The accused was charged with three charges of corruption. It was alleged that the accused as Mentri Besar, Selangor: (a) solicited the sum of RM250,000 for UMNO as an inducement to obtain the approval of the Executive Council in respect of an application for a piece of state land; (b) being a member of a public body accepted for UMNO the sum of RM25,000 as an inducement to obtain such approval; (c) accepted for UMNO the sum of RM225,000 as an inducement to obtain such approval. It was also alleged that the accused was a member of a public body, namely, the government of Selangor, or alternatively, that he was an agent of the Ruler of the State of Selangor.

Held: (1) the accused as Menteri Besar was a member of a public body, that is, the government of Selangor; (2) on the facts of this case, the accused did solicit for UMNO a gratification of RM250,000; (3) the circumstances in which the gratification was solicited gave rise to the inference that it was solicited corruptly; (4) the accused solicited the gratification as an inducement to obtain the approval of the Executive Council in respect of the application for the land; (5) the facts showed that the accused accepted a gratification from the Hongkong and Shanghai Bank of RM25,000 through Haji Ahmad Razali at the airport on or about 16 August 1972 and that he on or about 27 March 1973 accepted from the Hongkong and Shanghai Corp a gratification of RM225,000 in his office in Kuala Lumpur; (6) the accused accepted the gratification of RM25,000 and RM225,000 as an inducement to do an official act in connection with the bank's application for alienation of the land; (7) on the evidence, the prosecution had proved its case in relation to all three principal charges, which if unrebutted, would warrant the conviction of the accused; (8) the accused did not rebut the evidence for the prosecution and on all the evidence considered as a whole, the charges against the accused have been proved beyond reasonable doubt.

Public Prosecutor v Datuk Haji Harun bin Haji Idris (No 2) [1977] 1 MLJ 15 High Court, Kuala Lumpur (Raja Azlan Shah J).

[Annotation: See also the Federal Court's decision, [1977] 2 MLJ 155.]

This was an appeal from the decision of Raja Azlan Shah J ([1977] 1 MLJ 15). The appellant had been convicted on three charges of corruption, in that he as Mentri Besar of Selangor: (a) solicited the sum of RM250,000 for UMNO as an inducement to obtain the approval of the Executive Council in respect of an application for a piece of State land; (b) being a member of a public body accepted for UMNO the sum of RM25,000 as inducement to obtain such approval; and (c) accepted for UMNO the sum of RM225,000 as an inducement to obtain such approval. On appeal, it was argued, that: (a) s 418A of the Criminal Procedure Code (Cap 6) (under the provisions of which the case of the appellant had been transferred from the subordinate court to the High Court for trial) was inconsistent with art 8 and therefore unconstitutional and void by virtue of art 4; (b) the verdict was not supported by such evidence as was admissible.

Held: (1) s 418A of the Criminal Procedure Code is not discriminatory, as although it uses the words 'any particular case' it does not apply specifically to the particular case against the accused. The section applies to all criminal cases triable in a subordinate court; (2) and a provision for appeal, it has been held in the Indian cases, may cure any defect in the law; (3) even if (contrary to the view of the court) the law may be regarded as discriminatory, there was reasonable classification in it, there was a nexus between it and the object of the law, and there was a principle or policy in it to guide the Attorney General in the exercise of his discretion under s 418A. The Attorney General when acting under s 418A will be expected to transfer to the High Court only cases of unusual difficulty or of unusual importance. Sections 417 and 418A of the Criminal Procedure Code are vehicles for the Attorney General to exercise his power under art 145(3) of the Federal Constitution and it is for him to judge which case is difficult or important enough to be given an early trial after a transfer to the High Court under s 418A; (4) a preliminary inquiry is not a fundamental right guaranteed by the Constitution; if the accused had been tried in the sessions court he would not have had the use of depositions before trial; and at the trial in the High Court he also enjoyed the chance of not being called upon for his defence at the close of the case for the prosecution. By being tried in the High Court he did not run the risk of greater penalty, for if he had been tried in the sessions court he would have been liable to the full penalty prescribed by law. In any event, the trial in the High Court followed the same rules of procedure and evidence as would have been followed in the sessions court, and so there was no question of the accused being denied a fair and impartial trial. The accused also had a right of appeal;it is obvious that the scheme of the amendments to ss 138, 417 and 418A is to expedite trials; and there is an obvious classification, a classification clearly connected with the underlying principle of administration of justice that an alleged criminal should be placed on trial as soon as possible after the commission of the crime as the circumstances of the case would permit, and this classification cannot be regarded as unreasonable and not having a nexus with the object of the amendments, namely, a speedy trial.

Datuk Haji Harun bin Haji Idris v Public Prosecutor [1977] 2 MLJ 155 Federal Court, Kuala Lumpur (Suffian LP, Ali Hassan and Wan Suleiman FJJ).

The appellant, who was a chief clerk in the mines department, appealed against his conviction and sentence of two years' imprisonment for an offence under s 4(a) of the Prevention of Corruption Act 1961 for receiving the sum of RM1,000 in relation to his principal's affairs, to wit, to assist one R in obtaining approval for a mining prospecting licence. On appeal, it was inter alia contended that (a) the trial President erred in law in holding that the appellant was the agent of the state government because he was an employee of the Federation and the mines department is a federal department; (b) the alleged promise or conduct of the appellant to assist R did not constitute an act in relation to the affairs of his principal because the Ipoh East Mines Office had no jurisdiction over land in the Mukim of Bota in the district of Kuala Kangsar; (c) the prosecuting officer's criticism of the appellant's failure to give evidence and submit himself to cross-examination was a flagrant violation of s 257(ii) of the Criminal Procedure Code; (d) a vast mass of inadmissible and prejudicial evidence had been wrongly admitted; and (e) a number of documents which should not have been admitted, had been admitted, prejudicing the appellant's case.

Held: (1) on the facts, the learned President was entirely right in holding that the sum of RM1,000 had been received by the appellant and that upon the onus of proof being transferred to him by reason of the provisions of s 14 of the said Act, he had failed to show on the balance of probabilities that the money was received by him otherwise than as illegal gratification; (2) mining matters are state matters although the department is federal. Therefore, the appellant was in truth and in fact an agent of the state government by whom he was paid his salary; (3) in view of s 6(1) of the Prevention of Corruption Act, it was not open for the appellant to argue that he had no power to do what he promised; (4) the prosecution officer's criticism of the failure of the appellant to give evidence did not in any way influence the President in his judgment; (5) although the evidence and statements made by witnesses in the presence of police officers were wrongly admitted in evidence, the error was of no consequence and contributed nothing to the prosecution case and therefore, s 422 of the Criminal Procedure Code should be applied; (6) it had not been shown that the judgment was wrong in law or against the weight of the evidence and therefore, the appeal against conviction must be dismissed; (7) in the circumstances of the case, the sentence ought to be reduced to a fine of RM5,000 in default 12 months' imprisonment.

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

This was an appeal against the conviction of the appellant on two charges of corruption. The main grounds of appeal were: (a) the learned President made no finding that the complainant was an accomplice and did not warn himself of the danger of convicting the appellant on the uncorroborated evidence of the complainant; (b) the facts showed that this was a straightforward case of extortion; (c) the learned President failed to recognize that the appellant was not acting in relation to the affairs of his principal by representing to the complainant that he had committed an offence against the law because the complainant had in fact not committed any offence.

Held: (1) in any event in view of the provisions of s 18 of the Prevention of Corruption Act 1961 (Act 57), the complainant could not be presumed to be unworthy of credit; (2) on the facts, this was clearly not a case of extortion, as there was no threat and the appellant had solicited and received the bribes in return for a favour, namely, to refrain from taking action against the complainant; (3) in view of s 6(1) of the Prevention of Corruption Act 1961, there was no necessity for the prosecution to prove that the person who gave the bribe had committed an offence or that the favour sought was in relation to the principal's affairs; (4) in this case, the complainant had not taken any active part in the transaction and was therefore not an accomplice;in the circumstances of the case, the sentence of two and a half years' imprisonment was excessive and should be reduced to one year.

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

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

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

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

Public Prosecutor v Datuk Haji Harun bin Haji Idris (No 2) [1977] 1 MLJ 15 High Court, Kuala Lumpur (Raja Azlan Shah FJ).

The respondent was acquitted in a district court of 20 corruption charges involving the receipt of gratification from Presidential Pacific Limousine Pte Ltd (PPL) in relation to the affairs of his principal, the Omni Marco Polo Hotel (OMPH), contrary to s 6(a) of the Prevention of Corruption Act (Cap 241, 1993 Ed). He was alleged to have received a total of S$15,341.65 between 1992 and 1994 from PPL, while employed in his capacity as Chief Concierge of OMPH. OMPH had entered into a contract in March 1992 to engage PPL's limousine rental services. Various payments of commission were promised by PPL and paid to the OMPH concierge, in accordance with what was accepted to be the prevailing practice in the industry. Consequently, the payments were made by cheques, with supporting documentation by PPL's accounts department. These cheques were handed over to the respondent or his colleagues at OMPH itself, who duly acknowledged each receipt. The moneys were placed in a consolidated float fund, from which regular monthly payments were made to the concierge staff and front office assistants. The fund was also used for various other miscellaneous purposes including donations to charity. OMPH's management was aware of the arrangement and did not object to it. The prosecution contended nonetheless that the receipt of the payments was corrupt, since the respondent was in a position to influence OMPH's decision as to the retention of PPL's services. It was suggested that the payments had led to the respondent being improperly influenced, and thus compromising his duties to OMPH. Further, it was suggested that PPL had to pay the commissions in order to secure the contract, thus revealing a corrupt element in the transaction. The district judge rejected these arguments and acquitted the respondent.

Held, dismissing the appeal: (1) the temptation to receive commissions could well have influenced the respondent in his decision-making process. This was a matter of inference. However, there was no evidence that the respondent was actually improperly influenced and had compromised his duties to OMPH; (2) the inferences sought to be drawn by the prosecution were based on little more than conjecture. There was no evidence that OMPH would invariably not have awarded PPL the contract unless the commissions were paid. If at all, the evidence was only that there was a custom or practice in the industry of paying commissions. The position was simply that PPL's management did not think it would be worthwhile to take risks by not conforming to the industry `norm'; (3) it was immaterial that virtually all the prosecution witnesses from PPL had opined that the respondent was in a position to influence OMPH's management decisions. This did not amount to evidence that the respondent was under any duty to protect or advance PPL's interests. Equally, this did not lead ineluctably to the conclusion that he was in a position where his duties to OMPH had been compromised; (4) the testimony of three prosecution witnesses was that the commissions were `tips'. OMPH did not see any problem with the respondent's conduct and had not seen any cause for alarm, let alone for an inquiry to be conducted into the matter. These were compelling indications that there was no corrupt element in the transaction. It showed clearly that, in OMPH's view, the respondent had not compromised his duties or acted improperly in relation to their affairs; (5) the furtiveness of a transaction could have been an indicator of corruption, but it could not be a conclusive point in every case. Essentially, what had to be examined was the mode of payment and the surrounding circumstances. The evidence as to the mode of payment clearly showed that there was nothing surreptitious or `under-the-table' taking place. The payments were properly documented and receipts had to be acknowledged openly. More importantly, the management of OMPH also knew about the arrangement and had not voiced any objections to it; (6) the moneys were kept in a consolidated `float fund', and used for multiple purposes. The respondent was not the sole beneficiary. In the circumstances, the uses to which the moneys were put were relevant in ascertaining whether they were ill-gotten in the first place. This would have been relevant in determining the existence of a corrupt intent; (7) a finding of corruption would have been wholly unwarranted on the facts. The totality of the evidence was inconsistent with any corrupt intent or corrupt element in the transactions.

Public Prosecutor v Mohamed Abdul Gofar [1997] 1 SLR 497 High Court, Singapore (Yong Pung How CJ).

Chew Chee Sun v Public Prosecutor [1975] 2 MLJ 58 High Court, Singapore (Wee Chong Jin CJ).

Lim Kim Tjok v Public Prosecutor [1978] 2 MLJ 94 High Court, Singapore (Wee Chong Jin CJ).

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

Kannan s/o Kunjiraman & Anor v Public Prosecutor [1995] 3 SLR 757 High Court, Singapore (Yong Pung How CJ).

Kannan s/o Kunjiraman & Anor v Public Prosecutor [1995] 3 SLR 757 High Court, Singapore (Yong Pung How CJ).

The appellant was a jockey licensed by the Malayan Racing Association (MRA). He admitted to receiving two payments of RM$5,000 from one Pak Handoyo. The payments were ostensibly for having done his best to win the races he was riding in. The appellant contended that Pak Handoyo was the owner of the horses he was riding, that Pak Handoyo treated him like a son and that it was common for horse owners to reward jockeys for riding well. Under the regulations of the MRA, jockeys were only entitled to their riding fees and winning commissions. Owners were not allowed to make any payments to jockeys without the approval of the MRA. The appellant was found guilty on two charges of corruptly receiving the payments under s 5(a)(i) of the Prevention of Corruption Act (Cap 241) (the Act). The appellant appealed.

Held, dismissing the appeal: (1) the word 'corruptly' inserted within s 5(b)(i) of the Act served to qualify the offence in two ways. First, the giving of the gratification must be accompanied by a corrupt intent. Secondly, there must be a corrupt element in the transaction itself. This applied equally to s 5(a)(i); (2) in determining whether there was a corrupt element in a transaction, it was important to examine exactly what it was that was prohibited by the legislation, rules, code of conduct or whatever it was that regulated the activity concerned. In this case, what was prohibited was the very act of receiving money. A jockey was entitled to his riding fee and winning commission and nothing else. He was not entitled to ask for more, and owners were not permitted to pay him more without seeking the consent of the MRA. The appellant had no business receiving the money and Pak Handoyo had no business giving it, even if he was the owner of the horses in question; (3) the question whether Pak Handoyo was the owner of the horses was only relevant in that it might then be necessary to find out whether the payments were for something else other than riding in the races. This was a question of fact, and had to be decided based on all the circumstances of the case; (4) as for the contention that Pak Handoyo treated the appellant like a son, there was an evidential burden on the defendant to provide at least some evidence to justify the court considering it. In any event, the alleged special relationship, especially its nature, must be examined in the light of all the evidence. There was no doubt that the money in this case was not given because of some so-called altruistic 'special relationship'; (5) it did not matter that the ostensible purpose of the payment was for winning or 'doing one's best', instead of throwing the race. There was no reason why such payments could not be corrupt; (6) therefore, there was a corrupt element in the receipt of the money from Pak Handoyo as the appellant ought not to have received the money at all. The appellant had known this at the relevant time. Hence, the money was received with a corrupt intent.

Sairi bin Sulaiman v Public Prosecutor [1995] 3 SLR 242 High Court, Singapore (Yong Pung How CJ).

Chan Wing Seng v Public Prosecutor [1997] 2 SLR 426 High Court, Singapore (Yong Pung How CJ).

The appellant was charged and convicted on two similar counts in the court below for having, on two separate occasions, given a gratification of a sum of S$3,000 to two jockeys as a reward for riding his racing horse Oryx's Explorer to win their respective races, contrary to s 5(b)(i) of the Prevention of Corruption Act (Cap 241, 1993 Ed) (PCA). The appellant was a horse owner registered with the Malayan Racing Association (MRA), and the two jockeys in question were one Yeap Poh Keat (Yeap) and one Saimee bin Jumaat (Saimee). MRA regulated the process of horse-racing, whilst the member turf clubs, including the Singapore Turf Club (STC), provided the facilities for the races. All horse owners, trainers and jockeys had to abide by its rules and regulations. Yeap testified that he rode a horse owned by the appellant and won first place in a race conducted by STC on 3 December 1994. A few days later, he received by post at his residence a cheque made out in his name to the amount of S$3,000. Saimee testified that he rode the same horse on 21 January 1995 and won first place. He said that he also received, a few days later, a cheque for S$3,000 by post at his residence. Saimee, however, said that he telephoned the appellant to ask what the cheque was for. When told that it was a token in appreciation of his victory at the races, he accepted the money and deposited it into his bank account. Both Yeap and Saimee testified that they never communicated with the appellant before or after their races; no offers of money were ever made to them in relation to their performance at the track. Neither did the trainer of Oryx's Explorer convey any words from the appellant to them. The prosecution's case was that, by giving the jockeys money, the appellant had breached r 48 of the MRA which, according to its interpretation, prohibited horse owners from rewarding their jockeys after the races. The prosecution contended that the appellant knew of these rules and by breaching them, he was guilty of corruption. Its contention was that these purported gifts were really an attempt to give the jockey community an impression that, if they rode his horses to winning places, they would be similarly rewarded. The appellant did not challenge the key facts. However, he contended that no offence was committed because the cheques to the two jockeys were bona fide gifts. They were tokens of appreciation from him, given in his euphoria of victory, for winning their respective races on his race horse. Hence, he lacked the necessary mens rea in that he did not give the money to Yeap and Saimee with a corrupt intent. He also contended that r 48 did not preclude horse owners from giving jockeys gifts. The trial judge held that, although r 48 contained no express provision prohibiting a horse owner from paying money to a jockey, it was implicit that he could not do so. On the facts, he found that the appellant could not show that his cheques were bona fide gifts due to their amount, the absence of any special relationship between the appellant and the jockeys, and the circumstances in which the payments were made. Thus, having found that the appellant had breached the rules knowingly, he concluded that the appellant had acted with a corrupt intent. In any event, even if the appellant was unaware of the MRA rules, he would still have acted with corrupt intent because he would have known that the giving would have put the jockey under a temptation not to do his best unless he got the gratification. Accordingly, he convicted the appellant of the two charges. The appellant appealed.

Held, allowing the appeal: (1) to conclude that the appellant had given corruptly, there had first to be a corrupt element in the transaction according to the ordinary and objective standard, followed by the accused's guilty knowledge that what he was doing was, by that standard, corrupt. Both limbs had to be fulfilled beyond a reasonable doubt. The question of `corrupt' was to be determined on the facts of the individual case; (2) as to the first limb, whether a transaction had a corrupt element was an objective inquiry that was essentially based on the ordinary standard of the reasonable man. This question was to be answered only after the court had inferred what the accused intended when he entered into the transaction. The contravention of some rules or laws could also assist the court in deciding whether the intended transaction was corrupt according to the objective criteria. However, a corrupt element was not constituted merely because there had been a contravention of some rules or laws. Even if the gratification or reward was made for an illegal purpose, that did not per se make it corrupt. As to the second limb, whether the accused knew or realised what he did was corrupt by the ordinary and objective standard was a subjective test; (3) the giver might have given, thinking and believing that his actions were corrupt, but unbeknown to him, the transaction was perfectly legitimate. Likewise, a transaction could have had a corrupt element, but there was no guilty knowledge because the giver was operating under a mistaken belief that it was legitimate to give. In both cases, the offence would not have been made out; (4) as a starting point, it was useful to keep in view the natural and ordinary meaning of the word `corrupt' as a working guide. However, this was no more than a preliminary guide to what `corrupt' meant and was clearly not definitive or exhaustive. Each case had to be examined on its own facts; (5) there was no reason why genuine tokens of appreciation or tipping for performing well, even though in breach of some rules, had to necessarily infect the transaction with a corrupt element. What was crucial was the intention behind the gift, and it was ultimately a question of fact for the court to decide whether the intention was corrupt. However, while the receiver might have been corrupt, it was not necessarily the case that the giver also had to be corrupt, and vice versa. The ulterior motive or intention behind the transaction had to be examined from the perspective of the accused; whether a corrupt element existed in the transaction would then be a question of fact in each case; (6) assuming that the MRA rules were breached, the appellant had successfully cast a reasonable doubt as to whether a corrupt element existed in the transaction in that the payments were bona fide gifts. There was nothing sinister about the mode of payment here. Besides, by making the gifts only after the races and without notice beforehand, the appellant could not have hoped to gain anything in respect of the races that his jockeys had ridden in. Even if the appellant was out to create an impression in the jockey community that he was a `big spender' who would have rewarded his jockeys handsomely for winning, and that they should have put in a special effort whenever they were riding his horses, the appellant would merely have been pursuing a legitimate expectation - that his jockeys would do their best - and he was just giving them an incentive to do what they were already supposed to do. The appellant might have unwittingly put the jockeys under temptation, but this was quite different from saying that his intention behind his gifts was to corrupt his jockeys. In any case, it was not proved on the facts that the appellant intended to create that impression in the first place; (7) as to whether there was in fact a breach of r 48 of the MRA, cl 4 of the specimen agreement found in the MRA Calendar 1995, which was overlooked at trial, expressly provided that jockeys would not be prohibited from receiving presents from owners of horses ridden by the jockeys in respect of races won on such horses. Thus, if a jockey employed or sponsored by the MRA was not precluded from receiving gifts, there was no reason why the same should not have applied where the employer was the individual club, trainer or owner. Since there was some basis to say that the making of gratification was sanctioned by the MRA which was, after all, the governing body for horse-racing, this would have further undermined any contention that such gratification could have been objectively viewed as giving rise to a corrupt element; (8) as the prosecution had failed to establish that there was a corrupt element in the transaction, it was redundant to ask whether the appellant knew what he did was corrupt; (9) (per curiam) if rules or laws were breached knowingly, then it would have been easier for the court to infer that the accused knew what he did was corrupt according to the ordinary and objective standard. Obviously, if a man knew of certain rules which were prescribed to prevent certain improprieties, but he decided to go ahead and break those rules, thereby committing an act which was deemed to be corrupt, then it would have been easier to infer that he knew he had acted corruptly, as compared to a person who did not knowingly break the rules. Thus, this was part of an evidential exercise. There could also have been instances where the accused's actions were so obviously corrupt by the ordinary and objective standard that he must have known his conduct was corrupt. Clearly, an accused could not claim that he was not corrupt if he knew that he would have been regarded as corrupt by that standard.

Chan Wing Seng v Public Prosecutor [1997] 2 SLR 426 High Court, Singapore (Yong Pung How CJ).

Chan Wing Seng v Public Prosecutor [1997] 2 SLR 426 High Court, Singapore (Yong Pung How CJ).

The respondent, a medical practitioner, was acquitted of ten charges under s 5(b)(i) of the Prevention of Corruption Act (the Act) of corruptly giving gratification to a bus driver (PW1) to induce him to bring more foreign workers to the respondent's clinic for their pre-employment medical examination. The respondent's conduct as a medical practitioner was governed by the ethical code, a set of internal regulations issued by the Singapore Medical Association. Clause F2(b) of the ethical code stated that 'canvassing or employing any agent or canvasser for the purpose of obtaining patient' was discreditable to the profession and that the medical practitioner was liable to have his name erased from the register if found guilty of such conduct. The prosecution appealed.

Held, dismissing the appeal: (1) 'Corruptly' inserted within s 5(b)(i) qualified the offence in a significant manner. First, the giving must be accompanied by a corrupt intent. Secondly, there must be a corrupt element in the transaction itself; (2) the judicial pronouncements in English cases where the charges of corruption were brought under statutory provisions much narrower in scope than s 5(b)(i) of which there was no English equivalent were of little help in further clarifying the meaning of 'corruptly' within s 5(b)(i). The acts discountenanced by the law in those provisions were carefully circumscribed and a corrupt element was almost inherent in each of the acts so prohibited. The general English position was that once the acts forbidden by the statutes were proved to have been committed intentionally, there was no longer a need to search further for the corrupt element, be it in the transaction or in the state of mind of the accused; (3) to apply the same to s 5(b)(i) would lead to the preposterous result that any intentional grati-fication given to any person as an inducement or reward in relation to any matter or transaction would be sufficient to constitute a criminal offence. Section 5(b)(i), albeit drafted in wide terms, was not intended to have such an effect; (4) the questions of corrupt giving was best determined on the facts. While conduct prohibited by cl F2(b) could result in disciplinary action being taken by the Medical Council, the body entrusted with such disciplinary power and responsibility, against the doctor in breach of the clause, the range of activity restricted by the medical community in cl F2(b) was not coextensive with conduct punishable by the criminal law. A mere breach of cl F2(b), without more, could not be said to be corrupt; (5) turning to the other facts and circumstances of the case, PW1 was an independent, self-employed bus driver. He was not restricted in any way whether by law, by contract or otherwise to act as a middle man and to introduce the business available from his clients, the employment agencies to the clinic. There was clear evidence that the respondent had never sought to persuade PW1 to act contrary to his obligations to the employment agencies. Moreover, the payments to PW1 were not made secretly. Instead, PW1 was made to sign a voucher upon each payment. There was therefore a mutually beneficial business arrangement between the respondent and PW1, although this might have constituted unfair competition and unprofessional behaviour. However, the Act was enacted not to restrain unfair competition or to regulate professional behaviour but to prevent corruption. In all the circumstances of the case, there was a doubt whether there was a corrupt element or intent in the giving.

Public Prosecutor v Khoo Yong Hak [1995] 2 SLR 283 High Court, Singapore (Yong Pung How CJ).

The respondent was tried before a district court on a charge of having corruptly received from one Yoshiharu Miyake ('PW1') a gratification amounting to S$1.5m. PW1 was the respondent's joint venture partner in the purchase of a warehouse from the Bank of China. The prosecution case was that the respondent had informed PW1 of the possibility of obtaining a reduction in the warehouse purchase price by the payment of an 'under-the-table' commission of S$3m, each of them paying half of that sum; and that the respondent had corruptly received the said sum of S$1.5m from PW1 in March 1990. In the course of the trial below, it was not disputed by the defence that the respondent had indeed been paid S$1.5m by PW1 in March 1990, albeit through the medium of one Seah Sin Loo ('PW7'). The defence maintained, however, that the payment constituted a loan from PW1 to the respondent. At the conclusion of the trial, the trial judge expressed the view that the entire prosecution case was based on the testimony of PW1 and that he found PW1 to be an unsatisfactory witness. Thus, although he disbelieved the respondent's evidence, he held that the prosecution had failed to prove its case beyond reasonable doubt and duly acquitted the respondent. The prosecution appealed against the acquittal.

Held, allowing the appeal: (1) PW1, though the main prosecution witness, had not at any stage been the only important prosecution witness. It was erroneous to regard the entire prosecution case as having centred around PW1's testimony because there existed in support of the prosecution case other evidence, in particular, the evidence of one Kazuo Yoshikawa ('PW2') as well as unchallenged documentary evidence; (2) (per curiam) in a case involving complex facts, the fundamental elements of the prosecution case must be borne in mind at all times and a court must not allow itself to lose sight of the wood for the trees. Persons who indulge in corrupt practices are usually careful to cover their tracks with a smoke-screen of convoluted false transactions; and to demand that the prosecution explain in minute detail each and every step of the maze so deviously created is to set impossible fetters upon the administration of justice.

Public Prosecutor v Kang Hwi Wah [1994] 2 SLR 420 High Court, Singapore (Yong Pung How CJ).

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

A was tried and convicted in the subordinate courts on a charge of corruptly obtaining a gratification for company SLCC. He was sentenced to a fine of S$5,000 and in default, five months' imprisonment. A penalty of S$226,027.41 was also imposed and in default, twelve months' imprisonment. A paid the fine and was on bail. The payment of the penalty was stayed pending the outcome of the present appeal. A appealed against the conviction and the imposition of the penalty.

Held, allowing the appeal in part: (1) if the circumstances show that what a person has done or has omitted to do was moved by an evil intention or a guilty mind, then, he is liable under the section. Thus, if the accused used his position to solicit gratification with a guilty mind, he is caught within the relevant section; (2) that A had, in breach of his instruction from his employer, failed to report to the architect on site that the sub-contractor was his brother-in-law was a relevant consideration in determining the question of corrupt intention; (3) the court agreed with the trial judge as regards the guilt and conviction of A. The appeal in this regard was therefore dismissed; (4) 'corrupt' means doing an act knowing that the act is wrong, doing it with evil feelings and evil intentions. 'Corrupt' is a question of intention;s 13(1) of the Prevention of Corruption Act was intended to prevent corrupt wrong-doers from keeping or benefiting from the spoils of their crimes. The legislature could not have intended that an accused be called upon to pay a penalty in respect of a sum which he clearly did not receive, accept or obtain for himself. The trial judge's order in respect of the penalty was thus set aside.

Tan Kwang Joo v Public Prosecutor [1989] 3 MLJ 26 High Court, Singapore (Rajah J).

The respondents were immigration officers. They were jointly charged under s 6(a) of the Prevention of Corruption Act (Cap 104, 1970 Ed) for corruptly accepting money (S$30) as a reward for supplying information contained in the embarkation forms to one Noor, a tourist tout. There was a standing instruction to all immigration officers that the information contained in those forms could not be divulged to the public. The learned district judge, in acquitting the accused, found the preparation of the list from the information contained in the completed disembarkation forms for the purpose of enabling the tourist tout to tout for business from incoming tourists was not an act in relation to their principal's affairs or business because it was 'an innocuous act in relation to their principal's affairs'. The prosecution appealed.

Held, allowing the appeal: (1) the finding that what the respondents did was not an act in relation to their principal's affairs was clearly wrong; (2) whether or not acceptance of a gratification amounts to a 'corrupt' acceptance punishable under the Prevention of Corruption Act is a question of fact which falls to be decided on the proved facts and the circumstances in each case.

Public Prosecutor v Mohamed Ali bin Mohamed Amin & Anor [1979] 2 MLJ 57 High Court, Singapore (Wee Chong Jin CJ).

The appellant in this case was an immigration officer attached to the Singapore Airport. His duties included the checking of incoming passengers' passports and their disembarkation forms which incoming passengers had to fill up. Each completed form contained the name, place of stay and duration of stay of each incoming passenger. There was standing instruction to all immigration officers that the information contained in these forms could not be divulged to members of the public. On 13 and 15 May 1977, the appellant supplied two lists containing the names of incoming tourists, their flight numbers showing the countries of origin and the names of hotels they would be staying at in Singapore, to one Noor Mohamed Iqbal, a sales promotion officer employed by a shopping centre. In return for the said two lists, he received S$30 and S$20 respectively. At the trial, he elected to remain silent. He was charged and convicted and fined S$1,000 on each charge under s 6(a) of the Prevention of Corruption Act (Cap 104, 1970 Ed). He appealed.

Held, dismissing the appeal: for a conviction under s 6(a) of the Prevention of Corruption Act, it need not be proved that the acts done by a person were done by him as agent on behalf of his principal. The conditions precedent to an offence under s 6(a) are proof, inter alia, that the person charged was an agent as defined, and what he did was in relation to his principal's affairs or business.

Mohamed Ali bin Mohamed Iqbal v Public Prosecutor [1979] 2 MLJ 58 High Court, Singapore (Wee Chong Jin CJ).

The appellant was the managing director of Vigers Singapore Pte Ltd (Vigers), a company in the business of property consultancy. Vigers was instructed by one Frank Sherwood of Fisher Rosemount Pte Ltd (Fisher Rosemount) to sell an industrial property owned by Fisher Rosemount. Vigers was also obliged to secure the printing of 2,000 publicity brochures to promote the sale of the property. The appellant approached one Andrew Ang (PW1), the general manager of AA Akira Advertising Pte Ltd (Akira), a company in the business of providing advertising and design services. The appellant offered Akira the job of printing the publicity brochures. He asked for a 10% commission to cover Vigers. PW1 agreed. The appellant directed PW1 to make the payment out to Sloan Management Services (Sloan), a sole proprietorship entirely managed and run by the appellant. A cheque for the sum of S$383 was duly issued by Akira and made out to Sloan. Sloan issued Akira an invoice which stated that Sloan had provided Akira with consultancy services and that the sum of S$383 was owing by Akira to Sloan for these services. On these facts, the appellant was convicted on a charge under s 6(a) of the Prevention of Corruption Act (Cap 241, 1993 Ed) (the Act) of corruptly accepting a gratification of S$383 as a reward for showing favour to PW1 in relation to Vigers's affairs, that is, by engaging Akira to do the printing of the 2,000 publicity brochures. On appeal, it was contended that the statement of agreed facts showed that it was Frank Sherwood himself who engaged Akira for the printing job; thus, it was not established that the appellant had shown any favour to PW1 in return for the commission as he was not the one who engaged Akira. It was also contended that the trial judge erred in finding that the appellant had acted with a corrupt intent when he accepted the commission of S$383.

Held, dismissing the appeal: (1) the word `corruptly' in s 6(a) of the Act qualified the words describing the offence in that subsection in two ways: first, there had to be a corrupt element in the transaction; secondly, the receipt of the gratification had to be accompanied by a corrupt intent; (2) on the evidence before the court, the trial judge was clearly justified in concluding that it was the appellant who had engaged Akira for the printing job for and on behalf of Vigers. Whether or not the final approval of the design of the brochure came from Frank Sherwood or the directors of Vigers, the fact remained that it was the appellant who had procured Akira's services for the printing job; (3) the statement of agreed facts merely made it clear that it was the appellant, PW1 and Frank Sherwood who were the representatives of Vigers, Akira and Fisher Rosemount respectively in the procurement of the printing of the brochures. The agreed facts could not carry the appellant any further than that; (4) the appellant was not permitted under the terms of his employment with Vigers to accept any form of commission without the sanction of the directors of Vigers. Any rebates or discounts from the printing job ought to have been paid into Fisher Rosemount's account with Vigers. Hence, the trial judge was entitled to find that there was a corrupt element in the transaction; (5) the appellant's corrupt intent could clearly be inferred from the fact that he asked PW1 to make payment to Sloan instead of directly to the appellant himself, and from the fact that he attempted to make it appear on paper that Sloan had provided consultancy services to Akira through the rendering of the invoice. The appellant had to have known that it was wrong or improper for him to have accepted the sum of S$383 from Akira.

Tan Tze Chye v Public Prosecutor [1997] 1 SLR 134 High Court, Singapore (Yong Pung How CJ).

The respondent was an officer in the Singapore Armed Forces and was also the chairman of the canteen committee in charge of a canteen at the Khatib Camp. Public tenders were invited for the canteen stalls at the said canteen. At and around the time of the tender, the respondent provided certain information to one Quah Kim Peng (Quah) relating to the tender of the drinks stall at the canteen. Quah was successful in his tender for the drinks stall. Shortly after, the respondent obtained a loan of S$5,000 from Quah. The respondent was charged but acquitted of corruptly obtaining the loan from Quah under s 6(a) of the Prevention of Corruption Act (Cap 241) ('the Act'). The question on appeal was whether the respondent had successfully rebutted the statutory presumption of corruption within s 8 of the Act.

Held, allowing the appeal: (1) to give effect to the objective of the Act to provide for the more effective prevention of corruption, the legislature had seen fit to displace the presumption of innocence against an accused person in the limited cases falling within s 8. These corruption cases were viewed with particular severity because public officers and government matters were involved. A public officer who, by virtue of his office or position, had the power and authority to make a decision affecting another person should not allow himself to seek a favour from that other person. If he did so, he bore the onus of rebutting the presumption on a balance of probabilities; (2) an appellate court was as well-placed as the trial court to draw the necessary inferences from the facts and circumstances of a case. In the instant case, the irresistible inference to be drawn was that the respondent had first provided assistance to Quah and then sought a reciprocal favour from Quah by asking for the loan. The respondent's contention that the loan was bona fide and completely unconnected with the provision of information was rejected. In the premises, the respondent had failed to rebut the statutory presumption of corruption.

Public Prosecutor v Tang Eng Peng Alan [1995] 3 SLR 131 High Court, Singapore (Yong Pung How CJ).

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

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

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

The appellant was convicted in a district court of attempting to obtain a gratification of S$1,000 from PW2 to pay for a washing machine. At the material time, the appellant was a port inspector with the Port of Singapore Authority. Among his duties was the inspection and licensing of harbour craft. In 1982, the appellant was transferred to the enforcement unit where his duties were to enforce marine regulations as well as attending to marine incidents. PW2 was a boat runner and he gave evidence that sometime in 1985, the appellant had spoken to him about a S$1,000 washing machine. However, the appellant had not asked him to buy the washing machine, nor did the appellant show him any receipt nor had PW2 given the appellant any money. In the course of the investigations, the appellant's flat was raided and a Hitachi washing machine costing S$520 was found. The appellant appealed against the conviction.

Held, allowing the appeal: (1) the district judge erred in law at the close of the prosecution's case when he failed to consider that there was insufficient evidence to call on the defence as the prosecution depended solely on the evidence of PW2. The appellant had been transferred out of the licensing unit since 1982. PW2 said that he had no dealings with the appellant in the one to two years before the alleged incident in 1985. PW2 also stated that the appellant had not shown any personal favours during his years of official dealings with the appellant and PW2 also testified that the appellant had always acted in accordance with his official duties; (2) the district judge had made out a case on the basis of inferences and not on the evidence before the court; (3) PW2 was totally unreliable and it was unsafe to convict the appellant on the charge.

Ng See Fong v Public Prosecutor Magistrate's Appeal No 345-91-01 High Court, Singapore (Goh Phai Cheng JC).

This was an appeal against the conviction of the appellant on charges of corruption. At the trial, the prosecution relied on a statement made by the appellant to an officer of the Corrupt Practices Investigation Bureau. A trial within a trial was held and according to the evidence, it appeared that the appellant was confronted with proof that he was not telling the truth about his presence at the market, that the appellant was asking for lenient treatment if he told 'everything' and that the appellant was told that he should tell the truth.

Held: (1) in the circumstances, the statement could not be said to be a voluntary statement, that is, that it was not obtained by inducement or threat and it was wrongly admitted in evidence; (2) there was ample evidence before the trial judge apart from the statement to convict the appellant and the appeal should therefore be dismissed. It was clear from the grounds of decision that no reliance was placed by the trial judge on the appellant's statement to an extent which affected his finding on the crucial question he had to decide.

Lim Kim Tjok v Public Prosecutor [1978] 2 MLJ 94 High Court, Singapore (Wee Chong Jin CJ).

In this case, the appellant appealed against his conviction on five charges of corruption. The facts as found by the learned district judge showed that the appellant, who had since 1965 held ministerial office, had beginning from November 1970 until October 1974 personally interceded on many occasions with civil servants in various departments of the government, and on one occasion with a fellow minister, on behalf of a wealthy Indonesian citizen, Lauw, or Lauw's company, in connection with matters which these civil servants were dealing with. These intercessions were not made at the direct request of Lauw but at the request of Ong Keng Kok, a friend whom he had known since school, the secretary and a director and the person in charge of the day-to-day running of the business of Lauw's company. The matters in which the appellant interceded were promptly considered and decided and in one instance in which the decision was an adverse one, the appellant interceded still further with eventually a favourable result. It appeared to be the common practice for members of Parliament to communicate directly with civil servants on behalf of the members of the public within their respective constituencies. During the period 1972 to the end of 1974, Lauw's company paid for the cost of new galvanized roofing for the appellant's house; Lauw and his company guaranteed to the extent of S$300,000 the overdraft of the appellant's father with a bank, the overdraft facilities being for shares purchased by the appellant in the name of his father; Lauw's company offered and the appellant agreed to accept a bungalow house to be built by Lauw's company valued at S$532,000; and lastly, Lauw paid for the cost of seven return air fares to Jakarta when the appellant flew to Jakarta with his family for a holiday as Lauw's guest. On appeal it was contended that: (a) the appellant as a minister of state was not an 'agent' within the meaning of s 6(a) of the Prevention of Corruption Act (Cap 104, 1970 Ed) as defined in s 2 of the Act; (b) the gratifications in this case were not paid or given or received from a person or agent of a person who had or sought to have any 'dealing' with the government or any department thereof; (c) the district judge should have found that the appellant had discharged the burden of proof which lay upon him to prove that the gratifications had not been accepted by him corruptly as rewards for acts done in relation to the affairs or business of the government; (d) the district judge was wrong in holding that the representations made by the appellant were in relation to his principal's affairs or business; (e) the charges were defective for lack of essential particulars. It was also contended by the appellant and conceded on behalf of the Public Prosecutor that the conviction of the appellant on the fourth charge, that he did corruptly 'accept' the bungalow, could not be supported, but it was contended that the court should substitute a conviction on the charge of 'did corruptly agree to accept' the bungalow, which was the original charge, before it was amended by the trial court.

Held: (1) (c) that the payment, gift or receipt was from a person or agent of a person who has or seeks to have any dealing with the government or any department thereof or any public body. Upon proof of these three ingredients, the existence of the fourth ingredient, namely, that the gratification was paid or given or received corruptly as an inducement or reward for doing or forbearing to do an act in relation to the affairs of the government or a department thereof or a public body as the case may be, is to be presumed until the contrary is proved; (2) the question whether the appellant was an 'agent' within the meaning of s 2 of the Prevention of Corruption Act and for the purposes of s 6(a) of the Act, has to be determined by construing the words of the sections and by applying the sections to the holder of the office of a minister, appointed by the President on the advice of the Prime Minister, under the Constitution. The definition of 'agent' in s 2 covers a person who is employed by another or who is acting for another or who is serving the government. In the performance of his duties as a minister of state, the appellant was clearly acting for the government, it being necessary for the government to exercise its functions through some human agency, and in receiving remuneration for the performance of his duties and the discharge of his responsibilities as a minister, he was clearly a person serving or employed by the government and accordingly, he fell within the definition of 'agent' in the Act; (3) the expression 'any dealing with the government or any department thereof' in s 8 of the Act means 'any matter of the government or any department thereof'. In this case, there could be no reasonable doubt that the gratifications were paid or given by or received from a person or agent of a person who had at the material time dealings with one or more departments of the government; (4) in this case, on the evidence and having regard to the findings of fact by the trial judge, the appellant had failed to prove that he had legitimate reasons for accepting the gratifications; (5) the words 'in relation to the principal's affairs or business' in s 8 of the Act must be given a wide construction and it was a question of fact whether the acts fell within those words. In this case, the appellant's acts were clearly in relation to the affairs or business of the government; (6) where a person is charged with an offence under s 6(a) of the Prevention of Corruption Act, and the prosecution seeks to rely on the presumption embodied in s 8 of the Act, the burden lies on the prosecution to prove the following factual ingredients of the offence, namely: (a) that a gratification was paid or given to or received by the accused; (b) that at the time of the payment, gift or receipt he was in the employment of the government or any department thereof or of a public body;the sentences imposed by the trial judge on the first, second, third and fifth charges were not excessive.

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

This was an appeal against the conviction of the appellant on two charges of corruption under the Prevention of Corruption Act (Cap 104, 1970 Ed). The appellant was in the employment of the Ministry of National Development and it was proved that he had received two sums of money from a company, which had a construction contract with a department of the ministry. The defence was that the two sums were paid to and received by the appellant as the agent of his brother in connection with the sale of a piece of land in Penang.

Held, dismissing the appeal: the appellant had failed to discharge on a balance of probabilities the onus of showing that the qualification was not paid or given or received corruptly as a reward for doing or forbearing to do an act in relation to the affairs of the government and therefore, the appellant was rightly convicted of the offences.

Chew Chee Sun v Public Prosecutor [1975] 2 MLJ 58 High Court, Singapore (Wee Chong Jin CJ).

The respondent was charged in the district court under s 6(b) of the Prevention of Corruption Act (Cap 241). The charge alleged that on 6 February 1990, he corruptly gave a gratification of S$330 to one Ragu s/o Ramachandran (PW1), a police officer in the employ of Commercial and Industrial Security Corporation (CISCO) and attached to the Exxon refinery at Pulau Ayer Chawan. At the material time PW1 was in charge of the ramp gate allowing access to and egress from the refinery premises. Anyone leaving the premises with a lorry load of goods had to produce a document known as a materials gate pass. The S$330 mentioned in the charge was allegedly given by the respondent to PW1 as an inducement to allow one Low King Chan (PW3) to take a lorry load of empty oil drums away from the refinery without the necessary materials gate pass. The prosecution's case thus relied heavily on PW1's evidence as to the events of 6 February 1990 as well as his evidence as to the initial proposal for a 'deal' which the respondent made him a few days before 6 February. For his part, the respondent denied the prosecution's version of events. He admitted that the S$330 found in the drawer of PW1's table belonged to him but claimed that he had left it on the table inadvertently. At the close of the trial the district judge found that there existed material discrepancies in the evidence of PW1 and his chief security officer, PW2. He held that the respondent had successfully raised a reasonable doubt as to the prosecution's case and accordingly discharged and acquitted him. The prosecution appealed against that order of acquittal.

Held, allowing the appeal: (1) the district judge erred in finding that the discrepancies he noted in PW1's and PW2's evidence were 'material'. The two discrepancies he pointed out in his grounds of decision related only to minor details in the prosecution's narrative of events and did not touch on the elements of the charge against the respondent; (2) and no suggestion was offered by the defence to explain why PW1, a CISCO professional, should wish to level grave accusations of bribery against the respondent if these accusations were unfounded, or why PW2 should have abetted PW1 in doing so. The respondent's defence, for its part, was in fact far less credible than the district judge thought it to be, as his explanation for taking out his money and leaving it on PW1's table was quite implausible; (3) although the evidence adduced by the prosecution as to the respondent's motive for giving the gratification to PW1 might have been more clearly presented, the fact remained that there was sufficient evidence from which motive could be inferred. In any event it was not strictly part of the onus of proof laid upon the prosecution that they should prove beyond reasonable doubt the respondent's motives; (4) these were firstly, that the respondent had given PW1 S$330; and secondly, that the money had been given corruptly as a gratification to induce PW1 to release PW3's lorry without the necessary gate pass. So far as the proof of these two elements was concerned, it was essentially a matter of the respondent's word against that of PW1. PW1 testified that the respondent had given him the money and asked him to release PW3's lorry without the necessary gate pass. His evidence remained consistent in its crucial aspects throughout the trial;for the above reasons, the High Court was of the view that the defence in the court below had failed to raise a reasonable doubt as to the prosecution's case. Accordingly the appeal was allowed and the respondent was convicted of the charge under s 6(b) of the Prevention of Corruption Act. The court sentenced him to pay a fine of S$3,000 and in default of payment to suffer imprisonment for three weeks.

Public Prosecutor v Tiw Ah Boon [1995] 1 SLR 333 High Court, Singapore (Yong Pung How CJ).

The appellant was prosecuted in the subordinate courts on two charges of having corruptly given a gratification to one Leong. The money in question was allegedly given to Leong as a reward for administering a prohibited drug known as 'Etorphine' to the race horse 'Hayabusa'. The appellant admitted having given the money to Leong but claimed that it represented the winnings from a bet he had placed on Leong's behalf and at Leong's request. He denied having at any time handed Leong the drug etorphine to be administered to Hayabusa. The prosecution's case against him depended essentially, therefore, on the evidence given by Leong. At the close of the trial below, the district judge rejected the appellant's defence, while holding that he found Leong to be a credible witness. The appellant was convicted of both charges and fined S$20,000 in respect of each charge. On appeal, it was argued that in fact Leong's evidence should not have been believed because it revealed significant inconsistencies.

Held, allowing the appeal and ordering a refund of the fines paid by the appellant: (1) the fact that the district judge disbelieved the appellant's defence did not exempt the prosecution from having to prove the charges against the appellant beyond reasonable doubt. In discharging that burden, it was insufficient for them to point to the inadequacies in the appellant's defence. As conceded by the prosecution on appeal, their case, which painted the appellant as the mastermind behind the doping of the racehorse Hayabusa, emanated from Leong alone: there were no independent witnesses capable of corroborating the main components of Leong's narrative. A careful examination of the evidence in the case, however, created in the High Court grave doubts as to Leong's credibility. Even prior to the trial in the subordinate courts, he had, on his own admission, given at least four varying accounts of events. In particular, he failed at crucial stages to identify the appellant as the person who directed him to administer etorphine to Hayabusa; (2) having regard to the serious inconsistencies in Leong's evidence, the High Court was of the opinion that the prosecution below had failed to prove the charges against the appellant beyond reasonable doubt.

Yeo See Koon Jimmy v Public Prosecutor [1994] 3 SLR 539 High Court, Singapore (Yong Pung How CJ).

A was the former Director of the Commercial Affairs Department. He was charged with attempted cheating under s 417 of the Penal Code (Cap 224), in that he attempted to induce N to invest in a country club by making certain false representations to N. A was also charged under s 6(c) of the Prevention of Corruption Act (Cap 241) with having deceived his principals as to the purchase price of a car he was buying. He did this by presenting a false invoice. This allowed A to obtain a loan for a higher amount than he would have got had his principals been aware of the actual price. A pleaded guilty in the subordinate courts to both charges and was sentenced to two months' imprisonment in respect of the first charge and to one month's imprisonment in respect of the second. The sentences were ordered to run consecutively. A appealed against the sentence. In the course of the appeal, the correctness of the second charge was called into question. The main point of argument was whether A was an agent and the government his principals within the meaning of s 2 of the Prevention of Corruption Act (Cap 241), and if the false invoice was a 'document' as contemplated by s 6(c) of the Prevention of Corruption Act.

Held, allowing the appeal and setting aside the original sentences: (1) by definition cheating prescribed two levels of criminality. The first was deception by fraudulently or dishonestly inducing a person to deliver property. The second, and less serious level, was deception by intentionally inducing the person so deceived to do or to omit to do anything; (2) the prosecution had chosen the lesser level and A had pleaded guilty to the charge so framed and was convicted. It was not open to the prosecution to contend, on appeal, that there was any dishonesty or fraud; (3) although A's principal in the second charge had been referred to as being JS and not the government, as it should have been, the error was purely technical and did not affect the validity of the charge; (4) for the purposes of s 6(c) of the Prevention of Corruption Act, the words 'or other document' should be construed as meaning a document which would pass inter partes. The false invoice submitted by A was a document inter partes and fell within s 6(c); (5) there were aggravating circumstances in the instant case. A was at the material time the Director of the CAD, a department charged with investigating and prosecuting the same sort of offences that A had committed. The court was bound to take a very serious view of what A did; (6) however, there were strong mitigating factors in A's favour. He had a distinguished record of public service. In 1990, he was awarded the Public Service Administration Medal (Gold). After he was charged, A had been suspended from service and there was no doubt that the proceedings had taken a heavy toll on his health; (7) in the circumstances, the sentence in respect of the first charge was replaced with a fine of S$7,000, in default three months' imprisonment; (8) the sentence in respect of the second charge would be replaced with a term of one day's imprisonment and a fine of S$10,000.

Jeyasingam v Public Prosecutor [1992] 1 SLR 720 High Court, Singapore (LP Thean J).

Public Prosecutor v Tang Eng Peng Alan [1995] 3 SLR 131 High Court, Singapore (Yong Pung How CJ).

Chew Chee Sun v Public Prosecutor [1975] 2 MLJ 58 High Court, Singapore (Wee Chong Jin CJ).

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

The applicant was charged, tried and found guilty on nine counts under s 6(a) of the Prevention of Corruption Act (Cap 104, 1970 Ed) read with s 34 of the Penal Code (Cap 103, 1970 Ed) and four counts under s 5(1) of the Prevention of Corruption Act (Cap 104, 1970 Ed) and was sentenced to varying terms of peremptory imprisonment from eight months to three months and to pay penalties ranging from S$42,800 (in default four months' imprisonment) to S$2,025 (in default two weeks' imprisonment) on the 13 counts. All sentences were stated by the trial judge to be concurrent. The applicant was unable to pay the imposed penalties on the 13 counts. The default sentences became applicable. The applicant applied by way of criminal motion for two declarations, ie (a) that the maximum term of imprisonment imposed on him by the court in the above matters was ten months and (b) that the sentences imposed in the above matters (inclusive of the default sentences) were to run concurrently for a period of ten months from 18 August 1986, the date of conviction.

Held, dismissing the motion: (1) the application was misconceived because there is no provision under our Criminal Procedure Code or the Supreme Court of Judicature Act whereby such an application can be made; (2) (obiter) it may well be that all was not lost for the applicant yet. Possibly the time to make his application could be when the applicant had served what he considered to be his full term of imprisonment imposed by the trial judge and had not been released by the prison authorities. Then perhaps, he could make his application under s 326 of the Criminal Procedure Code (Cap 113, 1970 Ed).

Liong Kuo Chi Richard v Attorney General [1988] 2 MLJ 543 High Court, Singapore (Rajah J).

The appellant, a Police Staff Sergeant with the Commercial Crime Division, was convicted on three charges of corruption. He appealed against both conviction and sentence on those charges. The first charge was for attempting to obtain S$20,000 from the complainant to refrain from prosecuting him for criminal breach of trust. The second involved receiving gratification of S$5,260 cash, a S$500 hamper, a S$700 writing desk and a S$265 chair. The third was for receiving a S$500 hamper and a S$500 red packet to induce another officer to refrain from prosecuting the complainant as well. There was a fourth charge on a separate offence, but the appellant was acquitted below and no appeal against this was made by the prosecution. The evidence was that the S$20,000 was to be paid in instalments, of which S$4,500 was actually received. At trial, various facts were disputed. The production of his investigation papers was sought by the appellant to show that he had not refrained from prosecuting the complainant. The trial judge found against the appellant on the facts. In the course of the trial, the credit of a defence witness was impeached on the basis of an inconsistent statement made by that witness. The judge relied upon the truth of the facts stated in that statement. In addition, the judge found the fact that the appellant had remained silent in a confrontation with the complainant could be used against him. The appellant was accordingly convicted on the three charges and sentenced to ten months' imprisonment on the first charge, six on the second and four on the third. The second and third sentences were to run concurrently but consecutive to the first. The appeal against conviction was primarily on the findings of fact made by the trial judge, and on the fact that evidence of the complainant was not corroborated. Also, the petition raised the fact that the appellant's investigation papers were not produced by the prosecution. Among the reasons put forward for such production having to be made was that in relation to the second charge, the investigation papers would reveal that the appellant had not refrained from prosecuting the complainant. No issue was raised on appeal on the possible overlap between the attempt to obtain S$20,000 under the first charge and the receipt of S$4,500 out of the S$5,260 cash under the second charge. However, the prosecution was prepared to respond to that issue. As for the appeal against sentence, it was argued that the sentences imposed were manifestly excessive.

Held, dismissing the appeal: (1) there was nothing to disturb the findings of the trial judge on the facts; (2) s 25 of the Prevention of Corruption Act applied to any witness who was merely a payor of gratification. There was no necessity to treat the evidence of such a witness with caution. But if the witness was something more than a mere payor and committed infamous conduct, then he would not be within the ambit of s 25. What was infamous was delimited by caselaw; (3) however, s 25 did not elevate the evidence of the witness. The normal burden remained on the prosecution. The prosecution must also prove beyond a reasonable doubt that a witness qualified as a mere payor. Such an approach would cause no prejudice to the accused. But, in assessing evidence, judges must not discover flaws in the defence, while ignoring the same in the prosecution's case; (4) on the facts, the complainant was clearly a mere payor, and therefore his evidence need not have been treated with more caution than ordinarily; (5) no application under s 58(1) of the Criminal Procedure Code (the CPC) had been made to the trial judge for the production of the investigation papers. Neither was the necessity and desirability of the production of those papers demonstrated. Whether or not the appellant refrained from so prosecuting the complainant was irrelevant under s 9 of the Prevention of Corruption Act; (6) the statement of a witness whose credit was impeached may be admitted for the truth of the contents under s 147(3) of the CPC; (7) s 123(3) of the CPC preserved the common law rule that silence in the presence of an accusation by an equal may be taken as evidence of that accusation; (8) attempt and commission were mutually exclusive. One transaction could not be both one and the other. Where an offence consisted of a series of components constituting offences under the same law, and completion was made only of one of those components, there could not be separate charges both for the attempt at the whole series and the commission of the completed component for that would amount to double counting; (9) on the facts therefore, there was double counting of S$4,500 in the first and second charges. However, as it was not argued by the appellant, the charges could not be amended. They therefore stood; (10) there was nothing to indicate that the sentences were manifestly excessive.

Tan Khee Koon v Public Prosecutor [1995] 3 SLR 724 High Court, Singapore (Yong Pung How CJ).

Abdul Hamid v Public Prosecutor [1956] MLJ 231 High Court, Seremban (Smith J).

See criminal law, Vol 4, para.

The facts proved at the time relating to the question of consent were as follows: On 13 June 1952, the police applied to the magistrate at Kuala Kangsar for a summons to issue against the appellant in respect of an offence committed 'on a day between 17 and 19 April 1952'. On 19 June, the magistrate made an order for the summons to issue and it was issued on 21 June. On 1 July, the Deputy Public Prosecutor signed a document of consent under s 12 of the Prevention of Corruption Ordinance 1950. The charge to which the appellant was called on to plead on 3 July and on which he was tried was that he had committed an offence under s 3(b) of the said ordinance and punishable under s 3(c). Throughout the trial in the sessions court, not a word was said by either of the two counsel, who at different times represented the appellant as to the validity of the consent of the Public Prosecutor or as to any want of consent. The point was raised for the first time at the hearing of the second appeal and then in answer to a question of Thomson J, the Deputy Public Prosecutor informed the court after going through his papers that his colleague in office who had signed the consent of 1 July 1952 had in fact given his consent to the institution of the proceedings and indeed had instructed them to be instituted on 2 June 1952, that was some 11 days before the application for process by the police. Thomson J accepted this assurance and dismissed the appeal. The learned judge held that the want of consent under s 12 of the Prevention of Corruption Ordinance is not an omission that can be cured by reason of s 422 of the Criminal Procedure Code (Act 6). The Court of Appeal agreed with the decision of Thomson J.

Held: the consent of the Public Prosecutor in this case was not defective, and the trial of the appellant was not a nullity. The Court of Appeal suggested that difficulties which might arise in cases where a consent or sanction is required, could be avoided if the practice were adopted on accompanying every application for a summons or a warrant of arrest with the consent or sanction in writing.

Lyn Hong Yap v Public Prosecutor [1956] MLJ 226 Court of Appeal, Kuala Lumpur (Mathew CJ, Brown Ag CJ (S).

This matter came before the Court of Appeal as the result of a certificate given by the Public Prosecutor under the provisions of s 34 of the Courts Ordinance 1948. The point referred for determination was 'whether a witness in a trial for an offence referred to in s 13(1) of the Prevention of Corruption Ordinance 1950, shall be presumed to be unworthy of credit if a payment of money being the subject of the charge, was made by him and at his own suggestion'.

Held: the effect of the provision is that, in corruption cases, a person is no longer to be presumed unworthy of credit merely by reason of the fact that he has made or caused to have made an improper payment.

Daimon bin Banda v Public Prosecutor [1953] MLJ 23 Court of Appeal, Kuala Lumpur (Foster Sutton CJ, Thomson and Wilson JJ).

Haji Ismail v Public Prosecutor [1955] MLJ 94 Court of Appeal, Kuala Lumpur (Mathew CJ, Wilson and Buhagiar JJ).

Held: where, in a case, witnesses are accomplices and not independently corroborated, it is settled law that it is not safe to convict on such evidence unless, having been carefully directed on the law, the trial court decides that in the special circumstances of the case, such evidence can be believed. The provision of s 13(3) of the Prevention of Corruption Ordinance 1950 does not abrogate the rule; it introduces only a limited modification. This subsection is in the nature of an exception to a standing rule of evidence and as an exception, it must be construed strictly.

Daimon bin Banda v Public Prosecutor [1951] MLJ 11 High Court, Kuala Lumpur (Taylor J).

[Annotation: See also the decision of the Court of Appeal, [1953] MLJ 23; 2 MLR 97.]

Held: the Prevention of Corruption Ordinance 1950, s 13(3), modifies the law and practice not as to accomplices generally but only as to a specified class of accomplices. In cases to which this ordinance applies, a witness who is an accomplice only by reason of making a corrupt payment is not presumed to be unworthy of credit. A person who makes a corrupt payment only under pressure is less seriously discredited than one who does so voluntarily.

Soosay Dass v Public Prosecutor [1951] MLJ 57 High Court, Kuala Lumpur (Taylor J).

The appellant, a police inspector in the special branch, Penang, was convicted in the sessions court under s 3(a) of the Prevention of Corruption Ordinance 1950, of corruptly accepting a bribe, to wit, a sum of RM135 from one FSF as an inducement for forbearing to do an act in relation to his principal's affairs, namely, by representing to the said FSF that he had committed an offence against the law and that he (the appellant) would forbear to take any further action against him. The evidence showed that the complainant FSF had recently made a trip to China and after his return to Penang was interrogated by the appellant, whereupon the complainant admitted that he had taken with him to China a sum of RM500. The appellant then told him that because he had taken the money to China, he (the appellant) could detain him, cancel his citizenship certificate, take his fingerprints and change his identity card into a black one. The appellant then told him that since he had been in this country for many years and had never been in trouble before, if he gave the appellant RM150, nothing would happen to him. The complainant could raise RM135 only and offered this sum to the appellant who accepted the amount and this acceptance of RM135 later became the subject matter of the charge upon which he was convicted. Upon appeal, it was argued that even assuming the facts adduced by the prosecution were true, those facts did not support the offence of corruption with which the appellant was charged; that certain findings of fact were against the weight of evidence; that inadmissible evidence had been admitted; that the complainant was an accomplice; and that the judgment was against the weight of evidence.

Held: (1) on the facts adduced, if believed, it was a simple, straightforward case of extortion and the appellant ought to have been charged under s 383 of the Penal Code. The appellant was not acting in relation to the affairs of his principal by representing to the complainant that he had committed an offence against the law because the complainant had committed no offence. The conviction on the charge of corruption was therefore wrong in law; (2) having heard the evidence, the learned President was satisfied that the testimony of the prosecution witnesses was true, and, to use his own words, he was 'left in no doubt' as to the guilt of the appellant. The ground of appeal that the verdict was against the weight of evidence must accordingly be dismissed; (3) there was nothing in the record to suggest that the learned President had been influenced by the inadmissible evidence. This ground of appeal must accordingly be dismissed; (4) it is not permissible for a trial court, having signed and delivered its ground of decision to the appellant, to supplement the grounds of decision or amplify them in any way. The conduct of the learned President in amplifying his grounds by adding a further 27 lines of typewritten material to it was both irregular and improper, but it was not such conduct as can be said to have occasioned a miscarriage of justice or such as could be said to warrant or require or even justify the trial being regarded a nullity and the conviction being quashed. The only effect of it was, that the appellate court must consider the original judgment as it stood and exclude any consideration of the parts added; (5) the power of an appellate court to alter a finding by substituting conviction under a different provision of the law for the conviction found by the magistrate is a power to be exercised with great caution. The learned President, at the conclusion of the evidence before him, had no jurisdiction to convict the appellant upon a charge of extortion without having amended the charge at an earlier stage and calling upon the appellant to plead to the amended charge, to enter upon his defence upon that charge and enabling him to recall any of the prosecution witnesses and to call such other evidence as he might wish to do in his defence upon that amended charge; (6) as it was not possible for the learned President to convict the appellant of the offence of extortion, a charge upon which he was never called upon to plead, it is not open to the High Court sitting in its appellate jurisdiction, to do an act which was not within the competence of the trial court; (7) the appeal must be allowed and the conviction quashed.

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

The appellant, a corporal with the Federation Police, was charged and convicted under s 3(a) of the Prevention of Corruption Ordinance 1950, for corruptly accepting RM30 from one LYK by promising to assist him in settling a samsu case which was still under investigation. On appeal, it was argued inter alia, that (a) the charge disclosed no offence known to the law because of the omission of essential ingredients of the charge; (b) the learned President erred in law as neither the charge nor the evidence showed that the appellant received money as a reward in relation to his principal's affairs; (c) the learned President erred in not realizing that a particular witness was a 'chance witness' and that his evidence should be viewed with caution.

Held: (1) even if there was an omission of an essential ingredient of the charge, the appellant was not misled and if the charge can be said to be bad for duplicity, there has been no miscarriage of justice; (2) there was ample evidence that the money was received as an inducement for showing favour in relation to the appellant's principal's affairs; (3) a 'chance witness' is one who by chance overhears an admission of a person deceased at the time of hearing. The third prosecution witness was not a 'chance witness' and there was no reason to treat this witness any differently from any other witness.

Low Seng Wah v Public Prosecutor [1962] MLJ 107 High Court, Ipoh (Neal J).

The appellant was convicted under s 3(a) of the Prevention of Corruption Ordinance 1950 in that he, being an agent, viz, a penggawa of a place in the State of Kelantan, corruptly accepted the sum of RM50 as an inducement for showing favour to another person in relation to the appellant's principal's affairs. By virtue of s 2(1)(60A) of the Interpretation and General Clauses Ordinance 1948 as amended by Ordinance No 41 of 1953, a penggawa in the State of Kelantan is a penghulu. A penghulu is an officer recognized in various statutes and is given various powers, duties and functions; inter alia, under the Courts Ordinance 1948, a penghulu has judicial functions.

Held: (1) a penghulu is an agent within the meaning of the Prevention of Corruption Ordinance 1950; (2) in the course of his grounds of decision, the learned trial judge said: 'I did not regard them (PWs 3, 5, 6 and 7) as accomplices whose evidence is unworthy of belief, and even if they were to be considered as such I warned myself of the danger of accepting their evidence.' Counsel for the appellant argued that once the trial judge had come to the conclusion that the said prosecution witnesses were not accomplices, it was impossible for him to warn himself adequately against the dangers of convicting upon their evidence. The warning as expressed in the trial judge's grounds of decision would not be sufficient direction in a case of a trial by jury or with assessors, but in this case, the trial judge had clearly in his mind the legal problems relating to the evidence of accomplices and the provisions of s 13(3) of the Prevention of Corruption Ordinance 1950.

Haji Ismail v Public Prosecutor [1955] MLJ 94 Court of Appeal, Kuala Lumpur (Mathew CJ, Wilson and Buhagiar JJ).

The accused was charged under s 3(b) of the Prevention of Corruption Ordinance 1950, alternatively under ss 116 and 165 of the Penal Code for giving RM70 to a police inspector as 'tea money' for a favour the latter had 'showed' to him when he brought in rice from Thailand to Rantau Panjang. At the end of the case for the prosecution, the learned President recorded: 'There is no case to answer. Accused acquitted and discharged.' On appeal by the Public Prosecutor,

Held: when a police officer in a position to do a favour to another person likely to require such favour received from such other any money or other valuable thing without consideration or any ostensible reason, then these very circumstances afford reasonable and sufficient grounds for holding a sufficient case was made out by the prosecution under the main or alternative charge. It was for the defence in view of s 5 of the Prevention of Corruption Ordinance to prove the contrary. The decision of the learned President was therefore insupportable. Sections 2 and 7 of the Customs Ordinance 1952 and ss 33(3)(d) and 35 of the Police Ordinance 1952 relating to powers and duties of a police officer discussed.

Public Prosecutor v Tan Hock Sing [1963] MLJ 219 High Court, Kota Bahru (Hashim J).

This was an appeal against the conviction of the first appellant on three charges of corruption and of the second appellant on charges of abetment of that corruption. The appellants were tried together. The principal ground of appeal urged on behalf of the appellants was that the learned President of the sessions court was wrong in calling on the appellants to enter on their defence as no prima facie case had been shown against them at the end of the prosecution case. It was also urged on behalf of the second appellant that the learned President was wrong in not granting the application of the appellants for a separate trial.

Held: (1) as the learned President found that there was a prima facie case against the first and second appellants, he was not wrong in calling upon them to enter on their defences; (2) the learned President had a discretion whether to order a separate trial or not and in the circumstances of the case, the exercise of the discretion in refusing separate trials did not result in any miscarriage of justice.

Lim Kheng Kooi & Anor v R [1957] MLJ 199 High Court, Penang (Shepherd J).

[Annotation: See also Wong Cheong Kim v Deputy Public Prosecutor [1962] MLJ 304, where Rose CJ made general observations on circumstances to be taken into account in assessing sentence.]

The respondent was convicted and fined RM100 in default three months' imprisonment on a charge of corruptly offering $10 to a police officer 'as an inducement for forbearing to do an act in relation to his principal's affairs, to wit, to refrain from proceeding with the investigation into an alleged offence of buying rubber without licence', thereby committing an offence punishable under s 3(b) of the Prevention of Corruption Ordinance 1950. The Public Prosecutor appealed against the sentence on the ground of its inadequacy. The circumstances in which the respondent was arrested were: the respondent, while carrying scrap rubber, was stopped by a detective sergeant. Failing to get a satisfactory explanation from the respondent as to the scrap rubber, and on his refusal to produce his identity card, the sergeant arrested him. Subsequently, the respondent offered the sergeant a sum of RM10 to release him. The bribe offered was alleged to be in respect of the 'offence of rubber'.

Held: (1) the 'offence of rubber' could only be the offence of buying rubber without a licence, an offence punishable under s 30 of the Rubber Supervision Enactment, which is non-seizable; (2) in this case, the sergeant had no warrant: the arrest of the respondent was therefore illegal; (3) the favour sought by the respondent could not be said to be in relation to the affairs of the sergeant's principal.

Public Prosecutor v Lim Yam [1961] MLJ 29 High Court, Malacca (Ismail Khan J).

The appellant was arrested for an offence under the Emergency Regulations. It was alleged that on his arrest, he offered a sum of RM10 to a police corporal so as to induce the latter to release him. On those facts, he was charged as follows: 'That you on 25.1.56 at about 7.10am at 98[3/4] mile-stone Grik/Lenggong Road, in the District of Upper Perak, abetted an offence of offering illegal gratification other than legal remuneration, to wit, by offering cash RM10 to SC Cpl 35320 as a motive by forbearing to do an official act, to wit, to release you after being arrested for an offence alleged to have been committed under reg 15(1) and reg 18(1) of ER (RA) 1948, and you thereby committed an offence punishable under ss 116 and 161 of the Penal Code.' The charge followed the wording of s 3(b) of the Prevention of Corruption Ordinance 1950, but concluded by stating that, as set out above, the 'offence was punishable under ss 116 and 161 of the Penal Code'. No sanction was obtained for a prosecution under s 3(b) of the Prevention of Corruption Ordinance. On that charge, the appellant was convicted and sentenced to three months' imprisonment from which decision he appealed.

Held: (1) on the facts, as the appellant was not in any way misled by the error in the statement of the statutory provision under which he was charged nor was there any miscarriage of justice, a conviction in such circumstances by the trial court was not necessarily fatal; (2) although the charge could not have supported a conviction under the Prevention of Corruption Ordinance as the required sanction thereunder was not obtained, it was not necessarily bad as a charge under the Penal Code containing as it did every ingredient necessary for an offence under ss 116 and 161.

Wong Poh Ching v Public Prosecutor [1957] MLJ 160 High Court, Ipoh (Thomson J).

The appellant was charged under s 3(b) of the Prevention of Corruption Ordinance 1950 for corruptly giving a person in the employment of the fisheries department (namely, a fisheries assistant) a sum of RM100 as an inducement for the issue of two belat panjang licences to his principal or alternatively for abetment under ss 116 and 165 of the Penal Code. The learned President found him guilty of both offences and convicted and sentenced him to five months' imprisonment. On appeal, counsel for the appellant submitted that (a) as the fisheries assistant (North Kedah) had no jurisdiction to renew the licences, it could not be said that money was given to him as an inducement to do an act in relation to his principal's affairs, (b) the said fisheries assistant was an accomplice whose evidence required corroboration.

Held: (1) by Kedah Government Gazette Notification No 236 of 1957, the fisheries assistant was a fishery officer for the whole State of Kedah and a separation of the office into two divisions, viz North Kedah on the one hand and Central and South Kedah on the other, was merely a departmental arrangement to suit the public; (2) on the facts of the case, the fisheries assistant was not an accomplice whose evidence required corroboration.

Baptist v Public Prosecutor [1962] MLJ 25 High Court, Alor Star (Syed Sheh Barakbah J).

The accused held a government contract to supply rice of a specified quality to the aborigines. On 1 April 1955, a Department of Aborigines' staff officer inspected the rice supplied and found it to be of inferior quality. He informed the accused that the matter would be reported. On 9 April 1955, the accused approached the staff officer and offered him an envelope saying that it was an Easter present of RM200. The accused was charged and convicted of an offence under s 3(b) of the Prevention of Corruption Ordinance (No 5 of 1950), and sentenced to a term of three months' imprisonment. The President in his judgment commented that: 'Apart from informing the court that the accused had no previous convictions, the prosecuting counsel had nothing to say with regard to sentence.' On appeal, the sentence was increased to one of nine months' imprisonment. The mere fact that the prosecutor does not address the court on the amount of the sentence is immaterial and the practice of asking for a specific sentence is not one which should be encouraged.

Public Prosecutor v Chew Ah Hock [1956] MLJ 67 High Court, Kuala Lumpur (Wilson J).

Held: in an offence punishable under s 3(c) of the Prevention of Corruption Ordinance 1950, it is only required to show that there was an 'intent to deceive'. It is not necessary to show an 'intent to defraud', but if such intent to defraud is proved, it would doubtless influence the court when it came to sentence.

Public Prosecutor v V Neelakandan & Anor [1957] MLJ 130 High Court, Alor Star (Hill J).

Held: to establish an offence under s 3 of the Prevention of Corruption Ordinance 1950, it is not necessary to show that the favour sought was within the power of the accused, but the favour shown must have been within the power of the accused's principal. There is an essential difference between a sanction and a consent. A prosecution can be sanctioned without any deep consideration of the particular case: full consideration is required for consent since 'consent' is an act of reason accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side. A sanction is therefore no evidence of consent. The very general words 'rights and powers' appearing in s 376(iii) of the Criminal Procedure Code (Cap 6) are sufficient to permit a Deputy Public Prosecutor to consent to a prosecution under the Prevention of Corruption Ordinance. Where there are other offences of the same kind which are all part of one and the same transaction, evidence thereof is properly admissible. There is no requirement in s 173(m)(2) of the Criminal Procedure Code that the finding of 'guilty' shall be formally recorded unless the accused pleads guilty. It is sufficient if the record shows clearly that the court did find the accused guilty.

Abdul Hamid v Public Prosecutor [1956] MLJ 231 High Court, Seremban (Smith J).

In this case, after the appeal of the appellant against his conviction and sentence on a charge under the Prevention of Corruption Ordinance 1961 had been dismissed, on his application the High Court reserved the following questions of law for the decision of the Federal: (a) Whether the court should treat the cautioned statement of the accused (appellant/applicant), which was put in by way of an exhibit by the prosecution before the close of the prosecution's case, as forming part of the prosecution's case as opposed to part of the defence's case, when the court was considering whether the accused should be called upon to enter his defence; (b) If the cautioned statement should be treated as forming part of the prosecution's case, in view of the contradictions between the contents of the cautioned statement and other evidence of the prosecution, whether at the close of the prosecution case the court should find that there was no case for the accused to answer.

Held: (1) the cautioned statement in the circumstances of the case must be regarded as forming part of the case for the prosecution; (2) notwithstanding that the cautioned statement was part of the evidence for the prosecution and that there were facts in the cautioned statement which appeared to contradict other parts of the evidence led by the prosecution, it was open to the trial judge as a judge of facts to assess the evidence and in so doing accept part of it and reject the rest.

Lim Yow Choon v Public Prosecutor [1972] 1 MLJ 205 Federal Court, Kuala Lumpur (Azmi LP, Suffian and Ong Hock Sim FJJ).

Public Prosecutor v Tan Hock Sing [1963] MLJ 219 High Court, Kota Bahru (Hashim J).

Koh Vincent & Anor v Public Prosecutor [1965] 2 MLJ 270 High Court, Singapore (Ambrose J).

The first two accused were charged jointly with having corruptly given to a second Lieutenant in the RAOC three separate amounts in cash, namely S$500 in November 1947, S$1,000 in December 1947 and S$500 in January 1948. The third accused was charged with abetment of these offences. The first accused is the sole proprietor of Chop Nam Koh, commission agents and general contractors, the second accused is his younger brother who is employed by him, and the third accused is a clerk, an English-speaking Eurasian, similarly employed. At the conclusion of the case, all three accused were convicted as charged, and the learned district judge sentenced the first accused to nine months and the other two accused to six months, each RI on each count, the sentences to run concurrently. One of the grounds of appeal was that the learned district judge was wrong both in law and in fact in convicting the accused on the evidence of a witness, who was an accomplice.

Held: (1) it was clear from the judgment of the district judge that he was fully aware of the danger of acting on the uncorroborated evidence of an accomplice and nevertheless acted on such evidence but he therefore, the conviction could not be interfered with; (2) as the conclusions of fact of the trial judge were based on his estimate of the witness, whom he saw and heard, such conclusions should not be interfered with.

Tay Choon Nam & Ors v R [1949] MLJ 157 High Court, Singapore (Gordon-Smith Ag CJ).

[Annotation: See also s 24 of the Prevention of Corruption Act (Cap 241, 1985 Ed).]

In this case, the appellant was convicted of corruptly giving the sum of S$15 to a corporal in the regimental police as an inducement to show favour to the appellant and his friends in relation to his principal's affairs by releasing them from his custody, an offence under s 3(b) of the Prevention of Corruption Ordinance (No 41 of 1937). The appellant and his friends had been arrested by the corporal on suspicion of possession of stolen property.

Held: as the arrest of the appellant and his friends was illegal, the favour sought in this case was not in relation to the affairs of the principal of the corporal within the meaning of s 3(b) of the Prevention of Corruption Ordinance and therefore, the conviction of the appellant was wrong and must be quashed.

Hiralal Badlo v R [1950] MLJ 96 High Court, Singapore (Murray-Aynsley, CJ).

[Annotation: See however s 9 of the Prevention of Corruption Act (Cap 241, 1985 Ed), and Vincent Koh & Anor v Public Prosecutor [1965] 2 MLJ 270.]

These were appeals by the Deputy Public Prosecutor against sentences passed by the magistrate on the grounds that a sentence of a fine only is inadequate as a deterrent to bribery and corruption.

Held: in these cases, the magistrate had failed to take into consideration the fact that bribery and corruption in officialdom is like a cancer which may grow and destroy the whole body, and as the mere imposition of a fine is unlikely to act as a deterrent in this class of offences, the sentences in these cases must be altered to sentences of imprisonment.

R v Teo Cheng Lian and another appeal [1949] MLJ 170 High Court, Singapore (Gordon-Smith J).

The accused had been charged with an offence under s 5(a)(i) of the Prevention of Corruption Ordinance 1960 ('the Ordinance'). The learned district judge discharged the accused, at the end of the prosecution case, as he held that the consent of the Attorney General for instituting the prosecution against the accused, as contained in the document put in as an exhibit in the case was not sufficient compliance with the provisions of s 31 of the Ordinance. The Attorney General as Public Prosecutor appealed against the order of the district judge.

Held, dismissing the appeal: the written consent of the Attorney General in this case did not show on the face of it, in reference to the facts, for which particular case the consent was given and, as no additional evidence was called, the prosecution had failed to prove that it had complied with s 31 of the Prevention of Corruption Ordinance.

Public Prosecutor v Nagalingam & Anor [1971] 1 MLJ 18 High Court, Singapore (Kulasekaram J).

A certain Sulaman bin Haji Hussain wanted to make a statutory declaration. He was directed to the appellant who was a clerk in the stamp office. The stamp fee on a declaration would have been S$1. It appears from the evidence of Sulaman that the appellant asked for S$3. From the evidence of a lift boy, it was clear that the appellant was informed that S$1 was required for the stamp and S$2 for writing out the declaration. The duties of the appellant were confined to selling the stamp. This came to the knowledge of the authorities and Sulaman was given S$3 and again approached the appellant. The appellant drafted a declaration as required by Sulaman, who then gave the appellant S$3 of which S$1 was used for the stamp. The appellant kept the balance. On the strength of this, the appellant was charged under s 3 of the Prevention of Corruption Ordinance (No 41 of 1937) and in the alternative, under s 161 of the Penal Code. At the beginning of the hearing, the charges were amended and alternative charges were substituted. After the hearing was completed, the learned district judge substituted a charge of attempted cheating. On this charge, the appellant was convicted and against this conviction, he appealed.

Held: (1) to support the conviction of attempted cheating, it was necessary to show that the appellant attempted to delude Sulaman into the belief that the legal fee for a declaration was S$3; (2) the original and the substituted charges of corruption were ill-founded.

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

Tay Choon Nam & Ors v R [1949] MLJ 157 High Court, Singapore (Gordon-Smith Ag CJ).

Ng Kong Yue & Anor v R [1962] MLJ 67 High Court, Singapore (Chua J).

Goh Leng Sai v R [1959] MLJ 121 High Court, Singapore (Ambrose J).

The appellants were convicted in the district court of an offence under s 3(b) of the Prevention of Corruption Ordinance (Cap 121, 1955 Ed) and under s 34 of the Penal Code in that they had on 15 June 1960 corruptly given the sum of S$200 to a servant of the War Department as an inducement for showing favour in relation to his principal's affairs. There was a written contract for the period 1 April 1960 to 31 March 1961 between the War Department and Sin Sin Furniture Co of which the appellants were representatives, and oral evidence was given of this contract and the period over which it subsisted. One of the grounds of appeal was that oral evidence of the contract was inadmissible and that the document itself should have been produced. It was argued for the prosecution that: (a) there was no necessity to prove any of the terms of the contract; (b) all that was required to be shown was that a contract between the War Department and Sin Sin Furniture Co existed on the date of the alleged offence; (c) this could be proved orally and had been proved orally. Reliance was placed on the judgment of Ambrose J in Goh Leng Sai v R [1959] MLJ 121.

Held: having regard to ss 4 and 5 of the Prevention of Corruption Ordinance, it was important that the contract was proved by admissible evidence. The contract not being collateral but of the essence of the prosecution case, could not be proved by parol evidence.

Ng Kong Yue & Anor v R [1962] MLJ 67 High Court, Singapore (Chua J).

The appellant, in this case, was convicted and sentenced to six months' imprisonment on the following charge: '...that you on or abut the 16th day of February 1957, at about 8pm in Singapore, having a contract with the Singapore City Council, did corruptly give to an agent, namely, GM Richards, the acting Chief Engineer (Construction) of the Sewerage Department of the City Council, the sum of one thousand dollars as an inducement or reward for showing favour to yourself in relation to his principal's affairs, and thereby committed an offence under s 3(b) and punishable under s 4 of the Prevention of Corruption Ordinance (Cap 121, 1955 Ed).' On appeal, it was contended for the appellant that: (a) there was insufficient evidence that the appellant had a contract with the City Council, the only evidence adduced by the prosecution being oral evidence; (b) GM Richards was not in a position to show favour on the date in question; (c) the evidence for the prosecution showed that the money was not given as an inducement or reward for showing favour as Richards was never asked to show any favour; and (d) the district judge did not consider the possibility that Richards was an accomplice.

Held: (1) the existence of a contract or contractual relationship may be proved by oral evidence. Proof of the existence of a contract must be distinguished from proof of the terms of a contract. Section 92 of the Evidence Ordinance (Cap 4, 1955 Ed) does not apply to proof of the existence of a contract. Section 64 of the Evidence Ordinance requires the production of a document only if it is desired to prove the contents of the document; (2) there was no onus on the prosecution to prove that Richards was in a position to show favour at the time the appellant gave him the money. It was sufficient to show that Richards was an agent of a public body as defined in s 2 of the Prevention of Corruption Ordinance; (3) under s 5 of the Prevention of Corruption Ordinance, when it was proved that any money had been given to a person in the employment of a public body by a person holding a contract from the public body, such money shall be deemed to have been given corruptly as an inducement or reward for showing favour in relation to his principal's affairs, unless the contrary was proved. Once the prosecution had proved that the appellant held a contract from the City Council and that he had given a sum of money to an employee of the City Council, the onus was on the appellant to show that it was not given corruptly as an inducement or reward for showing favour to him in relation to the affairs of the City Council; (4) there was no evidence to support the possibility that Richards was an accomplice. In cases of corruption, it is necessary to impose a sentence of imprisonment as a sentence of fine has no deterrent effect. In view of s 6 of the Prevention of Corruption Ordinance, the amount of S$1,000 given to Richards should be paid to the City Council.

Goh Leng Sai v R [1959] MLJ 121 High Court, Singapore (Ambrose J).

[Annotation: See the case of Ng Kong Yue & Anor v R [1962] MLJ 67, where the observations of Ambrose J were not followed.]

Public Prosecutor v Nagalingam & Anor [1971] 1 MLJ 18 High Court, Singapore (Kulasekaram J).

This was an appeal against the conviction of the first and second appellants under s 6(a) of the Prevention of Corruption Ordinance 1960. It was alleged that the first appellant, who was a police constable, obtained S$100 as an inducement for showing favour in relation to his principal's affairs, by refusing to take police action against one C who was riding a motor cycle, for an offence against the Motor Vehicles (Third Party Risks and Compensation) Ordinance 1960. However, the prosecution proved that at the material time there was an insurance policy in force covering the use of the motor cycle. It was argued on behalf of the first appellant that: (a) as there was in fact no offence to report, the first appellant was not acting in relation to the affairs of his principal by representing that C committed an offence against the law; (b) as the first appellant was at all material times employed by the government of Malaysia, he was not liable under the Prevention of Corruption Ordinance 1960 as the word 'government' in that ordinance means the government of Singapore. As regards the second appellant, the learned district judge said that on the evidence, he preferred to believe the prosecution and accordingly found him guilty.

Held: (1) s 9(1) of the Prevention of Corruption Ordinance 1960 provides that where in proceedings for an offence under s 6(a) it is proved that an agent had corruptly obtained any gratification, having reason to believe or suspect that it was offered as an inducement for showing any favour to any person in relation to his principal's affairs, he shall be guilty notwithstanding that such favour was not in relation to his principal's affairs; (2) the Prevention of Corruption Ordinance 1960 should be construed, after Malaysia Day, with such modifications and adaptations as may be necessary to bring it into conformity with the Constitution of the State of Singapore and the Malaysia Act, and therefore, the word 'government' must be construed to mean not only the government of Singapore but also the government of Malaysia, and the Prevention of Corruption Ordinance applied to the first appellant; (3) the learned district judge was wrong in deciding the case against the second appellant because although the district judge believed the prosecution and did not believe the second appellant, he should have considered the further question whether, even if he did not believe the second appellant, his evidence raised a reasonable doubt as to his guilt.

Koh Vincent & Anor v Public Prosecutor [1965] 2 MLJ 270 High Court, Singapore (Ambrose J).

Public Prosecutor v Hew Yew [1972] 1 MLJ 164 High Court, Kuala Lumpur (Raja Azlan Shah J).

The appellant was convicted by the sessions court on a charge under s 15(2) of the Prevention of Crimes Ordinance and was sentenced to two years' imprisonment. He appealed on two grounds: (a) that the second order of restricted residence made by the Minister of Interior was invalid as it was made after and not during the currency of the first order; and (b) that the learned President of the Sessions Court had subjected the appellant to severe cross-examination thus preventing a fair trial.

Held, dismissing the appeal: (1) the minister was perfectly entitled to make the second order that was made and it was conclusive and not assailable by the courts; (2) looking at the case as a whole, the trial was not conducted in an irregular manner by reason of the frequency and nature of the interruptions by the President of the Sessions Court. There was therefore no reason to interfere with his findings.

Gan Kok Liong v Public Prosecutor [1969] 1 MLJ 30 High Court, Raub (Raja Azlan Shah J).

The appellant had been convicted of failing to comply with a condition to remain indoors between the hours of 8pm and 6am, an offence under s 15(4) of the Prevention of Crime Ordinance 1959. The facts were that on his way home on a bicycle, he wobbled while crossing a wooden bridge and fell off the bicycle. He was found at 11.30pm bleeding by the roadside, with one leg trapped under his bicycle and taken to hospital where he came to.

Held: as in his case, the appellant was out of doors merely through the misfortune of having an accident, the conviction cannot be upheld and must be quashed.

Ayavoo v Public Prosecutor [1966] 1 MLJ 242 High Court, Kuala Lumpur (Ong Hock Thye FJ).

This case was heard in the High Court exercising its revisionary jurisdiction. The subject, a registered person defined by s 2 of the Prevention of Crime Ordinance 1959, and being subject to police supervision for a term of 3 years, failed to comply with the restriction to remain within doors under s 15(2)(f) and punishable under s 15(4) of the said ordinance. In the lower court, he pleaded guilty and was fined RM100. It was sought to revise the order of the lower court on the ground that the learned President had erred in law in imposing a fine instead of a prison sentence.

Held: the court has an absolute discretion to impose the maximum sentence of five years or any lesser sentence, the minimum of which must not be less than two years. Therefore, the sentence of fine will be set aside and substituted by a sentence of two years' imprisonment.

Public Prosecutor v Hew Yew [1972] 1 MLJ 164 High Court, Kuala Lumpur (Raja Azlan Shah J).

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

The first appellant was the father of the second appellant and was the sole proprietor of a shop in Havelock Road where he had held a retail liquor licence for over ten years. Both appellants were convicted by the district judge, Singapore, of refusing to sell one bottle of scotch whisky under s 7(b) of the Price Control Proclamation No 9 and the first appellant was also convicted on two further charges of selling six reputed quart bottles of Spey Royal Scotch Whisky on 13 June 1946 and two reputed quart bottles of Spey Royal Scotch Whisky on 23 June 1946 at a price in excess of the controlled price laid down in the Price Control (Whisky and Gin) Order 1946. The facts were as follows: on the afternoon of 3 July 1946, a revenue officer was sent to the shop and asked the second appellant for one bottle of scotch whisky. The reply was: 'I have no such liquor.' This having been reported to his superiors, a customs officer with an assistant supervisor of customs called at the shop and searched the stock room at the back of the shop, there being no whisky displayed for sale in the ship itself. In the stock room, they found four cases and one bottle of Dewar's White Label, one case and four bottles of Gilbey's Spey Royal, and four bottles of Black and White. The stock book of the shop contained no entry showing any whisky at all. But on the desk in the shop was found another book, kept in Chinese characters, which showed certain entries regarding the purchase and sale of whisky. This book was put in evidence by the prosecution and the pages which relate to the entries regarding whisky were translated and marked (for the purpose of the case) A and B. At the top of page A appeared the words 'Spey Royal (large)'. On this page, there were two entries of the sale of Spey Royal, one on 13 June 1946 of six bottles sold for S$84 and the other on 23 June 1946 of two bottles sold for S$34. Page B was headed 'Dewar's Whisky (Large), and showed 120 bottles were purchased on 23 May 1946 and then followed some 12 entries of sales. Both appellants were then taken to the Customs House and both made statements which they signed. On the appeal, it was argued: (a) that the appellants were wrongly charged under para (b) of s 7 of the Price Control Proclamation; (b) that the Whisky and Gin Order 1946 is ambiguous as it does not make clear whether the price mentioned is, the wholesale or retail price and makes no mention of the price of the bottles in which the scotch whisky is sold; and (c) that in as much as the Price Control Proclamation specifies the price of scotch whisky unqualified by any such word as 'reputed', the fact that the commodity in relation to which the offences is alleged to have been committed in scotch whisky must be strictly proved.

Held: (1) that a conviction under para (a) of s 7 of the Price Control Proclamation should be substituted for the conviction under para (b); (2) that there is no ambiguity in the Whisky and Gin Order 1946 and that the price fixed in that order is the maximum wholesale price where the whisky is being sold wholesale and is the maximum retail price where the whisky is being sold retail; (3) that on the facts of this case, the overcharge was such as could not reasonably be represented as the price of the bottle; (4) that strict proof of the commodity being scotch whisky is not required under the Price Control Proclamation or Orders made thereunder and that the fact that the bottles plainly state that they contain scotch whisky distilled in Scotland, the product of Scotland, is sufficient to establish a prima facie case that they contain scotch whisky.

Quek Thiam Ting & Anor v R [1947] MLJ 24 High Court, Singapore (Brown J).

A1 and A2 were convicted on the charge of providing public entertainment without a licence issued under the Public Entertainment Act (Cap 257) and fined S$3,500 (two weeks' imprisonment in default). A appealed against conviction and sentence. A1, who was the secretary-general of the Workers' Party ('WP'), a duly registered political society under the Societies Act, submitted an application in the prescribed form, for a licence under the Public Entertainments Rules 1969 to hold the opening ceremony of the WP's premises. The application was rejected. Both A1 and A2 submitted that they had no case to answer. A1 contended that his conviction was wrong on the following grounds: his speech was not per se public entertainment under the Act, and therefore no licence was required; if the speech was public entertainment under the Act, there was no evidence to show that he had provided it; the decision of the licensing officer in rejecting his application was contrary to law and null and void, and was unjustifiable interference with his right to freedom of speech and expression conferred by art 14(1) of the Constitution of the Republic of Singapore.

Held, dismissing the appeals as regards conviction but allowing the appeals as regards sentence: (1) whether an activity is 'public entertainment' is not determined by its purpose or its nature and/or effect but simply by its form. The ordinary meaning of the word 'address' is a speech made to a group of people, usually on a formal occasion. Here, it was the opening of the WP's branch premises. There is no reason to suggest that the same word in s 2(1) of the Public Entertainments Act (Cap 257) ('the Act') does not bear its ordinary meaning; (2) the next submission that he had merely participated in the public entertainment that was provided had no substance. The word 'provide' in the context of s 18(2) of the Act means 'supply'. A person may supply the entertainment by performing it himself or by engaging someone else to perform it. Whatever the precise effect of s 18(2) may be, it did not provide a defence to A as they were not mere participants but were the organizers of the event. A2, as chairman of the WP, could not say that he had nothing to do with the organization of the event; (3) since the trial judge had refused to allow the licensing officer to explain his reasons for rejecting A1's application for a public entertainment licence, the correct position must be that, as the matter now stood, neither A1 nor the court knew the reasons for the rejection of his application; (4) a person charged for an offence under the Act has no right to ask for the reasons for refusing him a licence at the trial. An aggrieved applicant may appeal to the minister under s 14 of the Act; (5) the real thrust of A1's submission was that if the licensing officer had been allowed his questions, the answers might have been such as to have enabled him to satisfy the court that the refusal was wrong or unconstitutional. However, the invalidity of the decision of the licensing officer would still mean that A had no licence; (6) the Act was not unconstitutional as being an infringement of the right of free speech. Thus, A were properly convicted; (7) A1 had one previous conviction for an unrelated offence and A2 had no previous convictions. The only other negative factor against A was that they had deliberately broken the law; that of course is not an exceptional factor. There was no evidence that any disorderly conduct or breach of the peace had occurred at or in connection with the addresses made by A or that any member of the public or any of the residents of the neighbouring premises had been unduly inconvenienced. Taking into account all the circumstances of this case, including the nature of the offence and conduct of A, the court was of the view that a fine of S$1,500 would be the appropriate sentence. The appeals against conviction were dismissed but the fines were reduced to S$1,500 in respect of both appellants.

Jeyaretnam Joshua Benjamin v Public Prosecutor and another action [1990] 1 MLJ 129 High Court, Singapore (Chan Sek Keong J).

The appellant was convicted of providing public entertainment without a licence. The licence issued stated that the appellant was licensed to provide public entertainment until 6am on 1 January 1994. However, the licence also stated that it expired on 31 December 1993. The licensing officer admitted that she had made a mistake in issuing the licence and that she had intended to issue a licence that was valid until 6am on 1 January 1994. The appellant admitted that she provided public entertainment between midnight on 31 December 1993 and 6am on 1 January 1994. Before the district judge it was argued that the appellant acted under a mistake of fact and that she believed in good faith that she had a valid licence for the period between midnight and 6am. The district judge held that the offence was one of strict liability and convicted the appellant. On appeal, it was conceded by the prosecution that the defence of mistake of fact was available to answer a charge under s 18(1)(a) of the Public Entertainments Act (Cap 257) ('the Act').

Held, dismissing the appeal: (1) s 107 of the Evidence Act (Cap 97) applied to a charge under s 18(1)(a) of the Act. Section 18(1)(a) prohibited any person from providing public entertainment save within a special exception or proviso, namely, with a valid licence. The burden of proving that the case fell within the special exception or proviso was therefore upon the accused. It followed that the offence was one of strict liability so far as the licence was concerned. There was no burden on the prosecution to prove that there was no licence. Accordingly the prosecution was not required to show any mens rea regarding the absence of a licence; (2) as there was nothing in the Act which excluded the operation of s 79 of the Penal Code in respect of an offence under s 18(1)(a), the prosecution's concession that the defence of mistake of fact was available to the appellant was rightly made. This was so even if the offence was one of strict liability for an offence of strict liability was simply one where the prosecution need not show mens rea in respect of an element of actus reus. Unless it was clear that the legislature in creating the offence intended to exclude the defence of mistake, there was no basis for excluding it; (3) the burden of proof was still on the appellant to show on a balance of probabilities that she acted under a mistake and by reason of that she believed in good faith that she had a valid licence for the relevant period; (4) it was not enough for the appellant to show that she was mistaken. She must also show that she believed in good faith that she had a valid licence for the relevant period. The test of whether a mistake was made in good faith was not whether the mistake was an easy one to make nor whether a reasonable person could make the mistake. The test was whether there was due care and attention. The mistake may be a natural one to make and it may be one which reasonable persons often make. Nevertheless, the defence was not made out unless it was shown on a balance of probabilities that the appellant exercised due care and attention; (5) in the facts, the appellant's defence, at the highest, was that she did not read the whole of the licence, and that even if she did, it would not be apparent to her that the licence was not valid for the relevant period. This was insufficient to discharge the burden of proof. If the appellant had read the whole of the licence and had given any thought at all to the matter, she would have discovered that the licence stated that it expired on 31 December 1993. Although it was not apparent that the licence was not valid for the relevant period, it was manifest that there was something wrong with it. There was therefore a duty on her part to ask the licensing officer. Any other interpretation which does not impose even this minimal duty on the licensee will be inconsistent with the legislative intention that the burden was on the appellant to show that she had at least a prima facie valid licence.

Tan Khee Wan Iris v Public Prosecutor [1995] 2 SLR 63 High Court, Singapore (Yong Pung How CJ).

A1 and A2 were charged with providing public entertainment without a licence. A1 was addressing a public gathering in a public place. The prosecution's evidence was that before the speeches by A1 and A2, there was a lion dance performance. When asked by the police whether he had a permit, he stated that he had not got one. A1 had applied for such a licence but his application had been rejected. The defence was silent when called.

Held, convicting the accused: (1) it was incumbent on A1 and A2 to ensure that they were in possession of a licence before addressing the public gathering. Both knew that they had no licence but continued with the gathering regardless. It was immaterial that A2 had only addressed the gathering for a short time; (2) both accused were fined S$3,500 (two weeks' imprisonment in default).

Jeyaretnam Joshua Benjamin & Anor v Public Prosecutor Magistrate's Appeal Nos 205 and 215 of 1988 District Court, Singapore (Sarjit Singh, District Judge).

Yator bin Bunta v Public Prosecutor [1988] 2 MLJ 434 Court of Appeal, Bandar Seri Begawan (Yang P, Silke and Godfrey JJ).

The appellant was convicted on two charges of possession of ammunition and explosives respectively without lawful authority or excuse under s 28 of the Public Order Act (Cap 148) ('the Act'). He appealed on the grounds, inter alia, that his statements to the police were involuntary and therefore inadmissible and that there was no evidence of possession of the offending items.

Held, allowing the appeal: (1) s 117 of the Criminal Procedure Code ('the CPC') has made a substantial change to the common law in that the right of silence has been taken away. Adverse inferences may be drawn from an accused person's refusal to give a statement in his defence after a warning has been issued under s 117(3) of the CPC. Nevertheless, the prosecution must still prove that the statement was voluntary although the warning cannot be construed as a threat to render it involuntary; (2) the recording officer need not explain the warning to the accused but need only inform him in a language he understands of the charges which will be brought and the effect of the warning and no further; (3) although counsel did not object to the introduction of inadmissible evidence, the court still had a discretion to exclude such evidence if it was obtained unfairly, by trickery, or oppressively and if it may lead to a miscarriage of justice. Based on the evidence, there is nothing to show that the statements were made involuntarily or that oppression was used and the lower court had rightly admitted the statements in evidence; (4) the statement made by the accused's wife was admissible to show only how the police discovered the ammunition and the explosives. It did not prove the truth of what she said, but showed her knowledge of the existence and location of the ammunition and the explosives. The statement did not connect the accused with knowledge or possession of the offending items. Section 6 of the Evidence Act was inapplicable here; (5) the accused lost possession of the ammunition and explosives when his wife removed them to another place. There was no evidence that his wife knew or that the accused had entrusted it to her, neither was she his agent nor was she acting for him.

Lamat bin Burut v Public Prosecutor [1993] 2 MLJ 273 Court of Appeal, Bandar Seri Begawan (Yang LP, Nazareth and McMullin CC).

The appellant was charged with possession of an offensive weapon, an offence punishable under s 29(1) of the Public Order Act (Brunei). The appellant pleaded guilty in the magistrate's court but sought leave to enter an appeal and to put forward a different version of what occurred. The question also arose as to whether the finding of an offensive weapon inside a motor car can be said to be possession of the weapon in a public place.

Held, dismissing the appeal: (1) to permit the appellant to put forward an entirely different version of what occurred would be wrong; (2) if an offensive weapon is found in a public place, it does not matter if it is contained in a motor car or in a piece of equipment which is itself in a public place; (3) (per curiam) if offensive weapons are found in a public place, the burden will shift to the appellant to establish that he had the weapon in his possession or under his control for a lawful purpose. This burden he must discharge on a balance of probabilities and not beyond a reasonable doubt.

Zuslie bin Ibrahim v Public Prosecutor [1993] 1 MLJ 462 High Court, Brunei (Roberts CJ).

This was an appeal against the conviction of the appellant for the offence of carrying arms, to wit, two hand-grenades, contrary to s 3(1) of the Public Order and Safety Proclamation No 50. The appellant when arrested, was carrying a bag in which, underneath a sarong, there were two hand-grenades not fitted with fuses, and also two fuses which would fit exactly the two hand-grenades. A police armourer gave evidence to the effect that the two hand-grenades were in a clean condition, that the two fuses were complete with detonators and were in a serviceable condition. The appellant stated at his trial that when he was arrested he was carrying these two hand-grenades with the intention of handing them over to the police. Having convicted and sentenced the appellant the trial judge reserved certain questions for the Court of Appeal including the following: (a) whether a person carrying arms with a view to handing them to the police is guilty of an offence against s 3(1) of the Public Order and Safety Proclamation; (b) whether the evidence before the court established the articles carried by the appellant were hand-grenades.

Held: (1) s 3(1) of the Public Order and Safety Proclamation prohibits absolutely the carrying of arms and it is not necessary to prove any ulterior intention to establish that offence; (2) therefore a person carrying arms with a view to handing them to the police is guilty of an offence against s 3(1) of the Public Order and Safety Proclamation; (3) there was no doubt that what the appellant was carrying was two grenade parts and two fuses which make up two complete hand-grenades and so on the facts the accused was rightly convicted of carrying the two hand-grenades.

Sulong bin Nain v Public Prosecutor [1947] MLJ 138 Court of Appeal, Malayan Union (Willan CJ (Malayan Union).

The appellant was charged for consuming Class A drugs (CA2), unauthorized possession of controlled A drugs (CA3) and possession of offensive weapon without authority (CA4). He pleaded guilty to all three charges. On appeal, he appealed against sentences in CA2 and CA3 and pleaded not guilty to CA4 on the ground that he did not understand the charge and that it was never fully explained to him.

Held: (1) a defendant might well not comprehend, without a full and careful explanation, that he had not committed any offence if his reason for having the weapon was an innocent one; (2) given the wording of the charge, the court cannot be satisfied in circumstances where the appellant says he did not understand the charge, by virtue of the word 'explained' on the record without any implication thereof, that the charge and the possible defences thereto were fully and adequately explained; (3) taking into account the clear record of the appellant, the small amount of drugs in CA3 and the fact that the offences in CA2 and CA3 were clearly interlocked, the fine in CA3 should be reduced from B$1,500 to B$1,000; (4) the appeal against sentence and conviction in CA2 is dismissed.

Juffery bin Hashim v Public Prosecutor [1986] 2 MLJ 239 High Court, Bandar Seri Begawan (Power J).

Section 3 of the Punishment for Vandalism Act 1966 provides: 'Notwithstanding the provisions of any other written law, any person who commits an act of vandalism...shall be guilty of an offence under this Act and shall be liable on conviction to a fine...or to imprisonment...and shall also, subject to the provisions of s 274 of the Criminal Procedure Code, be punished with caning with not less than three strokes and not more than eight strokes.' Section 55(3) of the Children and Young Persons Ordinance (Cap 128, 1955 Ed) provides: 'Notwithstanding the provisions of any other written law, no child or young person shall be sentenced by any court other than the High Court to corporal punishment.' 'Young person' for the purpose of s 55 means a person who is under the age of 16 years. Section 274 of the Criminal Procedure Code provides that females, males sentenced to death, and males whom the court considers to be more than 50 years of age, shall not be punishable with caning. The appellant, a boy under 16 years of age, was convicted by a magistrate's court for an offence punishable under s 3 of the Punishment for Vandalism Act 1966, and was sentenced to three months' imprisonment and three strokes of the cane. He appealed on the ground that the magistrate's court had no power to impose the sentence of caning in view of s 55(3) of the Children and Young Persons Ordinance (Cap 128).

Held, dismissing the appeal: (1) s 274 of the Criminal Procedure Code (Cap 132, 1955 Ed) is a clear enactment of general application so that in respect of the three categories of persons mentioned therein, no court whatsoever can sentence any of them to caning. Section 55(3) of the Children and Young Persons Ordinance (Cap 128) however, is not of the same general application in that persons under the age of 16 years can be sentenced to corporal punishment by the High Court; (2) penal provisions, like all others, are to be fairly construed according to the legislative intent as expressed in the enactment. The legislative intent of the Punishment for Vandalism Act 1966 is clear from the preamble which states that it is 'an act to provide for exemplary punishment for acts of vandalism'. The Legislature by its express reference to s 274 of the Criminal Procedure Code (Cap 132) intended to embrace all persons except the three categories specified therein, within the latter part of s 3, ie the punishment of caning. Therefore, the sentence of caning imposed was valid.

Ang Chin Sang v Public Prosecutor [1970] 2 MLJ 6 High Court, Singapore (Wee Chong Jin CJ).

Held{eb] r 17 does not require that every separate purchase of chandu by a registered smoker should be separately recorded in the register. It is sufficient if one entry is made of the total amount of his purchase in one day. The rule does not give the Commissioner power to impose the legal duty of recording purchases in a register.

Lee Yee Heng v Public Prosecutor [1939] MLJ 87 High Court, Federated Malay States (Cussen J).

[Annotation: This case is no longer law.]

Held{eb] the words 'retain possession' in r 4(iv) of the Rules for Registration of Chandu Smokers made under the Opium and Chandu Enactment (Cap 134) have the same meaning as the words 'have possession', and mere possession of any other person's registration card, except for the purposes specified in r 8, is an offence.

Chan Ting Choo v Public Prosecutor [1937] MLJ 68 High Court, Federated Malay States (de Buriatte J).

Chan Ting Choo v Public Prosecutor [1937] MLJ 68 High Court, Federated Malay States (de Buriatte J).

Where a detainee is being held in a prison, the inconvenience and possible delay in either getting him before a commissioner of oaths, or alternatively of getting the latter to visit the prison, amounts to 'other sufficient cause' for the detainee himself not filing the affidavit in support of an application for habeas corpus. One Haron was detained under the Restricted Residence Enactment (Cap 39). An application by originating motion was made by his wife for issue of a writ of habeas corpus challenging the detention on the ground that there had been non-compliance with art 5(3) of the Federal Constitution in that the detainee had not been informed 'as soon as may be of the grounds of his arrest'. The applicant's counsel urged that the power to detain was exercised mala fide by the authority, in consequence, the court had jurisdiction to look into and examine whether the grounds for arrest were reasonable.

Held: (1) as in her supporting affidavit, the applicant had deposed that when she saw the detainee a few hours after his arrest, he was fully informed by the police and knew the reasons for his arrest, this satisfied the requirements, of art 5(3) of the Constitution which applies to arrest made under any law including the Restricted Residence Enactment in this case. Chia Kin Sze v Mentri Besar of Selangor [1958] MLJ 105 dissented from; (2) the legal position is that a detention order must be in exercise of a valid legal power. Once this is shown, it is for the detainee to show that the power was exercised improperly. Thus the applicant in this case failed to discharge the onus cast upon her.

Aminah v Superintendent of Prison, Pengkalan Chepa, Kelantan [1968] 1 MLJ 92 High Court, Kota Bahru (Wan Suleiman J).

P pleaded guilty to an offence under s 68(1) of the Road Traffic Act (Cap 276). This section makes it an offence to be in charge of a vehicle, although not driving it, whilst under the influence of alchohol. The magistrate fined P S$500 and disqualified him from holding or obtaining a driving licence for 12 months. P petitioned the High Court to exercise its power of revision by quashing the disqualification.

Held, allowing the application: on a true construction of s 68(1) of the Road Traffic Act (Cap 276), the court has no power to impose a disqualification upon the first conviction. The order of disqualification was therefore set aside.

Ho Choon Kow v Public Prosecutor [1990] 3 MLJ 356 High Court, Singapore (Chan Sek Keong J).

On 12 November 1988 at the Golden Shoe Carpark, the accused reversed his motor car into a stationary motor car parked alongside a row of parked cars. The accused was charged under r 27B of the Road Traffic Rules 1981 with having driven on a road in otherwise than an orderly manner and with due regard for the safety of others. At the trial, the prosecution called only the evidence of the owner of the stationary motor car who had witnessed the incident.

Held, acquitting the accused without calling for his defence: (1) the burden was on the prosecution to show that the Golden Shoe Carpark was a road. This is a question of fact; (2) to hold that a car park is a road would stretch too thinly the ordinary meaning of the word road. There must be some evidence to show that in addition to being a car park, the place is used, inter alia, as a thoroughfare or shortcut for vehicles between two points outside of it. The prosecution had not adduced any such evidence at all; (3) the prosecution had therefore not shown that the act complained of was performed on a road and the accused was acquitted without having been called upon to enter his defence.

Public Prosecutor v Ng Khiok Ngee [1990] 2 MLJ xix Magistrate's Court, Singapore (Tham Tong Kong, Magistrate).

The appellant was convicted on the charge of driving at a speed and in a manner which was dangerous to the public, an offence punishable under s 26(1) of the Road Traffic Ordinance 1961, and was sentenced to one year's imprisonment. Counsel for the appellant criticized the manner in which the learned district judge conducted the trial of the appellant. His complaint was that by reason of the frequency and nature of the interruptions by the learned trial judge when the appellant was giving evidence, the appellant did not have a fair trial. It was alleged that the trial judge intervened on no less than 15 occasions; that he cross-examined the appellant; that he made it known he was displeased with the appellant; and that he was so thoroughly annoyed with the appellant that he gave vent to his feelings by imposing a severe sentence. On appeal,

Held: (1) the evidence did not support a conviction under s 26(1) of the Road Traffic Ordinance 1961, and the conviction should be altered to one under s 304A of the Penal Code. Sentence of a fine of S$1,000 or six months' imprisonment substituted; (2) (per curiam) the expression 'driving in a manner which is dangerous to the public' indicates some dangerous act or manoeuvre on the part of the driver of a vehicle, eg overtaking a vehicle on the wrong side of it, or overtaking in the face of oncoming traffic, or overtaking when unable to see oncoming traffic, or crossing a junction against the traffic light, and so on. There must be some positive act on the part of the driver which is dangerous, having regard to all the circumstances.

Lim Chin Poh v Public Prosecutor [1969] 2 MLJ 159 High Court, Singapore (Choor Singh J).

Held: where rubber imported into this colony is found to be in excess of the quantity authorized by the import permit issued under the Rubber Regulation Ordinance 1934, the importer is liable to be convicted under s 14(1) of the ordinance. As the wording of the section indicates an absolute probition, it is unnecessary for the prosecution to prove mens rea in order to secure a conviction under the section.

Ong Aik Phow v R [1937] MLJ 73 High Court, Straits Settlements (Whitley Ag CJ).

Mrs S bought two crates of aerated water from a convenience store in Petaling Jaya. They were labelled with the defendant's labels. A few days later, Mrs S noticed some foreign matter in the bottle as she was about to open it and she took it to the MPPJ and made a report to the health inspector. It was found that the matter was a cluster of dead ants covered with saprophytic fungal growth inside the bottle. The lip of the bottle was also found to be slightly chipped. There was no fizz when the bottle was opened. The retail shop did not buy from the defendant but bought it from a third party who was not called to give evidence. The defendant relied on a system they had which showed that it was not possible for a chipped bottle or the most tenacious colony of ants to survive the process they had. The magistrate was satisfied that reasonable steps had been taken to prevent an offence and acquitted the defendant. The prosecution appealed, submitting that the offence was one of strict liability.

Held, dismissing the prosecution's appeal: (1) s 11(1)(g) of the Sale of Food and Drugs Ordinance 1952 ('the Ordinance') has some similarity in wording to s 3(1) of the English Food and Drugs Act 1938 ('the Act') but s 4(1)(4) of the Act which provides a defence in the UK and s 21 of the Ordinance are worded very differently. The English offence was one of strict liability because that is the effect of the words in the English statute. Extraneous matter in food does not create criminal liability in the UK only if its presence is an unavoidable consequence of the process of collection or preparation. Section 21 of the Ordinance states that whilst it is no defence that the defendant did not act wilfully, it is a defence if he can prove that he took all reasonable steps to ascertain that the sale of the article would not constitute an offence against the Ordinance; (2) s 11(1) of the Ordinance creates an offence against any person who sells the article. There was no evidence that F & N had sold this bottle of soda. Besides, to charge a person with manufacturing and selling in the same charge would appear to make for duplicity; (3) as the number of manufacturers of spurious goods have significantly increased in the past 28 years, a bottle may be genuine but its contents may not have originated from the manufacturer's factory. Consequently, in such cases, it makes sense to investigate the whole line of people involved in the selling of the spurious article and charge them unless they can show that what they sold was something which had originated from the manufacturer. There was, however, no evidence in this case to show that it originated from the manufacturer; (4) as there are gaps in the prosecution's evidence which leaves the defendant in a position where it could only do its best to show all reasonable steps were taken to ascertain that the sale of the bottle would not constitute an offence under the Ordinance, that onus, on the balance of probabilities, has been easily discharged.

Pendakwa Raya v Fraser & Neave (M) Sdn Bhd [1990] 3 MLJ 441 High Court, Shah Alam (Shankar J).

Held: any person who operates a gramophone for the production of music in such a manner as to constitute a nuisance commits a breach of byelaw 7A Part VII of the Sanitary Board Byelaws (Gazette Notification No 3797 of 1935), and is liable to be punished under s 17(ii) of the Sanitary Board Byelaws Enactment (Cap 137).

Public Prosecutor v Loke Kwi Thong [1939] MLJ 318 High Court, Federated Malay States (Poyser CJ).

The accused, a member of Parliament, was charged for uttering seditious words in the course of his speech in the Dewan Rakyat, an offence under the Sedition Act 1948 (Act 15). In his speech, the accused questioned the policy of the government in allowing Chinese and Tamil schools to continue in this country. Secondly, he questioned the use of Chinese and Tamil on road signboards. He advocated the closure of Chinese and Tamil schools and the complete restriction of the use of the two languages on the signboards. Thirdly, he suggested that if such closure and restriction contravened art 152 of the Federal Constitution, then the Constitution should be amended in the interest of the people and the nation. At the end of the prosecution case, the learned trial judge held that the prosecution had established a prima facie case and called on the accused to enter on his defence. The accused elected to remain silent and did not wish to call any witness. At this stage, the learned trial judge allowed certain questions of law to be referred to the Federal Court. (See [1982] 2 MLJ 120.) The Federal Court ruled in effect that the amendments limiting a member of Parliament's right of free speech in Parliament are valid.

Held: (1) the accused was not guilty of sedition when he advocated the closure of Tamil or Chinese schools. There is, however, nothing unlawful in allowing Chinese or Tamil schools to continue; (2) the words used by the accused in relation to road signboards could not be said to have a seditious tendency since he did not in fact call in question the existence of any right protected under any part of art 152 of the Federal Constitution. The accused was in fact demanding the implementation of the national language as provided for in that article, since road signboards were erected under the Road Traffic Ordinance for an official purpose; (3) the accused committed a breach of para (b) of s 3(1) of the Sedition Act 1948, by demanding an amendment to the Constitution and the repeal or amendment of art 152 of the Constitution; (4) in the circumstances, the public interest would be sufficiently served if the accused is put on a bond for two years in the sum of RM2,000 to be of good behaviour.

Public Prosecutor v Koding [1983] 1 MLJ 111 High Court, Kuala Lumpur (Mohamed Azmi J).

On 6 April 1971, the Utusan Melayu newspaper published a report of a talk given by a prominent Malay leader and member of Parliament. In the report was an editorial sub-heading, which, in the English translation reads: 'Abolish Tamil or Chinese medium schools in this country'. The first appellant was the editor-in-chief of the Utusan Melayu, and the second appellant, the author of the sub-heading inserted in the report. Sanction for their prosecution was given under s 5(1) of the Sedition Act 1948 (Act 15), and they were tried in due course in the special sessions court on a charge of publishing a seditious publication in contravention of s 4(1)(c) of the Sedition Act, punishable under the same section. The learned special President held the publication to be seditious, that the first appellant 'was responsible for all publications in the Utusan Melayu', that the second appellant was the author of the impugned subheading, and that consequently, they were both guilty. They were convicted and fined the sum of RM500 and RM1,000 respectively, in default one month and two months' imprisonment. The first appellant had given evidence of the responsibilities of his office, as editor-in-chief, over as many as ten publications of the Utusan Melayu group. He had perforce to delegate authority to trusted subordinates. On the Sedition Act, he had organized seminars and discussions, relating in particular to the 'sensitive issues' and had instructed his staff on the relevant law as he understood it.

Held: (1) the first appellant had taken all precautionary measures necessary and he had not failed in the high standard of care and caution required of him, and accordingly, his conviction must be set aside; (2) he was therefore rightly convicted of sedition; (3) the second appellant was responsible for the subheading which clearly violated what was laid down in proviso (a) to art 152 of the Federal Constitution and therefore came within the definition of 'seditious tendency' as extended by the new s 3(1)(f) which was added to the Sedition Act 1948;(per Ong CJ) '...by virtue of the 1970 amendment to the Sedition Act, ÒseditionÓ no longer requires the same judicial approach as the misdemeanour at common law. The amendment was ad hoc legislation, passed to meet the special needs and circumstances of the time. The duty of the court is to interpret and uphold the law as passed by Parliament. Whether or not para (f) fits into the common law concept of sedition is wholly beside the point. It does give, however, a new and, perhaps, highly artificial meaning to what used to be considered Òseditious tendenciesÓ. English and Indian authorities are, therefore, of little relevance and are not referred to herein. In my view, para (f) is unique in that it raises a presumption of law that anything falling squarely within the terms thereof has a seditious tendency, irrespective of whether or not such thing sows any seeds of disaffection...'

Melan bin Abdullah & Anor v Public Prosecutor [1971] 2 MLJ 280 High Court, Kuala Lumpur (Ong CJ (Malaya).

This was an appeal from the decision of the High Court reported in [1979] 2 MLJ 174. On the appeal, the question raised was whether the charge was proper.

Held: (1) in a charge of sedition, it is not necessary to set out the particular words of the law defining sedition in the charge. What the law requires is that the speech or those parts of the speech alleged to be seditious should be set out in the charge and then it is for the court to decide, having considered all the evidence, whether those words mentioned are seditious; (2) in this case, the appellant knew full well what had been alleged against him, as his defence indicated; (3) although the amendment to the charge was superfluous, the trial judge had power to amend the charge and the statutory requirements were complied with, so that the appellant was in no way prejudiced.

Oh Keng Seng v Public Prosecutor [1980] 2 MLJ 244 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ (Malaya).

The accused was charged as follows: 'That you on 23 June 1972 between 8.40pm and 9.35pm at the Padang Besar, Tampin, in the District of Tampin, in the State of Negeri Sembilan, uttered seditious words in Mandarin (the full translation of the text of which is attached as Schedule 'A' to this charge) and that you have thereby committed an offence under s 4(1)(b) of the Sedition Act 1948 (Revised 1969), and punishable under s 4(1) of the said Act.' The trial judge found the said charge defective and highly prejudicial to the accused as it did not specify the particular category of seditious tendency as defined in s 3(1) of the Sedition Act 1948 (Act 15). The trial court amended the charge to read as follows: 'That you on 23 June 1972 between 8.40 pm and 9.35 pm at the Padang Besar, Tampin, in the District of Tampin, in the State of Negeri Sembilan, uttered seditious words in Mandarin (the full translation of the text of which is attached as Schedule 'A' to this charge) that is to say, words having a seditious tendency as defined in s 3(1)(a) and 3(1)(e) of the Sedition Act 1948 (Revised 1969) namely, to bring into hatred, contempt and to excite disaffection against the government and to promote feelings of ill-will and hostility between different races of the population, and that you have thereby committed an offence under s 4(1)(b) of the Sedition Act 1948 (Revised 1969) and punishable under s 4(1) of the said Act.' The accused did not seriously deny that he had made the speech which was the subject matter of the charge. He contended, however, that his speech was a fair criticism of government policies, that he had no intention of causing any racial trouble and that he never advocated to the people that they should take the law into their own hands.

Held: (1) bona fide and fair criticism of government policies and of opposition political parties is not within the mischief of the Sedition Act so long as the speaker does not exceed the bounds allowed to him under the law; (2) the intention of the accused when he made the speech and used words which are alleged to be seditious is not material or relevant for it is provided in s 3(3) of the Sedition Act that the intention of the speaker shall be deemed to be irrelevant if in fact the words have a seditious tendency; (3) to establish its case against the accused, the prosecution is not obliged to prove that anything said in his speech was true or false or that it caused any disturbance or a breach of the peace; (4) the accused in this case had not succeeded in establishing, even on a balance of probabilities, that the speech delivered by the accused came within any of the permissible limits as set out in s 3 (2) of the Sedition Act.

Public Prosecutor v Oh Keng Seng [1979] 2 MLJ 174 High Court, Seremban (Ajaib Singh J).

[Annotation: See also the decision of the Federal Court in [1980] 2 MLJ 244.]

The accused was charged with uttering seditious words, an offence under the Sedition Act 1948 (Act 15). He was called for his defence. (See [1986] 1 MLJ 512.) The accused made his defence. He said that in his open appeal he was urging the Pardons Board to exercise its powers fairly and uniformly so that people would not be made to feel that the Board was discriminating.

Held: (1) the words which were used to point out to the Pardons Board that the people should not be made to feel that the Board was discriminating between Mokhtar Hashim and Sim Kie Chon were not words which were likely to create discontent or disaffection among the people. Further it could not be said that the statement was likely to create discontent among the people against authority; (2) taking all the circumstances into consideration, the statement did not have a tendency to promote ill-will and hostility between the different classes of the population; (3) the appeal was directed at the Pardons Board not at the Ruler, in this case, the Yang di-Pertuan Agong. Therefore, there can be no question of the statement having a tendency to bring into hatred or contempt or to excite disaffection against the Yang di-Pertuan Agong.

Public Prosecutor v Param Cumaraswamy (No 2) [1986] 1 MLJ 518 High Court, Kuala Lumpur (Chan J).

The first accused was charged with an offence under s 4(1)(b) of the Sedition Act 1948 (Act 15), the second accused was charged with publishing the alleged seditious words and the third and fourth accused were charged with printing the alleged seditious words. The seditious words were alleged to be uttered by the first accused at a dinner held by the Democratic Action Party.

Held: the speeches taken as a whole went beyond the limits of freedom of expression. It accused the government of gross partiality in favour of one group and this was calculated to inspire feelings of enmity and disaffection among the people of Malaysia. The speech was also apt to promote feelings of ill-will and hostility among the different races in Malaysia and touched on the sensitive issue of the special rights of the Malays. The speech was therefore expressive of a seditious tendency and the accused must be found guilty. Observations on when line is drawn between freedom of speech and sedition.

Public Prosecutor v Ooi Kee Saik & Ors [1971] 2 MLJ 108 High Court, Kuala Lumpur (Raja Azlan Shah J).

The accused was charged for publishing a seditious publication, ie an article under the caption 'Alliance Policy of Segregation ÒEvidence GaloreÓ listed by Dr Ooi' in the December 1970 issue of the Rocket, an official organ of the Democratic Action Party, giving the full text of a speech delivered by Dr Ooi Kee Saik.

Held: (1) on the evidence produced by the prosecution, the court was satisfied beyond reasonable doubt that the accused published the article which was the subject of the charge; (2) the speech read as a whole, even accepting it in a somewhat larger and broader latitude of the type of criticism expected from the leader of the opposition party making a speech political in nature, and bearing in mind the limits governing the right to freedom of speech and expression, had gone beyond what is sanctioned by the law and had in fact a seditious tendency; (3) the accused was therefore guilty of the offence charged and should be fined RM2,000 in default six months' imprisonment.

Public Prosecutor v Fan Yew Teng [1975] 1 MLJ 176 High Court, Kuala Lumpur (Abdul Hamid J).

[Annotation: See also the decision of the Federal Court, [1975] 2 MLJ 235.]

This was an appeal from the decision of Abdul Hamid J (reported in [1975] 1 MLJ 176). The main grounds of appeal raised were: (a) having regard to what happened earlier and in particular to the fact that no retrial was ordered when the earlier conviction of the appellant was quashed, the retrial of the appellant and his conviction were a nullity; (b) as no written consent of the Public Prosecutor was produced when the appellant's plea to the charge was recorded at the beginning of the retrial in the High Court, the retrial was a nullity; (c) the Yang di-Pertuan Agong had no power to issue ordinances under cl (2) of art 150, as there was no Parliament in being, and therefore, the appellant's conviction under an amendment effected by Ordinance 45 which was void was itself void; (d) the appellant was given insufficient particulars of the offence alleged against him and the charge was therefore bad in law; (e) it had not been proved that the appellant was the publisher of the offending article; (f) the learned judge was wrong in holding that it was immaterial whether the offending article was true or false; (g) the article complained of was not seditious; (h) the sentence imposed on the appellant was excessive.

Held, dismissing the appeal: (1) as the appellant's earlier trial had been declared a nullity, his purported conviction at that time was also a nullity and he was therefore not a person who has been convicted of an offence within the meaning of cl (2) of art (7) of the Federal Constitution. The retrial and conviction were not in contravention of that clause and were perfectly valid; (2) as the consent of the Public Prosecutor had been obtained before the warrant of arrest against the appellant was applied for and as it was produced at the preliminary inquiry, it could not be said that the appellant was prosecuted for an offence under s 4 of the Sedition Act 1960 ('the Act'), without the written consent of the Public Prosecutor; (3) the amending ordinance, Ordinance No 45, was validly made by the Yang di-Pertuan Agong, as Parliament was not sitting at the relevant time; (4) the charge was not defective, as in a prosecution under s 4(1)(c) of the Sedition Act, it is unnecessary for the Public Prosecutor to specify in the charge on which of the six tendencies set out in s 3(1) he relies and it is open to him during the course of the trial to pick and choose; (5) the appellant had in fact admitted that he was the publisher of the offending article and the evidence showed that the appellant had taken an active part in arranging for the publication of the article; (6) since the amendment to the Act by Ordinance 45, sub-s (2) of s 3 of the Act is nugatory to all intents and purposes and the test to be applied is whether or not the article complained of has in fact a seditious tendency. It is immaterial whether the words complained of are true or not; (7) the speech which was reported in the article taken as a whole cannot escape being regarded as expressing sentiment expressive of a seditious tendency and the article was therefore seditious; (8) there was no reason in this case to disturb the sentence imposed by the learned judge.

Fan Yew Teng v Public Prosecutor [1975] 2 MLJ 235 Federal Court, Kuala Lumpur (Suffian LP, Lee Hun Hoe CJ (Borneo).

P and D were married in 1984 but separated in 1989. P left the matrimonial home and went to live with her parents. D broke into the parents' home and either forced P to have sexual intercourse or attempted to do so. He was charged with rape and assault occasioning actual bodily harm. At trial, the judge left the charge of rape to the jury. D appealed.

Held, dismissing the appeal: the rule that a husband could not be guilty of raping his wife was an anachronistic and offensive common law fiction and should no longer be applied. A rapist remained a rapist subject to the criminal law irrespective of his relationship with his victim. The charge of rape had therefore been properly left to the jury.

R v R [1991] 2 All ER 257 Court of Appeal (Criminal Division).

[Annotation: This case is strictly irrelevant because of s 375 of the Penal Code (Cap 224) [Sing] but may suggest the path for legislative reform. In Malaysia, this case does not apply in view of the exception to s 375 of the Penal Code (FMS Cap 45) [Mal] which provides that 'sexual intercourse by a man with his own wife by a marriage which is valid' is not rape. The exception to s 375 of the Penal Code, however, does not apply in circumstances as provided in explanations 1 and 2 to s 375 of the Penal Code.]

This appeal concerns the following point of law of general public importance, namely: 'Is a husband criminally liable for raping his wife?' A married P in 1984 and they separated in October 1989 when P went to live with her parents. On 12 November 1989, A forced his way into the house of P's parents when they were not home and attempted to have sexual intercourse with her against her will. In the course of doing so, he assaulted her by squeezing her neck with both hands. A was charged with rape and with assault occasioning actual bodily harm. A appealed to the Court of Appeal, Criminal Division on the ground that the trial judge made a wrong decision in law ruling that a man may rape his wife when the consent to intercourse which his wife gave in entering the contract of marriage has been revoked neither by order of a court nor by agreement between the parties. On dismissal of his appeal, A was granted leave to appeal to the House of Lords.

Held, dismissing the appeal: (1) the rule that a husband cannot be criminally liable for raping his wife if he has sexual intercourse with her without her consent no longer forms part of the law of England since a husband and wife are now to be regarded as equal partners in marriage; (2) any supposed implied consent to intercourse is not irrevocable; (3) revocation of a consent which is revocable is not established only by an act of separation but must depend on the circumstances. The critical question in any case must simply be whether or not consent has been withheld; (4) the word 'unlawful' in s 1(1) of the Sexual Offences (Amendment) Act 1976 is to be treated as mere surplusage and not as meaning 'outside marriage' since it is clearly unlawful to have sexual intercourse with any woman without her consent.

R v R [1991] 4 All ER 481 House of Lords, England (Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Griffiths, Lord Ackner and Lord Lowry).

[Annotation: This case is strictly irrelevant because of s 375 of the Penal Code (Cap 224) [Sing] but may suggest the path for legislative reform. This case does not apply in Malaysia in view of the exception to s 375 of the Penal Code (FMS Cap 45) [Mal]. The exception to s 375 of the Code does not apply in circumstances as provided in explanations 1 and 2 to s 375. ]

The appellant was convicted of erecting a building, namely, a drinks counter within the lift lobby area of a car park complex and a counter in front of the entrance to the lift lobby area of the said car park complex without the prior written permission of the Majlis Perbandaran Pulau Pinang, in contravention of s 70(1) of the Street, Drainage and Building Act 1974 ('the Act'), punishable under s 70(13)(c) of the Act. The appellant was fined RM3,000 and the two said structures were ordered to be demolished within one year. The sole ground of appeal was that the learned trial magistrate ought to have held that the charge against the appellant under s 70 of the Act was bad in law and should have been dismissed and acquitted him of the same. Instead, the trial magistrate ought to have held that the proper section for the defendant to be charged under was s 79 of the Act. At the hearing of the appeal, the appellant's counsel conceded that though the charge mentioned the subject matter as two counters, they were in fact two permanent shop-counter structures.

Held, allowing the appeal: (1) the question for judicial determination is whether s 70 of the Act is intended by the legislature to apply only to cases which involve the construction of a whole or substantial portion of a building as opposed to cases which involve only the erection of a structure or structures in or adjoining a building; (2) it would logically follow that a person who carries out works or things specified in paras (b)(ii), (f), (g) or (h) of s 70(16) or works specified in s 79, does not have to submit plans and specifications under s 70(2) (though he would have to submit plans and specifications under s 79) and the offence committed by a person for not obtaining prior written permission of the local authority in respect of such works would thus fall out of the purview of s 70(1) but within the purview of s 79 of the Act; (3) should there be any inconsistencies or conflict between the first limb and the proviso in the last limb of s 70(16), it is settled law that such inconsistencies or conflict, if any, in a penal provision should be resolved in favour of the defendant; (4) as the offence committed by the appellant in the instant case involved the erection of two permanent structures in an existing building, the offence clearly came within the ambit of s 79(1) and not s 70(1) of the Act; (5) a magistrate is not empowered to make any demolition order under s 70(15) of the Act in respect of an offence under s 79(1). It is perhaps for this reason that local authorities invariably frame their charge against an offender under s 70(1) of the Act even when the facts disclose an offence under s 79(1) of the Act. Such framing of a charge based on expediency is proscribed under every statute and law and is clearly unjust; (6) the learned magistrate's conviction of the appellant was to be altered to a conviction under s 79(1) of the Act. The fine of RM3,000 was also set aside and substituted with a fine of RM500. The demolition order made by the learned magistrate under s 70(15) of the Act was also vacated.

Tropiland Sdn Bhd v Public Prosecutor [1993] 2 MLJ 261 High Court, Penang (Vincent Ng JC).

Where a person is summoned to appear before a magistrate under s 80 of the Town Boards Enactment and the magistrate purports to act under s 80(i)(a), 'hearing the complaint' does not mean merely reading what the chairman has stated in his complaint; it must mean hearing the evidence of the matter complained of and giving the person against whom the complaint is made an opportunity of adducing evidence in rebuttal. In other words, the magistrate should hear both sides of the case in accordance with the ordinary procedure of the courts. In this case, there was no evidence on the record to show that a notice to abate a nuisance had been served upon the applicant and that he had made default in complying with it, and therefore the provisions of s 80 had not been complied with.

Held: (1) this omission, going as it did not merely to a matter of procedure but to the fundamental question whether justice had been seen to be done, amounted to an illegality and not merely an irregularity curable under s 422 of the Criminal Procedure Code (FMS Cap 6); (2) the nuisance order should be set aside and the case should be remitted for rehearing the complaint in accordance with normal judicial procedure.

Muthukaruppan v Town Council, Taiping [1959] MLJ 70 High Court, Ipoh (Good J).

A was charged with selling packets of groundnuts which had a false trade description under s 3(1)(b) of the Trade Descriptions Act 1972 ('the Act'). A bought the packets from shop X which purchased them from Y Sdn Bhd. Y Sdn Bhd in turn bought the goods from Z Trading which was no longer in existence. The learned magistrate convicted A on the ground that the offence as charged is one of strict liability and A had not proved that he could not with reasonable diligence have ascertained that the goods did not conform to the description or that the description had been applied to the goods. A attempted to utilize the defences under s 24(1) of the Act by alleging that it was due to the act or default of another person or that he relied on information supplied by another person. The learned magistrate refused to allow such defences because the statutory notice requirements under s 24(2) of the Act had not been followed. A appealed to the High Court.

Held, dismissing the appeal: (1) the Act had expressly provided for defences which relate to the accused's mental state. It must therefore be implied that the offence under s 3(1)(b) of the Act is that of stict liability. If Parliament had intended otherwise, there is no necessity for these defences to be stated since the prosecution would be required to prove the accused's mental knowledge. It is for A to prove his mental state at the time of the offence in order to avail himself of one of the defences under the Act; (2) the intention of the statutory notice requirement under s 24(2) of the Act is to enable the authorities to trace and to track down the real offender. As A had failed and/or neglected to comply with s 24(2) of the Act and had not obtained the leave of court to do otherwise, the defences under s 24(1) of the Act are not available to him; (3) it is insufficient for A merely to state that he did not know that the groundnuts were not genuine when he requested his supplier to supply genuine ones. A must proceed further to enquire from his immediate supplier whether the groundnuts were genuine at the time of taking delivery. A's failure to enquire meant that A could not rely on the defence provided in s 24(3) of the Act.

Ang Seng Ho v Public Prosecutor [1991] 2 CLJ 986 High Court, Johore Bahru (James Foong JC).

In this case, a girl of 19 had been convicted of having possession of a prohibited publication. The facts were that she was riding as a pillion rider on a motor cycle ridden by a friend. The police stopped and searched them, and in a plastic bag on the lap of the accused, found a song booklet which was a prohibited publication. The accused said the bag did not belong to her and she did not know the contents of the bag. She was convicted but the magistrate gave her a conditional discharge for 12 months. The Public Prosecutor appealed against the order of conditional discharge, and the accused cross-appealed against the conviction.

Held, allowing the appeal of the accused: the prosecution in this case had not discharged the onus of proving that the accused had possession of the contents of the bag which was under her control.

Public Prosecutor v Lau Sing Ngin [1969] 2 MLJ 111 High Court, Singapore (Wee Chong Jin CJ).

The appellant was convicted and sentenced on a charge of hawking under s 3(1) of the Vagrancy Ordinance 1939. The evidence for the prosecution showed that the appellant was selling cinema tickets outside the first class booking office of the Windsor Theatre, Penang. One of the grounds of appeal was that the facts as alleged against the appellant did not constitute the offence in the charge. Section 3(1) of the Vagrancy Ordinance reads as follows: 'Every hawker wandering abroad and trading without being duly licensed or otherwise authorized by law shall be deemed to be an idle and disorderly person within the meaning of the ordinance and shall be liable, etc ....'

Held: s 3(1) of the Vagrancy Ordinance 1939 did not cover the facts as alleged against the appellant. The legislature did not intend to make, or had in fact made any change by using the word 'hawker' in s 3(1) of the Vagrancy Ordinance 1939, instead of the words 'petty chapman or pedlar' used in the Imperial Vagrancy Act, and ... that provision was not intended to apply and does not apply to any person who does a single act of street trading; it does not apply to any person who hawks goods without a licence; it applies to persons who are hawkers, ie persons carrying their goods from town to town, from house to house or from place to place and who offer their goods for sale without a licence or other authority.

Mohamed Ali bin Osman v R [1953] MLJ 194 High Court, Penang (Buhagiar J).

This was an appeal against the conviction of the appellants on a charge under s 4(11) of the Vagrancy Ordinance 1939. There was no evidence that the appellants were suspected persons on the facts which were the immediate cause of their arrests.

Held: the elements of 'being a suspected person' and 'loitering ... with intent to commit an offence' under s 4(11) of the Vagrancy Ordinance are distinct, and the mere fact of loitering does not make the loiterer a suspected person.

Soon Quek Hoe & Anor v R [1954] MLJ 146 High Court, Singapore (Murray-Aynsley CJ).

This was an appeal against the conviction of the appellant on a charge under s 4(11) of the Vagrancy ordinance 1939 in that he being a suspected person loitered with intent to commit a seizable offence, to wit, robbery. The evidence showed that the accused and a number of other persons entered a house in Thomson Road and it was alleged that they were preparing to commit a robbery at that house.

Held: (1) to substantiate a charge under s 4(11) of the Vagrancy Ordinance, it must be shown that the person charged is a suspected person; (2) where all the acts regarded as suspicious are related to one contemplated offence and one only, they do not come within the scope of s 4(11) of the Vagrancy Ordinance and the person concerned does not become a suspected person.

Partap Singh v R [1954] MLJ 144 High Court, Singapore (Murray-Aynsley CJ).

In prosecutions under s 4(k) of the Vagrancy Ordinance (Cap 125, 1955 Ed), magistrates should learn to draw the dividing line between the antecedent conduct which causes a person to be a suspected person, and the act which amounts to loitering with intent. Whether a dividing line can be drawn depends on the particular facts of each case, which must be scrutinized with utmost circumspection and care. The appellant was charged under s 4(k) of the Vagrancy Ordinance of being a suspected person found loitering with intent to commit theft. A police officer saw the appellant and a companion driving at 1.15 am into a carpark in which were many parked cars. The companion got out of the car and looked into the parked cars. He tried to open the doors of three cars. He waved to the appellant, whereupon the appellant walked towards his companion and stopped to talk to him. The appellant looked into all the cars and started meddling with the door of a car. The police officer saw him with a screwdriver in his hand at work over a car door.

Held: before a person can be convicted under s 4(k) of the Vagrancy Ordinance, there must be some antecedent act which brings the person into the category of being a suspected person. The act must be separate and distinct from the act relied upon as evidence of loitering with intent. In the particular circumstances of this cse, the appellant's response to his companion's signal made him a suspected person, and his act of loitering with intent began when he started looking into the cars. However, as the record showed that the magistrate had not been satisfied beyond reasonable doubt of the appellant's guilt, the appeal must be allowed. Observations on the quantum of proof required in criminal cases.

Gan Poh Chye v Public Prosecutor [1968] 1 MLJ 288 High Court, Singapore (Winslow J).

Held: the offence created by s 3(a) of the Vagrants and Decrepit Persons Enactment (Cap 191) is made up of three separate elements: (a) the wandering abroad, or lodging in a shed, etc or in the open air; (b) the absence of any ostensible means of subsistence; and (c) the failure of the accused to give a satisfactory account of himself. Unless all these three elements are specified in the charge and proved to the satisfaction of the magistrate, the accused cannot properly be convicted.

Public Prosecutor v Man bin Ismail [1939] MLJ 207 High Court, Federated Malay States (Aitken J).

The appellant, who was 18 years old at the time of the offence, was convicted of two vandalism charges wherein he had used spray paint to paint cars. The cars were sent to the workshop where the spray paint was removed using thinner, turpentine, and polishing compound. The appellant pleaded guilty and was sentenced to two months' imprisonment and three strokes of the cane for each charge. On appeal, counsel for the appellant contended that s 3 of the Vandalism Act (Cap 341) required the court to decide whether the paint used to vandalize was indelible or otherwise. Only in cases where indelible paint had been used to vandalize would, the appellant be liable for the enhanced punishment which included caning. Counsel for the appellant contended that the charges upon which the appellant was convicted involved paint but which was delible and as such did not attract the mandatory enhanced sentence. Counsel for the appellant further contended that the learned trial judge failed to consider probation which was suitable for the appellant.

Held, dismissing the appeal: (1) the appellant's contention that s 3 requires the court to determine whether the paint used was delible or indelible before imposition of sentence cannot be substantiated; (2) the plain reading of the section indicates that the enhanced punishment is attracted whenever paint is used to vandalize irrespective of whether it can be easily removed or otherwise; (3) as plain reading of the section will not lead to injustice or absurdities, it is to be preferred and mandatory enhanced punishment will be attracted the moment paint is used to vandalize a property; (4) it may lead to absurdity which virtually guaranteed to thwart legislative intent and this must be avoided; (5) the psychiatric reports tendered by the appellant did not substantiate that the appellant will benefit from probation; (6) though the Probation of Offenders Act (Cap 252) was to promote rehabilitation of young offenders, it is for the courts to exercise the discretion by considering the suitability of such offenders for rehabilitation while weighing also in the balance the wider concerns of the society; (7) the intention of the Parliament to provide for mandatory enhanced sentence was, among other things, to suppress anti-social acts of hooliganism; (8) the appellant's acts in the immediate case were acts done deliberately, wilfully and relentlessly over a period of ten days relating to some 18 vandalism charges and hence probation would not be suitable; (9) to accept the appellant's arguments will lead to admission of plethora of evidence and endlessly increasing convoluted arguments about exact scientific degree with which any particular paint can be easily removed;in view of all the mitigating and aggravating factors, the sentence imposed by the trial judge cannot be considered to be manifestly excessive and the appeal must be dismissed.

Fay v Public Prosecutor [1994] 2 SLR 154 High Court, Singapore (Yong Pung How CJ).

This was an appeal against the order of acquittal and discharge of the respondent on a charge under s 13(2) of the Wages Councils Ordinance 1947. One Kamaruddin, an employee of the respondent, had been working as a full-time machine operator since 1966. In March 1970, Kamaruddin, who was over 21 years of age, was paid a monthly salary of RM96. The prosecution contended that, by virtue of the provisions in the Wages Regulations (Shop Assistants) Order 1970 made under the Wages Councils Ordinance 1947, the employee was being paid less than the statutory minimum of RM100 per month as laid down in reg 4(i) of the said Order. The learned magistrate dealt with the case on the basis of whether the employee fell within the meaning of 'shop assistants' under the Wages Regulations (Shop Assistants) Order 1970. As the definition of 'shop assistants' was not contained in either the Wages Regulations (Shop Assistants) Order 1970 or in the Wages Council Ordinance 1947, the learned magistrate applied the meaning of 'shop assistants' as defined by s 74 of the English Shops Act 1950, and accordingly held that not only the business connection had to be direct, but also that it had to do with the serving of customers. Therefore, the employee did not fall within the meaning of 'shop assistants' and that reg 3(i)(c) of the Wages Regulations (Shop Assistants) Order 1970 did not apply to him. Accordingly, the learned magistrate acquitted and discharged the respondent without calling for its defence. The Public Prosecutor appealed. The main ground of appeal was that the learned magistrate had misdirected himself in law in regard to the interpretation of the provisions of reg 3(i)(c) of the said Order of 1970.

Held, dismissing the appeal: (1) although reg 3(i)(c) did apply to the employee, Kamaruddin, he came within the ambit of the provision as a 'worker' and not as a 'shop assistant'. Unless he was a shop assistant, the provision of the Schedule to the Wages Regulations (Shop Assistants) Order had no effect on him on 1 March 1970. As a 'worker', they were applicable to him only with effect from 19 March 1970, the date on which the subsidiary legislation was published in the Gazette. Under the circumstances, the prosecution had failed to establish a prima facie case that for the month of March 1970, Kamaruddin was being paid less than the statutory minimum of RM100 per month by the respondent, as laid down in reg 4(i); (2) (per Mohamed Azmi J) '... the duty of the learned magistrate was to interpret the provision of reg 3(i)(c) of the Wages Regulations (Shop Assistants) Order 1970, and as the wordings of the said provision are clear, they should be given their natural meaning without resorting to English statutes unless the provisions of the relevant English law are in pari materia with the law under consideration.'

Public Prosecutor v Economy Printers Sdn Bhd [1972] 1 MLJ 209 High Court, Kuala Lumpur (Mohamed Azmi J).

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

The accused in this case ('the appellant') was produced before the sessions court on two charges of allegedly outraging the modesty of two athletes under s 354 of the Penal Code (Cap 45). He was brought to court in handcuffs from the police station, and was put in the dock for the charges to be read to him. The appellant's counsel applied to the sessions court judge to have the handcuffs removed. The deputy public prosecutor opposed the application, whereupon the sessions court judge rejected the application of appellant's counsel. After the arraignment proceedings were over, the appellant was released on bail, and presumably, it was then that the handcuffs were removed. The appellant, not being satisfied with the order of the sessions court judge to have the appellant handcuffed ('the order'), filed a motion in the High Court requesting a revision of the order. The appellant's counsel argued that it was improper for the appellant to remain handcuffed in the dock on the grounds that: (i) an accused person is under the custody of the court and no longer that of the police, once he is put in the dock; and (ii) there were no grounds whatsoever upon which the court could exercise its discretion to order the handcuffs. The deputy public prosecutor, on the other hand, contended that even though an accused person is in the dock, he is still in the custody of the police, and as long as he is not on bail, he ought to be handcuffed for reasons of security. The High Court judge was of the view that the order was proper, and dismissed the appellant's motion. Hence, this appeal.

Held, allowing the appeal: (1) it is in the sole discretion of the presiding officer to consider whether it is essential to have an accused person handcuffed, be it during the entire trial or at the arraignment, if and when an application is made by the prosecution. Such discretion must be exercised judiciously and not merely because the prosecution wants it to be. It is clear that firstly, there must be an application by the prosecution, and secondly, in order for the court to exercise its discretion judiciously, there must be some credible material before the court in support or otherwise of the application; (2) in the present appeal, based on the record of proceedings, the deputy public prosecutor did not make any such application nor was there any credible material that was put before the court.The deputy public prosecutor conceded that the only ground put forward was that the appellant was not on bail then. Based on the alleged charges faced by the appellant, it could hardly be justified for him to be handcuffed. The sessions judge, therefore, did not exercise her discretion judiciously.

Ramanathan s/o Chelliah v Public Prosecutor [1996] 2 MLJ 538 Court of Appeal, Kuala Lumpur (Shaik Daud, NH Chan JJCA and Abdul Malek J).

The defendant was charged with the offence of theft of a motor car. However, his case had been adjourned four times in a row upon the prosecutor's applications for adjournment. The defendant applied to the court to be discharged under s 186 of the Criminal Procedure Code, such discharge to amount to an acquittal.

Held,[eb[ allowing the application: (1) the reference to the court having a power of its motion to stay the proceedings in s 186 of the Criminal Procedure Code makes it clear that the proceedings may be stayed without any application from the prosecution or any indication from the prosecution that it does not propose to prosecute the defendant any further; (2) the exercise of the power under s 186(2) to order that a discharge should amount to an acquittal is subject to the usual principles which govern the exercise of a judicial discretion. The case had been hanging over the defendant for eight months or more. The prosecution had already been granted four adjournments. It is in the public interest that those charged with offences should be prosecuted as soon as this is reasonably possible; (3) it would have been proper for the magistrate to order an acquittal of its own motion.

Chong Kim Bui v Public Prosecutor Criminal Appeal No 24 of 1996 High Court, Brunei (Roberts CJ).

The accused was charged with an offence under s 489C of the Penal Code. On 27 March 1995 the trial commenced and the prosecution called three witnesses. The prosecution then applied for an adjournment as two of its witnesses were unavailable.The matter was adjourned to 19 April 1995. Due to the continued unavailability of the prosecution's witnesses, the matter was adjourned several times on the prosecution's request to 26 and 27 July 1995. On 27 July 1995, the prosecution requested for yet another adjourment as two of its witnesses were still unavailable. Counsel for the prosecution submitted that if the adjournment was not granted, he would apply for an order of discharge not amounting to an acquittal against the accused. Counsel for the accused submitted that if the adjournment was not granted, the court should acquit and discharge the accused based on the evidence before the court. The learned magistrate refused to grant the adjournment and proceeded to discharge and acquit the accused. The issue before the court was whether a magistrate holding a summary trial could acquit and discharge the accused without hearing the evidence for the prosecution.

Held, setting aside the order of acquittal and discharge of the accused and substituting it with an order of discharge not amounting to an acquittal: (1) the phrase 'all such evidence as may be produced' in s 173(c) of the Criminal Procedure Code (FMS Cap 6) ('the CPC') has the same meaning as the phrase 'all the evidence hereinbefore referred to' in s 173(f) of the CPC. The evidence meant by these two phrases include both the evidence which is available at the trial and that which is not but will be made available if a postponement of the trial is granted; (2) in a summary trial, paras (c) and (f) of s 173 of the CPC do not empower the court to order a discharge amounting to an acquittal of an accused person without hearing evidence of the prosecution in support of its case.

Public Prosecutor v Nasir bin Insiban [1996] 5 MLJ 153 High Court, Kota Kinabalu (Tee Ah Sing JC).

Periasamy s/o Sinnappan & Anor v Public Prosecutor [1996] 2 MLJ 557 Court of Appeal, Kuala Lumpur (Gopal Sri Ram, Mahadev Shankar JJCA and Ahmad Fairuz J).

The appellant appealed against conviction on four charges of cheating. The first hearing of the appeal on 13 February 1996 was postponed as the appellant was unwell and had tendered, through counsel, a medical certificate to excuse his absence. At the postponed hearing, the absent appellant yet again tendered another medical certificate. The appellant's counsel acknowledged that s 253 of the Criminal Procedure Code (Cap 68) (CPC) allowed the court to dismiss the appeal, but argued that the court could exercise its powers of revision. The basis of this was that there ought to have been only one charge, instead of the four.

Held, dismissing the appeal and refusing the application for revision: (1) an appeal could be dismissed under s 253(3) CPC for the absence of the appellant either where the court was not aware of the reasons for the absence or where the appellant informed the court, through counsel, of the reasons for his absence. Where no explanation was available for the appellant's absence, the court would as a matter of course dismiss the appeal. Where an excuse was given, the court would have regard to the circumstances of the case. Generally, the appellant must not have been at fault in being absent, and the excuse must be bona fide; (2) in reinstating a dismissed appeal under the proviso to s 253(3), the court would consider the same principles, including the bona fides of the appellant, as in dismissing the appeal. Where an excuse had already been proffered, the appellant had to show that there was something more than the original excuse; (3) in the present case, the medical certificate tendered on 12 March was inadequate, and, together with the shortcomings of the earlier certificate, indicated that there was, more likely than not, a lack of bona fides; (4) the revisionary powers of the court would only be exercised when there was something palpably wrong in the decision below which struck at its basis as an exercise of judicial power. In the present appeal, the appellant was neither misled nor prejudiced; his defence could not have been conducted any differently. There could, therefore, be no revision.

Leong Yew Thong v Public Prosecutor [1996] 2 SLR 348 High Court, Singapore (Yong Pung How CJ).

The respondents were charged in the sessions court, inter alia, with the possession of firearms. The prosecution alleged that they had seized the luggage of the first respondent just before he placed in the luggage compartment and had found a pistol and bullets in it. The second respondent was with the first respondent at the time. He was arrested as he attempted to run away. The sessions court acquitted both respondents on the ground that there was no prima facie evidence against the accused; she found that there had been no positive identification of the pistol and the bullets. The prosecution appealed.

Held, allowing the appeal against the first respondent: (1) the judge's decision went against the weight of the evidence as a whole; (3) there was no break in the chain of evidence as every official who handled the exhibits had been cross-examined; (4) the sessions court judge had placed undue weight on trivial matters in coming to her conclusion and omitted to consider sufficiently other evidence which clearly indicated that the police had identified the items;there was however no prima facie evidence linking the second respondent to the crime.

Public Prosecutor v Anand Kumar a/l Vasudevan & Anor Criminal Appeal No 42-2-94 High Court, Alor Setar (Mohd Hishamuddin J).

The appellant pleaded guilty to a charge under s 57(1)(e) of the Immigration Act (Cap 133) for employing a Sri Lankan national who had overstayed on his visit pass. A second charge of the same nature was taken into consideration. The facts of the case were found largely on the statement of facts tendered by the prosecution, which had been admitted by the appellant without qualification. The case was adjourned for sentencing. On the day of sentencing the appellant informed the court that he wished to retract his plea of guilty. The trial judge refused to allow the appellant to do so. The appellant appealed against this decision.

Held, dismissing the appeal: (1) as the appellant was in effect appealing against the correctness of his conviction, which was precluded by virtue of s 244 of the Criminal Procedure Code (Cap 68) the correct procedure should have been to apply for a revision; (2) the trial judge had a discretion to withdraw a plea of guilty and to substitute a plea of not guilty, and that discretion existed so long as the court was not functus officio. The discretion has to be exercised judicially and for valid reasons, and the appellant could not be permitted merely at whim to change his plea. On the facts, the trial judge had exercised his discretion correctly; (3) the plea of guilty had to be valid and unequivocal, and in order to determine the validity of the plea of guilt, the safeguards propounded in Lee Weng Tuck v PP [1989] 2 MLJ 143 should be observed; (4) (per curiam) it was an established practice that, on a plea of guilty, the prosecution would supply the court with a statement of facts constituting the offence with which the accused was charged. This practice of recording the statement of facts had evolved into a legal duty and the court had to scrutinise the statement of facts for the explicit purpose of ensuring that all the elements of the charge were made out therein. This was an important safeguard where the appellant pleaded guilty to the charge, for otherwise, there would be no way in which the court could decide whether the elements of the offence had been established, and thus no justification for convicting the appellant.

Ganesun s/o Kannan v Public Prosecutor [1996] 3 SLR 560 High Court, Singapore (Yong Pung How CJ).

The first appellant ('Periasamy') was the chief executive of the Cooperative Central Bank Ltd ('CCB'), while the second appellant ('Balakrishnan') was the assistant general manager of its credit division. Although Periasamy was the chief executive, the de facto executive power lay in the hands of one Mathimugam. In June 1986, three applications for loan facilities totalling RM20m were made by one Looi Thiam Aik ('Looi') to CCB through Mathimugam. Mathimugam instructed Balakrishnan that they be speedily processed. These three applications were indeed speedily processed through the several departments of CCB, and they were eventually approved by CCB's working committee and the board of directors. On 30 June 1986, CCB wrote a letter to Looi making an offer of the loan facility on an overdraft basis. It was signed by both the appellants. One of the conditions for the grant of the loan was that the borrower should deposit by way of a pledge 4m shares in First Malaysia Finance Bhd ('FMFB'). The letter had also stated that the terms contained therein could be amended or withdrawn at the bank's discretion. This offer was accepted by Looi. The necessary documents for the release of the loan were then prepared and approved by Periasamy. However, it transpired that the shares in question had not been deposited when the loan was released. On 23 July 1986, after the release of the loan, the CCB's management committee met and decided to dispense with the condition that required the deposit of the 4m shares. Against this factual matrix, Periasamy was, inter alia, charged with three counts of criminal breach of trust under s 409 of the Penal Code (FMS Cap 45) ('the Penal Code'), for dishonestly releasing the loan before the FMFB shares were deposited, contrary to the terms of the letter of offer. The charges alleged that the offence was committed by Periasamy as 'an agent of the Cooperative Central Bank Ltd, to wit, the chief executive, and in such capacity entrusted with dominion over certain property' ('the charges against Periasamy'). Balakrishnan was charged with three counts for abetting Periasamy in the commission of the principal offence. The sessions court judge ('the trial judge') accepted Periasamy's defence that he was acting on Balakrishnan's advice, and did not know that the shares were not deposited. The trial judge accordingly acquitted Periasamy on the principal charges, but convicted Balakrishnan on the charges of abetment. In the High Court, Balakrishnan appealed against his conviction while the prosecution appealed against the acquittal of Periasamy. The High Court judge ('the appellate judge') took the view that Periasamy's defence was not believable. It appeared that the appellate judge found that Periasamy was negligent as a chief executive for releasing the loan, and that he committed the offence as soon as he certified, approved and paid out the loan. The appellate judge accordingly reversed the order of acquittal against Periasamy on the ground that the sessions court judge's decision was 'grossly against the weight of evidence', and substituted it with an order of conviction. The order of conviction made against Balakrishnan was affirmed. Both the appellants appealed to the Court of Appeal.

Held, allowing the appeals: (1) the amendments made by Parliament to s 409 of the Penal Code in 1993 had no application to these appeals as they came into force well after the alleged commission of the offences with which the appellants were charged; (2) pursuant to the pre-amended s 409, whoever, being in any manner entrusted with property, or with any dominion over property, in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney, or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine; (3) s 409 was in two parts. The first part applied in cases where there had been entrustment of property or its dominion to a person 'in his capacity of a public servant'. The second part applied to cases of entrustment to a category of persons, including an agent 'in the way of his business'. Thus, the word 'capacity' applied to a public servant but not to an agent; (4) a single act of entrustment might constitute a man an agent within s 409. However, for the section to bite, there must be evidence that the entrustment was made to the particular accused by way of his business as an agent. This was because the section refers to persons who are professional agents, and not to casual agents such as a company director. Thus, the charges against Periasamy were clearly bad; (5) even if the charges against Periasamy had been amended at the close of the case for the prosecution to accord with the language of s 409, it would not have mattered, for the evidence led at the trial did not establish the ingredient that the entrustment to Periasamy was in the way of his business as an agent; (6) it was clear that the sessions judge believed Periasamy upon the critical issue of dishonesty. Thus, there was no course left open to the sessions judge but to acquit; (7) an advantage which the trial judge distinctly had. This was utterly wrong and smacked of an unwarranted usurpation by the appellate judge of a role that was strictly not his; (8) the sweeping remarks of the appellate judge that he was under a duty to reverse the sessions court when the decision was grossly against the weight of the evidence clearly contradicted his later finding that the sessions court had properly directed itself upon the evidence that was relevant to the issue of dishonesty. To have interfered with the decision of the trial court after having found no misdirection was unsupportable; (9) the appellate judge was not entitled to interfere on the grounds that the trial judge's decision was grossly against the weight of evidence; (10) the appellate judge appeared to have treated the actus reus as completing the offence of criminal breach of trust when he commented, inter alia, that Periasamy committed criminal breach of trust as soon as he certified, approved and paid out the loan. The offence of criminal breach of trust is not an offence of strict liability. It is only an offence under s 405 of the Penal Code, to convert, dispose or to appropriate property if it is done with a dishonest intention, which constituted the mens rea of the offence; (11) the appellate judge dismissed the submission made by Periasamy's counsel based on the defence of honest belief. This statement of the judge was quite wrong and offended elementary principles of law that there will be no criminal breach of trust if the accused's action is in good faith; (12) the appellate judge appeared to have equated negligence with dishonesty. It is settled law that negligence, even gross negligence, is not to be equated with the definition of dishonesty under the Penal Code; (13) the appellate judge did not sufficiently address his mind to the decision of Khoo Hi Chiang v PP [1994] 1 MLJ 265, in disobedience to the doctrine of stare decisis; (14) all that has been said in respect of the way in which the charges were framed against Periasamy applied with equal force to Balaskrishnan. Periasamy was being charged with an offence unknown to the law as it stood at the material date. Accordingly, Balakrishnan could not be guilty of abetting a non-existent offence; (15) the offence of criminal breach of trust is an offence relating to property and its commission is directed against the beneficial owner of that property. So, there can be no criminal breach of trust where the beneficial owner consents to the use of the property in a particular way. That consent of the beneficial owner is a complete defence to the offence of criminal breach of trust; (16) it was an implied term in every entrustment under the express or implied contract, referred to in s 405, that the owner of property may give his express or implied consent to its use or disposal in a manner that differed from the original terms governing its use or disposal; (17) whether there could be a valid consent subsequent to the impugned use or disposal depended on the facts of each case. Where facts emerge to show that there was true consent in its legal sense, the fact that it did not precede the use or disposal cannot, in principle, make the slightest difference to the question. Such subsequent consent would, in accordance with well-established principles of the law of agency, relate back to the use or disposal that is the subject of challenge. It was emphasized that for the principle to apply, there must be present all those elements which would constitute consent in law; (18) in the present appeal, the authority to deal with the property of the bank was vested in the management committee. There was no doubt that it was empowered to dispense with the shares ab initio. Once it made up its mind at its meeting on 23 July 1986 to dispense with the requirement that the shares should be deposited, the whole issue became academic; (19) quite apart from the points of law on which these appeals must succeed, the approach adopted by the trial court to the evidence before it amounts to a misdirection that has occasioned a miscarriage of justice. The main evidence relied upon to convict Balakrishnan upon the charge of abetment was the testimony of Periasamy to the effect that he had been deceived by Balakrishnan into believing that all the documents were in order at the material time. But there was other evidence to negative culpability on the part of Balakrishnan. The evidence presented fell far short of establishing a case of abetment by instigation; (20) for the reasons given, the appellants ought to have been acquitted at the close of the case for the prosecution. The trial judge was therefore wrong in ordering both appellants to enter upon their defence. On appeal, the appellate judge was wrong in reversing the order of acquittal that had been made in Periasamy's favour by the trial court and in dismissing the second appellant's appeal against conviction. In the circumstances, the appeals were allowed and the appellants were acquitted; (21) the appellate judge when rejecting the defence of Periasamy, which had been accepted as true by the sessions court, undertook his own assessment of Periasamy as witness, when he had not had the benefit of having observed him in the witness box;(obiter) upon the assumption that the charges against Periasamy were good (which was not the case), the acquittal of Periasamy on the merits of his defence did not mean that Balaskrishnan was automatically entitled to an acquittal as well.

Periasamy s/o Sinnappan & Anor v Public Prosecutor [1996] 2 MLJ 557 Court of Appeal, Kuala Lumpur (Gopal Sri Ram, Mahadev Shankar JJCA and Ahmad Fairuz J).

Periasamy s/o Sinnappan & Anor v Public Prosecutor [1996] 2 MLJ 557 Court of Appeal, Kuala Lumpur (Gopal Sri Ram, Mahadev Shankar JJCA and Ahmad Fairuz J).

The appellant appealed against his conviction of rape on three grounds: (1) there was a three-year delay from the date of the filing of the notice of appeal to the date when the grounds of decision were given; (2) the lower court erred in preferring the respondent's medical witness to that of the appellant's, even though the former's oral testimony deviated in material particulars from the written medical report; (3) the respondent was permitted to adduce additional matters at the re-examination stage when they were not referred to in cross-examination.

Held, allowing the appeal: (1) the excessive delay in supplying the grounds of decision was intolerable and had made an utter farce of the proper and expeditious administration of justice; (2) the deviation of the oral testimony of the respondent's medical witness from her medical report contravened ss 91 and 92 of the Evidence Act 1950; (3) the court was under a duty to disallow fresh evidence at the re-examination stage when they were not referred to in cross-examination, whether or not the appellant had objected. Furthermore, the additional evidence was heresay.

Tan Ah Kow v Public Prosecutor Criminal Appeal No 42-09-96-111 High Court, Kuching (Elizabeth Chapman JC).

The appellant in this case was a police inspector who was convicted for corruption under s 4(a) Prevention of Corruption Act 196l ('the Act') for receiving a sum of RM2,000 from one Tan Hun Kiang ('SP8'). The money was received as a reward for an early warning to SP8 that there was a warrant of arrest made out in his name by the authorities. The sessions court judge found the appellant guilty and he was sentenced to four months' imprisonment and fined RM4,000. The appellant appealed against the decision and sentence imposed by the lower court. The appellant's counsel stated that the judge had failed to give relevant consideration to all relevant issues, particularly the legal and factual issues, and that failure tainted the judgment. He also said that the judgment was too brief and thus not a speaking judgment.

Held, dismissing the appeal: (1) SP8 was a trap witness and not an accomplice as contended by the defence. He was not a partner in crime as he was a victim and his involvement in the case was not so active. By only making a report and giving the bribe upon the demand of the appellant, SP8 could not be said to be a first level partner in crime; (2) SP8 as a trap witness cannot be said to be unworthy of credit just because he made the payment to the appellant. However, the evidence given by SP8 should be corroborated as it was not safe to convict the accused without corroborating evidence. Here, the evidence of SP8 was sufficiently corroborated by the marked notes, tape recording, recordings of the incriminating conversation between the appellant and SP8, the giving of the bribe and also the appellant's actions. Therefore, SP8 could be accepted as a credible witness; (3) the failure of the prosecution to call Lai Pooh Kim who had accompanied SP8 when he made the report to the police and the BPR office as a witness, or at least to offer him to the defence, did not in any way amount to a miscarriage of justice as the prosecution did not rely on his testimony to prove their case beyond reasonable doubt. The discretion to call a witness to give evidence lies on the prosecution and as long as there was no motive to hide or block the evidence, the adverse inference under s 114(g) of the Evidence Act 1950 could not be applied; (4) even though the grounds of judgment of the trial judge was not lengthy and not supported by judicial authority, yet the trial judge had not misled himself from applying the basic principles of law which would have been fatal to the case if not followed strictly. Any shortcomings, if there were any, were not so material as to bring about a miscarriage of justice under s 422 of the Criminal Procedure Code (FMS Cap 6). The conviction was made solely on the evidence given and the accused was found guilty beyond reasonable doubt. While it is undoubtedly desirable that magistrates should when writing their grounds of decision give their findings and the reasons for those findings, the failure to give such reasons would not render the conviction void or turn the trial itself into a nullity. When the appellate court is convinced that the conviction of the appellant is good, the court can deal with the matter fully even though the grounds of decision lacked specific findings and reasons for those findings. Here, it was difficult for the defence to raise a reasonable doubt on the evidence of the prosecution; (5) in relation to the sentence, public interest required the court not to tolerate corruption offences involving public servants. The sentence was, therefore, not excessive even though it was the appellant's first offence.

Surandran a/l Rajaretnam lwn Pendakwa Raya [1996] 4 MLJ 142 High Court, Kota Bahru (Nik Hashim JC).

The first and second appellants were jointly convicted in furtherance of their common intention with trafficking in 1514.6g of cannabis by selling and delivering the cannabis to a police inspector, an offence under s 5(1)(a) of the Misuse of Drugs Act read with s 34 of the Penal Code and were sentenced to death. The first and second appellants appealed. The first and second appellants had been arrested after the inspector had contacted the first accused and made arrangements to purchase 2kg of cannabis. The first appellant told the inspector that supplies were unavailable and that he would contact him. The inspector then contacted the first appellant who told him supplies had arrived and arrangements were made to meet and effect the purchase. At the meeting to effect the sale the second appellant accompanied the first accused who then told him to wait while the first appellant went into a restaurant with the inspector to discuss matters. Shortly, the first appellant motioned for the second appellant to bring over the bag he had left with the second appellant and handed it to the inspector at which time the first and second appellants were arrested. Counsel for the first appellant took issue on the same points as were raised at trial Ð the first appellant had never met the inspector before and that he was merely an innocent bystander as well as there being an error in the final weight of the cannabis. It was submitted that the learned trial judge erred in law in accepting the testimony of the inspector that the first appellant was the same person who had negotiated with the inspector as there must have been some point during the chase which preceded the arrests when the inspector lost sight of the first appellant. In addition, it was contended that the learned judge similarly erred in placing reliance on the second appellant's written statement. Counsel for the second appellant reiterated that the second appellant did not know what was in the bag and that was borne out by the fact that he had not been involved in the negotiations and had not gone into the restaurant with the first appellant and the inspector and when he handed over the bag to the inspector there was no communication between them.

Held, dismissing the appeals: (1) having reviewed the evidence, the suggestion by the first appellant of mistaken identity was completely devoid of merit. There was overwhelming evidence, quite apart from his statement which he attempted to retract that pointed to the first appellant being the person who met the inspector, negotiated the sale and then arranged the meetings. In addition, the learned trial judge did not find the first appellant to be a very truthful witness and that the first appellant contradicted himself materially utterly impeaching his credibility; (2) as to the weight of the cannabis, the contention of the first appellant that the worksheet of the Scientific Officer did not show that he weighed the matter again after the microscopic examination was not relevant as the trial judge had already dealt with the question when he noted that no material was discarded so that the matter did not need to be weighed again; (3) the second appellant's contention that he was unwittingly led into carrying the drugs for the first appellant was not rebutted on the balance of probabilities. There was no dispute that at the relevant time the second appellant was delivering the bag containing the cannabis. The evidence of the second appellant was analysed and disbelieved by the learned trial judge. In addition, incriminating evidence, in the form of his fingerprints were found on one of the slabs of cannabis and his explanation of how it came to be there was disbelieved. There was no basis to dissent from the learned trial judge's finding on this point; (4) the attempt of the second appellant to retract various parts of his statement which showed he knew he was carrying the cannabis by saying that the statement was made in fear his family would be harmed was not accepted.

Zulkifli bin Awang Kechik and Pauzi bin Ab Kadir v Public Prosecutor Criminal Appeal No 9 of 1996 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Chao Hick Tin J).

The appellant was charged for breach of trust under s 409 Penal Code (FMS Cap 45). As a headmaster of a school, the appellant was entrusted with two types of school accounts, the general account and the government account. The appellant was to deposit the school fees into the general account. SP3 was a teacher in the appellant's school. She claimed to have collected the fees from her class (the sum) and at the end of February 1991 had handed over the sum to the appellant. The appellant did not issue any receipt for accepting the sum. SP3 alleged that in the middle of March 1992, the appellant had came to her house and asked her not to give any answers if questioned by the Anti Corruption Agency (ACA). SP11, the clerk of the school, testified that in the middle of March 1992 the appellant had given her a sum of money and told her that it was the replacement for the fees. The appellant appealed against both conviction and sentence while the prosecution cross-appealed against the inadequacy of the sentence. The prosecution submitted that the trial judge had failed to give paramount consideration to public interest and that the sentence ought to be in accordance with the seriousness of the offence. The trial judge was of the opinion that a longer imprisonment would not be appropriate because of his age, the fact that he was a first offender and the fact that the sum involved was small.

Held, dismissing both appeals: (1) the conviction of the appellant was based on the documentary evidence and evidence of the witnesses and his own conduct. The appellant had asked SP3 to lie to the ACA and tried to pay back the sum through SP11. The conviction of the appellant was not contrary to the weight of the evidence and was in accordance with law; (2) the trial judge had considered the sentence accordingly, and the sentence was sufficient and just. Thus, the cross-appeal was dismissed.

Mahmood bin Zakaria v Pendakwa Raya Criminal Appeal Nos 42-21-95 and 42-18-95 High Court, Kota Bahru (Nik Hashim J).

On 9 June 1994, four men committed robbery of cash and an assortment of jewellery worth $6m from a house. A young girl was hurt in the course of the robbery. The appellant was charged in the court below for abetting the offence of robbery with hurt by conspiracy. The prosecution case rested solely on the uncorroborated testimony of one Teh, who was involved in the robbery and was the link between the four men and the appellant. Before giving evidence at the appellant's trial, Teh had already been convicted and sentenced. He testified that the appellant had asked Teh whether he knew of any interested parties to commit the robbery. The appellant offered to pay him RM150,000 for a specified diamond ring. He also said he would evaluate the rest of the loot before offering him a price therefor. Teh was introduced to one Meetro by the appellant who drew a plan of the house. Teh later briefed the four men who actually carried out the robbery. After the robbery, Teh returned to Kuala Lumpur, where the appellant paid him for the loot. Teh stated that none of the four men who carried out the robbery knew the appellant, or that he was dealing with latter. The appellant's defence was essentially a total denial of any complicity or involvement in the commission of the robbery. The trial judge found that Teh's evidence on the appellant's involvement was not self-serving. He found Teh to be a truthful, fair and reliable witness. The trial judge concluded that the appellant was clearly lying about his non-involvement. Accordingly, he convicted the appellant and sentenced him to six years' imprisonment and 12 strokes of the cane. While in Changi Prison, the appellant was given a handwritten note of Teh's which repudiated everything Teh had said at trial. In the note, Teh said that he had implicated the appellant because of pressure from the police and that the note was written voluntarily. The appellant sought to adduce the note as fresh evidence at the appeal and also appealed against the decision of the trial judge.

Held, dismissing both the application and the appeal: (1) in an application to adduce fresh evidence, the applicant must satisfy the three conditions of unavailability, relevance and reliability. The circumstances in which additional evidence would be allowed on appeal were very limited; (2) as regards the third condition, the fresh evidence must be apparently credible. The general rule was that a confessed liar could not be regarded as credible. In particular, when it involved a confession of lying and fabrication by the prosecution witness who had participated in the offence, an appellate court had to exercise additional caution. Thus, the appellate court must look again at the whole matrix of evidence in deciding whether the fresh evidence which was sought to be adduced was credible; (3) on the evidence presented, the account by Teh of the appellant's involvement was of such considerable detail that it could not have been made up. In the light of the overall matrix of evidence, there was no doubt that Teh was telling the truth at the appellant's trial and his present confession was not so apparently credible as to be admitted as fresh evidence; (4) an appellate court would not usually interfere with a trial judge's findings of fact. On the facts, the discrepancies raised as regards Teh's testimony were not material so as to affect his credit. The process of testimony was not a memory test and minor inconsistencies were often inevitable. Moreover, what appeared to be inconsistencies could have been due to the way questions were phrased. The crux was whether the totality of the evidence was believable and, in this respect, the trial judge rightly concluded that Teh had given an account that was coherent and logical; (5) even if Teh's testimony was given in the hope of receiving a lighter sentence, it did not automatically impugn the quality of his testimony or constitute an improper motive. The court would still have to look at the demeanour of the witness, the totality of his evidence and ask itself whether he could be believed. These questions clearly weighed heavily on the mind of the trial judge who in the end was satisfied beyond a reasonable doubt that the appellant was involved in the robbery.

Loh Khoon Hai v Public Prosecutor [1996] 2 SLR 321 High Court, Singapore (Yong Pung How CJ).

The appellant was convicted of a charge of voluntarily causing hurt to the respondent by slapping him on his left cheek. The matter arose in the wake of a matrimonial dispute between the parties, who were husband and wife. The appellant had returned to the matrimonial flat on that fateful day to collect some of her belongings. The respondent started taking snapshots of her activities and of the things which she was taking with her. As the appellant was leaving the matrimonial flat, she turned around and gave the appellant a slap on his cheek. The appellant denied this. Instead, she said that she turned around to look at her children and was startled by the respondent's presence just behind her, with a camera in his hand. Thus, she screamed and swung her hand outwards to avoid the camera. She denied hitting the respondent. The trial judge believed the respondent's version of the incident although he found that the respondent was not truthful in relating some other facts surrounding the incident. The appellant appealed against the conviction. First, the appellant argued that the trial judge had erred in law in relying on the respondent's testimonies although he had found that the respondent had lied about certain matters. Second, it was contended that the trial judge had erred in finding that the offence had been proved beyond reasonable doubt. Lastly, the appellant stated that the trial judge had erred in not applying the de minimis principle to the following situation.

Held, allowing the appeal: (1) the trial judge had not erred in law nor in fact in finding that the prosecution had proven its case beyond reasonable doubt. As a general principle, an appellate court would not disturb findings of fact unless they were clearly reached against the weight of the evidence. The appellate court would always bear in mind, in examining the evidence, that it had neither seen nor heard the witnesses and had to pay due regard to the trial judge's findings and reasons therefor; (2) the mere fact that the credit of a witness had been impeached did not necessarily mean that all his evidence would be disregarded. The court would still have to scrutinise the whole of the evidence to determine what was true and which aspects would be disregarded. A fortiori, where the credit of a witness had not been impeached, as in the present case, the same rules would apply; (3) s 95 of the Penal Code was intended to provide relief to an offender where the act was negligible or the offence was of a trivial character. It applied where the harm caused was both accidental and deliberate. The question then, was whether, in the circumstances, the harm caused to the appellant was so slight that no person of ordinary sense and temper would complain of such harm; (4) on the facts, the harm caused to the respondent by a mere slap was so slight that a person of ordinary sense and temper and in the position of the respondent would not complain of such harm. Thus, it would not be in the interest of justice to penalise the appellant for such a negligible wrong.

Teo Geok Fong v Lim Eng Hock [1996] 3 SLR 431 High Court, Singapore (Yong Pung How CJ).

The accused lost control of the car he was driving, crossed into the lane of an oncoming car, and collided into it. His defence was that a puddle of water with overlying mud on his side of the road made his vehicle skid uncontrollably. The magistrate found that the road was muddy and slippery, and that the accused lost control when his car hit the puddle. He concluded that a reasonable prudent and competent driver would have taken extra care and caution under those road conditions and that therefore the accused had driven below the proper standard. The magistrate also found that the accused had been driving too fast. The magistrate observed that the test of what a driver should do is objective, whereas the test of whether he had departed from this standard was subjective. The accused appealed.

Held, dismissing the appeal: (1) the appellate court will not interfere with the finding of the magistrate because the latter had not misstated or misapplied the law; (2) the appellate court will not revise any finding of fact by the magistrate unless that finding was unjustified by the facts. It is not sufficient that the appellate judge would have concluded differently had it tried the case. If there were facts on which the magistrate could find as he did, the appellate court, which has not seen the witnesses, will not substitute its views for those of the magistrate.

Emaran bin Zunaidi v Public Prosecutor Criminal Appeal No 20 of 1995 High Court, Brunei (Roberts CJ).

The appellant was charged with trafficking cannabis in contravention of s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). His defence, as deposed to from the witness box, was that he was an innocent carrier. He claimed that he sold prawn crackers for a living, and that at the time of his arrest, he honestly believed that he was conveying prawn crackers at the behest of a certain Che Mat, for a fee of RM300. This defence was consistent with his cautioned statement made to the police on the day after his arrest ('the cautioned statement'), for in it, he had mentioned about Che Mat, his telephone number, and his place of abode. The trial judge found that the prosecution had established a case of exclusive possession, custody, control and knowledge of the cannabis recovered from the appellant, and that the appellant's explanation had failed to raise a reasonable doubt. In the grounds of his judgment, the judge, suggested that the appellant had sufficient time to concoct his story about the transportation of prawn crackers, since his statement was made a day after his arrest. The judge had also criticized the defence for not having put to the investigating officer Che Mat's particulars, and his failure to explain why, according to ASP Abdul Wahab, it was stated in the search list served on him on the morning of the arrest that only RM63 was found on him in his wallet, despite the fact that the appellant had alleged that he was paid RM300 by Che Mat. The appellant was convicted and sentenced to death. The appellant appealed on the grounds that the judge had criticized the defence in terms which were unjustified.

Held, allowing the appeal: (1) the judge had erred in his handling of the facts when considering the defence case. He had assumed that there had been a belated disclosure of the defence thereby suggesting concoction. However, the evidence suggested that the first opportunity the appellant had to offer an explanation was the day after his arrest, when he was interviewed and his statement was recorded. There was no evidence of delay on his part in offering an explanation. The judge had therefore misdirected himself, and this should be treated in the same way as an erroneous direction to a jury. On this ground alone, the conviction had to be quashed; (2) the judge had further misdirected himself as regards the burden of proof on the defence. It was wrong for the judge to have criticized the defence for having failed to put to the investigating the personal particulars of Che Mat, for the simple reason that they had been disclosed in the appellant's cautioned statement. Thus, the onus was upon the prosecution, and not the defence, to disprove the appellant's version of the facts. On this ground also, the conviction had to be quashed; (3) nowhere in his judgment did the judge direct attention to the statutory presumptions as to possession (s 37(d) of the Act) and trafficking (s 37(da) of the Act), and as a result, he made no finding as to whether the defence had rebutted the same. This amounted to a misdirection in law by way of non-direction; (4) as there was an acute conflict of evidence on a material point, namely, the result of the search of the person of the accused, and a search list contemporaneously prepared by the police, a copy thereof ought to be tendered in evidence. If it was not tendered, the presumption to be made pursuant to s 114(g) of the Evidence Act 1950 was, the evidence would have been unfavourable to the prosecution if it was produced. The judge in this case had wrongly assumed that a copy of the search list was in evidence, and that its contents supported the version of ASP Abdul Wahab; (5) although no objection had been raised to the admission of one of the statement made by ASP Abdul Wahab which was clearly based on hearsay and therefore inadmissible, the judge was nevertheless under an automatic duty to stop it from being adduced, for inadmissible evidence does not become admissible by reason of failure to object; (6) (per curiam) where a judge makes an adverse comment about a belated disclosure of defence, without an accompanying statement that the accused was under no obligation to make prior disclosure and that the judge was not drawing an inference of guilt from the belatedness of the explanation offered by the accused, such comment would usually be unfair and constitute a misdirecton in law so serious that the conviction is liable to be quashed on that ground alone.

Alcontara a/l Ambross Anthony v Public Prosecutor [1996] 1 MLJ 209 Federal Court, Kuala Lumpur (Edgar Joseph Jr, Mohamed Dzaiddin FCJJ and Gopal Sri Ram JCA).

Pendakwa Raya v MUI Finance Bhd Batu Pahat Criminal Appeal No 41-28-1995 High Court, Johor Bahru (Ghazali J).

Morgan a/l Perumal v Ketua Inspektor Hussein bin Abdul Majid & Ors [1996] 3 MLJ 281 High Court, Johor Bahru (Abdul Malik Ishak J).

The appellants claimed damages against the respondents for false arrest and malicious prosecution. The first respondent was the officer in charge of investigations against the appellants, while the second respondent was joined to represent the government. The claim arose out of events following the death of a man at a coffee shop in 1989. In the course of the police investigations, the first respondent was led to one Abdul Hannan, who gave statements resulting in police officers asking the various appellants to accompany the police officers to the CID. These requests were made by the police in person in the early morning. Subsequently several statements were given by the appellants to the first respondent implicating themselves in the crime. The appellants were tried jointly for the murder. However they were given discharges amounting to acquittals. One Sulaiman bin Samsudin was eventually convicted of the murder of the deceased, while one Jahpar bin Osman was convicted of housebreaking and theft at the scene of the murder. The appellants claimed that they had been under false arrest, and hence under false imprisonment. In addition, it was said by the appellants that there was no reasonable and probable cause for their prosecution as the statements given by them were extracted forcibly and certain matters should have been followed up. Furthermore the prosecution itself was conducted maliciously. The trial judge, in dismissing the claims, found that there was no false arrest, and that in respect of each of the appellants, there was reasonable and probable cause for the prosecution. It was held that the statements were given by the appellants voluntarily. The appellants appealed, arguing in addition that discovery of various documents concerning communications between the first respondent and the deputy public prosecutor should have been granted; that statements of Abdul Hannan annexed to the affidavit of the first respondent should be expunged for irrelevancy; and that Raj Kumar, a solicitor for the first appellant, and Abdul Hannan should have been allowed to give evidence in rebuttal.

Held, dismissing the appeal: (1) the documents sought by the appellants were communications made by one public officer to another in the discharge of their official duties, and were made in official confidence within the meaning of s 126 of the Evidence Act (Cap 97). The determination by these officers bona fide that public interests would suffer by the disclosure was conclusive; (2) Abdul Hannan's statement to the first respondent was tendered to show the occasion or cause for the investigations and were relevant under either s 7 or s 8 of the Evidence Act (Cap 97); (3) generally leave would be granted to allow rebuttal evidence where the party had been misled or taken by surprise. However, the appellants were neither misled nor taken by surprise and their application for leave to adduce the evidence of Raj Kumar or Hannan was rightly refused; (4) a person is arrested when he is compelled to accompany a police officer, and neither words of arrest nor physical restraint need be present. All the three appellants were under compulsion to accompany the police officers, and they were therefore under arrest; (5) an arrest without warrant made on the grounds of credible information or reasonable suspicion must be based on definite facts and founded on some definite fact tending to throw suspicion upon the person arrested. On the facts, the first respondent had credible information or reasonable suspicion founded upon information furnished by Abdul Hannan. The arrests were thus not wrongful; (6) the trial judge was entitled on the basis of all of the evidence before him to make the finding that the statements were voluntary. No grounds existed for interfering with such findings. Even if the statements of the appellants were excluded, Abdul Hannan's statement was sufficient to provide reasonable and probable cause for the prosecution. The appellants thus failed to prove that there was an absence of reasonable and probable cause in the prosecution). They also failed to prove malice.

Zainal bin Kuning & Ors v Chan Sin Mian Michael & Anor [1996] 3 SLR 121 Court of Appeal, Singapore (M Karthigesu and LP Thean JJA, Goh Joon Seng J).

On 13 January 1996 at 2.40am, Chief Inspector Hussein bin Abdul Majid ('Chief Insp Hussein') led a police party to the compound of Hospital Sultanah Aminah, Johor Bahru and arrested the applicant, who was there at the material time, under s 3(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 ('the Emergency Ordinance'). Without further ado, Chief Insp Hussein explained in Bahasa Malaysia the reason for the arrest to the applicant via an intermediary, one Detective Lance Corporal Murugiah ('Detective Murugiah'), who then explained in Bahasa Tamil to the applicant. The applicant contended that he was illegally or improperly detained. He alleged that the police did not inform him of the reasons for his arrest and that he had been denied access to counsel. The applicant also made serious allegations against Detective Murugiah. He alleged that Detective Murugiah tortured and injured him whilst in detention. The applicant had occasion to complain of these misfits to one Ponnamah a/p Sumdarum ('Ponnamah') and one Sellam a/p Ramasamy ('Sellam') who affirmed an affidavit each, corroborating this part of the applicant's version. The applicant further contended that he was not served with any document to show that he was being detained for more than 24 hours as specified under s 3(3)(a), and any document authorizing his detention for more than 48 hours as laid out in s 3(3)(b) of the Emergency Ordinance. Neither was the applicant served with the report of the circumstances of his arrest and detention as set out in s 3(3)(c). The applicant applied for habeas corpus.

Held, dismissing the application: (1) a colloquial or ordinary conversational Tamil language would have sufficed; (2) the allegations of assault as advanced by both Ponnamah and Sellam were worthless, as they can be considered as mere hearsay and consequently, inadmissible; (3) allegations by the applicant in regard to the manner and conditions of detention which he had to undergo were not matters within the scope of cases where habeas corpus would normally issue. In any event, the court believed Detective Murugiah's denial of the allegations; (4) and the applicant had no such right of service of those documents, be it implied or otherwise. In interpreting a statute, one must look at the intention of Parliament, and that intention can be seen by scrutinizing the words employed in the statute. A judicial interpreter has to ask himself whether the legislature intended, or could have contemplated, that the detainee be served with those documents. Viewed from this perspective, and having regard to the words employed, there was no legal requirement to serve those documents on the applicant; (5) it was up to the detaining authority to justify the detention of the applicant. Justification for that detention can be gathered from the production of the detention order itself. The detaining authority has the power to detain the applicant and in so doing there was complete compliance with the law in every way conceivable and, consequently, the detention was perfectly valid; (6) there was ample evidence to show that Chief Insp Hussein, through Detective Murugiah, had conveyed the reasons for the arrest to the applicant and the police report lodged by the said Chief Inspector, put beyond peradventure that the applicant was indeed informed and knew the reasons for his arrest. Though that police report was not, and cannot be said to be, a first information report, yet as an 'arrest report', it can certainly be considered by the court for the sole purpose of showing consistency. The police report lodged 20 minutes after the applicant was arrested Ð and confirmed by the affidavits of both Chief Insp Hussein and Detective Murugiah Ð gave rise to a strong assumption of consistency, thus rendering the version that the applicant had been explained the reasons for his arrest as 'probable' and 'reasonably safe to act upon it'; (7) it was not necessary for Detective Murugiah to employ academic, classical or professional Tamil language in interpreting the reasons for the arrest to the applicant;s 3(3)(a), (b) and (c) of the Emergency Ordinance do not require service of documents authorizing the detention on the applicant. That is a matter of law;the complaint by a detainee that while he was under detention he had been denied access to counsel, contrary to art 5(3) of the Federal Constitution, will not attract habeas corpus.

Morgan a/l Perumal v Ketua Inspektor Hussein bin Abdul Majid & Ors [1996] 3 MLJ 281 High Court, Johor Bahru (Abdul Malik Ishak J).

Morgan a/l Perumal v Ketua Inspektor Hussein bin Abdul Majid & Ors [1996] 3 MLJ 281 High Court, Johor Bahru (Abdul Malik Ishak J).

Both the accused persons ('the applicants') were charged on 8 November 1987 under s 353 of the Penal Code (FMS Cap 45) ('the Penal Code'). Under the fifth column of Sch 1 to the Criminal Procedure Code (FMS Cap 6) ('the CPC'), the offence was a bailable one and bail was allowed at RM500 each. The case was adjourned several times due to the absence of the applicants either collectively or individually. Bail was increased first to RMl,000 and later to RM3,000 with one surety each. The case was finally fixed for hearing on 21 May 1996 wherein both the applicants were again absent. As a result, warrants for their arrest were issued. On 27 May 1996, the applicants surrendered themselves to court. The learned magistrate refused to accept their explanations and subsequently revoked bail, committed the applicants to custody and set 25 June 1996 as the hearing date. The applicants' application for bail was refused by the learned magistrate. Hence this application to the High Court.

Held, allowing the application: (l) the term 'shall be released on bail' in s 387(1) of the CPC is mandatory. By virtue of this provision a person accused of a bailable offence is entitled to bail as of right. There is no question of any discretion in granting bail and the court is bound to comply with the provisions under that section; (2) the purpose of bail is to secure the attendance of an accused at a certain day and place to answer the charge against him. It is not intended to be punitive and excessive bail ought not to be required; (3) the learned magistrate was correct when he issued the warrant of arrest against the applicants and presented the show-cause notice to the bailor for the absence of the applicants. He was also right when he gave the applicants the opportunity to be heard before he proceeded to cancel the bail; (4) the learned magistrate however was wrong when he ordered the applicants to be remanded. This was illegal and not in compliance with the law. Upon revocation of the previous bail, the magistrate should have granted a new bail with sufficient sureties as he deemed fit. Only when the applicants failed to execute the new bail was the court empowered to commit them to custody.

Mohd Jalil bin Abdullah & Anor v Public Prosecutor [1996] 5 MLJ 564 High Court, Kota Bharu (Nik Hashim JC).

Abdul Karim bin Mohd v Public Prosecutor [1996] 1 SLR 1 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Goh Joon Seng J).

Public Prosecutor v Joehari bin Abdullah & Anor [1996] 5 MLJ 324 High Court, Labuan (Tee Ah Sing JC).

The six respondents were tentatively charged at the magistrates' court with murder under s 302 of the Penal Code (FMS Cap 45) ('the Code'), but at the end of the preliminary inquiry, the magistrate decided not to commit them to the High Court for trial but amended the charge to one of possession of weapons at a riot under s 148 of the Code. The Public Prosecutor appealed.

Held, allowing the appeal and ordering that the case be committed to the High Court for trial on the original charge of murder: (1) there were sufficient grounds for the magistrate to commit the case to the High Court on a charge of murder. The direct evidence showed that a number of witnesses saw the six accused persons attack the deceased with various types of dangerous weapons, and the doctor's evidence confirmed that the deceased died because of a head injury which could have been caused by a heavy and hard object; (2) there was no requirement for the prosecution to prove which of the co-accused inflicted the fatal blow. So long as it was shown that the criminal act was done by one of the assailants in furtherance of a common intention of all, then liability for the crime would be imposed on any one of the persons in the same manner as if the act were done by him alone; (3) the apparent discrepancies in the evidence of the prosecution witnesses were bound to exist in a case such as this and there was credible evidence which, if believed, would sustain a conviction. Therefore, the magistrate should have committed the case to the High Court and not have undertaken to assess the discrepancies. The assessment of apparent discrepancies and the weighing of testimony should have been left to the judge of the High Court trying the case; (4) for the purposes of the preliminary inquiry, the prosecution was only required to adduce sufficient evidence identifying the body of the deceased, and was not required to prove this beyond reasonable doubt. In a criminal trial, as opposed to a mere preliminary inquiry, the standard of proof is higher.

Public Prosecutor v Puspanathan a/l Sinnasamy & Ors [1996] 4 MLJ 165 High Court, Alor Setar (Mohd Hishamudin J).

The applicants ('the appellants') appealed to the High Court against their convictions on corruption charges, for which the public prosecutor's consent for prosecution had been obtained. Their appeals were dismissed by the Chief Justice. During their trial, the district judge had allowed the prosecution to amend the charges by adding alternative charges specifying a different date on which the offences were allegedly committed. In a reserved judgment, the Chief Justice opined that these alternative charges suggested that there were two separate offences of corruption on two different dates, namely, 6 and 10 July 1991. It was clear, however, that the appellants were each being prosecuted in respect of only one offence of corruption which had allegedly taken place on either 6 or 10 July 1991. The Chief Justice thus invoked the High Court's powers under s 256(b)(ii) of the Criminal Procedure Code (Cap 68) ('CPC') and amended the original charges in respect of both appellants by adding an alternative date of 10 July 1991 to the existing date of 6 July 1991 and eliminated the alternative charges (see [1995] 3 SLR 701). As amended, the charges averred that the offence took place 'on or about the 6th or the 10th day of July 1991', thus eliminating the alternative charges. In doing so, the Chief Justice held that fresh consent from the public prosecutor was not necessary. The appellants were convicted on the amended charges and their sentences were maintained. After judgment was delivered by the Chief Justice, counsel for the appellants applied for a criminal reference to the Court of Appeal pursuant to s 60 of the Supreme Court of Judicature Act (Cap 322). The following two questions were reserved for the decision of the Court of Appeal as questions of law of public interest which had arisen in the course of appeal, the determination of which had affected the event of the appeal: (1) whether the High Court, exercising its appellate criminal jurisdiction, had the power to amend a charge pursuant to s 256(b)(ii) of the CPC; (2) whether a fresh consent of the public prosecutor was required when a charge preferred under the Prevention of Corruption Act (Cap 241) was amended by the appellate court.

Held, answering the first question in the affirmative and the second question in the negative, and maintaining the dismissal of the appellants' appeals: (1) in view of the High Court's extensive express powers under the CPC, it was inconceivable that it was the intention of the legislature that the High Court, in the exercise of its appellate jurisdiction, should not have the power to amend the charge preferred against the appellants. Adopting a purposive approach to construction, such power was by necessary implication implied in s 256(b) of the CPC; (2) the power that an appellate court had in amending a charge under s 256(b) of the CPC was not unlimited and had to be exercised with great caution and not to the prejudice of the appellants. The amendment must not affect the substance of the evidence for both the prosecution and the defence; (3) the amendments in the instant case could not possibly prejudice the appellants' defence at the trial. The Chief Justice had considered the safeguards the court should bear in mind in exercising the power of amendment; (4) the amendments to the charges made by the Chief Justice did not bring in any new or different charges. The consent which had been obtained from the public prosecutor fully covered the amended charges. With reference to this case specifically, no fresh consent from the public prosecutor was required; (5) in answering the second question more generally, much would depend on the extent of the amendments to the charge. The answer was in the negative unless the amendment or proposed amendment would take the charge, as amended, outside the scope of the consent originally given.

Garmaz s/o Pakhar & Anor v Public Prosecutor [1996] 1 SLR 401 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Goh Joon Seng J).

Cheam Tat Pang & Anor v Public Prosecutor [1996] 1 SLR 541 High Court, Singapore (Yong Pung How CJ).

Periasamy s/o Sinnappan & Anor v Public Prosecutor [1996] 2 MLJ 557 Court of Appeal, Kuala Lumpur (Gopal Sri Ram, Mahadev Shankar JJCA and Ahmad Fairuz J).

Periasamy s/o Sinnappan & Anor v Public Prosecutor [1996] 2 MLJ 557 Court of Appeal, Kuala Lumpur (Gopal Sri Ram, Mahadev Shankar JJCA and Ahmad Fairuz J).

Cheam Tat Pang & Anor v Public Prosecutor [1996] 1 SLR 541 High Court, Singapore (Yong Pung How CJ).

Chuan Hoe Engineering Pte Ltd v Public Prosecutor [1996] 3 SLR 544 High Court, Singapore (Yong Pung How CJ).

The defendant was convicted of four charges of conveying and having in his possession prohibited goods and uncustomed goods in his car and two other cars. He appealed against the sentences imposed upon him by a magistrate.

Held, allowing the appeal in part: (1) it is, in general, wrong to charge a person for conveying and also for possession of the same carton of goods when these are found in his car in Brunei on the same occasion. There are occasions on which it is proper to charge a defendant both with conveying prohibited goods and with their possession. However, where both the conveying and the possession occur in relation to the same goods at the same time, the prosecution should charge only one offence; (2) the conviction on the first charge, which includes cartons of beer which also appear again in the larger totals of prohibited goods under the second charge, and the conviction on the fourth charge of conveying cartons of Malboro King Size cigarettes, which are included in the third charge of possession of a larger amount of uncustomed goods, are therefore quashed; (3) s 254 of the Criminal Procedure Code prescribes the maximum imprisonment which may be imposed in default of payment of a fine. Where no sentence of imprisonment can be imposed for the offence itself, as is the case here since these are first offences, there is a maximum of six months' imprisonment in default of payment of the fine; (4) the first and fourth charges alleging conveyance have been quashed, leaving the second and third charges which alleged possession. The mandatory provision for forfeiture of a vehicle used to convey prohibited or uncustomed goods has been applied only to cases where a vehicle has been used in the conveyance of the goods and not where possession is charged. The forfeited vehicle should therefore be returned to the defendant.

Lim Han Ming v Public Prosecutor Criminal Appeal No 38 of 1996 High Court, Brunei (Roberts CJ).

Goh Cheng Kee v Public Prosecutor Criminal Appeal No 38 of 1995 Court of Appeal, Singapore (Yong Pung How, CJ M Karthigesu and LP Thean JJA).

Lim Lye Huat Benny v Public Prosecutor [1996] 1 SLR 253 Court of Appeal, Singapore (Karthigesu and LP Thean JJA and Goh Joon Seng J).

Teh Thiam Huat v Public Prosecutor [1996] 3 SLR 631 Court Of Appeal, Singapore (Yong Pung How CJ, M Karthigesu And LP Thean JJA).

Garmaz s/o Pakhar & Anor v Public Prosecutor [1996] 1 SLR 401 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Goh Joon Seng J).

The petitioner applied for criminal revision of a decision of the district judge convicting him on a plea of guilt. The petitioner had been charged with outrage of modesty. At trial, the petitioner was unrepresented. He pleaded guilty and admitted to the prosecution's statement of facts. However in his mitigation, he claimed that the act was done unintentionally. The district judge queried the petitioner's acceptance of the facts. The prosecutor then applied for the matter to be stood down for her to explain matters to the petitioner. The court was adjourned. Upon resitting, the petitioner withdrew his earlier mitigation, and submitted another. The district judge sentenced the petitioner to imprisonment and caning. Among the arguments for revision made by counsel for petitioner were that no conviction had been recorded by the district judge, contrary to s 180(b) Criminal Procedure Code and that the trial judge had failed to ensure that the petitioner understood the nature and consequence of his plea of guilt. The respondent contended that the failure to record a conviction could be cured by s 396 Criminal Procedure Code, and that the explanation by the prosecutor was done in her role as an officer of the court. It was also said that there ought to be no revision as there had been a long delay.

Held, granting the petition: (1) the failure to record a conviction as required by s 180(n)(ii) Ð and not s 180(b) Ð was an irregularity which could be cured under s 396. No injustice was caused by that omission; (2) but on the facts of the petition, it was the prosecutor who had explained the effect of the initial mitigation to the petitioner and thus the court below could not have been properly satisfied that the accused understood the nature and consequences of his plea of guilt as required by s 180(b). That failure was not curable by s 396 and an injustice was caused since the petitioner was unrepresented. Further, it was not appropriate, given the adversarial nature of criminal proceedings, for the prosecutor to have given an explanation to the petitioner. This was so although there was no evidence of any misconduct by the prosecutor; (3) the conviction of the petitioner was, therefore, a palpable injustice warranting revision. Additionally, no significant delay had occurred in the application for revision. The sentence was thus set aside, and the case remitted for an early retrial in another court.

Ulaganathan Thamilarasan v Public Prosecutor [1996] 2 SLR 534 High Court, Singapore (Yong Pung How CJ).

Chua Keem Long v Public Prosecutor [1966] 1 SLR 510 High Court, Singapore (Yong Pung How CJ).

In these three separate criminal applications for various orders, the respective affidavits of the applicants were affirmed before the Commissioner for Oaths. The learned deputy public prosecutor raised a preliminary objection on the ground that the respective affidavits were not affirmed before a magistrate or registrar as required by s 424 (1)(a) of the Criminal Procedure Code ('CPC'). This, according to the deputy public prosecutor, meant that the affidavits could not be used in a criminal court. The question of law for determination by the court therefore was whether the provision of s 424 (1)(a) of the CPC prohibits or excludes the use of an affidavit in a criminal court if such an affidavit is sworn in the Federation before a Commissioner for Oaths and not before a magistrate or registrar.

Held, dismissing the preliminary objection: (1) rather it's specifically enacted to make it 'subject to any rules of court; (2) the inclusion of the phrase 'subject to any rules of court' in s 424 (1)(a) of the CPC means that the application, operation, effect or implication of that section is specifically bound by or made subservient to any rules of court so that when any rules of court are invoked in a particular instance, they will take precedence; (3) O 41 of the Rules of the High Court 1980 ('RHC 1980') is operative and applies equally to both civil and criminal proceedings and s 424 of the CPC is subject to O 41 of the RHC 1980. That being the case, the result is that an affidavit signd by a Commissioner for Oaths may be used in a criminal court in addition to and not in derogation from the provision of s 424 (1)(a) of the CPC; (4) section 424 (1)(a) of the CPC is an enabling provision and is not intended to be an overriding, overpowering or dominant provision;s 424 (1)(a) of the CPC should be read together with O 41 of the RHC, ss 3 and 11 of the Courts of Judicature Act 1964 ('CJA 1964') and r 12 of the Commissioner for Oaths Rules 1993 ('the 1993 rules') and be given a liberal interpretation since there is no prohibition or restriction excluding an affidavit sworn in the Federation before a Commissioner for Oaths.

Kunn Rekon Holdings Sdn Bhd v Public Prosecutor and other applications [1996] 5 MLJ 261 High Court, Shah Alam (Low Hop Bing J).

The appellant was convicted of a charge of cheating a taxi driver of $300. The appellant denied any involvement in the offence. He said that at the material time, he was at the home of a close friend, one Lee, who was ill with cancer. With him were Lee's wife, Chua Swee Choo (Chua), and Lee's friend, Cheong Chin Hock (Cheong). Lee passed away shortly after. The appellant did not give an alibi notice as required by s 182 of the Criminal Procedure Code (Cap 68). After the appellant had given evidence, counsel for the defence applied for leave of court to adduce evidence from both Chua and Cheong. In the exercise of his discretion, the trial judge dismissed the application. The trial judge also rejected the appellant's defence. He was satisfied that the charge was proved beyond reasonable doubt. Counsel for the appellant raised the following grounds of appeal: (1) that the trial judge erred in refusing the appellant leave to call the two alibi witnesses, (2) that the trial judge erred in rejecting the defence and (3) that the trial judge failed to consider the implausibility of the victim's evidence.

Held, dismissing the appeal: (1) the primary purpose of the statutory requirement of an alibi notice was to enable the prosecution to verify the accused's account so that the prosecution would be able to challenge the accused's version of the events if it was appropriate to do so. There remained a judicial discretion to allow alibi evidence to be adduced even when the statutory provision has not been complied with. Undoubtedly, this discretion must be exercised judiciously, based on the facts and circumstances of each particular case; (2) the appellant's own evidence of his whereabouts at the time of the offence was alibi evidence within s 182(9) of which particulars had to be given in an alibi notice pursuant to s 182(1). Despite the lack of an alibi notice, the trial judge allowed the appellant to give alibi evidence. Having done so, it did not follow as a matter of course that the trial judge should have allowed the other witnesses to give alibi evidence as well. The trial judge had an independent discretion by virtue of s 182(2) whether to allow alibi evidence to be adduced from other alibi witnesses; (3) the availability of the two witnesses was well within the knowledge of the appellant. The appellant should have provided defence counsel with all the relevant details as soon as he remembered where he was on the day of the offence. Instead, the appellant refused to mention the potential alibi witnesses to even defence counsel until a few days before the trial. He did not have a satisfactory explanation for the delay. In a case of this nature, the credibility of the witnesses, especially the alibi witnesses, was important and the prosecution should have been given an opportunity to investigate the matter. In the circumstances, there was no reason why leave should have been granted; (4) there were several unsatisfactory aspects of the appellant's evidence which could not be attributed solely to lapses in memory. Moreover, the trial judge observed the appellant to be uncertain and evasive and uncomfortable when he was cross-examined about his friendship with Lee. Finally, there was the unresolved question why the appellant did not choose to reveal his alibi defence much earlier. In the premises, there was no reason to reverse the finding of the trial judge to reject the defence.

Lee Choon Chee v Public Prosecutor [1996] 1 SLR 264 High Court, Singapore (Yong Pung How CJ).

This was a notice of motion by the appellant to file out of time on the ground that there was a change of solicitors. The application was not filed by the accused personally and the affidavit in support was not sworn by the accused person. Among the issues for consideration were: (i) the application of ss 307 and 310 of the Criminal Procedure Code (the CPC); (ii) whether an affidavit sworn before a Commissioner for Oaths was admissible; (iii) whether the photostated copies of the exhibits were admissible in the light of the fact that there were no acknowledgments on the photostated copies, instead the acknowledgments were on the papers separating the photostated copies of the exhibits; (iv) whether the request for an adjournment to amend the defects in the application should be allowed.

Held, dismissing the application: (1) s 307 of the CPC applies to the prosecution and the accused person. In this case the person who has the locus standi to apply through the notice of motion for leave to file out of time is the accused person. This can be done personally or by his solicitor. If it is done by his solicitor, then it must be stated in the notice that he is being instructed by and that he is acting on behalf of his client. If this is not explained in the notice then it must dismissed; (2) without any reasonable explanation, the affidavit in support must be sworn by the appellant himself. In this case the affidavit in support was filed by his solicitor without explaining why it was not sworn by the appellant, it was therefore not admissible; (3) according to s 424(1)(a) of the CPC, it is clear that the affidavit could only be sworn before the magistrate or the registrar. It is clear that it was not the intention of Parliament to allow the use of affidavits sworn before any other person in criminal proceedings; (4) since the acknowledgments were on the papers separating the exhibits, the acknowledgments were therefore not referring to the exhibits. This was contrary to what was sworn in the affidavit which referred to the exhibits as being acknowledged as true and certified; (5) an adjournment to remedy the defects should not be allowed as it will open the floodgates to all applications for adjournment to amend. An application to amend should be made before the case is heard and the solicitors must ensure that all documents to be used in the proceedings are in order before filing them.

Adnan bin Johan v Pendakwa Raya Criminal Appeal No 44Ð19Ð1996 High Court, Shah Alam (Abdul Wahab Patail J).

Public Prosecutor v IC Automation (S) Pte Ltd [1996] 3 SLR 249 High Court, Singapore (Yong Pung How CJ).

L used a vehicle in the commission of an offence under s 140(1)(d) of the Women's Charter (Cap 353) (the Charter). L pleaded guilty and was fined $8,000. The prosecution applied to forfeit the vehicle pursuant to s 386(2) of the Criminal Procedure Code (Cap 68) (CPC). The appellant (MFB), a hire-purchase company, challenged the application. It was unaware of L's use of the vehicle in the commission of the offence. The district judge forfeited the vehicle at the conclusion of the disposal inquiry. On appeal, counsel for MFB argued that the prosecution could not rely on s 386(2) CPC where the Charter did not expressly provide for any punishment of forfeiture. It was also contended that the district judge had exercised his discretion wrongly in forfeiting the vehicle. In response, the prosecution submitted that MFB could look to their contractual remedies. Forfeiture was sought as a deterrent punishment as detection of such offences was extremely difficult, and the offence committed was serious.

Held, quashing the order of forfeiture: (1) s 386(2) of the CPC operated as an omnibus provision conferring a general power of forfeiture. It was complementary to those specific forfeiture provisions contained in other legislation; (2) the district judge did not direct his mind to the appropriateness of an order of forfeiture. He erred in requiring MFB to show cause why the vehicle should not be forfeited. The onus remained on the prosecution to show that forfeiture would be appropriate in the circumstances of each case; (3) it would not materially aid the inquiry to consider whether a claimant had recourse elsewhere for civil remedies. Their availability did not ipso facto provide any rational justification for forfeiture; (4) the court was not persuaded that deterrence should have been a primary consideration in the present case. Difficulty in detecting offenders per se would not mean that deterrence was necessary; (5) forfeiture operated most meaningfully as a deterrent where the property to be forfeited belonged to the accused, or to someone tainted with complicity. In the present case, MFB was not involved in the commission of the offence; (6) the accused was only fined $8,000. The offence was not even considered sufficiently serious to warrant a custodial sentence, let alone the maximum fine of $10,000. This only created further doubt as to whether forfeiture was appropriate; (7) there was no cogent reason to justify an order of forfeiture. Pursuant to the High Court's revisionary powers, the district judge's order was altered to one for the delivery of the vehicle to MFB; (8) (per curiam) there is no right of appeal against an order made pursuant to a disposal inquiry. Nevertheless, the High Court may exercise its revisionary jurisdiction to set right serious injustice.

Magnum Finance Bhd v Public Prosecutor [1996] 2 SLR 523 High Court, Singapore (Yong Pung How CJ).

The appellant claims to be the owner of three vehicles which were leased to one Pulumaju Sdn Bhd and upon default made by them, the three vehicles were seized by the appellant from the custody of one Peter Chia. Two of the vehicles were hired by the second respondent while the other one by the third respondent to the said Peter Chia. Three days later Peter Chia and another made a police report of the seizure. The appellant, through their servant also made a police report. Based on these reports, the police made a constructive seizure of the vehicles. The police thereafter reported the seizure to the magistrate. The magistrate, acting under s 413 of the Criminal Procedure Code ('the CPC') ordered that the vehicles be 'delivered temporary in possession' of the second and third respondent on the condition that a bond be deposited. The appellant now appeals against that decision of the magistrate. The issues before the court were (i) whether the seizure was lawful despite being carried out under s 20 of the CPC which was not applicable; (ii) who was entitled to the possession of the property seized; and (iii) whether there was a right of appeal from the magistrate's order.

Held, setting aside the magistrate's order and allowing the appeal: (1) in this case there was sufficient ground for the police to suspect that an offence may have been committed as a result of the allegation that the chassis numbers had been tampered with. Therefore, it matters not that the police were erroneous in stating that the matter came under s 20 of the CPC since there was also the allegation that there was cheating which allegation would embody dishonesty, an element of cheating. The police were therefore justified in seizing and reporting the seizure of the vehicles to the magistrate pursuant to s 413 of the CPC; (2) the fact that the appellant was last in possession was enough to tilt the balance in favour of the appellant, especially so when the second and third respondents were not able to establish that the possession by the appellant just before seizure by the police was unlawful, it being the law that the vehicles should normally be returned to the person from whom they were seized; (3) an order made by a magistrate under s 413 of the CPC can be appealed against or can be revised by the High Court. In any event, s 307 of the CPC does allow an appeal against an order of a magistrate made under s 413.

SKI Leasing Sdn Bhd v Public Prosecutor & Ors [1996] 5 MLJ 184 High Court, Tawau (Ian Chin J).

Adnan bin Johan v Pendakwa Raya Criminal Appeal No 44Ð19Ð1996 High Court, Shah Alam (Abdul Wahab Patail J).

John Muhia Kangu v Director of Prisons [1996] 2 SLR 747 High Court, Singapore (Rubin J).

Re Goh Joon Tong [1996] 3 SLR 507 High Court, Singapore (Kan Ting Chiu J).

This was the second stage in an application by the Public Prosecutor to confiscate the benefits that the defendant derived from drug trafficking. In an earlier proceeding, the plaintiff had obtained a confiscation order. The plaintiff now sought a certificate under s 7(2) of the Drug Trafficking (Confiscation of Benefits) Act (Cap 84A, 1993 Ed) (the Act). Two main issues were before the court: (1) whether the next step in the confiscation proceedings, the application for realization orders under s 15 of the Act, had to be made and heard separately from the present application, and (2) which of the properties in the possession of the defendant's sisters and cohabitee should be confiscated as part of the confiscation amount. In the earlier proceedings, the court had determined that about $39,000 from a sum of $79,000 given by the plaintiff to his sisters to buy a flat had been derived from drug trafficking. The plaintiff had also given his cohabitee, Lau Bee Leng, some jewellery and $77,000.

Held, allowing the plaintiff's claim in part: (1) order 89B r 6(3) of the Rules of Court only required that if a certificate had already been issued under s 7(2) of the Act, it had to be exhibited, not that a certificate had to be issued and exhibited during an application for realization. It did not prohibit an application for a realization order before the issuance of a certificate or forbid the application for the certificate and the realization order at the same time. On the contrary, efficiency and convenience commended that wherever possible, the applications should be made, argued and disposed off together; (2) the Act provided for the confiscation, certificate and realization orders because they had different functions. The purpose of the first was to quantify the benefits that a defendant had derived from trafficking. A certificate under s 7 stated the amount that might be realized. The certificate would set the amount that the receiver appointed under s 15 of the Act was to recover, and the property against which the amount was to be realized. If the certified amount was greater than the amount of the confiscation order, the excess was not confiscated and would be returned. The realization order empowered a receiver to be appointed to take control of the realizable property; (3) different criteria applied for determining whether a property should be part of the confiscation amount and for identifying the property from which the confiscated amount could be realized. To be considered as part of the confiscation amount, a property had to be derived from drug trafficking, eg shares purchased from a trafficker's legitimate earnings would not be considered. However, under s 8(1)(a), any property he held was realizable property to be taken into the quantification of the realizable amount, including those shares; (4) although the sisters had no knowledge or reason to suspect that the payment was connected with drug trafficking activities, they did not come within s 9 of the Act Ð which exempted from confiscation properties obtained innocently and for sufficient consideration from the drug trafficker Ð as love and affection between family members was not consideration, let alone sufficient consideration. The payment was instead a gift to the sisters caught by the Act under s 8(8)(a) and (b). Although the court found when determining the confiscation amount that $40,000 of the $79,000 was from the defendant's savings, in determining the realizable sum that gift was realizable property whether it was derived from the benefits of his drug trafficking activities or not (see pp 510I, 511AÐC); (5) the payments made to Lau Bee Leng, on the other hand, were not excessive or exceptional in the context of their relationship (which was equivalent to that of man and wife), and should not be regarded as gifts or realizable property. The three items of jewellery which the defendant gave to Lau Bee Lee were, however, gifts under s 8(1)(b) and therefore realizable property under s 8(8)(a) (see pp 511CÐD, 512BÐC).

Re Goh Joon Tong [1996] 3 SLR 507 High Court, Singapore (Kan Ting Chiu J).

Re Goh Joon Tong [1996] 3 SLR 507 High Court, Singapore (Kan Ting Chiu J).

Re Goh Joon Tong [1996] 3 SLR 507 High Court, Singapore (Kan Ting Chiu J).

Re Goh Joon Tong [1996] 3 SLR 507 High Court, Singapore (Kan Ting Chiu J).

Lim Han Ming v Public Prosecutor Criminal Appeal No 38 of 1996 High Court, Brunei (Roberts CJ).

Magnum Finance Bhd v Public Prosecutor [1996] 2 SLR 523 High Court, Singapore (Yong Pung How CJ).

Magnum Finance Bhd v Public Prosecutor [1996] 2 SLR 523 High Court, Singapore (Yong Pung How CJ).

The appellant, a retailer, was charged under O 3(1) of the Price Control (Indication of Price by Retailer) Order 1993 ('the Order') for not attaching any labels, price tags and/or marks on certain retail goods. The appellant pleaded guilty and was fined RM1,000 and the items which constituted the subject matter of the charge were confiscated and forfeited by the magistrate under s 407(2) of the Criminal Procedure Code (FMS Cap 6) ('the CPC'). The appellant appealed on the following grouds: (i) that the magistrate was not empowered to make an order of forfeiture under s 22 of the Price Control Act 1946 ('the Act'); (ii) that the magistrate had erred in law in holding that the goods could be forfeited under s 407(2) of the CPC as s 14(2)(a) and (b) of the Act related to forfeiture which only applied to price controlled goods whereas the subject matter of the charge were not price controlled goods; and (iii) that the order of forfeiture was excessive in view of mitigating factors in the case.

Held, dismissing the appeal: (1) under s14(2)(b) of the Act, the court has a discretion whether to forfeit any price controlled goods seized or not. The goods described in the charge under O 3(1) of the Order were price controlled goods as the Order was made pursuant to the powers conferred by s 13(1)(d) of the Act, and s 14(4) of the Act defines price controlled goods to include 'any goods or classes of goods in respect of which the price controller has prescribed marks or labels to be displayed under sÊ13(1)(d)'. Therefore, the magistrate had the discretion to order forfeiture of the goods described in the charge under s 14(2)(b) the Act; (2) however, the magistrate made an order of forfeiture under the general provisions of s 407(2) of the CPC. In view of the fact that s 14(2)(b) of the Act is a special provision made in a special statute, the principle of generalibus specialia derogant applies and therefore the Act supersedes the general provisions of the CPC. The magistrate should have exercised the discretionary power of forfeiture under s 14(2)(b) and not s 407(2) of the CPC. From the grounds of decision of the magistrate, he had exercised his discretionary powers to order forfeiture correctly, and by exercising the revisionary powers of the High Court, the order of forfeiture would be made pursuant to s 14(2)(b) of the Act.

MP Machinery (M) Sdn Bhd v Public Prosecutor [1996] 4 MLJ 213 High Court, Kota Kinabalu (Tee Ah Sing JC).

The appellant was charged under s 292(a) of the Penal Code (FMS Cap 45) ('the Penal Code') for publicly exhibiting an obscene laser disc film. He pleaded guilty to the charge. The prosecution tendered exhs P2ÐP12 which the appellant admitted were used in the commission of the offence. The magistrate accepted the plea of guilty and convicted the appellant on the charge. He fined the appellant the sum of RM2,000, in default 2 months' imprisonment. In exercise of his powers under s 407(2) of the Criminal Procedure Code (FMS Cap 6) ('the CPC'), he ordered exhs P2ÐP8 and P10 which was equipment used in exhibiting the film to be forfeited and to be retained by the police for disposal, on the ground that all those exhibits were used for the commission of the offence. This appeal was against the order of forfeiture of exhs P2ÐP8 and P10. The first ground of appeal was that the order made against the exhibits ought to be in accordance with s 411 of the CPC and not under s 407(2) thereof as the offence committed by the appellant was one under s 292 of the Penal Code. The second ground of appeal concerned the legality of the order as the owner of the things forfeited was not given the right of being heard before the order was made.

Held, dismissing the appeal and affirming the sentence and the order of forfeiture made by the magistrate: (1) exhs P2ÐP8 and P10 were not copies of the obscene laser disc in respect of which the conviction was made and therefore s 411 of the CPC would not apply in respect of them. The power of the court under s 407(2) of the CPC to, inter alia, forfeit property which has been used for the commission of any offence shall be exercised subject to any special provisions relating to forfeiture, confiscation, destruction or delivery contained in the written law under which the conviction was had. There are, however, no special provisions in the Penal Code relating to forfeiture, confiscation, destruction or delivery of exhibits which would require the magistrate to pay attention to before making the order he made in this case. In the circumstances, the magistrate was right in invoking s 407(2) of the CPC in dealing with the exhibits, particularly exhs P2ÐP8 and P10; (2) the court has to act under s 407(2) of the CPC to release the property to its true owner if satisfied that the offence has been committed without his consent, knowledge and connivance. Only if there were before the magistrate evidence of the true owner would it be incumbent upon him to hold an inquiry to ascertain the right of the true owner over the exhibits before making the order of forfeiture. However, in the present case there was only the information that the exhibits were on loan and no particulars of the true legal owner or his identity or his possible rights or interest in the exhibits were given. As such information was lacking, the magistrate was right in the exercise of his discretion under sÊ407(2) of the CPC without first holding the requisite inquiry.

Tan Khing Hung v Public Prosecutor [1996] 4 MLJ 316 High Court, Kuching (Abdul Kadir Sulaiman J).

SKI Leasing Sdn Bhd v Public Prosecutor & Ors [1996] 5 MLJ 184 High Court, Tawau (Ian Chin J).

This was an application by Sanuar Kamarudin bin Ahmad ('the applicant') under s 365 of the Criminal Procedure Code (FMS Cap 6) for a writ of habeas corpus ad subjiciendum. The applicant was ordered by the magistrate to be detained to undergo treatment and rehabilitation for two years and thereafter to undergo after-care supervision of a rehabilitation officer for another period of two years under s 6(1)(a) of the Drugs Dependants (Treatment and Rehabilitation) Act 1983 ('the Act'). The applicant contended that the police, medical and and rehabilitation officer's reports were not marked as exhibits and as such, there was no evidence before the court to support the magistrate's order. The federal counsel submitted that the failure to mark the reports was not fatal to the order.

Held, allowing the application and releasing the applicant: (1) the provision of s 6 of the Act is penal in nature, affecting the freedom of the individual. This must be well-appreciated by the magistrate before exercising his summary powers under the Act. Where the detention cannot be held to be in accordance with the procedure established by the law, the detention is bad and the person detained is to be released forthwith; (2) the magistrate must take into account the circumstances of the case, the character, antecedents, age, health, education, employment, family and other circumstances of the person to be detained and the magistrate must keep a record of the proceedings and the fact that all the conditions precedent in sub-ss (1), (3), (4) and (5) of s 6 of the Act have been complied with; (3) before an order of detention for the treatment and rehabilitation under s 6(1)(a) of the Act can be lawfully made on a drug dependant, several conditions precedent must be strictly complied with. These conditions precedent are namely, that the arrested drug dependant shall be informed as soon as it may be of the grounds of his arrest; he must be certified by a government medical officer or a registered medical practitioner to be a drug dependant; he must be given the opportunity of making representations and not merely pleas and appeals; the magistrate must consider a report by a rehabilitation officer and a copy of the same must be supplied, read out and explained to the person to be detained;there was, nowhere in the record, anything which showed that the magistrate had considered the rehabilitation officer's report before he made the order. Therefore, the magistrate could not be said to have complied with the mandatory provision of s 6(3) of the Act. Such non-compliance of s 6(3) is fatal to the continued detention of the applicant for the purposes of treatment and rehabilitation under s 6(1)(a) of the Act. The order was bad and the applicant's detention was unlawful for not being in compliance with the law.

Sanuar Kamarudin bin Ahmad v Menteri Hal Ehwal Dalam Negeri Malaysia & Anor [1996] 5 MLJ 1 High Court, Kota Bharu (Nik Hashim JC).

Morgan a/l Perumal v Ketua Inspektor Hussein bin Abdul Majid & Ors [1996] 3 MLJ 281 High Court, Johor Bahru (Abdul Malik Ishak J).

Baharuddin bin Kamsin v Pihak Berkuasa Sidang Panglima Armada Pengkalan TLDM Lumut [1996] 4 MLJ 184 High court, Taiping (Zulkefli JC).

On 23 May 1995, the Deputy Minister of Home Affairs Malaysia ('the deputy minister') received a report with the relevant information on the arrest of the applicant as provided under s 3(3)(c) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 ('the Ordinance'). Having satisfied himself that the applicant threatened the security of the public within the scope of the Ordinance, the deputy minister subsequently issued an order directing that the applicant be detained for a period of two years beginning 23 June 1995. The applicant filed an application for a writ of habeas corpus on the grounds that the prerequisites of the detention had not been complied with, namely (i) that the designated officer prior to the handing over of the report of the arrest of the applicant to the deputy minister had not applied his mind to that report; (ii) on the face of the document, the detention order was defective, as not only were the grounds vague and misleading but the wrong limb of s 4(1) of the Ordinance had been applied; (iii) that the deputy minister had issued the order mechanically or arbitrarily and had failed to apply his mind before issuing the detention order.

Held, allowing the application: (1) despite the ominous silence in s 3(3)(c) of the Ordinance on the requirement of the designated officer to apply his mind to the report prior to handing the report to the deputy minister, case law has rendered this requirement a necessity. The designated officer's role under s 3(3)(c) of the Ordinance was more than a mere conduit in the pipeline of administration. He was there to assist the deputy minister and in the process to ensure that the rights of the detainee were protected and not abused; (2) it was intended by legislature that there be a distinction between the first and second limbs of s 4(1) of the Ordinance. If there were doubts as to the particular limb the Minister applied his mind to or whether he applied his mind at all, the detainee would reap the benefit of the doubt. On the facts of the case all the grounds bore the hallmark of violence and the usage of dangerous weapons. These grounds fell squarely within the second limb of s 4(1) of the Ordinance and as such the erroneous deletion of this second limb by the deputy minister lent credence to the assertion that he had not applied his mind sufficiently when signing the detention order, thus acting arbitrarily and mechanically; (3) the facts showed that the deputy minister had made numerous errors which only meant that either he did not make the relevant studies of the facts or had merely acted mechanically or arbitrarily. To reiterate subsequently after the defective detention that the order suffered from a typographical error could not correct the situation as the order had already been given to the detainee. If any doubts existed, they must prevail in favour of the detainee.

Mok Han Liang v Timbalan Menteri Dalam Negeri, Malaysia & Ors [1996] 5 MLJ 74 High Court, Melaka (Suriyadi Halim Omar J).

The applicant, a member of the rank and file of the Royal Malaysian Navy, applied for a writ of habeas corpus ad subjiciendum. He was detained under close arrest at the Sungai Wangi Camp in Perak on 8 September 1995 after the trial before the court-martial on two charges framed against him did not commence as scheduled and was rescheduled for hearing on 3 October 1995. Prior to 8 September 1995, the applicant had never been placed under any form of arrest. On 3 October 1995, the trial was adjourned for continued hearing on 4 December 1995 and the applicant was continuously detained thereafter. Federal Counsel for the respondent made a preliminary objection as regards the admissibility of the affidavit filed by the applicant as being defective since the said affidavit was sworn before a Commissioner for Oaths who was not a person categorized under paras (a)Ð(d) of s 424(1) of the Criminal Procedure Code (FMS Cap 6) ('the CPC'). The issue raised by the applicant was that he could only be placed under close arrest after the trial had commenced under r 16(1) of the Armed Forces (Court-Martial) Rules of Procedure 1976 ('Rules of Procedure'). However, Federal Counsel argued that the applicant was lawfully detained by virtue of the power vested in the commanding officer under s 96(3) of the Armed Forces Act 1972 to detain the applicant at any stage of the investigation and trial of the case ('the Act').

Held, allowing the application for writ of habeas corpus and ordering the immediate release of the applicant: (1) the phrase 'subject to any rules of the court' appearing in sÊ424(1) of the CPC would mean that the provisions of the Commissioner for Oaths Rules 1993, being rules made by virtue of the powers conferred by s 11(2) of the Courts of Judicature Act 1964 would apply, and an affirmation before a duly appointed Commissioner for Oaths as appeared to have been made in this case by the applicant would therefore be in order and in compliance with the said requirement of s 424(1) of the CPC. Therefore, the preliminary objection was dismissed; (2) r 16(1) of the Rules of Procedure comes into operation at the stage when the trial of the applicant as an accused person before the court-martial had commenced and only then can the applicant be detained under close arrest. Here, the court-martial did not commence on 8 September 1995 but on 3ÊOctober 1995 when one witness was called to give evidence. Since the trial did not commence on 8 September 1995, the first respondent had no power to invoke r 16(1) of the Rules of Procedure to detain the applicant under close arrest on 8ÊSeptember 1995 and such detention was unlawful in the circumstances of the case; (3) the provision of s 96(3) of the Act is only applicable at the stage when the applicant as an accused person had not been brought for trial before the court-martial. In the present case, the applicant had already appeared before the court-martial and the charges had been preferred against him. There was no question of the commanding officer exercising his power to detain the applicant under close arrest at this stage of the proceeding before the court-martial. Also as a matter of fact, this allegation of the commanding officer invoking his power under s 96(3) was not averred to at all in the affidavit of the first respondent. In the absence of such an averment, it must be taken to mean that there was no exercise of such power under s 96(3) of the Act by the commanding officer to detain the applicant until the hearing of the applicant's case before the court-martial; (4) there was nothing shown in the affidavit of the first respondent that he had invoked his discretionary power under r 16(1) of the Rules of Procedure on 3 October 1995 to detain the applicant under close arrest. It would appear that the detention of the applicant was a continuous detention from 8 September right through 3 October and until the next hearing date on 4 December 1995. Even if the applicant was rightly detained by the first respondent by virtue of his discretionary power under r 16(1) of the Rules of Procedure, the detention of the applicant as from 3ÊOctober 1995 onwards would still constitute an unlawful detention because the detention on 3 October had flowed from the unlawful detention effected on 8 September 1995. If a detention of a person is a continuation of an earlier unlawful detention then the second detention is unlawful.

Baharuddin bin Kamsin v Pihak Berkuasa Sidang Panglima Armada Pengkalan TLDM Lumut [1996] 4 MLJ 184 High Court, Taiping (Zulkefli JC).

Public Prosecutor v Por Chong Beng [1996] 4 MLJ 467 High court, Pulau Pinang (Jeffrey Tan JC).

Adzhaar bin Ahmad & Anor v Public Prosecutor [1996] 4 MLJ 85 High Court, Kangar (Alauddin J).

Public Prosecutor v Manogaran s/o R Ramu Criminal Case No 44 of 1996 High Court, Singapore (Rubin J).

The respondents had pleaded guilty before a district judge to a joint charge under s 143 of the Penal Code (Cap 224) which averred that they were members of an unlawful assembly on 20 March 1992, whose common object was to commit an offence of illegal gaming contrary to s 7 of the Common Gaming Houses Act (Cap 49) (CGHA). The charge had been classified as a 'Magistrate Arrest Case' (MAC) by the prosecution. The district judge imposed various fines on the respondents which exceeded the sentencing jurisdiction of a magistrate's court, as contained in s 11(5) of the Criminal Procedure Code (Cap 68) (CPC). He subsequently initiated the present application for revision, praying that the High Court would set aside the sentences imposed and substitute appropriate sentences. The DPP submitted that the prosecution supported the district judge's application for revision. The DPP suggested that the district judge was sitting in a district court, but was compelled to exercise the powers of a magistrate, on account of the fact that the case had been classified as an 'MAC'. If the application was allowed, the DPP submitted that deterrent custodial sentences should be imposed on the respondents, who each had at least two previous convictions for gaming under the CGHA.

Held, allowing the application: (1) the jurisdiction sought to be invoked by the prosecution by classifying the case as an 'MAC' was that of a magistrate's court. It did not matter that the judicial officer who dealt with the case was a district judge, since a district judge is ex officio a magistrate; (2) the district judge had correctly made the application for revision by the High Court. In hearing an 'MAC', the district judge was sitting in a magistrate's court, not a district court, and was thereby exercising the powers of a magistrate. Accordingly, he could only pass sentences within the ceiling imposed by s 11(5) CPC; (3) while the respondents were technically first offenders as far as the unlawful assembly charge was concerned, the common object of the assembly was to commit an offence of gaming in a common gaming house. Therefore, in view of the respondents' previous convictions, and having regard to the High Court's powers on revision under s 268 CPC, deterrent custodial sentences were appropriate; (4) as the fines imposed by the district judge should not have exceeded $2,000, payments which were in excess of $2,000 were to be refunded to the respective respondents.

Public Prosecutor v Nyu Tiong Lam & Ors [1996] 1 SLR 273 High Court, Singapore (Yong Pung How CJ).

On 16 February 1995, the applicant was arrested for alleged involvement in a murder case and was subsequently detained in prison without bail pending trial. The applicant was 17 years old at the time of his arrest and it was contended that his continued incarceration would result in him coming into contact with hardened criminals. The applicant's counsel wrote a letter to the court which was assigned the case ('High Court No 1') to obtain an early trial date. The court advised the applicant's counsel that it could not fix an early trial date without the deputy public prosecutor's consent to amend the charge. The applicant then filed this application before this court ('High Court No 2') seeking (i) an early trial date in High Court No 1; (ii) if High Court No 1 could not give an early trial date, the case be transferred to High Court No 2 to obtain an early trial date there; (iii) if High Court No 2 could not give an early trial date, the case be transferred to High Court No 3 to obtain an early trial date there. The issue before the court was whether it could encroach upon the territory of High Court No 1 and whether it had the power to transfer proceedings to High Court No 3.

Held, dismissing the application: (1) s 20 of the Courts of Judicature Act 1964 ('the Act') gives an absolute power to the Chief Judge to distribute business among the judges of the High Courts in accordance with the directions which he may give of a general or particular nature. In construing s 20 of the Act, the inescapable conclusion was that only the Chief Judge could direct the judge of High Court No 2 ('J2') to take and dispose of the case from the judge of High Court No 1 ('J1'); (2) miscellaneous criminal applications have to be intituled just like originating summonses; (3) the inherent powers of the High Court cannot be exercised to override or circumvent the express provisions of law and therefore the court was fully bound by s 20 of the Act.

Chong Siew Choong v Public Prosecutor [1996] 5 MLJ 65 High Court, Johor Bahru (Abdul Malik Ishak J).

On 9 December 1989, the respondent, a juvenile at the material time, was charged for robbery punishable under s 392 of the Penal Code (FMS Cap 45) at the Juvenile Court, Johor Bahru. The respondent pleaded guilty to the charge, and was ordered to be detained at an approved school, ie Tunas Bakti Reform School, Taiping, for a period of three years from the date of the order pursuant to s 12(f) of the Juvenile Courts Act 1947 ('the Act'). The respondent appealed against the said order in the High Court. On 19 December 1990, the High Court judge allowed the appeal and reduced the period of detention from three years to one year. The appellant appealed against the said decision. The question before this court was whether the judge was correct in law in reducing the period of detention which was ordered by the Juvenile Court earlier.

Held, allowing the appeal: (1) under s 28 of the Act, the High Court judge is neither empowered nor has the discretion to shorten the period of detention. The power to order a juvenile to be sent to an approved school is bestowed under the Act to the Juvenile Court, and that order shall be an authority for the respondent's detention for a period of three years. Further, it is stipulated under s 28(a) of the Act that only the board of visitors of the approved school to which the respondent was sent may in their absolute discretion shorten the period of detention; (2) after considering the powers of the Juvenile Court under the Act and the powers of the Juvenile Court conferred on the High Court by virtue of s 40 of the Act and particularly to the scope of s 28 and proviso (a) thereto pertaining to the discretion given by the legislature to the board of visitors, it can be concluded that the word 'shall' as appearing in ss 12 and 28 of the Act means mandatory. Therefore, under s 28, the detention of three years made by the Juvenile Court is mandatory, and it cannot be varied by the appellate court.

Public Prosecutor v Yap Min Woie [1996] 1 MLJ 169 Federal Court, Johor Bahru (Anuar Zainal Abidin CJ, Peh Swee Chin and Mohamed Dzaiddin FCJJ).

Public Prosecutor v Saiful Afikin bin Mohd Firus [1996] 4 MLJ 309 High Court, Kota Bharu (Nik Hashim JC).

Public Prosecutor v Saiful Afikin bin Mohd Firus [1996] 4 MLJ 309 High Court, Kota Bharu (Nik Hashim JC).

A juvenile offender ('the offender') pleaded guilty to the charge of culpable homicide not amounting to murder under the first limb of s 304 of the Penal Code (FMS Cap 45) ('the Code'). At the time of committing the offence, the offender was 16Êyears old. The juvenile court imposed the following orders against him, that: (i) the offender be placed under the care of his parents for a period of two years under s 12(1)(d) of the Juvenile Courts Act 1947 ('the Act'); (ii) the offender be placed under a probation order for two years under s 21(1) of the Act; and (iii) the guardian of the offender to pay RM1,500 to the deceased's parents as compensation. The Public Prosecutor appealed against the orders contending that the orders were unsuitable to the offence charged and should be substituted with a more appropriate order to reflect the seriousness of the offence.

Held, quashing the orders made by the juvenile court and ordering that the offender be committed to the Henry Gurney School: (1) the probation order cannot be made in homicide cases according to s 21(1) of the Act. The offence under appeal is a clear-cut homicide case under the first limb of s 304 of the Code. Therefore, the order imposed under (ii) aforesaid, placing the offender under probation, was wrongly made and must be set aside; (2) with regard to the order of compensation under (iii), s 13 of the Act stipulates that an opportunity to be heard must be given to the parent or guardian before an order of compensation is made against him. However, the records do not show that such an opportunity was given to the mother of the offender who was present in court at the time of the hearing. Therefore, in the absence of any inquiry as regards her ability to pay, the juvenile court fell into a serious error when it made the order of compensation against her. Such an irregularity renders a failure of justice which cannot be cured and makes the order invalid. Therefore, order (iii) must also be set aside; (3) at the material time, the offender was a young person and he was a first offender. Therefore, a sentence of imprisonment was not appropriate and not called for. On the other hand, the order made under s 12(1)(d) to place the offender under the care of his parents was also not suitable and commensurate with the facts and the offence charged as the offence was very serious and the offender should be seriously dealt with. The end of justice would suitably be served if the offender were sent to an advanced approved school rather than to prison. Therefore, the order made by the juvenile court should be quashed and replaced with the order that the offender be committed to the Henry Gurney School until he attained the age of 21 under ss 12(1)(f) and 40 of the Act.

Public Prosecutor v Saiful Afikin bin Mohd Firus [1996] 4 MLJ 309 High Court, Kota Bharu (Nik Hashim JC).

Chong Siew Choong v Public Prosecutor [1996] 5 MLJ 65 High Court, Johor Bahru (Abdul Malik Ishak J).

Chen Hock Heng Textile Printing Pte Ltd v Public Prosecutor [1996] 1 SLR 745 High Court, Singapore (Yong Pung How CJ).

Ganesun s/o Kannan v Public Prosecutor [1996] 3 SLR 560 High Court, Singapore (Yong Pung How CJ).

The defendant pleaded guilty in a magistrate's court to two charges brought under s 6(b) of the Misuse of Drugs Act (Cap 27) ('the Act') for the consumption of controlled drugs. The defendant who was not represented at the trial had two previous convictions, among them a conviction in 1989 for the same offence. The record of proceedings in the magistrate's court showed that both charges were read and explained to the defendant in Malay and in answer to each charge the defendant was recorded as having said 'Understand Charge. Plead Guilty'. However it was not recorded whether or not the nature and consequences of the defendant's plea had been explained to him. The defendant having admitted the facts and his two previous convictions submitted arguments in mitigation after which he was sentenced to three years' imprisonment on the first charge and one year's imprisonment on the second, both sentences running concurrently. The defendant appealed against both conviction and sentence. On appeal before the High Court it was argued for the defendant that the magistrate had failed to comply with s 175(2) of the Criminal Procedure Code ('the CPC'). It was also argued that in spite of the mandatory minimum sentence prescribed for a second or subsequent offence under s 6(b) of the Act, the magistrate should have considered the possibility of the use of s 263 of the CPC.

Held, quashing the defendant's convictions and sentences and ordering a retrial against the defendant on the same charges: (1) where the defendant pleads guilty and it appears on the record that the charge was read over to and explained to the defendant, it is to be presumed, in the absence of any evidence to the contrary, that the charge has been put to the defendant and that the essential ingredients of the offence have been explained to him. If at a later stage it appears that the facts do not support the charge brought or that there is a possible defence to the charge, the magistrate should reverse the plea of guilty which he has entered and record a plea of not guilty by the defendant; (2) it is the duty of a magistrate not only to ensure that the record shows that the charge has been read, explained and understood but also that the accused understands the nature and consequences of his plea. Section 175 of the CPC imposes upon a magistrate a duty to record the fact that s 175(2) has been complied with. There is no set formula for doing so and it is sufficient if the record shows that the defendant does understand the nature and consequences of his plea and that this has been explained by himself to him by the magistrate. In the present case although the magistrate may have been satisfied that the defendant had understood the nature and consequences of his plea, since he did not record that this had been explained by himself to the defendant as required by s 175(2) of the CPC, the conviction would be quashed and a retrial ordered on the same charges; (3) a magistrate is not obliged to record that he has considered the use of ss 262 or 263 of the CPC in every case. If the possible application of the sections has been raised, it would be correct for the magistrate to mention it, but not otherwise. If on a second conviction for consumption of a controlled drug, a severe minimum penalty is prescribed, it can hardly be said that the offence is to be regarded as trivial in nature. It is a matter for those who make the laws in any country to decide which offences are to be regarded as serious by the courts, whose duty it is to interpret and apply those laws. There may be circumstances in which ss 262 or 263 of the CPC can be applied to a second or subsequent offender under s 6(b)of the Act but these circumstances will be rare.

Hassan bin Dollah v Public Prosecutor [1996] 5 MLJ 285 High Court, Brunei (Roberts CJ).

Ulaganathan Thamilarasan v Public Prosecutor [1996] 2 SLR 534 High Court, Singapore (Yong Pung How CJ).

Ganesun s/o Kannan v Public Prosecutor [1996] 3 SLR 560 High Court, Singapore (Yong Pung How CJ).

Public Prosecutor v Dahalan bin Ladaewa [1996] 1 SLR 783 High Court, Singapore (S Rajendran J).

Public Prosecutor v Kraisak Sakha & Nor Criminal Case No 79 of 1995 High Court, Singapore (Amarjeet JC).

Public Prosecutor v Kraisak Sakha & Nor Criminal Case No 79 of 1995 High Court, Singapore (Amarjeet JC).

Public Prosecutor v Puspanathan a/l Sinnasamy & Ors [1996] 4 MLJ 165 High Court, Alor Setar (Mohd Hishamudin J).

Datuk Yong Teck Lee & Ors v Public Prosecutor [1996] 2 MLJ 68 Court of Appeal, Malaysia (Lamin PCA, Mahadev Shankar and Ahmad Fairuz JJCA).

Liong Kok Keng v Public Prosecutor [1996] 3 SLR 263 High Court, Singapore (Yong Pung How CJ).

This case was referred to the High Court under ss 296 to 300 of the Criminal Procedure Code by a magistrate who wished to obtain some guidance as to the use of ss 22 and 22A of the Misuse of Drugs Act (Cap 27).

Held: (1) s 22 can be used only to arrest, without warrant, a person whom the arresting officer 'reasonably suspects' of having committed an offence under the Misuse of Drugs Act. The section cannot be used to arrest someone who is assisting the police to investigate a case; (2) s 22A only permits a suspected person to be kept in custody, without a magistrate's order, for up to 24 hours; (3) the magistrate will have to be satisfied that custody under s 22A is necessary for the investigation to be completed. Otherwise, he may refuse the application. If custody is to be continued beyond the 15 days allowed by s 22A, the prosecution must thereafter proceed under the Criminal Procedure Code; (4) any remands in custody under s 22A are subject to the limitation that such remands are to be for a term 'not exceeding 15 days in the whole'. The phrase 'in the whole' appears to restrict the powers of a magistrate to order detention to 15 days in total Ð not 15 plus 15 plus 15, etc; (5) it would be proper for a magistrate to ask the prosecutor to give a statement of such facts as will justify the magistrate in ordering a remand in custody; (6) it is not necessary for a holding charge to be preferred against a defendant, before s 22A is used for a remand in custody so long as the magistrate is satisfied that the defendant is reasonably suspected of an offence; (7) it is necessary for the magistrate to state where a defendant is to be held in custody. If nothing is said by the magistrate, such custody must be that of Jerudong Prison.

Public Prosecutor v Hapadi Tahir Revision No 8 of 1996 High Court, Brunei (Roberts CJ).

Re The Detention of R Sivarasa & Ors [1996] 3 MLJ 611 High Court, Kuala Lumpur (KC Vohrah J).

On 9 November 1996, 67 people were arrested by the police in an alleged demonstration which took place at Asia Hotel, Kuala Lumpur. The suspects were remanded under s 117 of the Criminal Procedure Code (FMS Cap 6) ('the CPC') from 10 November 1996 till 13 November 1996. An application was then made to the magistrate for an extension of the detention period of 10 suspects under s 117 of the CPC for another 10 days, ie from 13 November 1996 until 22 November 1996. Under the heading 'Alasan-Alasan' in the application, it was indicated, inter alia, that the application had to be made as the detention period was too short and was insufficient for the police to complete investigation. The magistrate stated at the end of her notes of proceedings that she was satisfied with the reasons as appeared in the application, and also in the investigation diary that was given. She went on to allow the application for the extension of detention. Apparently, the investigation diary that had been referred to by the magistrate consisted of three sheets of typewritten paper, which had the heading 'Pergerakan Soalsiasat Tahanan' and a timetable of when the 10 suspects were being taken out from and being sent back to the cells where they were detained. In the afternoon of 13 November 1996, an urgent application for the revision of the magistrate's remand order under s 323 of the CPC was filed in the High Court. The complaint was that the omnibus remand order made on the 10 persons by the magistrate was not in compliance with s 117 of the CPC.

Held, setting aside the magistrate's remand order: (1) from the record of proceedings and the documents which the magistrate purported to rely on, it was clear that the magistrate had not appreciated the strict nature of s 117 of the CPC and the case law on the matter; (2) pursuant to s 117 of the CPC, the police officer has a mandatory duty to transmit to a magistrate a copy of the entries in the diary as prescribed under s 119 of the CPC when producing a suspect before him; (3) in this case, no copy of the entries in the diary was transmitted to the magistrate. This was fatal to the application for extension of detention, as it meant that the magistrate did not have the prescribed material (especially that referred to in s 119(1)(d)) to act upon in her judicial enquiry whether to order further remand; (4) the three sheets of paper produced in this case did not contain copies of 'entries in the diary' as prescribed under s 119, and certainly did not relate to 'the day by day' proceedings of the officer making the police investigation which were entered into his diary. Also, the timetable listed in the papers could not be considered as copies of the entries prescribed under s 119; (5) s 117 of the CPC also requires that there be grounds for believing that the accusation or information is well founded for the police officer to make his application for detention. These grounds are subject to judicial scrutiny. It has to be stressed that a magistrate ought not give a remand order in police custody without his satisfying himself as to its necessity and that the period of remand ought also to be restricted to the necessities of the case. If the necessities of the case for remand or further remand are not shown, no remand order should be made; (6) the liberty of an individual after arrest is at stake and art 5(4) of the Federal Constitution reposes an onerous judicial duty on a magistrate to decide whether a person should be detained or detained further; (7) the application for extension of detention was an omnibus application for the detention of 10 named persons, and there was no condescension to details as to what each of them was arrested for and why it was necessary to extend the remand of each of them. Whatever vague reasons shown on the application (which did not show any nexus between the suspects and a suspected offence or offences) for the continued detention of each of them were without any foundation; (8) ss 28 and 117 have been inserted into the CPC for a good reason, so that the detention by the police of a person beyond 24 hours after his arrest is not as a result of an executive act but as a result of a judicial decision in consonance with art 5(4) of the Federal Constitution. It was unfortunate that the magistrate did not advert to what was required of her under s 117.

Re The Detention of R Sivarasa & Ors [1996] 3 MLJ 611 High Court, Kuala Lumpur (KC Vohrah J).

Ulaganathan Thamilarasan v Public Prosecutor [1996] 2 SLR 534 High Court, Singapore (Yong Pung How CJ).

The petitioner sought criminal revision of a decision of a subordinate court judge to forfeit his vehicle, which had been used by his employee to commit an offence under s 20(1) of the Environmental Public Health Act (Cap 95, 1988 Ed). The petitioner had testified on behalf of the defence at the trial of the employee. The basis of the petition was the hardship suffered by the petitioner, who had to pay off a judgment debt owing to a financial company for breach of a hire-purchase agreement to which that vehicle was subject. The vehicle had already been auctioned off by the time the petition was heard. The petitioner contended that no appeal had been made because he had thought that he could not succeed, and it was only after a subsequent High Court decision on forfeiture was reported that he approached his lawyers for advice. The respondent argued that the petition ought to be dismissed as there had been inexcusable delay, that the evidence of the petitioner had been rejected by the judge, and that he had nelsonian knowledge of the illegal dumping of refuse.

Held, dismissing the petition: (1) a prerequisite of the exercise of revisionary jurisdiction was that there must have been some serious injustice. No precise definition of what would constitute such serious injustice was possible as the discretion of the courts had to be preserved. Generally, however, it must be shown that there was something palpably wrong in the decision, which struck at its basis as an exercise of judicial power; (2) revision ought not be granted where there was a mere difference in the view of the law, as that lay in the province of the appellate process. Neither ought jurisdiction be exercised where any grievance allegedly suffered by the applicant arose out of a change in the law as it would, otherwise, be open to persons to challenge decisions by way of revision notwithstanding the expiry of the appeal period; (3) the petitioner had to show in addition that injustice had thereby been caused to him. Such injustice could only be established if it was shown that forfeiture clearly ought not have been ordered. On the evidence, whether the court applied the present or prior position of the law on forfeiture, no difference in result would occur. Though the petitioner was not charged, as he should have been, he had been able to give evidence of his version of events. The record showed that his evidence could not be relied upon and the inference was that he had shown wilful disregard for the dumping. No injustice had, therefore, been caused by the order; (4) hardship caused by forfeiture alone could not attract criminal revision;though there had been delay in providing the petitioner with the records of proceedings from the subordinate courts, he still ought to have presented his petition earlier, and requested, after explaining the reasons for his request, the court to call for the records under s 266 of the Criminal Procedure Code (Cap 68). Though generally delay would not be material in determining whether there was injustice, on the instant facts, even if injustice had existed, its force was so seriously attenuated by the delay that no exercise of the discretion to revise ought to be made in favour of the petitioner.

Ang Poh Chuan v Public Prosecutor [1996] 1 SLR 326 High Court, Singapore (Yong Pung How CJ).

Chen Hock Heng Textile Printing Pte Ltd v Public Prosecutor [1996] 1 SLR 745 High Court, Singapore (Yong Pung How CJ).

The Public Prosecutor applied for criminal revision in respect of the respondent's conviction and sentence on an offence under s 6(1) of the Destruction of Disease-Bearing Insects Act (Cap 79) (DDBIA). The respondent was in fact served with a notice to attend court earlier by the prosecuting authority, requiring them to attend court to answer a charge under s 25(1) DDBIA. Due to a clerical error, the charge presented before the magistrate was one under s 6(1) DDBIA instead of s 25(1). The respondent, through counsel, pleaded guilty to the charge. As the respondent had eight previous convictions under s 6(1) DDBIA, they were given the maximum fine of $2,000. The maximum fine prescribed for contravention of s 25(1) DDBIA was $1,000. It was not disputed that the charge was wrongly presented. The respondent had pleaded guilty to that charge by mistake, when it had intended all along to plead guilty to the intended charge under s 25(1). The Public Prosecutor thus applied for an order reversing the conviction and sentence, and directing a retrial in the subordinate courts on the intended charge of s 25(1) DDBIA. Counsel had no objections, and he informed the court that the respondent would still plead guilty to the s 25(1) charge once the existing conviction and sentence were quashed. [bbHeld, allowing the petition: (1) the revisionary jurisdiction of the High Court existed to set right serious injustice. A wide discretion was vested in the High Court, the exercise of which depended largely on the particular facts; (2) on the facts, it was evident that there was a serious injustice which arose from a clerical error. The charge was wrongly stated, and the conviction and sentence which flowed from the mistaken plea of guilt could not be permitted to stand; (3) the High Court, in its revisionary capacity, has the power to 'alter the finding', and correspondingly has the implied power to correct errors in the charge pursuant to s 256(b)(ii) CPC. This would include the power to amend the charge to introduce the appropriate offence section, such as s 25(1) DDBIA in the present case; (4) the power of amendment was not unfettered. It should be exercised sparingly, subject to careful observance of the safeguards against prejudice to the defence. The court must be satisfied that the proceedings below would have taken the same course, and the evidence recorded would have been the same. The primary consideration was that the amendment would not cause any injustice, or affect the presentation of the evidence, in particular, the accused's defence; (5) since in the case before the court, the respondent had no objections whatsoever to the proposed amendment and there was no possibility of the amendment occasioning any prejudice, ordering a retrial would serve little purpose. The conviction and sentence imposed by the magistrate was, therefore, set aside and the charge amended to the intended charge under s 25(1) DDBIA; (6) counsel having confirmed that the respondent would plead guilty to this charge, the fine was reduced to $1,000, the maximum prescribed under s 25(1) DDBIA.

Public Prosecutor v Koon Seng Construction Pte Ltd [1996] 1 SLR 573 High Court, Singapore (Yong Pung How CJ).

Public Prosecutor v Muhari bin Mohd Jani & Anor [1996] 3 MLJ 116 High Court, Kuala Lumpur (KC Vohrah J).

Public Prosecutor v Nyu Tiong Lam & Ors [1996] 1 SLR 273 High Court, Singapore (Yong Pung How CJ).

Leong Yew Thong v Public Prosecutor [1996] 2 SLR 348 High Court, Singapore (Yong Pung How CJ).

On 12 May 1995, Lee Quat Leong ('the deceased') was found dead whilst in police custody. The two respondents, who were then two police personnel, were charged under s 330 of the Penal Code (Cap 45) ('the Penal Code') in the sessions court for having voluntarily caused hurt to the deceased for the purpose of extorting from the deceased information which might have led to the detection of the offence of the housebreaking of a finance company. An offence under s 330 of the Penal Code carries a maximum sentence of seven years' imprisonment, and the convicted person shall also be liable to a fine. The two respondents pleaded guilty. From the statement of facts presented by the prosecution at trial, it seemed that the respondents had voluntarily caused hurt to the deceased over the interrogation period of 9[1/2] days. However, the prosecutor failed to disclose the nature of the hurt caused to the deceased or what weapon, if any, was used. The sessions court judge found that an offence had been made out on a plea of guilt, and went on to sentence each of the respondents to 18 months' imprisonment. There was no appeal against the sentence by the public prosecutor. The deceased's elder brother, however, filed a notice of motion in the High Court to, inter alia, revise and increase the sentences on the grounds: (i) that the sentences were manifestly inadequate having regard to the grave nature of the offence under s 330 of the Penal Code; and (ii) that the sessions judge whilst imposing the sentences, wrongly relied on Lai Kim Hon & Ors v PP [1981] l MLJ 84 despite Suffian LP (as he then was) specifically saying in the judgment that the case was not to be regarded as a precedent in future cases.

Held, allowing the notice of motion: (1) under s 31 of the Courts of Judicature Act 1964 ('the CJA'), the High Court may exercise powers of revision in respect of criminal proceedings and matters in subordinate courts in accordance with any law for the time being in force relating to criminal procedure. The law relating to revision could also be found in Ch XXXI ss 323Ð327 of the Criminal Procedure Code (FMS Cap 6) ('the CPC') as well as ss 35Ð37 of the CJA; (2) the powers of revision of the High Court are exercisable at the discretion of the court and that discretion is untrammelled and free, so as to be fairly exercised according to the exigencies of each case. However, it may be used to increase a sentence only in exceptional cases. It is to be used sparingly, with regard to all the circumstances of each particular case, and the thrust would be primarily for the purposes of preventing or correcting a miscarriage of justice. The main question to be asked is whether substantial justice has been done or will be done and whether the lower court should be interfered with in the interests of justice; (3) in sentencing generally, the public interest must necessarily be one of the prime considerations. An offence under s 330 is one of the most serious offences known in law and the court must show its abhorrence of it. The public interest, which includes the principle of retribution, requires the court to pass a deterrent sentence on the offender to deter likely offenders; (4) police officers who treat suspects in a cruel manner can expect to receive only very severe punishments from the courts. Police officers are the custodians of the law and they have to uphold, not breach the law. By breaching the very law against violence, they incalculably undermine and subvert the confidence and trust placed by the public in the police; (5) in this case, the court was satisfied that ex facie a case had been made out under s 323 of the CPC to call for the record of the proceedings before the judge of the sessions court to satisfy the court 'on the correctness, legality or propriety' of the sentences that had been passed; (6) pursuant to the records of proceedings, it appeared that the sessions judge was not aware of the reservations of Suffian LP in the preliminary judgment and of Abdul Hamid FJ in the subsequent judgment of the Federal Court on the sentences that were imposed by the trial court in the case of Lai Kim Hon & Ors v PP. There was also nothing in the note to indicate that she appreciated that an offence under s 330 of the Penal Code is one of the most serious offences known to the law; (7) the sessions judge further erred in principle when she said that the offences were committed by the two respondents while they were performing their official duties and treated that as a mitigating factor. The courts are under a duty, in the larger interest of substantial justice, to show their abhorrence of this type of crime; (8) and (ii) they had good records of service in the police force and that they had lost their jobs and pensions on conviction; (9) however, the respondents' plea of guilt will entitle them to a discount of [1/3] of the sentence in this case. An added discount should also be given based on the following mitigating factors: (i) the respondents had also voluntarily surrendered to the police, and admitted an offence which could not otherwise be proved against them due to the lack of certain information in the statement to facts;each of the respondents' sentences was enhanced and increased from 18 to 36 months so that substantial justice will be done.

Public Prosecutor v Muhari bin Mohd Jani & Anor [1996] 3 MLJ 116 High Court, Kuala Lumpur (KC Vohrah J).

The appellant pleaded guilty in the district court to five charges: one charge of trafficking in diamorphine, one charge of unlawful possession of cannabis, one charge of unlawful consumption of morphine, one charge under s 33(1)(e) of the Criminal Law (Temporary Provisions) Act (Cap 67) and one charge under s 33(1)(f) of the same Act. The appellant had previous convictions for drug trafficking, unlawful possession of controlled drugs and unlawful consumption of controlled drugs. At the time he committed the present offences, he was still subject to police supervision ordered as a result of his previous conviction for trafficking. The appellant was sentenced to ten years' imprisonment and 15 strokes of the cane in respect of the trafficking charge, two years' imprisonment in respect of the charge of possessing cannabis; three years' imprisonment in respect of the consumption charge; and one year's imprisonment on each of the two charges under the Criminal Law (Temporary Provisions) Act. The district judge further ordered all five sentences to run consecutively, such that the aggregate sentence imposed on the appellant amounted to 17 years' imprisonment and 15 strokes of the cane. The appellant appealed, claiming that the sentences were manifestly excessive. He asked for the sentences to be made concurrent.

Held, dismissing the appeal: (1) under s 18 of the Criminal Procedure Code (Cap 68), where at one trial a person is convicted and sentenced to imprisonment for at least three distinct offences, the court before which he is convicted must order that the sentences for at least two of those offences shall run consecutively. The sentencing court is left with the discretion as to which and how many of the sentences ought to run consecutively. There is no absolute rule precluding the court from making more than two of the sentences consecutive, although a decision to go beyond the stated minimum of two consecutive sentences should be taken only in exceptional cases, after careful consideration of the facts of the case and the relevant guiding principles; (2) in exercising its discretion to impose consecutive sentences, the court must have regard to two common law principles: the one transaction rule and the totality principle; (3) the one transaction rule states that where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent. In Singapore, however, the one transaction rule is subject to the clear terms of s 18 of the Criminal Procedure Code. In this case, the operation of s 18 mandated the imposition of at least two consecutive sentences because the five charges against the appellant all involved separate and distinct offences with different elements and particulars; (4) and secondly, that the total sentence imposed should not be a 'crushing sentence' not in keeping with the offender's records. In Singapore, however, the first limb of the principle is subject to the operation of s 18 of the Criminal Procedure Code, since the imposition of consecutive sentences may in some cases lead to aggregate sentences in excess of the statutory maximum for the single most serious offence. As to the second limb of the principle, it was clear from the district judge's grounds of decision that he was anxious to avoid sentences so harsh as to produce a 'crushing' effect when aggregated; (5) where consecutive sentences are imposed on an offender, the overall punishment should be in proportion to the overall gravity of his criminal conduct, taking into consideration the circumstances of his offence and the pattern of his previous behaviour; (6) in the appellant's case, apart from the trafficking offence, the sentences imposed for the other four offences were the statutory minimum, in spite of the appellant's record of previous convictions for unlawful possession of drugs and drug consumption. As for the trafficking offence, the appellant not only had a previous conviction for drug trafficking, but had committed the present offence in defiance of a police supervision order made as a result of the previous trafficking offence. It was in the interests of both society and the appellant himself that a sentence with some deterrent effect be imposed. The sentence of ten years' imprisonment and 15 strokes of the cane on this charge was thus neither inappropriate nor excessive; (7) the totality principle states, firstly, that the aggregate sentence imposed on an offender should not exceed the normal level of sentences given for the most serious of the individual offences involved;for the above reasons, it was clear that the district judge had not erred in principle in ordering the five sentences to run consecutively. None of the sentences was manifestly excessive, nor could the aggregate sentence be said to be a crushing one.

Maideen Pillai v Public Prosecutor [1996] 1 SLR 161 High Court, Singapore (Yong Pung How CJ).

The defendant pleaded guilty to four charges, namely: (1) consumption of codeine, contrary to s 6(b) of the Misuse of Drugs Act; (2) possession of 268 pills containing Diazepam, contrary to s 3A of the Misuse of Drugs Act; (3) possession of poison (liquid) otherwise than in a labelled bottle or receptacle, contrary to s 9(1)(b) of the Poisons Act; and (4) possession of poison (48 pills) otherwise than in a labelled bottle or receptacle, contrary to s 9(1) of the Poisons Act. He was sentenced as follows: (a) three years (on charge 1); (b) one year and one stroke (on charge 2); (c) four months (on charge 3); and four months (on charge 4). The sentences on (c) and (d) were to be concurrent, but consecutive to the sentences on (a) and (b). The sentences on (a) and (b) were to be consecutive. The defendant appealed against the sentences.

Held, dismissing the appeal: there is no reason, in principle, why minimum sentences should not be made to run concurrently, in whole or in part, in a proper case. However, in this case, the first two offences were different in nature and neither had any connection with each other. The sentences on charges 1 and 2 were thus properly made consecutive. Consumption of codeine is self-inflicted and an abuse committed by the defendant upon himself. A large number of pills, containing a controlled drug, were also found in the defendant's possession, for the purpose of trafficking, not for his own consumption. Trafficking probably means sale, so that the defendant could be said to have been a drug supplier as well as a drug taker himself. The two offences against the Poisons Act followed two previous convictions for the same offence. In such circumstances, it was reasonable that the sentences for these offences should be consecutive to those on (a) and (b) and that those on (c) and (d) should be concurrent.

Mahari bin Hj Aliamat v Public Prosecutor Criminal Appeal No 9 of 1996 High Court, Brunei (Roberts CJ).

Surandran a/l Rajaretnam lwn Pendakwa Raya [1996] 4 MLJ 142 High Court, Kota Bahru (Nik Hashim JC).

Narindar Singh v Public Prosecutor [1996] 3 SLR 639 High Court, Singapore (Yong Pung How CJ).

Leong Mun Kwai v Public Prosecutor [1996] 2 SLR 338 High Court, Singapore (Yong Pung How CJ).

The accused was a Thai national, female, who pleaded guilty to a reduced charge of possessing 3,845.6g of cannabis. In mitigation, she claimed she had four children she was bringing up singlehandedly, the oldest of whom was 11 and the youngest 45 days at the time of the arrest. She claimed that she committed the crime in order to buy milk for her youngest child. She was forced by circumstances and was not a real criminal.

Held: (1) as a woman, she was exempted from a sentence of caning. Apart from that and the factor of age, the law treated both men and women similarly when it came to punishment for crimes; (2) an appropriate sentence was to be guided by certain considerations, the first of which was public interest. Other considerations included: amount of drugs involved and the plea of guilty (which entitled the accused to a discount of [1/4] to [1/3] of the sentence she would otherwise receive; (2) the court would have had, after taking into consideration the background of the accused and the amount of canabis involved, no hesitation to imprison her to 15 years of imprisonment although this was her first offence. However, because of the straits she was in and in view of the little children that she had to maintain, the court gave her a [1/3] discount and finally sentenced her to 10 years' imprisonment effective from 3 July 1994.

Pendakwa Raya v Seyak bte Awang Criminal Trial No 45-13-1995 High Court, Kota Bharu (Nik Hashim JC).

The accused pleaded guilty to a charge of possessing 381.7g of cannabis under s 12(2) of the Dangerous Drugs Act 1952. He appealed for leniency on that ground. The accused was a civil servant and supported a wife and two ailing parents who were 56 and 60 years old. The minimum sentence for a conviction under the charge was five years' jail and ten strokes of the cane. The maximum sentence was life imprisonment.

Held, sentencing him to ten years' jail and ten strokes of the cane: (1) the accused's crime was a serious one and the court had to take into consideration public interest in punishing him. Ten years was a fair sentence when the accused's background was taken into consideration.

Pendakwa Raya v Hisham bin Ghazali Criminal Trial No 45-12-95 High Court, Johore Bahru (Mohd Ghazali J).

The accused pleaded guilty to a reduced charge of possession of 9.43g of cannabis halfway through trial, after four witnesses had been called. He appealed for leniency. He was a former technician in the Malaysian army and had been formerly convicted on another charge of possession of drugs. He claimed to have repented of his deeds and intended to break his addiction to drugs. He also applied to be imprisoned in Marang, Terengganu.

Held: (1) public interest was the prime consideration in meting out the sentence. Other factors included the amount of the drugs involved, the background of the accused and the plea of guilt; (2) in this case, the accused did not seem to have repented after his previous conviction. He had not taken advantage of the discipline acquired while in the army to improve himself. Also the plea of guilty did not come until after the trial was well under way. The needs of justice required that he be given a deterrent sentence; (3) the court would have given him 20 years' imprisonment and 16 strokes of the cane if he had been found guilty after trial. On account of his plea of guilty, the court gave him a [1/4] discount and sentenced him to 15 years jail and 10 strokes of the cane; (4) as for the application to be sentenced to a particular prison, this was outside the jurisdiction of the court; the accused should apply instead to the prison authorities for any transfer.

Pendakwa Raya v Zakaria bin Ishak Criminal Trial No 45-6-1996 High Court, Kota Bharu (Nik Hisham JC).

Pendakwa Raya v Adam bin Mohamad Criminal Appeal No 42-5-1995 High Court, Kota Bahru (Nik Hashim J).

Public Prosecutor v Muhari bin Mohd Jani & Anor [1996] 3 MLJ 116 High Court, Kuala Lumpur (KC Vohrah J).

Hassan bin Dollah v Public Prosecutor [1996] 5 MLJ 285 High Court, Brunei (Roberts CJ).

The accused was charged for trafficking dangerous drugs weighing 11,389.6g under s 39B of Dangerous Drugs Act 1952 ('the Act'). However, on the day of the trial, the prosecution reduced the charge to one of possession of dangerous drugs under s 6 which was punishable under s 39A(2) of the Act. The facts of the case presented by the prosecution showed that the accused was stopped and searched by two police officers while they making their rounds at the Jalan Besar, Rantau Panjang area. During the search, the accused was found to have with him a box containing dried leaves which were in seven different packs and suspected to be cannabis. The accused was arrested and was subsequently brought to the Rantau Panjang police station together with the contents of the box. The chemist report confirmed that the dried leaves were cannabis as defined under s 2 of the Act and the net weight 11,389.6g. After hearing and understanding the facts of the case and the reduced charge brought by the prosecution, the accused pleaded guilty to the said offence. The defence pleaded to the court for a lighter sentence for the accused.

Held, convicting the accused and sentencing him accordingly: (1) in deciding the sentence in cases under s 39B of the Act, the court could not be lenient with any offence relating to drugs and must take a firm stand in sentencing the said accused under s 39A(2) of the Act. Otherwise, the purpose of the drafting of the section which imposed a life sentence or imprisonment not less than five years and whipping of not less than ten strokes would be futile; (2) when an accused had pleaded guilty to a charge put forth, it was a rule of practice that the accused be given a 'credit' or 'discount' of [1/4] or [1/3] off the sentence that would have been imposed had the accused been tried and found guilty; (3) after considering all the applicable principles including the weight of the the drugs involved, the background of the accused, the public interest and the interest of the accused, a discount of [1/4] would be given to the accused and he would be sentenced to 14 years' imprisonment to take effect from the date of arrest together with the minimum whipping of ten strokes.

Pendakwa Raya lwn Wahid bin Yaakob [1996] 5 MLJ 29 High Court, Kota Bharu (Nik Hashim JC).

Public Prosecutor v Amir bin Mahmood & Ors [1996] 5 MLJ 159 High Court, Johor Bahru (Abdul Malik Ishak J).

The four accused pleaded guilty to the charge of causing the death of Ng Ban Seng, aged 14 years, on 30 July 1995 by striking him on the head with wooden poles with the intention of causing such bodily injury as was likely to cause death, thereby committing an offence of culpable homicide not amounting to murder punishable under s 304(a) of the Penal Code. The four accused were aged 15, 14, 15 and 16 years old respectively. All four were members of the 'Ang Soon Tong' triad society. On 30 July 1995, the first three accused together with two others met members of the rival 'Gi Hai Kim' secret society who were chanting group slogans and behaving in a menacing manner towards them. As they were outnumbered, the three accused and the two others ran away. They informed their 'headman' Ang about the incident. Later, Ang distributed rattan poles to the four accused together with other gang members in order to launch a retaliatory attack on the rival gang. Ng was spotted sitting alone. Concluding that he was a member of the rival gang, members of the group hit him with their poles. The four accused joined in. Ng was conveyed to hospital where he died without regaining consciousness. The four accused admitted the facts and were convicted.

Held: making the following orders: (1) the first accused was placed on probation for three years with the usual conditions and a further condition that he remain indoors from 9pm to 6am; (2) the second and third accused were ordered to be sent to the Singapore Boys' Home for three years; (3) the fourth accused was sentenced to five years' imprisonment to be detained at such place as the minister may determine. In sentencing the fourth accused, the judge was prepared to accept the RTC report and order him to undergo reformative training. However, he did not want to undergo reformative training. Thus, he was sentenced accordingly.

Public Prosecutor v Foo Shik Jin & Ors Criminal Case No 24 of 1996 High Court, Singapore (TS Sinnathuray J).

The 72-year-old appellant was convicted on a guilty plea for unlawful possession of opium. As this was her second conviction for the offence, the district judge sentenced her to the minimum sentence of two years' imprisonment prescribed by the Misuse of Drugs Act (Cap 185). She appealed against the sentence. Counsel for the appellant argued that the court could suspend the sentence of imprisonment.

Held, dismissing the appeal: a suspended sentence was a statutory creation. There was no such provision in Singapore. Section 212(3) of the Criminal Procedure Code (Cap 68) did not give the court any power to suspend a sentence. The court therefore had no choice but to sentence the appellant to two years' imprisonment.

Aw Hoon v Public Prosecutor [1996] 3 SLR 153 High Court, Singapore (Yong Pung How CJ).

The appellant pleaded guilty in the district court on 7 April 1995 to three charges of forgery under s 465 of the Penal Code (Cap 224). Fifteen other charges were taken into consideration, 14 of which also involved forgery while one related to falsification of accounts (s 477A, Penal Code). The appellant's modus operandi was to forge the signature of the managing director of M/S Eng Kheng (S) Pte Ltd (the company) on various cheques drawn on the company's Banque Nationale de Paris current account. In relation to the third charge (DAC 4406A/94), the forged cheque was paid to a stockbroking company for the appellant's purchase of shares. The value of these shares had risen by the time the police seized the share certificates. The appellant was originally charged on 29 March 1994 with criminal breach of trust and falsification of accounts. The forgeries were confirmed only in December 1994. The district judge convicted and sentenced him to one year's imprisonment on each of the three charges. As two of the sentences were ordered to run consecutively, he had to serve an aggregate sentence of two years' imprisonment. On appeal against sentence, counsel submitted that the district judge had failed to adequately consider the mitigating force of the inordinate delay in prosecution. Counsel also submitted that the appellant had cooperated with the police by surrendering the share certificates forthwith when first questioned by the police in 1988. The value of the shares purchased by the appellant had risen, so the company did not suffer any loss. Finally, counsel argued that the offences were committed more than ten years ago. The appellant was a changed and reformed man and had since led a law-abiding way of life. He had pleaded guilty at the earliest opportunity and had no previous convictions. Accordingly, counsel submitted that the sentence of two years' imprisonment was harsh and manifestly excessive.

Held, dismissing the appeal: (1) delay in prosecution did not affect the question of liability and delay in prosecution simpliciter was not necessarily a mitigating factor. Nonetheless, in appropriate cases, the court could exercise its discretion to order a 'discount' in sentence, if there had been a significant delay in prosecution which had not been contributed to in any way by an accused person, and the accused would otherwise suffer real injustice or prejudice; (2) the court may consider the fact that the accused may have to suffer the stress and uncertainty of having the matter hanging over his head for an unduly long or indefinite period. This argument, however, carried more force if the delay set in after an accused has been charged, since it was only then that the charge could be said to 'hang over his head'. The argument may be wholly negated, however, if the offence in question was serious, or where the accused had numerous antecedents, or had taken steps to avoid detection. A fortiori, where the accused had actively misled the police in the course of the investigations, he could not complain of the delay in prosecution, much less seek to extract some mitigating force from it. Alternatively, if there was evidence that the accused had changed for the better between the commission of the offence and the date of sentence, the court may also properly take this into account in appropriate circumstances. The weight to be attached to these considerations depended very much on the circumstances of each case; (3) there was no real evidence that the appellant had changed for the better. At best, it could be said in mitigation that the appellant had managed to stay out of trouble with the law; (4) the increase in the value of the shares purchased was not a mitigating factor. The fact that the value had increased was purely fortuitous. This was only relevant towards establishing that full restitution had been made; (5) it was not accurate to say that the appellant had pleaded guilty at the earliest opportunity, and had fully cooperated with the police. He was first charged in court on 29 March 1994. He eventually pleaded guilty on 7 April 1995. Had he fully cooperated with the police, the forgeries which formed the substance of the present charges would certainly have come to light much sooner; (6) considering the length of time taken to complete the investigations in this case, as well as the relatively straightforward nature of the offences, the irresistible inference must be that the prosecution was largely responsible for its own problems, including the delay occasioned. While the appellant himself had contributed in some way to the delay, the court had its misgivings over the undue protraction of the investigation process. However, this aspect of the 'delay' was not a ground, by itself, for a reduction in sentence; (7) the district judge had taken into account all the relevant mitigating circumstances. There was no basis for a more lenient sentence. In the premises, there was no reason to interfere with the district judge's decision; (8) (per curiam) the fact that an offender had succeeded in avoiding apprehension for a substantial period of time could not conceivably be a mitigating factor at all.

Tan Kiang Kwang v Public Prosecutor [1996] 1 SLR 280 High Court, Singapore (Yong Pung How CJ).

The accused pleaded guilty to a charge of homicide under s 304(a) of the Penal Code. In his plea for leniency, he said that he was only 18 years and 2 months old at the time of the crime, that he had grown up in very difficult circumstances, that the deceased had caused him to be lame about five years earlier and that the deceased had provoked him with his words. Furthermore, he was genuinely remorseful and that he had already remained in remand since 25 March 1990.

Held, sentencing him to 15 years' imprisonment effective from 25 March 1990: (1) the court cannot take a compromising stance where a crime causes death. Although the accused was young at the time, taking note of the way in which he had stabbed the deceased, the court would have had no qualms to sentencing him to 20 years' imprisonment had he not pleaded guilty; (2) since he was already 24 at the time of the hearing, the court was also under no obligation to obtain a character record before sentencing him. In the opinion of the court, imprisonment was the best sentence for the accused, and it had to be for a length sufficient to impart to him the education and discipline that would prepare him to be a useful citizen; (3) however, he was entitled to a discount of between [1/3] and [1/4] the sentence he would have been given if he had been found guilty after a trial.

Pendakwa Raya v Zulkifli bin Mat Zin Criminal Trial No 47-27-1990 High Court, Kota Bharu (Nik Hashim JC).

The appellant pleaded guilty to and was convicted of criminal trespass. The magistrate sentenced him to five weeks' imprisonment. In doing so, the magistrate took into account the appellant' previous convictions, in the 1970s, for criminal defamation and making statements conducing to public mischief. The appellant appealed, contending inter alia, that these were 'spent convictions' under the Rehabilitation of Offenders Act 1974 [UK], which was applicable in Singapore by virtue of s 5 of the Criminal Procedure Code (Cap 68), and that they were not similar offences.

Held, dismissing the appeal: (1) the exercise of a judge's discretion when sentencing was not a matter of criminal procedure. Sentencing principles and the application of these principles were matters of substantive law. A perusal of the Rehabilitation of Offenders Act 1974 revealed that this piece of legislation dealt with matters of evidence and substantive rights. In any event, it did not apply to criminal proceedings. It had no application in Singapore; (2) although the appellant's previous convictions were not strictly for similar offences, as the ingredients of these offences and the present one did not share any common element, it would be wrong to treat them as though they were totally irrelevant, for in the broad sense, they shared some similarities, in that they involved at least some element of mischievous intention; (3) the effect these convictions had on sentencing in any case must depend on the facts of each case. Relevant considerations would be the number and nature of those previous convictions. For convictions which occurred a long time ago, it would also be relevant to consider the length of time during which the defendant had maintained a blemish-free record. All these were part and parcel of the convicted person's antecedents which the court should take into account; (4) taking into account the circumstances in which the offence was committed and the appellant's pervious convictions, the sentence of five weeks' imprisonment was not manifestly excessive .

Leong Mun Kwai v Public Prosecutor [1996] 2 SLR 338 High Court, Singapore (Yong Pung How CJ).

The respondent pleaded guilty to culpable homicide not amounting to murder of the deceased under s 302 second limb of the Penal Code. He was sentenced to one day of imprisonment and fined RM5,000 in lieu of one-year imprisonment. The prosecution submitted that the trial judge had given too much emphasis on the personal interests of the accused to the extent of not giving sufficient consideration to the public interests in his judgment. The respondent submitted that the sentence could not be set aside because it involved the discretion in sentencing, and the Court of Appeal should not amend the sentence unless the sentence was not consistent with the facts or offence. The issue was whether the trial judge had erred in any of the legal principles in sentencing. The trial judge in his judgment considered that the respondent had been in remand for 11 months.

Held, allowing the appeal: (1) the trial judge was too sympathetic to the interests of the respondent until he forgot to direct himself on the more important principle of sentencing which was in the interest of justice. Both interests must be given consideration accordingly; (2) detention in remand is not a sentence. The treatment accorded to a prisoner in remand and a prisoner undergoing imprisonment as a consequence of a conviction are different. Therefore, if the judge had truly wanted to rehabilitate and alter the lifestyle of the respondent, imprisonment of one day is not sufficient; (3) the sentence ought to be commensurate with the seriousness of the offence. The interests of the public should be given priority compared to other interests and this must be translated through the sentence. After considering the plea of guilt, the 11 months in remand, and the fine of RM5,000, the sentence was set aside and a new sentence of three-year imprisonment was imposed; the fine was maintained.

Pendakwa Raya v Adam bin Mohamad Criminal Appeal No 42-5-1995 High Court, Kota Bahru (Nik Hashim J).

The appellant was placed on probation for 18 months on 28 June 1995 after he pleaded guilty to a charge of rioting with hurt. On 13 October 1995, the appellant was charged with an offence of unlawful assembly, to which he pleaded guilty and was sentenced to undergo reformative training. On 28 November 1995, he was brought before the district judge to be dealt with for the offence for which probation was given. The district judge sentenced him to 18 months' imprisonment and six strokes of the cane, the sentence to begin after the appellant completed his reformative training. The appellant appealed.

Held, allowing the appeal: (1) the sentence of 18 months imprisonment and six strokes of the cane consecutive to reformative training was inappropriate. A lengthy prison term after the appellant was released from reformative training would run counter to the aim of reformative training, as it could undo what the reformative training was meant to do. The same was true of caning; (2) in view of the appellant's youth, the court was minded to give him one last chance to reform. An order for reformative training was substituted for the 18 months imprisonment and six strokes of the cane. As consecutive terms of reformative training were not desirable, the second reformative training was ordered to commence on the same date as the first; (3) (per curiam) in order to avoid the sort of difficulty that had arisen in this case, the court, in dealing with an offender for a second offence (committed while on probation for an earlier offence), should have regard to the fact that the offender would later have to be dealt with for the offence for which he had been given probation or conditional discharge as well. This was because sentences passed for the second offence could restrict the types of sentences that could be passed by the court dealing subsequently with the offence for which the offender had been given probation or conditional discharge.

Ng Kwok Fai v Public Prosecutor [1996] 1 SLR 568 High Court, Singapore (Yong Pung How CJ).

Teo Keng Pong v Public Prosecutor [1996] 3 SLR 329 High Court, Singapore (Yong Pung How CJ).

Mohd Shahrin bin Shwi v Public Prosecutor [1996] 3 SLR 553 High Court, Singapore (Yong Pung How CJ).

Chong Siew Choong v Public Prosecutor [1996] 5 MLJ 65 High Court, Johor Bahru (Abdul Malik Ishak J).

Adnan bin Johan v Pendakwa Raya Criminal Appeal No 44Ð19Ð1996 High Court, Shah Alam (Abdul Wahab Patail J).

Lim Chuan Huat v Public Prosecutor Criminal Appeal No 57 of 1995 Court of Appeal, Singapore (Karthigesu JA, LP Thean JA and Lai Kew Chai J).

Following a tip from an informer, the police from the drug prevention unit started investigation on the operation of a drug syndicate in Perak. The informer introduced a police agent provocateur, who posed as a trafficker who wanted to buy cannabis, to the second respondent. The second respondent later took them to a house to see his 'partner', the first respondent. On 31 July 1991, the informer and the police agent provocateur returned to the house to carry out negotiations for the sale and purchase of cannabis with the respondents. When the police agent provocateur expressed his intention to inspect the merchandise, the second respondent took a slab of plant material which was wrapped with a transparent plastic from a room in the house. As planned, the informer was then asked to get the money from a car parked outside the house, and the police agent provocateur then excused himself to go to the washroom. At this time, the team of police which were stationed outside the house moved in to arrest the respondents. The plant material were confirmed to be cannabis by the government chemist. The two respondents were charged with trafficking in dangerous drugs under s 39B(1)(a) of the Dangerous Drugs Act 1952. At trial, the judge held that no prima facie case had been made out against the respondents, on the following grounds: (i) it was doubtful whether the cannabis produced in this case was the very cannabis seized by the police Ð there was a patent break in the chain of evidence as the chemist failed to give evidence as to how she handled the cannabis from the time she received it from the investigating officer until the time she handed them back to him; (ii) a person called Amran was also the occupier of the room from which the cannabis was taken, and hence the respondents could not be said to have exclusive custody and control of the drugs; (iii) the prosecution had failed to call Amran as well as the informer, who had actually played the role of an agent provocateur, as witnesses, and thus the court was entitled to draw adverse presumptions under s 114(g) of the Evidence Act 1950 ('the Act'); and (iv) the failure of police to, inter alia, lift fingerprints from the cannabis' wrapper and to take photographs of the street-lights in relation to the house, had grave adverse effect on the prosecution's case. The trial judge accordingly acquitted and discharged the respondents without their defence being called. The public prosecutor appealed.

Held, allowing the appeal: (1) on the evidence adduced, there could not be any doubt that the cannabis seized and handed to the chemist and the investigating officer was the cannabis produced in court. When no such doubt existed, it was not essential for the chemist to show how she kept the cannabis before returning it to the investigating officer, particularly when the defence did not at all cross-examine on or raise the issue; (2) the trial judge was unduly concerned with the exclusivity of possession of the room in which the drugs were found. It was essential to bear in mind that the case of the prosecution was not based on custody or control of the cannabis thereby invoking the presumption of possession, or on possession of 200g or more cannabis thereby attracting the presumption of trafficking under s 37(d) or (da)(vi) of the Act. The prosecution founded its case of trafficking on the 'sale' of the cannabis to the police agent provocateur. The definition of 'trafficking' is wide and includes buying, selling, carrying, keeping and concealing dangerous drugs; (3) in the instant case, there was more than credible evidence from the testimony of the police agent provocateur that the respondents acted in concert in the sale of the cannabis to him. The negotiation to buy cannabis on the first occasion was spearheaded by the second respondent who told the agent provocateur that his partner had cannabis. The agent provocateur was later introduced to the first respondent; (4) there was not a thread of evidence that the person known as Amran had in any way participated in any of the two negotiations or was in any way or manner concerned with the sale of cannabis in this case. The facts that he existed and was concerned in the rental of the house were of little relevance to the charge against the respondents having regard to the basis upon which the prosecution preferred its charge, ie one of sale; (5) the trial judge had erred in law when he faulted the investigating officer for not lifting the finger prints off the wrappings of the cannabis and for not taking photographs of the street light in front of the house. Where the identity of a culprit is in question, fingerprint evidence would be of great significance. In the present case, the charge alleged trafficking in the form of sale and there was evidence indicating the identities of the alleged offenders and the sale transaction. Fingerprint evidence, therefore, assumed little value; (6) the trial judge had used the first respondent's statement to conclude that Amran occupied the room, and that the first respondent was not involved in selling the cannabis. This approach was wrong. A purely exculpatory or self-serving statement is not evidence of the facts stated though it may be admitted to show the reaction or attitude of the accused at the time when he made it; (7) though the informer introduced the police agent provocateur to the second respondent, there was no evidence that the informer had done anything apart from being present during the negotiations. It appeared that his presence was merely to lend credence to the agent provocateur's intention to purchase the cannabis in the minds of the respondents. Even if the informer exceeded the limits of an informer and became an agent provocateur, there was more than credible evidence of the respondents' involvement in the negotiation and agreement to sell to the police agent provocateur the cannabis; (8) the decision to invoke an adverse inference under s 114 of the Act was not a matter of an inflexible rule but depended upon the circumstances of each particular case. The question to consider was whether the existence of a fact of a state of things made the existence of another fact or state of things so likely that it may be presumed to exist. The answer must necessarily vary according to the circumstances, the nature of the fact required to be proved and its importance in the controversy, the usual mode of proving it, the nature quality and cogency of the evidence which had not been produced and its accessibility to the party concerned; (9) having regard to the definition of 'trafficking' and the evidence adduced including the evidence of sale, this court was unanimously of the view that the non-calling of the informer and Amran did not affect the success of the prosecution at the conclusion of its case in establishing a case under s 180 of the Criminal Procedure Code (FMS Cap 6), that a case under the said s 180 against both respondents had been made out, and that this was so even if the more stringent test of 'proof beyond reasonable doubt' as propounded in Arulpragasan a/l Sandaraju v PP (Federal Court Criminal Appeal No 05Ð237Ð1992) were to be applied.

Pendakwa Raya v Mansor bin Mohd Rashid & Anor [1996] 3 MLJ 560 Federal Court, Kuala Lumpur (Chong Siew Fai CJ (Sabah & Sarawak).

This appeal arose out of a criminal prosecution brought by way of private summons under a fiat by the Public Prosecutor. Chuang Ping Derg (Chuang), also the complainant, was the managing director of Rahmonic Resources Pte Ltd (Rahmonic). The respondent was a company in Singapore that builds mechanical handlers. Its managing director was Kerwin Ang. Together both companies entered into a joint venture project for NSC Penang. Their collaboration entailed Rahmonic supplying the software that resided in vision systems as well as vision hardware. The respondent supplied the mechanical handlers. After the two companies parted ways, a total of 12 charges were brought against the respondent for various offences under ss 136(1), 136(2) and 136(3) of the Copyright Act (Cap 63) (the Act). The software which were relevant to these charges were the tGraph, TM/TC Driver and Mark and Lead Inspecting program (version 1.5) used in the semi-conductor industry. The appellant's case was that these three software programs were Chuang's creation and that the proprietorship of their individual copyrights vested in him. Chuang claimed that the respondent had sold or distributed these software programs without authority to third parties and were thus guilty of the offences charged. On 19 May 1993, pursuant to two search warrants issued under s 136(9) of the Act, these software programs were allegedly found in the respondent's premises in one of its computers. Chuang also alleged that he had the opportunity to visit the premises of a company in Kuala Lumpur, Malaysia called 'Harris' with his counsel. There he found that the vision software which they were using were suspiciously similar to his copyrighted software. Chuang claimed that Haltech (M) Sdn Bhd (Haltech), another Malaysian company, is the distributor for the respondent in that country. Thus, the appellant contended that a sale had been made to Haltech, and the latter subsequently sold the software to Harris. The trial judge found that there was prima facie evidence of the subsistence of the copyright in the said three software programs. There was also prima facie evidence of the respondent's knowledge or constructive knowledge that the copies of the software found in its premises pursuant to the search warrants were infringing copies. However, he held that the appellant had failed to adduce sufficient evidence to support the elements of 'sale', 'possession for the purposes of sale', 'distribution for purpose of trade' and 'make for the purpose of sale' as required in the corresponding 12 charges respectively. Consequently, there was no case to answer, and he acquitted the respondent of all the charges. The appellant appealed.

Held, dismissing the appeal: (1) at the close of the prosecution case, where only circumstantial evidence is adduced, the court would look at the totality of the evidence and draw the reasonable inferences from the primary facts. All that was required at this stage was a minimum evaluation of the evidence as a whole; (2) the present case involved only circumstantial evidence. Based on the totality of the evidence here, it was pure conjecture that a sale or distribution to Haltech had taken place. In the absence of direct evidence, more circumstantial evidence was required to satisfy the Haw Tua Tau test on the facts of this case. A reasonable inference had to point to a distinct and reasonable possibility and not just a mere suspicion. Mere possession of the infringing works per se did not prove that they were for the purposes of sale or distribution. Inferences amounting to conjecture and speculation were clearly not within the contemplation of the Haw Tua Tau test. Thus, it was unreasonable to infer that a sale or distribution had taken place; (3) the presumption of sale under s 136(7) of the Copyright Act applied only when at least five copies of the work could easily be made available independently. This was because the possession and sheer number of independent copies would imply that they were for sale. In the present case, all the alleged copies were found in a single computer. Since there was no possibility of making quick and independent sales, the presumption was inapplicable. In any case, even if the presumption of sale were invoked, it was already so obviously rebutted by the prosecution's own evidence that an essential element of the charge could not be supported; (4) the power conferred under s 58 of the Criminal Procedure Code (Cap 68) to produce any document or thing was specific. An applicant must be precise as to the documents which he wished the other party to produce. To allow otherwise, in the present case, was clearly unfair to the respondent since this would have practically permitted the applicant (the appellant) to initiate criminal proceedings against the respondent without having first amassed sufficient evidence to make his case. The scope of the summons here was too wide and amounted to a 'fishing expedition'. Therefore, the application had been rightly refused.

Public Prosecutor v IC Automation (S) Pte Ltd [1996] 3 SLR 249 High Court, Singapore (Yong Pung How CJ).

Goh Kim Hong v Public Prosecutor [1996] 3 SLR 584 High Court, Singapore (Yong Pung How CJ).

The appellant was convicted of seven charges of illegal moneylending contrary to s 8(1)(b) and four charges of harassment contrary to s 33(1) of the Moneylenders Act (Cap 188). The prosecution's case was that the appellant had lent money separately to one Chong and one Ling on various occasions. After each of the borrowers failed to repay the amounts loaned, the appellant had harassed Goh, Chong's husband, and Khoo, Ling's wife. All four of them testified for the prosecution. It was adduced in evidence that the appellant was not a licensed moneylender. The defence was that while both Chong and Ling had indeed owed money to the appellant, the sums were owed as gambling debts. Two witnesses, Tan and Lim, testified for the defence in support of the appellant's contentions. The judge below decided that the appellant did not raise a reasonable doubt in the prosecution's case. He scrutinized both Chong's and Ling's evidence, but came to the conclusion that their evidence was credible. On the other hand, he considered that the evidence of Tan and Lim were suspect, particularly because of their acquaintanceship with the appellant. It was also considered that the appellant had not put his case to the two borrowers. The judge, therefore, convicted the appellant on all 11 charges against him, and imposed a deterrent sentence to deprive the appellant of his gains. In the event, the fines totalled $123,000. On appeal the appellant argued, inter alia, that the judge ought to have directed his mind to the danger of convicting on the uncorroborated evidence of Chong and Ling and should have treated that evidence with caution as those witnesses had purposes of their own to serve. The judge was also said to have placed undue emphasis on the acquaintanceship of the defence witnesses with the appellant. In addition, the prosecution ought to have called several other witnesses, namely, gamblers present when the appellant had obtained repayment of the loans. As they were not called, a presumption that their evidence was adverse to the prosecution operated.

Held, allowing the appeal in part: (1) as no corroboration warning was required for accomplice evidence, none would be similarly required for the evidence of witnesses with their own interests to serve. The trial judge was entitled to treat the evidence of an interested person with caution, but whether caution was in fact required was dependent on the circumstances of the case. The purpose to be served must be shown to be strong before such witnesses were tainted. The appellate court would be slow to interfere with the decision of a trial judge on this matter so long as it was clear that he had not accepted the evidence of such witnesses without scrutiny, even if he had not stated as much expressly. On the facts, the judge had noted that Chong and Ling were not without blemish. In any event, there was nothing to justify such caution as argued by the appellant; (2) there was no rule of law that acquaintanceship with a party necessitated caution. The judge had merely taken that into account alongside other observations of the veracity of the defence witnesses. The judge had in any case noted incongruities in the evidence given by the defence witnesses; (3) harassment in the Moneylenders Act (Cap 188) had to be distinguished from intimidation. There had to be a quality of persistence or repetition in the former that need not be present in the latter. A single visit or encounter could amount to harassment if it constituted a persistent attack or persecution, but not if it were of short duration. The latter could, however, be a form of intimidation; (4) on the facts, most of the alleged acts of harassment were really acts of intimidation. Convictions for intimidation were substituted in place of convictions for harassment pursuant to the power of the High Court on appeal to substitute convictions under s 173, Criminal Procedure Code. However, one of the charges of harassment was not made out on the facts, and the appeal was allowed as to that charge; (5) a presumption that evidence not adduced would have been against the party failing to call need not be drawn in every situation. No such presumption would operate unless the witness not produced was essential. In a criminal trial, all that the prosecution had to do was to produce witnesses whose evidence could be believed such that the case was proven beyond a reasonable doubt. Where witnesses not produced were immaterial or redundant, no presumption would operate; (6) (per curiam) whether the presumption of adverse effect applied was a distinct issue from whether the discretion of the prosecutor to call witnesses was correctly exercised. The former was evidentiary while the later was procedural, failure of which could amount to a miscarriage of justice. The prosecution's discretion to call witnesses was not fettered by any obligation to call a particular witness; it was not obliged to allow the defence to test its evidence, or to act for the defence. Only if there were an intention to hinder or hamper the defence would a miscarriage of justice arise, requiring interference by the courts.

Chua Keem Long v Public Prosecutor [1966] 1 SLR 510 High Court, Singapore (Yong Pung How CJ).

On 11 October 1990, the second appellant, a candidate for the Gaya constituency in Sabah, went to the Kota Kinabalu community centre to file his nomination papers. He was accompanied by the first, third, fourth and fifth appellants. All the five appellants were then charged in the magistrates' court with the offence of participating in a procession in a public place without a licence from the officer-in-charge of the police district, thereby committing an offence under s 27(5)(a) and punishable under s 27(8) of the Police Act 1967. The appellants pleaded not guilty. On 3 October 1994, the appellants applied by originating motion before the High Court for leave for an order of prohibition to be issued and addressed to the magistrate below to restrain him from hearing the charges against the appellants. It was argued that to allow the magistrate to commence hearing the charges would be an abuse of the process of the court, as there had been no institution of prosecutions against those participating in the processions accompanying candidates to nomination centres on nomination day for over 18 years, and that consequently, the public had a legitimate expectation that participating in such processions would not invite a prosecution ('the application'). However, the application was dismissed. The appellants appealed.

Held, dismissing the appeal: (1) the appeal in this case was an application for leave to apply for an order of prohibition to be issued against the magistrate to prevent him from proceeding with the trial on the ground of abuse of the court's process. Therefore, the question before the court was whether such order could be issued against a judicial officer while performing his judicial function that was within his jurisdiction; (2) the magistrate had no inherent power to stay the proceedings and to acquit the appellants on the charges preferred without hearing the evidence in support. The legislature had made it abundantly clear as appearing in s 173 of the Criminal Procedure Code (FMS Cap 6) ('the Code') that the magistrate must hear the evidence as may be adduced by the prosecution after an accused person has claimed trial to the charge properly preferred against him; (3) unlike a subordinate court within the typical English jurisdiction, a magistrate court in Malaysia clearly did not have the inherent power to stay proceedings of a criminal case, for it has to operate strictly within the four corners of the Code; (4) the charges brought against the five appellants were perfectly within the jurisdiction of the magistrate to deal with, and rightly, no order of prohibition can be issued against the magistrate.

Datuk Yong Teck Lee & Ors v Public Prosecutor [1996] 2 MLJ 68 Court of Appeal, Malaysia (Lamin PCA, Mahadev Shankar and Ahmad Fairuz JJCA).

Public Prosecutor v Sng Siew Ngoh [1996] 1 SLR 143 High Court, Singapore (Yong Pung How CJ).

Zainal bin Kuning & Ors v Chan Sin Mian Michael & Anor [1996] 3 SLR 121 Court of Appeal, Singapore (M Karthigesu and LP Thean JJA, Goh Joon Seng J).

Jusri bin Mohamed Hussain v Public Prosecutor [1996] 3 SLR 29 High Court, Singapore (Yong Pung How CJ).

Beh Chai Hock v Public Prosecutor [1996] 3 SLR 495 High Court, Singapore (Yong Pung How CJ).

Tay Kok Poh Ronnie v Public Prosecutor [1996] 1 SLR 185 High Court, Singapore (Yong Pung How CJ).

The appellants appealed against the sessions court judge's exercise of his discretionary power under s 261 of the Criminal Procedure Code (FMS Cap 6) ('the Code') in ordering that the case against the appellants which was partly heard by the previous sessions court judge be continued by him from the point where it had been left, and not de novo. Both appellants were charged under the Prevention of Corruption Act 1961. The trial had reached a stage where the prosecution had called some 13 witnesses by the time the later judge took over the proceedings. The key witness, the complainant, had not finished giving his evidence. The appellants argued that: (i) the judge had wrongly exercised his discretion in not hearing the case de novo; and (ii) having decided not to do so, he committed further error in ruling that the appellants would not be allowed to demand that the witnesses in the earlier voir dire proceedings be resummoned and reheard, contrary to s 261(a) of the Code, which conferred such a right on the appellants.

Held, dismissing both appeals: (1) although under s 307(i) of the Code the appellants may appeal against any judgment, sentence or order pronounced by the lower court, they could not do so against an order which is merely procedural in nature; (2) the judge's exercise of discretion was procedural and his order a procedural decision and therefore not appealable. Such exercise, even if wrongful, could still be raised at the appeal of the case proper. Further, even if the appellants were convicted, irrespective of whether they appealed or not , the High Court may act under s 261(b) of the Code to set aside any conviction if it was of the opinion the appellants had been materially prejudiced; (3) s 261 of the Code conferred on the judge a complete discretion. So long as he exercised that discretion judicially, according to rules of reason and justice and not according to private opinion, the High Court cannot interfere; (4) to hear the case de novo would not be the best course to adopt as the ability of the witnesses to recall events may have diminished with a lapse of six years. It would also unnecessarily prolong the trial and increase the expenses. The judge was also the best person to assess the direction the trial should take. Besides, the court should also take into account the full protection available to the appellants under s 261(a) and (b) of the Code; (5) the earlier judge had made a decision in the voir dire. To interpret s 261(a) of the Code without regard for the decision taken would run counter to the doctrine of res judicata. Although there is no direct precedent that it applies in a voir dire, as the decision in a voir dire is still one adjudicated upon authoritatively after hearing the parties, the principle should apply here as well.

Mohamed Anuardin bin Abdul Salam & Anor v Pendakwa Raya [1996] 3 MLJ 298 High Court, Ipoh (Kang Hwee Gee J).

Aziz bin Muhamad Din v Public Prosecutor [1996] 5 MLJ 473 High Court, Melaka (Augustine Paul JC).

Mohamed Anuardin bin Abdul Salam & Anor v Pendakwa Raya [1996] 3 MLJ 298 High Court, Ipoh (Kang Hwee Gee J).

Pendakwa Raya v Udham Singh Criminal Trial No 47-1-1994 High Court, Kuantan (Arifin Zakaria J).

Public Prosecutor v Yeo See How Criminal Case No 65 of 1995 High Court, Singapore (Rubin J).

The appellant was convicted of drug trafficking and sentenced to death under s 5(1)(a) read with ss 5(2) and 33 of the Misuse of Drugs Act (Cap 185). His story was that he had been a heroin addict. He obtained the drug in bulk from a third party. The appellant then divided the batch into sachets and distributed them to his friends for money. When the police raided his home, the appellant fled on foot. The police gave chase, picked up the bag (containing diamorphine and drug trafficking paraphernalia) he had hurled away and arrested him. His urine had a high content of morphine. Upon a query at the Central Narcotics Bureau (CNB), the appellant was told that that the CNB would speak to the prosecutor to be lenient after the appellant completed his statement. A few days later, two statements were taken. Yet some days later, another statement (which was relied upon by the prosecution) was taken after the appellant was told his requests for a cigarette and a visit from his family would be acceded to. The statement omitted the questions put to the appellant. The appellant claimed he had been cold and hungry when making the statement. He was also not given medication for his gastric ailment. The trial judge convicted the appellant, and the appellant appealed.

Held, dismissing the appeal: (1) the statement relied upon by the prosecution was not obtained by inducement or promises. The offer of cigarettes and a family visit were insufficient to induce the appellant to make a statement in a capital charge. As the CNB could not procure a lenient charge for the appellant, such a promise could not constitute an inducement either; (2) the statement was not obtained by oppression. The appellant's gastric problems were a minor discomfort; (3) it was immaterial to admissibility that the recorded statement omitted the questions in the question-and-answer session; (4) there was no cross-examination during the questioning. The questions were not put at a frantic pace. There was therefore no oppression; (5) the investigators were not obliged to lift fingerprints, especially where the appellant was caught with the offending material; (6) on a balance of probabilities, the appellant had not rebutted the presumption under s 17 of the Misuse of Drugs Act (Cap 185) that he had possessed the drug for trafficking. 'Trafficking' does not require that the appellant make a profit from the transactions with his friends. The very act of delivering the drug to his friends was trafficking; (7) it was irrelevant how the appellant had obtained the drugs and even a severe drug addict could traffic. Further the sachets of drugs did not have to be uniformly packed for sale purposes.

Yeo See How v Public Prosecutor Criminal Appeal No 59 of 1995 High Court, Singapore (Karthigesu and LP Thean JJA and Chao Hick Tin J).

Public Prosecutor v Lim Chwee Soon Criminal Case No 29 of 1996 High Court, Singapore (TS Sinnathuray J).