if the offender appropriates that amount to his own use, he cannot have committed criminal breach of trust because there is no trust created by the owner of the property; (2) the evidence in this case did not disclose an offence of criminal breach of trust but instead it showed seven offences of cheating; (3) under s 164 of the Criminal Procedure Code (FMS Cap 6), when a person is accused of more offences than one of the same kind committed within the space of 12 months from the first to the last offence, he may be charged with and tried at one trial for any number of them not exceeding three. Accordingly, A's single charge of criminal breach of trust could not be altered to seven charges of cheating as this would be contrary to s 164 of the Criminal Procedure Code; (4) A's appeal was allowed and he was ordered to be retried on charges of cheating in accordance with s 164 of the Criminal Procedure Code.

Shably bin Ahmad v Public Prosecutor Criminal Appeal No 52-19-88 High Court, Alor Setar (KC Vohrah J).

In this case, the applicant was charged for an offence under s 420 of the Penal Code. His defence was called and after hearing the defence, the learned magistrate held that a reasonable doubt had been created and she accordingly acquitted and discharged the applicant. The Public Prosecutor appealed. The learned judge of the High Court allowed the appeal and ordered a retrial. The following questions were then referred to the Supreme Court under s 66(1) of the Courts of Judicature Act 1964 (Act 91): (a) whether on a charge under s 420 of the Penal Code where an accused person is called upon to enter his defence there is in law a burden cast upon him to prove any of the facts upon which his defence is based; (b) if the answer to question (a) is in the affirmative, then, to obtain an acquittal, whether in law it is incumbent upon an accused person to prove the facts upon which he relies on a balance of probabilities, or is it sufficient to raise a reasonable doubt.

Held: (1) to earn an acquittal in a criminal proceeding for an offence under s 420 of the Penal Code, an accused has only to cast a reasonable doubt on the prosecution case; (2) the learned magistrate was perfectly entitled on the facts of the case to come to her conclusion at the end of the trial. The order for retrial should be set aside.

Nagappan a/l Kuppusamy v Public Prosecutor [1988] 2 MLJ 53 Supreme Court, Kuala Lumpur (Salleh Abas LP, Hashim Yeop A Sani and Wan Hamzah SCJJ).

This was an appeal against the conviction of the appellant for an offence of cheating under s 420 of the Penal Code. The principal ground of appeal was that the learned President of the Sessions Court had applied the wrong test regarding the onus on the defence. In his grounds of judgment, the learned President had referred to the question whether the evidence of the accused had 'disproved the prosecution case in its entirety', and he stated that he was not convinced that the accused's version of the incident was reasonable and probable.

Held: the judgment of the learned President read as a whole would suggest that he had put a higher burden on the defence to show that the accused's version was reasonable and probable. This has occasioned a failure of justice and therefore, the appeal should be allowed and a retrial ordered.

Subramanian v Public Prosecutor [1985] 1 MLJ 310 High Court, Kuala Lumpur (Gunn Chit Tuan J).

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

See CRIMINAL LAW, Vol 4, para 749.

In this case, the applicant had been charged with the offence of cheating under s 420 of the Penal Code (Cap 45), viz by dishonestly inducing one Wong Won Chong to deliver to the applicant cash of RM40,000 for the purchase of a stolen Mercedes Benz motor car. During the course of the trial in the sessions court, the charge was amended twice. The first amendment made at the close of the prosecution's case related to the particulars of the amount involved, from cash of RM40,000 to RM37,000. The amended charge was read over to the applicant but not explained to him. The second amendment was made after the close of the defence and submissions by the defence counsel and the prosecution. The charge was amended to include the words 'cash cheque No 271784 for a sum of RM37,000'. The amended charge was neither read nor explained to the applicant. The applicant was found guilty, convicted and sentenced. His appeal to the High Court was dismissed. The applicant was then granted leave to refer the following questions of law of public interest to the Supreme Court: (a) Where in the course of trial a charge is amended, is it mandatory to read and explain the amended charge to an accused person pursuant to the provision of s 158(ii) of the Criminal Procedure Code (Cap 6) ('the Code'). (b) If the answer to (a) is in the affirmative, then is the omission to read and explain the amended charge to an accused person a mere irregularity which can be cured by recourse to s 422 of the Code.

Held: (1) the question whether s 158(ii) of the Code is mandatory or directory depends on the facts and circumstances of a particular case, the purpose and object for which such provision is made, the intention of the legislature in making the provision and the serious inconvenience or injustice which may result in treating the provision one way or the other. No hard and fast rule can be laid down merely from the use of the word 'shall' therein; (2) applying the test to the facts and surrounding circumstances of the case, the provision of s 158(ii) of the Code, in so far as this case is concerned, is not imperative but directory. The provisions contained therein only lay down a rule of procedure and do not relate to the mode of the trial. A fortiori, in the light of the provision of s 422 of the Code; (3) the nature of the amendment being purely technical and in no way substantial, it has not rendered the omission to read over and explain the amended charge at the close of the defence a serious irregularity, so as to vitiate the proceeding or occasion a failure of justice; (4) as regards the first amendment, there was no need for the amended charge to be explained to the applicant after it was read over to him by virtue of s 173(h), (i) and (j) of the Code. As regards the second amendment, there was no need for the learned President to amend the charge at all at the end of the trial by virtue of s 156 of the Code, since the applicant would not be misled by such an omission. Further, ss 167 and 168 of the Code empower the court to convict an accused person with an offence other than the offence charged or with an attempt to commit the said offence without the accused being separately charged. If at all there was any necessity, the failure to do so did not amount to an irregularity which has occasioned a failure of justice and in any way prejudiced the trial by virtue of s 422 of the Code.

Hee Nyuk Fook v Public Prosecutor [1988] 2 MLJ 360 Supreme Court, Kuala Lumpur (Seah, Hashim Yeop A Sani and Syed Agil Barakbah SCJJ).

This was an appeal against conviction and sentence. The appellant was originally charged with the offence of promoting a collection of money in two kampongs without a licence, contrary to s 3(2) of the Public Collection Ordinance (Cap 112). Before the close of the case for the prosecution, the charge was amended to one of cheating by dishonestly inducing the delivery of an amount in cash, an offence punishable under s 420 of the Penal Code of Sabah. The appellant pleaded guilty to this amended charge, as a result of which he was convicted on his own plea and sentenced to three months' imprisonment. He appealed and contended that as the charge was illegal, the conviction and sentence were null and void and that the evidence disclosed no offence in law and that there was no real plea of guilty. The respondent contended that since the appellant was convicted on his own plea, he was precluded from appealing against his conviction. However, the charge was badly drafted in that it did not disclose the names of the persons cheated nor did it disclose particulars of deception.

Held: (1) under s 254 of the Sabah Criminal Procedure Code, a person who was convicted on his own plea cannot appeal against his conviction as of right so long as his plea was a real plea; (2) although the appellant had no right of appeal against his conviction ... the appellate court is entitled to look into the record, and if there is any irregularity which occasions a failure of justice, the court will exercise its power of revision. In the circumstances of this case, the cheating charge did not particularize the deception. This was an irregularity which affected the legality of the conviction, resulting in the failure of justice. Therefore, in the exercise of the court's power of revision under s 282 of the Sabah Criminal Procedure Code, the conviction must be quashed and the sentence set aside. Observations on ingredients of a cheating charge; (3) (per curiam) s 305 of the Criminal Procedure Code of the Federated Malay States provides that where an accused has been convicted on his own plea, there shall be no appeal except as to the extent or the legality of sentence. This section is similar to s 299 of the Straits Settlements Criminal Procedure Code and s 234 of the Singapore Criminal Procedure Code (Cap 113, 1970 Ed). There is no similar provision in East Malaysia.

Wong Siak Fon v Public Prosecutor [1972] 1 MLJ 203 High Court, Kota Kinabalu (Lee Hun Hoe J).

Held: 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 on two charges of cheating and dishonestly inducing the delivery of property in contravention of s 420 of the Penal Code. In the charges, no particulars were alleged of the way in which the appellant deceived the complainants.

Held: (1) in framing such a charge, it is necessary to set out not merely the fact that accused had obtained goods by dishonest means, but also the deception which has been practised; (2) it is not every form of dishonestly inducing a person to deliver property that amounts to cheating, but only those forms of it in which the dishonesty consists in the deceiving of the person concerned.

Tan Peng Ann v Public Prosecutor [1949] MLJ Supp 10 High Court, Ipoh (Thomson J).

The appellant was charged with, and convicted of, cheating under s 420 of the Penal Code, and also of an offence of corruption under s 3(a) of the Prevention of Corruption Ordinance 1950. The main ground of appeal was that it was an illegality to charge an accused person with the offence of cheating under s 420 of the Penal Code and the offence of corruption under the Prevention of Corruption Ordinance, and have the two charges tried at one and the same time.

Held: it is a misjoinder of charges as certain evidence admissible on one charge would be inadmissible under the other; also, persons who were accomplices in one charge would not be accomplices under the other. However this amounted to an irregularity and not an illegality.

Chuah Kooi Hoe v Public Prosecutor [1960] MLJ 110 High Court, Raub (Hepworth J).

In this revision, the prisoner was serving a term of imprisonment in default of payment of fine. The brief facts which led to his conviction were that he produced a 'dud' cheque to the complainant with whom he and/or his brother ran a credit account, and on the strength of that cheque, dishonestly induced the complainant not only to accept it in settlement of the account owing, but also to pay over to him RM426 in cash, being the balance shown on the face of the cheque in excess of the amount to be settled. The learned President sentenced him to one day's imprisonment and further imposed a fine of RM1,426 or one year's imprisonment in default of payment.

Held: in the circumstances of the case, the imposition of such a fine was virtually tantamount to a peremptory sentence of 12 months' imprisonment, and such sentence was excessive.

Re Fong Ah Hee [1958] MLJ 96 High Court, Penang (Rigby J).

The accused was convicted of two charges of cheating. It was alleged by the prosecution that the accused obtained goods from a shopkeeper and gave postdated cheques in payment which were subsequently dishonoured. The magistrate found that the accused must have known that he would not have funds in the bank to meet the cheques when they were due for presentation. He therefore, convicted the accused and sentenced him to six months' imprisonment on each charge, such sentence to run concurrently. The accused had no previous record.

Held: the sentence imposed was excessive and in the circumstances of the case, the accused should be unconditionally discharged under s 183(2) of the Criminal Procedure Code (Cap 21).

Re Henry [1958] MLJ 224 High Court, Penang (Rigby J).

[Annotation: See also Khoo Kay Jin v Public Prosecutor [1964] MLJ 22.]

The respondent was alleged to have placed an order for 35 sacks of rice and immediately after delivery of the rice, he gave a postdated cheque for RM1460 as part payment instead of a cash payment of RM2,055 as agreed. Subsequently, the respondent gave another postdated cheque for the balance sum of RM595. Both cheques were dishonoured when presented to the bank on the due dates. The learned President of the sessions court acquitted the respondent at the close of the prosecution case as he held that the prosecution had failed to prove dishonest intention on the part of the respondent. The Public Prosecutor appealed.

Held, allowing the appeal: as the postdated cheques in this case were issued against delivery of goods and as the circumstances showed that when the respondent phoned the order for the rice he promised to make the payment in cash, there was sufficient prima facie evidence to show dishonest intention on the part of the respondent.

Public Prosecutor v Chen Kee Nan [1969] 2 MLJ 238 High Court, Ipoh (Pawan Ahmad J).

The accused was convicted and sentenced to nine months' imprisonment on the charge of cheating a certain salesman by inducing the latter to deliver to him goods to the value of RM1,830 with a cheque in respect of which he had no account. He admitted to all the facts. He appealed against sentence.

Held: (1) the accused should be treated as a first offender but there was no mitigating factor in all the circumstances and facts of the case. His sentence should be enhanced to 19 months' jail.; (2) (per Chang Min Tat J) 'I should take the opportunity of correcting an unfortunate misconception that seemed to prevail in certain quarters that the colour of an accused's skin has anything to do with the question of sentence. I am compelled to say that if proper regard was given to the terms of the judgment which I delivered, no foundation would be discovered for such a misconception... I must deplore any idea that a stranger can come to our shores and break our laws with impunity and hope to get away with his crimes in the expectation that he would be deported. The accused will be deported in due course, but only after he has served a proper sentence.'

Dr Garner v Public Prosecutor [1973] 1 MLJ 106 High Court, Penang (Chang Min Tat J).

Held: to sustain a charge of cheating, there must be evidence of deception practised upon a person who is thereby dishonestly induced to part with his money. No hard and fast rule can be laid down for determining the credibility or otherwise of a witness, but when a witness gives or makes two statements which differ in material particulars, there must necessarily be ground for believing that he is not a truthful witness.

Mohamed bin Kasdi v Public Prosecutor [1969] 1 MLJ 135 High Court, Johore Bahru (Ali J).

The appellant was convicted and sentenced on a charge under s 420 of the Penal Code with cheating a woman by fraudulently inducing her to hand over RM300 in cash by falsely pretending to her that he was in a position to obtain blood for transfusion to her husband. The facts of the case were that the complainant's husband was a patient in the district hospital, Klang. As there was no blood of his group in the blood bank, the complainant was told to look for a blood donor or buy blood. The appellant came to see her one day and said that there was blood available and that it would cost her RM300, whereupon she paid the appellant RM300 by instalments. As a result, the appellant approached an Indian acquaintance to give blood for one of his (appellant's) relatives. The acquaintance did so and the blood was administered to the complainant's husband.

Held: on these facts, the complainant was in no way cheated by the appellant. She paid the money for a pint of blood to be administered to her husband and the appellant caused it to be supplied to her husband, thereby fulfilling his part of the transaction. Appeal allowed. Refund of RM300 compensation ordered.

Foo Tiang Kwang v Public Prosecutor [1959] MLJ 178 High Court, Kuala Lumpur (Smith J).

The President of the Sessions Court convicted the appellant on the following charge: 'That you on or about the 2nd day of May 1955 at Parit Buntar Police District Headquarters, Parit Buntar in the State of Perak, cheated the government of the Federation of Malaya, to wit, by submitting false mileage claims as per schedule attached for the month of April 1955 and thereby dishonestly induced the said government of the Federation of Malaya to deliver to you property, to wit, cash RM17.88 and thereby committed an offence punishable under s 420 of the Penal Code.' The basis of the charge was that the various journeys specified had been performed by the appellant in his own motor vehicle but in fact had been performed in police vehicles driven by police drivers. It appears that at the material times, the appellant's car, a Wolseley, was in Penang and that he used an MG car which was lent to him. This car was kept and maintained by the appellant. After hearing the appellant's evidence, the learned President asked himself the question: 'Did the accused really think he was entitled to make a claim for these journeys when they were made in the MG car and not in his own Wolseley car?' He held that the appellant ought to have known that he was not so entitled because of Financial General Orders No 256 which reads as follows: 'Mileage is payable only if: (a) the journeys in question are on government duty; (b) they are made in a vehicle kept and maintained by the officer making the claim...' In coming to his decision, the President accepted the evidence of officers of the police department, who gave evidence as to the meaning of the General Orders, to be conclusive.

Held: (1) the question of the construction of the General Orders was a question for the court to decide; (2) on a reasonable construction of the General Orders, it was possible for the appellant to act on the assumption that he could make a mileage claim for journeys even if the journeys were not made in his own vehicle but in a vehicle borrowed by him and kept and maintained by him; (3) if the President had taken the view that the appellant was entitled to mileage in respect of the journeys performed in the MG car, it was abundantly clear that he could have dismissed the charge and therefore the conviction must be set aside.

Reynolds v Public Prosecutor [1956] MLJ 101 High Court, Ipoh (Thomson J).

One Madi was admitted to the hospital as a paying patient, and it was arranged with the hospital authorities that she was to pay RM3 per mensem to receive the diet known as 'K' diet. She made a complaint about the food and the appellant informed her that if she paid 40 cents a day she could have better food. The appellant gave instructions to the hospital cook that Madi was to be supplied with a better diet known as 'H' diet and that she would pay the cook 40 cents a day. The cook admitted that he had received the instructions but denied that anything was said about payment. The better diet was in fact supplied.

Held: as Madi asked for and agreed to pay for 'H' diet which in fact she was given, there was no evidence to support the conviction of the appellant on a charge of cheating under s 420 of the Penal Code.

The Rajah v Lim Teck Ghee [1928-41] SCR 64 Supreme Court, Sarawak

On 11 April 1994, the appellant was tried in the sessions court with one charge of cheating under s 420 of the Penal Code (FMS Cap 45) (`the Code') by using a forged credit card to purchase goods from a departmental store and another of being in possession of a forged credit card with intent to pass it off as genuine under s 474 of the Code, both allegedly committed on 15 January 1994. When the trial resumed on 20 September 1994, ten additional charges of cheating under s 420 of the Code, allegedly committed on 14 January 1994, were added by the deputy public prosecutor. In respect of the ten charges, the appellant's evidence amounted to evidence in support of an alibi, for which no notice had been given. The trial judge excluded the evidence. The appellant was convicted on all 12 counts. For the original two charges, he was sentenced to three years' imprisonment and one stroke of whipping, and five years' imprisonment and a fine of RM5,000 in default one year's imprisonment respectively. The appellant appealed.

Held, allowing the appeal in part: (1) the appellant had a conditional right to admit evidence in support of his alibi and the condition was that he had to give a notice in writing to the public prosecutor at least ten clear days before the commencement of the trial. If the appellant was deprived of the opportunity to give such requisite notice through no fault of his, as in this case, then any trial which ended in evidence in support of the defence of alibi being statutorily barred from being given was clearly unfair and unjust in that it had deprived him of an important right. In the circumstances, the convictions and sentences in respect of the ten charges had to be set aside and the appeal against the convictions and sentences on these charges was allowed; (2) as for the original two charges, the evidence on which the trial judge relied was overwhelming and her findings of fact on the elements which constituted both the offences were made after a critical evaluation of such evidence. The appellant's defence did not create any reasonable doubt on the prosecution's case on both the charges. In all the circumstances of the case, there was no reason to disturb the trial judge's findings in the case against the appellant on the first two charges. The sentences imposed were also not excessive. The appellant's conviction on both charges were therefore confirmed and the appeal dismissed.

Wong Kim Leng v Public Prosecutor [1997] 2 MLJ 97 High Court, Kuala Lumpur (KC Vohrah J).

Held: persons in lawful occupation of 'jerame' are licensees of Crown land, and hold the land by customary tenure. Unauthorized felling of 'jerame' amounts to mischief as defined in s 425 of the Penal Code. It is a 'notorious fact' that the longer 'jerame' remains unfarmed the better the land will be when eventually the jungle is felled and padi planted.

Sijip anak Majan v R [1954] SCR 40 Supreme Court, Sarawak, North Borneo and Brunei (Lascelles J).

An accused pleaded guilty to a charge of causing mischief by cutting a cable belonging to the Posts and Telegraphs Department and was convicted and fined $25. At the time that the accused pleaded guilty, the magistrate did not explain to him the legal position with regard to the charge. On revision by the Supreme Court,

Held: when the accused pleaded guilty, his statement was in effect an admission that he was responsible for the cutting of the cable and there was no indication in the statement that he intended to cut the cable or knew he was likely to do so and that, accordingly, the conviction must be set aside.

Re Mohamed Miskin [1939] MLJ 289 High Court, Federated Malay States (Poyser CJ).

Held: 'I saw no evidence as to whether it [the building which the accused was alleged to have set fire to] was inhabited or not, but,...there were statements that there was lallang in the portico and near the bungalow. I have therefore to decide whether the case prima facie falls under s 436 of the Penal Code or under some less serious section (probably s 435). In other words was the building Òordinarily used as a human dwellingÓ. I came to the conclusion that it came within that expression. There is no doubt that a manager's bungalow is prima facie meant for a human dwelling, and even if, as Mr Ramani suggested, from the presence of lallang in the portico, it should be inferred that it had not been so used for a considerable time, yet I am of the opinion that it is ordinarily so used, within the meaning of s 436 of the Penal Code. Neither Ratanlal nor Starling (both on Indian criminal law) is very helpful on this point, but Gour (5th Ed) p 1505 para 5339 seems to infer that the important point is suitability rather than continual daily use. Hence, though not without some doubt, I hold that the manager's bungalow was a building ordinarily used as a human dwelling, within the meaning of s 436.' per Bostock-Hill, President.

Re KS Menon [1946] MLJ 49 High Court, British Military Administration (AJ Bostock-Hill (President).

The appellant had been convicted of the offence of mischief by fire in that he set fire to a dwelling house intending to cause the destruction of the building. On appeal it was argued that (a) as the evidence against the appellant depended on the visual evidence of identity by the complainant and his wife, there was the possibility that the appellant had been wrongly identified; (b) the prosecution had failed to call the son of the complainant at the trial; (c) the learned trial judge had failed to accept the testimony of the child of the appellant who gave evidence for the defence; (d) the sentence of six years' imprisonment was excessive.

Held: (1) the learned trial judge had subjected the testimonies of the complainant and his wife to close scrutiny. This was more a case of recognition than of identification and the learned trial judge was justified on the evidence in holding that it was the appellant who had wilfully set fire to the dwelling house of the complainant intending to cause its destruction; (2) the prosecution has discretion as to what witnesses should be called for the prosecution and the court will not interfere with the exercise of that discretion unless perhaps, if it can be shown that the prosecutor has been influenced by some oblique motive. The son of the complainant could not be found and in the absence of any submission by counsel for the appellant that the prosecutor had not exercised his discretion bona fide, there was no merit in the contention that the son of the complainant should have been called as witness at the trial; (3) the learned trial judge was justified in rejecting the evidence of the child of the appellant as he was about seven years at the time of the incident and gave unsworn evidence at the trial.

Muharam bin Anson v Public Prosecutor [1981] 1 MLJ 222 Federal Court, Kota Kinabula (Seah Ag CJ (Borneo).

This was an appeal against the conviction of the appellant on a charge of causing mischief by intending to cause the destruction of a house by fire. The prosecution case was that the appellant caused the fire and his intention was to destroy certain papers and accounts of an association of which he was the secretary and his motive was to get rid of evidence that might be used against him.

Held: there was insufficient evidence on which the learned judge could have come to the conclusion beyond reasonable doubt that it was the appellant who started the fire to destroy the building and therefore, the conviction must be set aside.

Ng Hoong Kee v Public Prosecutor [1967] 1 MLJ 85 Federal Court, Kuala Lumpur (Barakbah LP, Azmi CJ (Malaya).

Held: one essential element in the offence of criminal trespass is remaining on property 'with intent thereby to intimidate, insult or annoy' the person in possession of the property. A plea of guilty cannot be accepted when this 'intent' is not admitted by the accused.

Lee Kiew v Public Prosecutor [1948] MLJ 163 High Court, Kuala Lumpur (Pretheroe Ag CJ).

[Annotation: See editorial note in [1951] MLJ iii on 'Essentials of the Offence of Criminal Trespass'.]

On a charge for criminal trespass by remaining on the complainant's land 'with intent to annoy', it was proved that certain estate employees had threatened to strike. The manager gave them a month's notice and during its pendency they struck. He then dismissed them summarily and ordered them to leave the premises within 24 hours. The manager was within his rights to do so, but the employees did not realize this.

Held: as they believed they were entitled to remain till the expiration of the month's notice, they did not remain 'with intent to annoy'.

Ponnamalam v Public Prosecutor [1948] MLJ 76 High Court, Malayan Union (Pretheroe J).

The appellant was charged with an offence under s 448 of the Penal Code in that he committed house trespass by entering into the house of one Lum Kee with intent to annoy him. The evidence suggested that the accused went to the house to annoy Lum Kee's son but there was no evidence to show that the accused entered the house to annoy Lum Kee. The charge was not amended, but the magistrate convicted the accused on the original charge. The accused made a statement from the dock and the magistrate cross-examined him on his statement.

Held: (1) the charge against the accused was not proved and therefore, the conviction must be set aside; (2) when an accused elects to make a statement from the dock, he is not subject to cross-examination.

Ip Ying Wah v Public Prosecutor [1958] MLJ 34 High Court, Kuala Lumpur (Buhagiar J).

The appellant in this case was an employee of the Singer Sewing Machine Co. The complainant had bought a sewing machine on hire purchase and had paid over two-thirds of the value of the machine. As however, he was late in paying the balance of the instalments, the company decided to take possession of the machine. On 14 April 1955, the appellant and two of his friends went to the house of the complainant to collect the instalments due or alternatively to remove the machine. They entered the house and a discussion took place as to payment of the instalments. As no agreement was reached, the appellant went to a room where the machine was kept, dragged it and took it away. The appellant was subsequently charged and convicted under s 448 of the Penal Code of the offence of house trespass with intent to annoy the complainant.

Held: there was no evidence in this case that the appellant had an intention to annoy the complainant, even though he may have succeeded in fact in doing so, and therefore the conviction must be quashed.

Ong Eng Guan v Public Prosecutor [1956] MLJ 44 High Court, Kuala Lumpur (Wilson J).

Tan Cheng Kooi & Anor v Public Prosecutor [1972] 2 MLJ 115 High Court, Penang (Chang Min Tat J).

See CRIMINAL LAW, Vol 4, para 740.

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

See CRIMINAL LAW, Vol 4, para 1973.

Abu Hassan v Public Prosecutor [1962] MLJ 61 High Court, Penang (Hepworth J).

See CRIMINAL LAW, Vol 4, para 1114.

This was an appeal against the acquittal of the first respondent who, with two others, was prosecuted for housebreaking in order to the committing of an offence of theft contrary to s 454 of the Penal Code. The facts were not in dispute and were as follows: on the morning of 25 November 1958, the three accused broke into the living room of the complainant and removed a trunk containing a large quantity of property. Some days later, the trunk with its contents intact was found in the possession of one of them. The defence of the first respondent, which was accepted by the President and was supported to some extent by the evidence of the complainant himself, was that the complainant owed him money and that he removed the property because he thought that if he kept it for a few days, the complainant would pay the debt. He had no intention to steal. The defence of the other accused was that they thought the property was that of the first respondent and that they assisted him to remove it.

Held: on the facts, the first respondent should have been found guilty of the offence charged against him. Observations on the difference between the local law of 'theft' and the English law of 'larceny'.

Public Prosecutor v Ramiah & Ors [1959] MLJ 204 High Court, Kuala Lumpur (Thomson CJ).

Tan Teow Swee v R [1955] MLJ 76 High Court, Penang (Spenser-Wilkinson J).

See CRIMINAL LAW, Vol 4, para 1095.

Gurdit Singh v Public Prosecutor [1983] 1 MLJ 264 High Court, Kuala Lumpur (Mohamed Dzaiddin J).

See CRIMINAL LAW, Vol 4, para 1093.

In this case, the respondents pleaded guilty to three charges of housebreaking and theft. They were sentenced each to (a) a fine of RM1,500 or eight months' imprisonment on the first charge; (b) a fine of RM2,000 or one year's imprisonment on the second charge; and (c) one day's imprisonment and a fine of RM2,500 or one year's imprisonment on the third charge. The case was called up for revision.

Held: (1) burglary in the form of housebreaking is a very serious crime and offenders are not likely to be discouraged by sentences which do not involve loss of liberty. Where persistent burglars have deliberately set out to break into other people's houses to steal their possessions with the intention of disposing of them, the kind of sentence which was passed in this case by the magistrate was not realistic; (2) this was not a suitable cause for the kind of sentence which was imposed by the magistrate in this case and it is in the interest of the public that a custodial sentence be imposed, that is, eighteen months' imprisonment for the first offence, two years' imprisonment for the second offence and two and a half year's imprisonment for the third offence, the sentences to run concurrently.

Public Prosecutor v Rajandran & Anor [1985] 2 MLJ 260 High Court, Kuala Lumpur (Chan J).

Tan Teow Swee v R [1955] MLJ 76 High Court, Penang (Spenser-Wilkinson J).

See CRIMINAL LAW, Vol 4, para 1095.

In this case, two appeals filed by the Public Prosecutor were heard together. In both appeals, the accused was the same person. In each case, the accused was charged with an offence punishable under s 457 of the Penal Code. In both cases, the accused pleaded guilty in the magistrate's court and in respect of Criminal Appeal No 207 of 1985, he was sentenced to six months' imprisonment from the date of sentence and a fine of RM3,000 (in default six months' imprisonment). In respect of Criminal Appeal No 206 of 1985, he was sentenced to six months' imprisonment from the date of sentence and a fine of RM2,500 (in default five months' imprisonment). The Public Prosecutor appealed against the inadequacy of sentence in both cases.

Held, allowing the appeal: (1) this was a proper case for the court to interfere with the sentences passed by the magistrate; (2) in both these cases, a retributive punishment had no application. Preventive punishment too was not an appropriate punishment. In view of the fact that the respondent had committed two serious offences within a period of three days, reformative punishment was not an appropriate punishment. The proper punishment was a deterrent punishment; (3) a deterrent sentence was therefore appropriate since there was clearly premeditation; (4) having taken into consideration the amount of goods stolen, the modus operandi of the respondent in committing the offences and the other relevant factors, the respondent should be sentenced to two years' imprisonment in respect of the first case and two years' imprisonment in respect of the second case. Both sentences were to run concurrently; (5) in addition to the custodial sentences, it was also necessary to impose a fine in respect of each of the offences. The respondent was fined RM5,000 in respect of each offence (in default one year's imprisonment).

Public Prosecutor v Loo Chang Hock [1988] 1 MLJ 316 High Court, Kuala Lumpur (Zakaria Yatim J).

Teng Ser Siong v Public Prosecutor [1963] MLJ 265 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Barakbah JJA).

See CRIMINAL LAW, Vol 4, para 725.

The appellant had been convicted under s 457 of the Penal Code for having committed housebreaking in order to commit theft. He had 12 previous convictions. The learned magistrate sentenced him to two years' imprisonment and six strokes of the rattan to be followed by 12 months of police supervision.

Held: (1) the learned magistrate should have acted under s 87(2) of the Courts Ordinance which gives power to a first class magistrate to award the full punishment authorized by law for the offence of which a person has been convicted; (2) in this case, the term of imprisonment should be increased to ten years.

Abdul Wahab v Public Prosecutor [1970] 2 MLJ 203 High Court, Malacca (Shanma J).

The appellant pleaded guilty to the offence of housebreaking by night in order to commit theft. He was sentenced to six months' imprisonment. The appellant appealed against the sentence of imprisonment, contending that the trial court failed to adequately consider that the appellant was a first offender, a responsible person of good character having a family to support, had co-operated with the police, had pleaded guilty, had shown remorse and asked for leniency.

Held, dismissing the appeal: (1) all the mitigating factors had been properly considered by the learned trial magistrate and the sentence is not manifestly excessive or severe; (2) under s 457 of the Penal Code (FMS Cap 45), some sentence of imprisonment is mandatory unless provisions in the Criminal Procedure Code (FMS Cap 6) such as s 173A or s 294(i) are considered appropriate and resorted to. The learned trial magistrate was justified in deciding that this was not a proper case to invoke s 294 of the Criminal Procedure Code; (3) the gravity of the offence of housebreaking by night in order to commit theft is reflected by the provision of the imprisonment term in the Penal Code which may extend to 14 years. The offence deserves fairly severe punishment and offenders must expect custodial sentences. The six-month custodial sentence of the trial court is affirmed.

Radin Ibrahim bin Gusti Yassar v Public Prosecutor [1988] 3 MLJ 237 High Court, Sibu (Chong Siew Fai J).

Public Prosecutor v Rajandran & Anor [1985] 2 MLJ 260 High Court, Kuala Lumpur (Chan J).

See CRIMINAL LAW, Vol 4, para 1292.

The accused was charged in the magistrate's court at Penang with two charges of forgery under s 465 of the Penal Code. On one charge, the document he was alleged to have forged was a letter and on the other charge, he was alleged to have made a false indorsement on a cheque. It was the defence case that both the signature on the letter and the indorsement on the cheque were those of the complainant. Prior to the accused being charged, the police had searched his house and taken away a number of documents, among which was the letter referred to in the first charge. After the accused had been charged in court, his counsel asked to be allowed to inspect the documents seized by the police and to take copies of them. This request was opposed by the prosecution. In the end, the magistrate made an order that since the documents belonged to the accused, he was entitled to photostat copies of them, but was not entitled to the originals. The Deputy Public Prosecutor thereupon filed an appeal against this order of the magistrate.

Held: (1) in criminal trials before a sessions or magistrate's court, apart from the provisions of ss 59 and 182(1) of the Criminal Procedure Code (Cap 21), there is no power for the President or the magistrate to order the prosecution to produce the documents relevant to the case; (2) as the documents were specifically referred to in the charges and as it was essential for the accused to have the originals or photostat copies in order for him properly to prepare his defence, which could not otherwise be prepared, the Public Prosecutor, in order to ensure that justice was not only done but seen to be done, should not have raised objections on the particular facts of this case, to the defence being supplied with photostat copies of the letter and the cheque and also any other documents removed from his possession, which was required for the furtherance of this defence.

Public Prosecutor v Teoh Choon Teck [1963] MLJ 34 High Court, Penang (Hepworth J).

A rubber export coupon is a document falling within those described in s 467 of the Penal Code both because it is a valuable security and because it purports to give authority to some person to deliver movable property.

Public Prosecutor v Yap Chai Kee [1923] 4 FMSLR 75 Court of Appeal, Federated Malay States (Farrer-Manby, Watson and Reay JJC).

The appellant was arrested on 8 May 1991 and charged under s 467 of the Penal Code (FMS Cap 45) for possessing valuable securities in the form of two credit cards ('P2' and 'P6'), knowing them to be forged and intending fraudulently or dishonestly to use them as genuine. P2 had been used to purchase goods on four separate occasions in April and May 1991. In none of these transactions was the appellant identified as the purchaser. The expiry date of P2 was November 1990. P6 had been cancelled on 7 May 1991. The appellant was convicted of the charge and sentenced to six years' imprisonment. He appealed.

Held, allowing the appeal: (1) at the time of the appellant's arrest, P2 and P6 could not have been considered as valuable securities because they had expired or been cancelled, with the result that no right or liability could probably have accrued in respect of these documents; (2) the evidence that goods had been purchased with P2 should not have been admitted as there was no suggestion that it was the appellant who had used P2 for the purchases. The prejudicial effect of this evidence far outweighed its probative value.

Tio Teck Huat v Pendakwa Raya [1993] 2 CLJ 570 High Court, Kuala Lumpur (LC Vohrah J).

Hashim bin Pawanchee & Anor v Public Prosecutor [1988] 2 MLJ 66 High Court, Penang (Mohamed Dzaiddin J).

See CRIMINAL LAW, Vol 4, para 1162.

The appellant had been convicted under s 473 of the Penal Code with being in possession of a counterfeit seal with the intention of using it for the purpose of committing forgery. The facts were that a rubber stamp, being a close imitation of the rubber stamps used by the Assistant Food Controller, Perak, when signing certain documents, was found in the accused's basket in a room in the Central Hotel at Ipoh. On appeal,

Held: the onus is on the prosecution to prove the intention to use the seal for the purposes of forgery and it is not sufficient for them to prove mere possession of the seal without any proof of such intention.

Hoh Keh Peng v Public Prosecutor [1948] MLJ 3 Court of Appeal, Malayan Union (Willan CJ (Malayan Union).

See criminal law, para V [57].

Wong Kim Leng v Public Prosecutor [1997] 2 MLJ 97 High Court, Kuala Lumpur (KC Vohrah J).

Lim Khoon Aik v Public Prosecutor [1948-49] MLJ Supp 147 High Court, Ipoh (Thomson J).

See CRIMINAL LAW, Vol 4, para 1186.

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

See CRIMINAL LAW, Vol 4, para 1187.

The accused was charged that he, being servant to the government of the State of Pahang, wilfully with intent to defraud, falsified a certain book, to wit, a hospital book by omitting to enter 82 bed sheets in such book belonging to the said government of the State of Pahang. At the end of the case for the prosecution, the counsel for the defence submitted that no case had been made out against the accused, which unrebutted, would warrant a conviction, and that therefore he sought an acquittal. Counsel for the Crown submitted that a prima facie case had been made out and that there was a case, although it might be answerable.

Held: (1) there must be conscious determination to defraud as distinguished from ignorant incompetency; (2) the fact that a book is incorrect, ill-kept or misleading is not enough in itself to point irresistibly to wilful fraud;at the close of the case for the prosecution, the court must consider, even if a prima facie case is shown, whether all element of doubt is sufficiently removed to sustain a conviction if no more evidence is adduced.

Public Prosecutor v Balasubramaniam [1948] MLJ 119 High Court, Malayan Union (Callow J).

In this case, the appellants appealed against their conviction on a charge of being in possession of forged currency notes. At the trial, a certificate of the deputy governor of the Bank Negara issued under s 428 of the Criminal Procedure Code (SS Cap 21) was produced. It was stated in the certificate that the deputy governor was duly authorized by the governor to sign the certificate, but the authority was not produced.

Held, dismissing the appeal: (1) the proper time to raise any objection on the admissibility of the certificate of the deputy governor was at the time when the certificate was adduced in evidence. If no such objection is raised, then the court will presume that the deputy governor possessed such authority; (2) in any event, there was sufficient evidence apart from the certificate to show that the notes were forged.

Chia Cheng Ho & Anor v Public Prosecutor [1974] 1 MLJ 61 High Court, Penang (Chang Min Tat J).

R married P in India in 1947. In 1954, they came with their children to live in Malaya. In March 1984, R while on a visit to India, married S. He returned to Malaysia in May 1984 with the new bride. His first wife, P, was still living and their marriage was still subsisting. R was charged in the magistrate's court at Klang for bigamy under s 494 of the Penal Code on 19 August 1984. The magistrate refused to hear the case on the ground that she had no jurisdiction to try a case of bigamy which was committed outside Malaysia. The Public Prosecutor applied to the High Court under s 127(c) of the Criminal Procedure Code (Cap 6) to determine whether a magistrate's court had jurisdiction to try the offence.

Held: as the law stood, bigamy was not an offence in Malaysia if the second marriage took place outside the country, even though the spouse in the earlier marriage was still living. Until there is a change in the law, the courts in Malaysia do not have jurisdiction to try offences committed outside the limits of Malaysia except those offences found under Chapter VI of the Penal Code.

Public Prosecutor v Rajappan [1985] 2 MLJ 231 High Court, Kuala Lumpur (Chan J).

[Annotation: On a reference by the Public Prosecutor to the Supreme Court (Supreme Court Criminal Reference No 2 of 1985), the decision of Chan J was upheld.]

Held: the sessions court has no jurisdiction to try the offence of bigamy committed outside the Federation.

Public Prosecutor v Nai Prasit [1961] MLJ 62 High Court, Kuala Lumpur (Thomson CJ).

A person who enters into a marriage relationship with a woman according to monogamous rites, takes upon himself all the obligations springing from a monogamous relationship, and acquires by law the status of 'husband' in a monogamous marriage and he cannot, whatever his religion may be, during the subsistence of that monogamous marriage, marry or go through a legally recognized form of marriage with another woman. The accused married a Christian lady at Taiping in 1918 according to the rites and ceremonies of the Church of England. In 1936, while his wife was still alive, the accused married another Christian lady according to Muslim law after they had been converted to the Muslim faith. In a prosecution instituted at the instance of the first wife for bigamy,

Held: the first marriage being a monogamous one, the accused had committed the offence of bigamy.

Public Prosecutor v White [1940] MLJ 214 High Court, Federated Malay States (Horne J).

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

bb]Held:: in the State of Selangor, marriages under the Muhammadan Marriage and Divorce Registration Enactment 1930, must be celebrated by a person appointed for that purpose by His Highness the Sultan or celebrated by the Wali of the woman to be wedded and by no other person. It is illegal for a Wali to appoint anybody other than a person appointed by His Highness to celebrate the marriage of the woman of whom he is the Wali.

Public Prosecutor v Khadijah bte Mat Siak [1933] MLJ 161; [1933-34] FMSLR 14 High Court, Federated Malay States (McFall J).

Held:: it is essential for the prosecution to show on a charge of taking or enticing away a married woman under s 498 of the Penal Code that the solicitation and advances came from the man.

Public Prosecutor v Liew Hin [1934] MLJ 12; [1933-34] FMSLR 140 High Court, Federated Malay States (Terrell Ag CJ).

Held: in a prosecution under s 498 of the Penal Code for enticing away a married woman, marriage between the complainant and the woman alleged to have been enticed is sufficiently proved by evidence of the actual ceremonies performed at the 'marriage' and by expert evidence to show that those ceremonies constituted a valid marriage. A case under the section is established if it can be shown that the accused personally and actually assisted the wife to get away from the custody of the husband or of any person having the care of her on his behalf.

Ramasamy v Public Prosecutor [1938] MLJ 137 High Court, Federated Malay States (Cussen J).

Held: for a charge of enticing away a married woman under s 498 of the Penal Code to succeed, marriage must be strictly proved. When any Hindu marriage is to be proved for the purpose of this section, it must be proved that the ceremonies were appropriate to the locality, family and caste of the parties concerned.

Maniam v Rajoo [1958] MLJ 144 High Court, Kuala Lumpur (Smith J).

Held: when, by the instructions of the accused, a petition to the High Commissioner was prepared by a solicitor and contained a charge of conspiracy against a public servant, the signature by the accused in the presence of his solicitor was not a publication and the communication to the High Commissioner was privileged.

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

The appellants were convicted in the District Court, Kuching, of defamation under s 500 of the Indian Penal Code, and each was sentenced to pay a fine of RM100 or two months' imprisonment in default. On appeal to the Resident's Court, the appeals were dismissed and the convictions and sentences confirmed.

Held: the court upheld the convictions but reduced the fines to RM75 upon each appellant.

Jamal Mohammad & Ors v Abu Bakar & Ors [1928-41] SCR 18 Supreme Court, Sarawak

Held: the offence of criminal intimidation lies in the intent behind a threat, not in its effect, and the sentence must be one appropriate to the gravity of the offence so assessed.

Lee Yoke Choong v Public Prosecutor [1964] MLJ 138 High Court, Kuala Lumpur (Ong J).

The respondent was charged with criminal intimidation by threatening the complainant with injury to his person with intent to cause alarm to the complainant, an offence punishable under s 506 of the Penal Code (FMS Cap 45). The respondent had purchased a car on a hire-purchase loan from a finance company ('KUBB') and had defaulted in making 11 monthly instalment payments amounting to RM6,508.78. Notice under s 16(1) of the Hire Purchase Act had not been served on the respondent. The administrative officer (finance) (PW3) of KUBB admitted that it had contravened s 16(1) of the Hire Purchase Act 1967 (Act 212) and that the repossessors had no right to go to the respondent's house. When the three repossessors reached the respondent's house, he invited them in. Later, he asked them to leave the house. The complainant said that before he and his two companions were asked to leave, the respondent uttered certain words in Malay meaning 'if you do not leave my house there will be blood flowing'. The complainant added that the respondent had a samurai sword in his right hand and a spear in his left hand. The three repossessors then went straight to the police station where a report (P4) was made. The magistrate called for the defence. The crux of the defence was that the respondent had told the complainant to leave the house and the matter could be settled in court. The respondent said he unsheathed the sword in self-defence and he had no intention to use it to cause injury to any one. The learned magistrate found that the respondent had raised a reasonable doubt and acquitted and discharged him. The Public Prosecutor appealed against the acquittal order.

Held, dismissing the appeal: (1) The respondent's pondok is a castle to him and he has the right to ask the complainant and his two friends to leave and he can use reasonable force to oust the complainant and his two friends. (2) The appeal has no merits at all. The learned magistrate had found that the evidence of the prosecution witnesses could not be reliable. He had found that the respondent had given evidence in a straightforward manner and had found it to be believable and that the respondent's defence had raised a reasonable doubt in the prosecution case.

Public Prosecutor v Mohamed Nor [1988] 3 MLJ 119 High Court, Seremban (Mustapha Hussain J).

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 (Williams CJ).

[Annotation: The case of Perkins v Jeffrey [1915] 2 KB 702 was followed.]

Held: a person convicted of an attempted theft is convicted of the offence of an attempt, which must be clearly distinguished from the offence of actual completed theft. Police supervision can only be imposed under s 295 of the Criminal Procedure Code (Cap 6) when a person, having previously been convicted of an offence punishable with imprisonment for a term of two years or upwards, is convicted of any other offence also punishable with imprisonment for a term of two years or upwards. As the offence in this case of attempted theft is punishable for a term not exceeding 18 months, a conviction therefor does not justify an order for police supervision.

Re Ooi Chan Onn [1965] 1 MLJ 77 High Court, Kuala Lumpur (Ong J).

Ewin v Public Prosecutor [1949] MLJ 279 Court of Appeal, Federation of Malaya (Willan CJ, Callow and Spenser-Wilkinson JJ).

See CRIMINAL LAW, Vol 4, para 784.

Where an accused person was found guilty on three charges of cheating by obtaining money by false pretences on three occasions, and the magistrate convicted him on the first charge only and acquitted him on the second and third charges on the ground that an accused should only be punished with one punishment for offences against the same person committed in the course of one transaction,

Held: on each occasion he obtained money, the accused committed a fresh offence, and he should have been convicted and sentenced on each of the charges.

Public Prosecutor v Ng Fee Leong [1939] MLJ 290 High Court, Federated Malay States (Murray-Aynsley J).

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

See CRIMINAL LAW, Vol 4, para 1855.

Ewin v Public Prosecutor [1949] MLJ 279 Court of Appeal, Federation of Malaya (Willan CJ, Callow and Spenser-Wilkinson JJ).

See CRIMINAL LAW, Vol 4, para 784.

This was an appeal against the conviction of the appellant for murder. One of the grounds of the appeal was that the learned trial judge had erred in his direction on the onus of proof placed on the accused on a defence of accident.

Held, dismissing the appeal: the learned judge in his direction had indicated to the assessors that in cases where the defence of accident is raised the burden is always on the prosecution to disprove the element of accident; and therefore there was no misdirection on the onus of proof.

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

This was a reference by a magistrate under s 37 of the Courts of Judicature Act 1964 for confirmation of sentence passed in exercise of the special powers of punishment conferred by s 87(2) of the Courts Ordinance 1948. The accused was at the time of the trial 24 years old and had had two previous convictions, one of which was for theft committed when he was ten years old. The magistrate, in view of the two previous convictions, sentenced him, inter alia, to two years' imprisonment.

Held: in view of s 83 of the Penal Code, the accused could not have had sufficient maturity when the previous offence was committed. The sentence of two years' imprisonment was therefore severe and did not merit the invocation of the provisions of s 87(2) of the Courts Ordinance 1948, and a sentence of one year's imprisonment was substituted.

Public Prosecutor v Lim Ah Leng [1967] 1 MLJ 284 High Court, Penang (Ong Hock Sim J).

Held: the onus is on the appellant to bring himself within the exception set out in s 84 of the Penal Code. Irresistible impulse per se is no defence and can only be a defence when it is proved to have been a result of insanity in law, the onus of proving this lay on the appellant.

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

The accused was charged with murdering her six-year-old daughter outside her home in Sarawak on 22 September 1988. Two witnesses testified that they had seen the accused stabbing the girl with a knife. The accused denied murder but pleaded she was suffering from an unsound mind at the time of the killing. Evidence was led that she had been diagnosed as schizophrenic in 1974.

Held, acquitting the accused but ordering her detention: (1) the injuries on the victim were inflicted by the accused with the intention to cause bodily injuries which were sufficient in the ordinary course of nature to cause death; (2) because of her mental illness, there was a doubt as to whether the accused at the time of inflicting the injuries on the deceased was capable of knowing and did know the nature of her act or that what she was doing was wrong or contrary to law. The element of intention could not therefore be said to have been proven beyond reasonable doubt by the prosecution at the end of the whole case; (3) there was an absence of motive on the part of the accused in causing the injuries on her own daughter. Absence of any motive was yet another important indication of unsoundness of mind; (4) the accused must therefore be acquitted but detained in prison pursuant to s 348(i) of the Criminal Procedure Code.

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

Held: the onus of proving the defence of insanity is upon the accused: s 105 of the Evidence Enactment (Cap 10). That onus is not a heavy one. The burden is no higher than that which rests upon a party in civil proceedings.

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

This was an appeal against the conviction of the appellant for the murder of his son. On appeal, it was argued that the summing up of the trial judge was defective. In his summing up, the trial judge told the jury always to apply the standards of a reasonable man and in the course of the summing up he said: 'You must always bear in mind that a person is presumed to be responsible for his actions and the natural consequences thereof, unless he affirmatively proves that he is entitled to exemption from criminal liability.' Later he said: 'Always bear in mind the question of burden of proof. The burden lies on the prosecution which has got to establish it. The burden on the defence is comparatively light.'

Held: (1) for the normal presumption of sanity to prevail over evidence of insanity adduced by the defence, the evidence as a whole must be sufficient to exclude any reasonable doubt regarding the sanity of an accused person pleading unsoundness of mind as a defence; (2) the burden on an accused person to prove insanity is no higher than the burden which rests upon a plaintiff or a defendant in civil proceedings; (3) the summing up was therefore defective as the trial judge had failed to explain the medical evidence to the jury; (4) for the above reasons, the conviction and sentence must be set aside and an order made for the appellant to be confined in safe custody pending the order of the Governor of Malacca.

Goh Yoke v Public Prosecutor [1970] 1 MLJ 63 Federal Court, Kuala Lumpur (Ong Hock Thye CJ (Malaya).

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

See CRIMINAL LAW, Vol 4, para 934.

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

See CRIMINAL LAW, Vol 4, para 935.