The accused was charged with using an arm, namely, a Colt .45 inch automatic pistol, by discharging seven bullets from the said pistol at the time of committing armed robbery causing physical injury to one How Sau Che thereby committing an offence punishable under s 4A of the Arms Offences Act (Cap 14). The accused had entered the jewellery and watch shop, unmasked, and shouted robbery. He fired some gunshots and the staff went down onto the floor behind the counters they were attending. How, the sales manager, took a few steps towards the accused and the accused fired at him whereupon he collapsed. The accused stole some watches and fled. He was later arrested in Kuala Lumpur having used his brother's passport to leave Singapore. The two issues raised by the defence were: (a) that he did not intend to open fire and therefore the shots fired were accidental; and (b) the medico-legal defence of unsoundness of mind. It was submitted that whilst the accused knew what he was doing, he did not think what he was doing was wrong.

Held, convicting the accused: (1) having considered all the evidence, the court found on the facts that the accused had opened fire indiscriminately when he entered the shop. The accused had intended to open fire as he had entered the shop with the pistol cocked. The accused admitted in evidence that he knew by having the pistol cocked, a squeeze of the trigger would discharge a bullet. Moreover, the accused had opened fire seven times. It is simply incredible that the accused had accidentally pulled the trigger seven times. It was clear from the evidence that nothing had been thrown at him, which he had claimed, and there were no fending off actions by the accused; (2) there was no definite answer from him. On the other hand, Dr Tan, for the prosecution, was of the view that the accused was not of unsound mind. Moreover, the evidence of the accused clearly established that when he committed the robbery he knew what he was doing was wrong or contrary to law. On the facts, the accused had altogether failed the test which would enable him to raise the defence of unsoundness of mind. Therefore, the prosecution had proved beyond all reasonable doubt that the accused was guilty on the charge; (3) to successfully raise the defence of unsoundness of mind under s 84 of the Penal Code (Cap 224), it must be proved that the accused was: (a) incapable of knowing the nature of the act; or (b) incapable of knowing that what he had done was either wrong or contrary in law. In his medical evidence for the defence, Dr Kong did not say in so many words that the accused was suffering from unsoundness of mind as defined in s 84. He further conceded that the accused knew what he was doing when he committed the robbery. Therefore the first limb of s 84 was not available to the accused. As regards the second limb, Dr Kong prevaricated as to whether the accused knew what he was doing was wrong or contrary to law;(ruling at the voir dire) the admissibility of the cautioned statement and the long statement were challenged by the accused. First, the accused claimed that during certain conversations after the accused's arrest, the inspector had made certain inducements and/or promises not in relation to the accused's own matters but as to matters relating to his elder brother, who was also involved in the offence. However, the accused when giving evidence did not say that whatever the inspector had said had affected his mind when he gave the two statements. Thus this part of the evidence was irrelevant to the issue whether any threat, promise or inducement had been held out by the inspector in the recording of the two statements. Secondly, the accused claimed that before the cautioned statement was recorded, the inspector spent five minutes alone with the accused before the arrival of the interpreter, during which time the inspector had held out promises and inducements. The evidence showed that both the interpreter and the inspector were present when the accused was brought into the room. Further, from the accused's own evidence he had said many times that he must answer for what he had done, the implication being that he was prepared to tell the inspector what he had done. In those circumstances, he had given a voluntary statement. Thirdly, the accused alleged that the inspector had threatened him before the recording of the long statement. He claimed that his co-accused had been present and that he was used as an example of what could happen to him if he did not give a good statement. From the evidence, it was clear that the co-accused could not have been there as he was in the lock-up during that period. Therefore, it had been proved beyond reasonable doubt that the evidence of the accused was not to be believed and it was ruled that the long statement had been voluntarily given.

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

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

See CRIMINAL LAW, para 692.

The respondent was the owner of a vehicle (the vehicle) under a hire purchase agreement seized by the government for carrying dutiable goods (the goods) ('dutiable goods' was defined in the Customs Act 1967 s 2 (the Act) to mean goods subject to the payment of customs duty and on which such duty has not yet been paid). The customs gave notice in writing of the seizure to the respondent and having not received any response, the customs sold the goods and the vehicle. Subsequently, the respondent gave notice to the customs requesting that the customs hold an 'inquiry'. Upon receipt of the notice, an investigation was carried out by a superintendent of customs (PW2) who consequently referred the matter to a magistrate. In the information in the prescribed form to the magistrate made pursuant to s 128(3) of the Act, PW2 signed the form on behalf of the Senior Assistant Director who by virtue of s 3(3) shall have and exercise all the powers conferred on the Director General by or under the Act. The magistrate held that since the evidence showed that the customs have not complied with s 128(3), such non-compliance was fatal and thus held that the respondent was entitled to the proceeds of sale of the vehicle. The magistrate ordered the proceeds of sale of the dutiable goods to be forfeited. Against this decision, the prosecution appealed. The DPP argued that since the magistrate has found that the prosecution has proved the ingredients as provided for under s 128(4), it is mandatory to order the vehicle to be forfeited. He contended that its release can only be ordered in the absence of proof that an offence against the Act has been committed. The DPP then submitted that it was wrong for the magistrate to order that the proceeds of sale of the goods be forfeited and simultaneously order the proceeds of sale of the vehicle be released if the magistrate was of the view that non-compliance of s 128(3) was fatal. He submitted that the evidence showed that the customs have complied with s 128(3) and that even if there was non-compliance as alleged by the respondent, which was denied, it was not fatal to the prosecution case as that provision was only a directory provision. At the hearing of the appeal, the respondent argued that the order under s 128(4) made by the magistrate is not appealable since an examination conducted by the magistrate under s 128(4) was only an 'enquiry' and not a criminal proceeding.

Held, allowing the appeal: (1) PW2 holds the rank of superintendent of customs and hence was a 'senior officer of customs' within the meaning of s 2. For the purpose of s 128(3), a direction of a senior assistant director would suffice. Any power of the Director General which falls within the contemplation of s 128(3) must be understood to be also given as is reasonably necessary to enable a senior assistant director and other officers referred to in s 3(3) to do or enforce the doing of any act; (2) s 128(3) does not provide that the claim by an owner must be referred to the Director General personally for his directions, neither does it provide that the direction as to whether to release the seized goods or the proceeds of sale or to refer the matter to a magistrate for his decision must come from the Director General himself. There was therefore no reason for the magistrate to come to the conclusion that the evidence showed that there was non-compliance with s 128(3); (3) as for s 128(4), if the court is satisfied after considering the whole of the material before it that an offence against the Act has been committed and that the goods were the subject matter or the vehicle was used in the commission of such an offence, then in that event, and not otherwise, it is mandatory for the court to make an order for forfeiture. In this case, as the magistrate has found that the vehicle was used in the commission of an offence under the Act, it was mandatory for the magistrate to make an order of forfeiture; (4) a proceeding under s 128(4) was to determine whether an offence against the Act has been committed and if it has, whether the conveyance of a subject matter of the claim is used in the commission of such an offence. If the magistrate is satisfied that the conveyance was used in the commission of the offence, he shall order its forfeiture. Section 128(4) is definitely penal in nature; (5) the main duty of the court under s 128(4) is to determine first whether an offence against the Act has been committed. The inquiry is conducted only if there was no prosecution with regard to the goods seized. The order of forfeiture can only arise if the court is satisfied that an offence against the Act has been committed. The inquiry is clearly criminal in nature and the burden of proof required is that of criminal proceedings. The order of the magistrate made pursuant to s 128(4) would definitely fall within the contemplation of s 307(1) of the Criminal Procedure Code.

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

Rintis Utama Sdn Bhd v Jabatan Kastam dan Eksais DiRaja Civil Appeal No T(11) 5 of 1995 High Court, Tawau (Ian Chin J).

See CUSTOMS AND EXCISE, para 951.

The first accused was originally charged with trafficking in 15,369g of cannabis under s 39B(1)(a) of the Dangerous Drugs Act 1952. At the close of the case for the prosecution, the court amended the charge to that under s 12(2) of the Act for the offence of possession without lawful authorisation. At the trial, the prosecution relied entirely on the statutory presumption under s 37(da) to prove a case of trafficking in dangerous drugs against the first accused.

Held, convicting the first accused: (1) a careful perusal of s 37(da) clearly shows that 'cannabis (Indian hemp)' has not been listed as one of the drugs for purposes of invoking the presumption of trafficking. The charge of trafficking against the first accused cannot stand; (2) however, the presumption of unauthorised possession of dangerous drugs under s 37(d) is still applicable to 'cannabis (Indian hemp)' since s 37(d) does not list out specifically the name of the dangerous drugs to which it applies; (3) the defence has not rebutted the prosecution's case or cast any doubts; (4) the first accused was sentenced to 5 years' imprisonment because the amount of cannabis in his possession was very substantial and there were no mitigating factors sufficient to warrant a lesser term of imprisonment.

Di Antara Pendakwa Raya v Baron Mat Tukang & Anor Perbicaraan Kes Jenayah No 45-6-95 High Court, Alor Setar (Segara JC).

This was an appeal against the conviction of the appellant on a charge of trafficking in a dangerous drug, to wit, cannabis, an offence under s 39B(1)(a) and punishable under s 39B(2) of the Dangerous Drugs Act 1952 ('the DDA'). He was convicted and sentenced to death. The sole ground of appeal was that the trial judge had erred in law in not holding that the evidence of the chemist was insufficient, inadequate, doubtful and ambiguous to prove that the drug was 'cannabis' as defined in the DDA. The chemist had failed to testify that the drug was 'cannabis' as defined in s 2 of the DDA, contrary to the decision of the Federal Court in Shukri bin Mohamad v PP [1995] 3 MLJ 229. However, in this case, the chemist had given a detailed account of his examination and analysis of the plant material and testified that the result of his microscopic examination was that there was presence of cannabis resin.

Held, dismissing the appeal: (1) in this case, the chemist had not only stated that the substance was 'cannabis as defined in the DDA', but also that 'resin had not been extracted', which was one of the ingredients of the definition of cannabis in s 2 of the DDA, ie 'any part of any plant of the genus Cannabis from which the resin had not been extracted'; (2) judging from the chemist's detailed testimony regarding his examination and analysis of the plant material, inter alia, that the result of the microscopic examination showed positively that there was presence of cannabis resin, and that the tests confirmed that the plant material was cannabis, the court formed the view that the cannabis he was talking about was cannabis under s 2 of the DDA, and not Indian hemp. The trial judge did advert to the chemist's evidence that the plant material was cannabis as defined in the DDA; (3) in this case, the omission of the chemist to state that by 'cannabis' he meant 'cannabis as defined in s 2 of the DDA' had not given rise to the inference that he did not have in mind the ingredients of cannabis in the said section.

Mohd Yusof bin Said v Public Prosecutor [1996] 1 MLJ 640 Federal Court, Kuala Lumpur (Anuar CJ (Malaya).

A police party led by Chief Inspector Johari bin Wan Chik (SP3) ambushed a car driven by the accused. A female passenger, SP5 was seated in the front passenger seat at the time of ambush. The accused had a rectangular block wrapped in several layers of plastic material in his left trouser pocket. Upon unwrapping it, a block of white substance was found. Upon a search conducted on the car, fish and vegetables were found. The accused and SP5 were taken to police headquarters and then to SP5's house, where cash in the sum of RM39,500, a number of savings accounts books and a gold chain were found. The white substance was analysed by a government chemist and found to contain 330.7g of heroin. The accused asserted that he was carrying the bag for SP5, who gave it to him for safekeeping. She had told him that it contained jewellery. Further, he relied on the fact that he did not attempt to resist arrest or escape as conduct consistent with innocence. The accused also stated that there was a necessity for the drug to be dusted for finger prints.

Held, dismissing the appeal: (1) the court has a duty at the close of the prosecution case to critically evaluate the prosecution evidence and assess if all essential ingredients of the offence have been proved beyond a reasonable doubt. If a primary fact relied upon (i) as proof of one ingredient of the offence, or (ii) for the invocation of a legal presumption to complete the ingredients of an offence, is found in doubt, a prima facie case has not been made out and the accused is entitled to an acquittal without the necessity for his defence to be called; (2) and (iii) the block of white substance contained 330.7g of heroin; (3) though there was no direct evidence of trafficking, two primary facts, namely the accused's custody or control of the black plastic bag containing the block of heroin and the weight of heroin above 15g activated a chain of statutory presumptions of possession and trafficking found in s 37(d) and 37(da) of the Dangerous Drugs Act 1952 (the Act); (4) there is no definition of 'possession' in the Act but judicial pronouncements as to its meaning include some degree of custody or control, and knowledge of custody or control. In the present case, there was no doubt that the accused had knowledge of his custody of the black plastic bag, only knowledge of the actual contents of the bag was repudiated; (5) the assertion that the accused was carrying the bag for SP5 in the belief that it contained jewellery was denied by SP5 and was too ethereal to rebut the legal presumptions of possession and trafficking; (6) where an accused was surrounded and without an avenue of escape, the fact that he did not attempt to escape was too inconsequential to be seen as conduct consistent with innocence; (7) as the accused had been in actual possession of the black bag and admitted that he handled the bag and its contents, albeit unknowingly, the dusting of the drug for fingerprints would have been an idle exercise; (8) in the case at hand, none of the prosecution evidence pertinent to the charge was challenged, namely, (i) arrest of the accused at the time and place in question; (ii) the recovery of the block of white substance from the accused's left trouser pocket;though the principle that a man must be judged upon the facts as he believes them to be is an accepted principle of criminal law, when the state of a man's mind and his knowledge are ingredients of the offence for which he is charged, the facts 'as he believes them to be' must be consistent with established fact, and belief, though mistaken, was not unreasonable or entirely unwarranted having regard to established facts and circumstances of the case. That being so, the 'fact' that the accused was given the black bag was improbable and inconsistent with the undisputed evidence and therefore not established. Without the basis for his belief, denied by SP5 and highly unlikely, the accused's denial of his guilty knowledge was bare assertion and not borne out by evidence.

Public Prosecutor v Lee Hoay Leong Criminal Case No 45-18-95 High Court, Penang (Jefffrey Tan J).

Pendakwa Raya v Tang Tuck Fatt Criminal Trial No 58-6-95 High Court, Ipoh (Abdul Hamid JC).

See EVIDENCE, para 1100.

The plaintiff was charged with trafficking in 24.47g of heroin. Part of the heroin was found on his person at the time of his arrest. The rest was found in the house of the plaintiff after his arrest. His wife had been staying in the house. No evidence was led as to who else had access to the house. No evidence was led either on the ownership of a jacket found in the house. The police had found most of the seized drugs in that jacket. A voir dire was carried out to determine the admissibility of his cautioned statement, before continuing with the trial proper.

Held, amending and convicting the accused of a charge under s 12(2) of the Dangerous Drugs Act 1952 with respect to an unspecified amount of drugs: (1) the evidence indicated that the recording officer had spoken to the accused for about one and a half hours before beginning the recording. While it may be true that this was for humanitarian reasons as asserted by the police, it could not be denied that such an opportunity could be used to obtain the agreement of the accused with regard to what was going to be recorded. It was therefore not safe to accept the cautioned statement; (2) the presumption under s 37(g) of the Dangerous Drugs Act 1952 was only with respect to the knowledge that something was concealed within specific premises, it had nothing to with possession or custody of such items. The prosecution had failed in the circumstances to prove that the drugs seized in the house was under the exclusive control and custody of the accused, at most it proved that the accused knew that the drugs were concealed in his house. There was no prima facie evidence against the accused linking him to the charge of trafficking in 24.47g of heroin; (3) however, there was a prima facie case against the accused with respect to the drugs found on his person. Since the prosecution had not been able to identify which part of the drugs seized belonged to that category the charge against the accused had to be amended accordingly.

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

Both accused (the accused persons) were charged for having a common intention in trafficking cannabis under s 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act) punishable under s 39B(2) read with s 34 of the Penal Code. SP7, a police officer, was introduced to the first accused by an informer who had told the first accused that SP7 wished to purchase some drugs. SP7 subsequently agreed to purchase 4kg of cannabis from the first accused. On another occasion, SP7 showed the first accused money for the purchase of the drugs. SP7 agreed to meet the first accused in a public place next to a moneychanger hut (the appointed place). The first accused arrived at the appointed place by a car driven by the second accused. The first accused left a plastic bag (the bag) in the hut and SP7 was told to collect the bag from the hut. This was confirmed by SP5, another police officer. SP6, also a police officer, agreed that there were only two persons in the car and that one of them was carrying a plastic bag. The second accused, after dropping off the first accused, drove his car to a lane for parking and went over to the appointed place where he saw the first accused being arrested. Subsequently, the second accused was also arrested. The defence alleged that the evidence of the chemist (SP3) was defective. SP3 confirmed that the plant substance from the bag (the substance) was cannabis as defined under s 2 of the Act but during cross-examination testified that he could not said that the substance was not 'Indian hemp'; therefore, there arose a doubt as to whether the substance was 'cannabis' as defined in s 2. The defence further submitted that if the substance was in fact Indian hemp as found in Part 3, First Schedule to the Act, it would only be an offence under s 12(2) and punishable under s 12(3) of the Act and not an offence of drug trafficking under s 39B(1)(a) as charged. The defence alleged that the first accused was introduced to SP7 by one Ismail (Ismail) and that he and the second accused had agreed to follow Ismail to town in a car driven by the second accused. The first accused further testified that Ismail had asked him to come along to the hut at the appointed place and that when they were seized by the police, Ismail had ran away. The first accused denied any transaction with SP7 and further denied going to the appointed place to deliver the substance.

Held, convicting the first accused; acquitting the second accused: (1) the former made no reference at all to the offence of trafficking dangerous drugs under s 39B(1)(a). Under s 39B(1)(a), the issue of consent from the Minister does not arise at all, ie whoever traffics in dangerous drugs, including cannabis under s 2, would have committed an offence under that section and the issues whether or not there was consent to possess, care or control of it does not arise; (2) there was no confusion or defect with the evidence given by SP3 as alleged by the defence. SP3 was qualified and had experience to conduct the analysis on the substance and his evidence was admissible. He conducted four tests on the substance, ie physical test, microscopic test, duquenois levine test and thin layer chromatography test, and had explained in detail the method that he used to determine whether the substance was cannabis as defined under s 2. SP3 found the substance to be cannabis as defined under s 2 of the Act. The definition made no reference at all to the Part 3 of the First Schedule where there was found the words 'cannabis (Indian hemp)'. So long as the court was satisfied and admitted the evidence of the chemist that the substance analyzed was cannabis as defined under s 2, the issue whether the dangerous drug was Indian hemp or not does not arise at all. The facts did not show that an offence under s 12(2) of the Act had been committed by the accused persons and therefore, the argument by the defence on this issue had no merit and basis; (3) the prosecution failed to prove the charge against the second accused that he had common intention with the first accused to commit the offence under s 39B(1)(a). The evidence only showed that he drove the said car and dropped off the first accused at the appointed place and subsequently drove his car to a lane for parking. He then went over to the appointed place where he was also arrested. No evidence was tendered that he played an active part in the trafficking of the dangerous drugs and therefore, at the end of the prosecution case, the second accused was released; (4) the evidence also showed that he brought the dangerous drugs to the public place and ensured that SP7 had sufficient money to pay for the drugs; (5) any oral statement made by the first accused to SP7 while negotiating the sale and purchase of the dangerous drug was admissible under s 40A(2) of the Act. The evidence of SP7 showed that the bag was under the control and custody of the first accused until he left it at the hut. This showed that he had possession of the dangerous drug and knew of the nature of the dangerous drug as provided in s 37(d) of the Act. As the weight of the cannabis exceeded 200g, the statutory presumption under s 37(da) of the Act would apply and the first accused would be presumed to be trafficking in drugs; (6) the offence provided in s 12 is very much different from the offence provided in s 39B(1)(a);the prosecution had tendered overwhelming evidence that the first accused had committed the offence of trafficking in dangerous drugs, ie cannabis under s 39B(1)(a) of the Act;SP7 acted as an agent provocateur;from the facts, the evidence of the accused persons and their witnesses did not raise any doubt as to the prosecution case. The evidence of SP5 and SP6 clearly showed that there were only two persons in the car when it stopped at the appointed place and that one of them went to the hut. The evidence clearly showed that only the first accused alighted from the car with the bag to meet SP7. The first accused's defence which was merely a denial failed to rebut the statutory presumption under s 37(d) that the drug was in his custody and control and that the drug was in his possession. He also failed to rebut the statutory presumption under s 37(da) that he was trafficking in dangerous drugs as the cannabis exceeded 200g. As the evidence showed that the substance was cannabis under s 2 and that it exceeded 200g, the prosecution had proved its case beyond a reasonable doubt.

Pendakwa Raya v Sa'ari bin Jusoh & Anor Criminal Trial No 47-2-92 High Court, Johore Bahru (Mohd Ghazali J).

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).

See CRIMINAL PROCEDURE, para 830.

Pendakwa Raya v Mohd Isha bin Alias & Ors Criminal Appeal No 58-5-95 High Court, Ipoh (Abdul Hamid J).

See EVIDENCE, para 1096.

The accused was charged with trafficking of 46.4g of heroin under s 39B(1)(a) of the Dangerous Drugs Act 1952. The defence argued that the accused had successfully rebutted the presumption of trafficking under s 37(da)(i) of the Dangerous Drugs Act 1952 as his defence of personal consumption had been established on the balance of probabilities. It was counter-argued by the prosecution that the quantity of heroin was too large for the accused's own consumption.

Held, convicting the accused on possession of heroin under s 39A: (1) the unpunctured needle marks on the accused's groin, together with the withdrawal symptoms exhibited by the accused during his initial detention and supported by that part of his cautioned statement that he purchased the heroin for his own consumption (notwithstanding that he said that he meant to share it with his friend) all point conclusively to his addiction to heroin and to the fact that the accused purchased the heroin in question for his own personal consumption; (2) the accused had succeeded in rebutting the presumption of trafficking under s 37(da)(i) of the Dangerous Drugs Act 1952 on the balance of probabilities; (3) the unequivocal admission by the accused that he was in possession of 46.4g of heroin clearly attracted the offence of possession under s 39A of the Act and the presumption of possession under s 37(d) of the Act had not been rebutted on the balance of probabilities.

Public Prosecutor v Lee Chan Tack Criminal Trial No 45Ð5Ð1995 High Court, Johore Bahru (Abdul Malik Ishak J).

The police arrested one Lim Jin Kue ('Lim') with heroin. Under interrogation, Lim revealed that he obtained the heroin from one 'Ah An'. In the presence of the police, Lim telephoned Ah An, pretending that he wanted to buy heroin. He had also requested Ah An to deliver the heroin to his house ('the telephone conversation'). On the same night, the accused came to Lim's house. The accused, who was identified by Lim as Ah An, was carrying a plastic bag with him. The police arrested the accused and found a newspaper package containing heroin in the bag. The accused was then charged with trafficking in heroin under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). At trial, the prosecution did not call Lim as its witness, although Lim was present. Evidence concerning the telephone conversation between Lim and Ah An was adduced by the prosecution through police officers who heard the contents of the conversation from Lim. The defence, however, did not object to the admissibility of the conversation. When the defence of the accused was called, the accused claimed that he was an innocent carrier of the bag, as he was asked by one 'Gay Au' to deliver money to Lim. The prosecution's cross-examination of the accused revealed the involvement of one 'Sow Kiong' for the first time. The defence had also called a witness to give evidence that he heard Gay Au requesting the accused to send money to Lim The key issue before the court was whether the evidence of the police officer in regard to the telephone conversation was admissible.

Held, acquitting and discharging the accused: (1) though the defence did not object to the admissibility of the telephone conversation, what is inadmissible cannot become admissible by reason of the failure to object; (2) a statement made by a person not called as a witness is inadmissible to prove the truth of the fact stated. As the purposes of the prosecution introducing the telephone conversation were solely to establish knowledge of the heroin on the part of the accused and that the accused was also known as Ah An, such evidence concerning the conversation amounted to hearsay evidence and was, therefore, inadmissible; (3) Lim was an umbilical cord to link the accused with the heroin. Since Lim was able to give a first hand account of the whole episode but was not called by the prosecution, it was legitimate for the court to draw an inference under s 114 (g) of the Evidence Act 1950 against the prosecution; (4) on perusal of the questions posed by the prosecution pertaining to the role of Sow Kiong, one has no doubt that he too played an important part in the unfolding of the narrative for the prosecution case. It was therefore not wrong to draw an adverse inference against the prosecution who being in a position to produce better evidence deliberately abstained from doing so; (5) the doctrine of wilful blindness has to be applied rigorously when one considers the question of knowledge. To apply the doctrine of wilful blindness successfully, relevant inferences have to be drawn from all the facts and circumstances of the particular case, giving due weight, where necessary, to the credibility of the witnesses. Where the case for the prosecution is water tight, the doctrine of wilful blindness should fail; (6) the accused had succeeded in creating a reasonable doubt as to his guilt. The defence evidence had also rebutted the statutory presumption under s 37(d) and (da) of the Act.

Public Prosecutor v Tan Kok An [1996] 1 MLJ 89 High Court, Johor Bahru (Abdul Malik Ishak J).

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

See CRIMINAL PROCEDURE, para 934.

The accused was charged with the offence of trafficking dangerous drugs under s 39B(1)(c) of the Dangerous Drugs Act 1952 ('the Act'). Two issues raised by the defence were, firstly, in relation to the contradictions and uncertainties of the government chemist with regard to the subject matter of the charge, and secondly, the identity of the exhibits. As regards the evidence of the government chemist, the government chemist stated that the material found with the accused was 'cannabis as defined in the Act' in the chemist report, whereas in his oral testimony in court, he stated that it was 'cannabis or cannabis (Indian hemp) as defined in s 2 of the Act'. In relation to the identity of the exhibits, ie the plastic packets containing the cannabis, it was discovered that the evidence had been tampered with. The issues, therefore, were whether: (i) the chemist could give oral evidence to improve the chemist report; and (ii) the tampered evidence had created a doubt on the prosecution's case.

Held, amending charge to one of possession of cannabis (Indian Hemp) under s 12(2) of the Act; acquitting and discharging the accused: (1) an expert like a government chemist must be very selective in the use of words when testifying in court. A wrong choice of words would be fatal especially when it involves a penal statute that carries with it the mandatory death penalty; (2) ss 91 and 92 of the Evidence Act 1950 supplement each other. Only after a document has been produced to prove its terms under s 91 that the provisions of s 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding to or substracting from its terms. Section 91 only prohibits the admission of oral evidence to prove the contents of the document; (3) the words '... any matter required by law to be reduced to the form of a document ...' in s 92 should be read disjunctively from the words preceding it. It follows that unilateral and non-dispositive documents would fall within the scope of s 92; (4) the chemist report was a unilateral and non-dispositive document falling under the second limb of s 92. The government chemist, therefore, could not in his oral evidence supplement what was not incorporated in the chemist report; (5) it is now a golden rule of law that throughout the burden is upon the prosecution to prove beyond reasonable doubt that the subject matter of the charge, being the cannabis, was the very thing that was recovered from the house and eventually brought before this court. From the evidence in this case, it was doubtful whether the right exhibits were brought before this court.

Public Prosecutor v Sulaiman bin Mohamad Noor [1996] 1 MLJ 196 High Court, Johor Bahru (Abdul Malik Ishak J).

The accused was charged with trafficking in a dangerous drug, namely, 379g of cannabis, contrary to s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'), punishable under s 39B(2) of the Act. The government chemist testified that the 379g of plant material was cannabis as defined in the Act. However, he did not specify whether the cannabis he referred to was 'cannabis' as defined in s 2 of the Act or 'cannabis (Indian hemp)' in Pt III of the First Schedule of the Act. The issue before the court was whether the prosecution had made out a prima facie case against the accused.

Held, amending the charge to one of possession of cannabis (Indian hemp) under s 12(2) of the Act, and convicting the accused: (1) as the chemist did not specifically testify that the plant material was cannabis as defined under s 2 of the Act, an inference most favourable to the accused persons must be adopted; (2) as the term cannabis as referred to by the chemist could also refer to cannabis (Indian hemp), the trafficking of which was a lesser offence and carried a lighter sentence, the court had to construe that the chemist referred to cannabis (Indian hemp). Accordingly, the charge against the accused was amended to one of possession of cannabis (Indian hemp) under s 12(2) and punishable under s 12(3) of the Act; (3) the accused pleaded guilty to the amended charge. Taking into consideration the question of public interest, the circumstances and manner in which the offence was committed, the need to strike a reasonable balance between the interests of the public and the accused, the question of deterrence, the rampancy of the offence and the plea in mitigation before imposing sentence, the accused was sentenced to five years' imprisonment.

Public Prosecutor v Mumar bin Julaili [1996] 1 MLJ 103 High Court, Kota Kinabalu (Tee Ah Sing JC).

Amir bin Mahmood ('the first accused') was jointly charged with Mohd Zahar bin Nor ('the second accused') and Ramsan bin Bujamin (the third accused and will be referred to as 'John') for trafficking 1,835.7g of dangerous drugs namely, cannabis, in contravention of s 39B(1) of the Dangerous Drugs Act 1952 ('the Act') and an offence punishable under s 39B(2) of the Act. The following issues arose at the trial namely, (i) the credibility of the prosecution's witness, an agent provocateur who failed on various occasions to give an accurate account of the whole episode; (ii) the prosecution's failure to call a witness; (iii) the agent provocateur's uncorroborated evidence; and (iv) the government chemist's failure to state in his report that the cannabis was as defined in s 2 of the Act.

Held, amending the charge and convicting on the amended charge: (1) it is a rule that if a witness had lied on one or two points, it did not necessarily follow that his whole evidence should be rejected. But it is the duty of the court to sieve the evidence and to ascertain what are the parts of evidence tending to incriminate the accused which could be accepted. The lapses in memory experienced by the prosecution's witness did not affect his credibility as there was sufficient damning and incriminating evidence against all the three accused persons; (2) the offer to the defence of any witness by the prosecution is patently necessary to avoid the presumption in s 114(g) of the Evidence Act 1950. It is trite law that the prosecution in a criminal case has a discretion as to which witnesses should be called, and the court will not interfere with the exercise of that discretion, unless it can be shown that the prosecutor has been influenced by some oblique motive; (3) an agent provocateur is entitled to protection under s 40A(1) and (2) of the Act. There was no requirement for the evidence of an agent provocateur to be corroborated. The agent provocateur cannot be presumed to be a witness unworthy of credit and his evidence relating to any attempt to abet or abetment of the commission of an offence if done for the purpose of securing evidence against the three accused persons must be regarded as admissible; (4) the government chemist in the present case was doubtful whether the plant material which he had examined and analysed was cannabis as defined in s 2 of the Act and not cannabis (Indian Hemp) as listed in Pt III of the First Schedule to the Act. As the subject matter of the offence can also be regarded as cannabis (Indian hemp), there exists a nagging doubt the benefit of which should be given to the three accused persons. An accused person is entitled to the benefit of a reasonable doubt in the matter of sentence as in the matter of conviction. Any ambiguity, no matter how slight should be construed in favour of the offender; (5) (per curiam) s 283(i)(b)(4) of the Criminal Procedure Code ('CPC') enacts that the court passing the sentence of a fine may direct that in default of payment of the fine the offender shall suffer imprisonment of a certain term, which imprisonment shall be in excess of any other imprisonment to which he may be sentenced or to which he may be liable under a commutation of sentence. The courts should not arbitrarily apply, as they have done in the past, s 283(i)(b)(4) of the CPC when imposing fines. For a start, the words employed in s 283(i)(b) of the CPC give some measure of discretion to the courts to decide on what to do when imposing fines. The choice is entirely with the court. The word 'may' appearing in s 283(i)(b) of the CPC gives a discretionary power to this court to exercise according to common sense and justice and not the mere whim or caprice of the person to whom it is entrusted on the assumption that he is discreet. This court has the discretion not to do all or any of the following things as specified therein in s 283(i)(b) of the CPC.

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

The accused was charged with trafficking in 18.15g of heroin, an offence which upon conviction carries the mandatory death sentence. He had been arrested with a package wrapped in newspaper which contained plastic packets containing an orange substance. There was, however, no direct evidence of a specific drug trafficking activity. The chemist ('SP1') testified that he removed 21 samples from the blended substance and subjected each sample to the same test to determine the percentage weight by weight content of heroin in the 21 samples tested. Having determined the highest and lowest percentage weight by weight content of heroin, SP1 mathematically gave the weight of heroin in the substance recovered from the accused as 18.15g. SP1, however, admitted that if he had used the lowest percentage from the 21 samples, the weight of heroin in the substance recovered would be 16.22g. Both the figures were arrived at on the basis that the weight of the bulk substance was 72.5g as testified by the chemist. However, there was a discrepency in the weight of the bulk substance as there was a difference of 5.7g in the gross weight of the package (newspaper, plastic packets and bulk substance) given by SP1 as 75.7g and by the investigating officer ('SP4') as 70.0g. Further, there was a discrepancy in the description of the bulk substance given by the chemist, who described it as an orange substance, while the complainant described the substance recovered as brown. The discrepancies were not explained. Therefore, the key issue before the court was whether the weight as calculated by the chemist was conclusive proof that the weight of the heroin was above 15g and therefore attracted the presumption of trafficking in s 37(d) of the Dangerous Drugs Act 1952 ('the Act').

Held, amending the charge to one of possession under s 12(2) of the Act, and convicting the accused: (1) and (iii) the data for the calculations concerned, should not at all be undertaken, if, as in the case of heroin and other drugs with the same tariff, it is beyond all reasonable doubt above 15g; (2) an accused 'mathematically calculated to the gallows' should be given the benefit of the full range of possible weights (of drugs) which can be estimated or calculated based on the data obtained from the samples tested, and of the possible variations in and permutations to that mathematical calculation. However, in this case, SP1's calculation of the heroin content based on the mean value had denied the accused of a reasonable doubt that sample 17, with the lowest percentage weight by weight content, was possibly the most representative sample of the bulk substance, and the true weight of heroin was 16.22g and not 18.15g. Further, the doubt on the weight of heroin as one decidedly above 15g was not diminished, but heightened, by the inconsistent evidence on the gross weight of the package given by SP1 and SP4 which amounted to a difference of 5.7g. Therefore, upon the calculation of the weight taking into account the lowest data and the discrepancy of 5.7g, the weight of the heroin was 14.944g which was below the tariff of 15g; (3) the discrepancy in the colour of the substance was not explained. Minor discrepancies in the evidence of witnesses even from the same side is to be expected and do not warrant an acquittal. However, in their description of crucial exhibits, even though there is no expectation that they give replica descriptions, witnesses ought to accurately describe the exhibits so as not to leave any doubt that different exhibits were involved; (4) as a chemist is a witness of fact, the probative value of a chemist's evidence must be evaluated by a trial court. Findings of fact is immutably in the court's domain, and notwithstanding the assistance of a chemist, the identity and weight of a substance said to be dangerous drugs must be the finding of a trial court and not that of a chemist. The court's evaluation of a chemist's evidence is infinitely more necessary where the weight of the drug concerned is bordering on or proximating a lesser offence. However, where the weight of the dangerous drug concerned is far above the minimal tariff for an offence, a detailed probe of (i) each and every step of the chemical analysis concerned; (ii) the actual calculation of weight of the substance;there was the concession of defence counsel that the heroin concerned was not less than 10g, but there were doubts that the heroin was of a weight above 15g. Therefore, the charge was amended to one under s 12(2) of the Act which was punishable under s 39A(ii) of the Act as the prosecution had made out a prima facie case of possession.

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

The accused persons in this case were jointly charged with the offence of trafficking in with common intention 663g of cannabis under s 39B of the Dangerous Drugs Act 1952 ('the DDA 1952'), an offence which carries the death penalty upon conviction. The accused persons were arrested in a room at the upper floor of a double-storey terrace house by a police party. According to one Doong Neng Sing ('PW7'), the caretaker and representative of the proprietor of the house, the house was let to one Madam Lam Siew Yong. At the time of the incident when the police party entered the house, she was downstairs at the sitting room area. A statement under s 112 of the Criminal Procedure Code (FMS Cap 6) ('the CPC') was subsequently recorded from her but she could not now be traced and therefore she could not be subpoenaed to give evidence at the trial. Consequently, the prosecution applied to tender her statement as evidence under s 32(1)(i) of the Evidence Act 1950 ('the Evidence Act'). The plant materials found were subsequently analysed by the government chemist, one Lam Yoke Ching, whose report confirmed that they were 'cannabis' as defined in the DDA 1952 with the total weight of 663g. The report however did not state specifically that the plant materials analysed were 'cannabis' as defined in s 2 of the DDA 1952. During the trial the prosecution proposed to call the same chemist to give evidence.

Held, convicting the accused persons on an amended charge: (1) the chemist report had been served on both the accused persons by the investigating officer, in compliance with the ten-clear-day requirement under s 399 of the CPC. As the defence had not given any notice under s 399(1)(b) of the CPC to require the attendance of the chemist, the report must therefore be accepted as conclusive evidence for the prosecution, of the finding of the chemist of the nature of the drug recovered and its total weight; (2) the chemist, if called, would not be allowed to give any evidence in respect of the conduct of her analysis of the drug. Firstly, as the chemist report had been tendered as substantive evidence under s 399 of the CPC, no oral evidence can be given by the chemist of her analysis of the drug. To allow the chemist to give such evidence would tantamount to allowing the admission of two sets of substantive evidence from the same witness, which the prosecution would not have otherwise been entitled to do had they called the chemist to give oral evidence. Secondly, once a chemist report has been admitted as substantive evidence under s 399 of the CPC, it falls squarely into that class of matter 'required by law to be reduced to the form of a document' under s 91 of the Evidence Act. It would not therefore be permissible by the operation of s 91 of the Evidence Act for the prosecution to give any other evidence in proof of the matter, except the document itself; (3) it was clear that no diligent or exertive attempt had been made to procure Madam Lam Siew Yong. Unless it was proved to the satisfaction of the court that the police had employed due diligence and reasonable exertion to locate the witness and were able to assess the chances of the success of procuring her, there could be no basis to find that she could not be procured without an amount of delay or expense; (4) in the circumstances under which the drugs were found, relative to the positions both the accused persons were in, there could be no doubt that they had joint possession of all the drugs on the floor around them. The prosecution therefore had, at the close of its case, proved that they were in joint possession not only of the drugs held in their hands but also of all the drugs on the floor; (5) a moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner, to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need. In the instant case, both the physical element (proximity to the drugs) as well as the mental element (the intention of dealing with it as if it belonged to them) were clearly present. The fact that there were other occupants in the house (in two other rooms) on the same floor and another at the hall downstairs at the time of their arrest, would not change the status of the accused persons as joint possessors of the drugs. Further, the fact that they may not be the permanent occupiers of the room would not make any difference. They were alone in that room and were the sole occupiers for that duration of time, sufficient for possession under the circumstances to be attributed to them; (6) the chemist report, by not referring to 'cannabis' as defined in s 2 of the DDA 1952, was clearly infirm, thereby opening it to a construction that the drug analysed could either be 'cannabis' or 'cannabis (Indian hemp)'. Therefore, pursuant to s 180 of the CPC, it was found that the prosecution had made out a case only of a lesser charge of joint possession of cannabis (Indian hemp) under s 12(2) of the DDA 1952. The charge should thus be amended and the accused persons were called to enter their defence on the lesser charge of joint possession of cannabis (Indian hemp) under s 12(2) of the DDA 1952. As they chose to remain silent, they would be found guilty and convicted; (7) (obiter) s 32(1)(i) and (j) of the Evidence Act should be read disjunctively. The word 'and' which joins sub-s (i) and (j) could admit of no more significance than an exposition of the draftsman's preference of a conjunction as an ending to all the provisions in sub-s(1) of s 32. It is clear that the language used in s 32(1)(i) and (j) is so plain that it is hardly necessary to embark on the task of interpretation.

Public Prosecutor v Lam Peng Hoa & Anor [1996] 5 MLJ 405 High Court, Ipoh (Kang Hwee Gee J).

Pendakwa Raya v Sa'ari bin Jusoh & Anor Criminal Trial No 47-2-92 High Court, Johore Bahru (Mohd Ghazali J).

See CRIMINAL LAW, para 701.

Mohd Yusof bin Said v Public Prosecutor [1996] 1 MLJ 640 Federal Court, Kuala Lumpur (Anuar CJ (Malaya).

See CRIMINAL LAW, para 694.

The accused was found carrying 882.3g of a dangerous drug, namely cannabis in a package at Bukit Bunga, Tanah Merah, Kelantan. Therefore, the accused faced the charge of drug trafficking under sÊ39B(1)(a) of the Dangerous Drugs Act 1952 ('the Act'). The cannabis was examined by a chemist ('SP1') who examined and conducted some tests on the plant material ('E1A and E1B') separately. Four types of tests were conducted by him, namely: (i) the physical test; (ii) the microscopic test; (iii) the dequenois levine test ('DLT'); and (iv) the thin layer cromatography ('TLC'). For the DLT and TLC tests, SP1 took 32 samples of E1A and E1B, which amounted to 144.02g, randomly and found that there were positive signs that there was cannabis resin in the plant material. On the results of the four tests and taking the results of the four tests in totality, SP1 confirmed that E1A and E1B was cannabis as defined under s 2 of the Act. The defence contended that SP1 should have taken 64 samples for both the DLT and TLC tests, that the weight of the sample being less than 200g meant that the presumption of trafficking did not arise and that the material evidence had been tempered with. Further, the accused maintained that he had no knowlege of the presence of the cannabis in the package and that he had been manipulated by one Rahim.

Held, convicting the accused and imposing the mandatory death sentence: (1) there was no doubt as regards the tests run by the chemist on E1A and E1B as all four tests were run separately and the results on E1A and E1B were the same and the plant material from E1A and E1B was cannabis as specified under s 2 the Act; (2) the weight of the sample need only be enough to form a representative sample for the plant material to be chemically anaylsed for identification of cannabis as specified under s 2 of the Act. However, there is no specific authority or provision which requires a chemist to use the plant material 100% in order to obtain a verification of cannabis as defined under s 2 of the Act. Therefore, the court was satisfied beyond reasonable doubt with the evidence and the results of tests by the chemist even though the plant material tested on was only 144.02g of the net weight of 882.3g; (3) the custody and control of the case exhibit was not broken from the moment it was seized by the police until it was brought before the court. Therefore, there could not have been any tampering of the evidence. Also, the failure of the prosecution to call the District Chief of Police as a witness did not cause a break in the chain of evidence as his presence was not needed; (4) the contradictions in the evidence of the prosecution's witnesses were minor and did not have any great effect on key issues. Thus, the prosecution's case and the credibility of witnesses were not affected; (5) the evidence tendered by the defence counsel which was the conversation between the accused and Chief Insp Ahmad Kamaruddin bin Abdullah was not accepted by the court being inadmissible as it was made after his arrest and without caution. This ran contrary to the provision under s 37A of the Act; (6) after maximum evaluation of all the evidence, it was found that prosecution had succeeded in establishing a case under s 180 of the Criminal Procedure Code (FMS Cap 6). The presumptions under s 37(d) and (da)(vi) of the Act also existed. In order to rebut the presumptions under s 37(d) and (da)(vi), the defence would have to do so on the balance of probabilities. The accused merely denied the evidence given by the witnesses without giving other evidence to reasonably dislodge the evidence of the prosecution which was not enough. Also, the existence of Rahim, if he existed, did not bring any effect to the prosecution's case as the prosecution's case was founded on the possession and carrying and not the ownership of the cannabis. In the event, the defence failed to cast any doubt on the carrying of the cannabis. Therefore, the presumptions of possession and trafficking of cannabis existed under s 37(d) and (da)(vi). The prosecution had proven its case beyond reasonable doubt. In light of this, the mandatory death sentence was passed on the accused.

Pendakwa Raya lwn Sanusi bin Ismail [1996] 4 MLJ 121 High Court, Kota Bahru (Nik Hashim JC).

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

See CRIMINAL PROCEDURE, para 862.

The accused was charged with three offences under s 9(1) of the Election Offences Act 1954 ('the Act'). In the first charge the accused was alleged to have seized the NRIC of one Terry ak Kilat ('PW3') who was a registered voter of the polling station at Sekolah Rendah Kebangsaan Nanga Assan ('SRK Nanga Assan') thereby restraining him from giving his vote. In the second charge the accused was alleged to have seized the NRIC of one Dyg Rapieah bte Awang Hassan ('PW4') who was also a registered voter of the polling station at SRK Nanga Assan thereby restraining her from giving her vote. In the third charge, the accused was alleged to have seized the NRIC of one Genick bin Likau ('PW5'), another registered voter of the same polling station at SRK Nanga Assan, thereby restraining him from giving his vote. The offences were alleged to have been committed on 25 April 1995 at about 1pm at the vicinity of the polling station at SRK Nanga Assan. The issues to be decided by the court were: (i) whether PW3, PW4 and PW5 were registered voters; (ii) whether the accused had been in the vicinity of the polling station while polling was in progress to seize and detain the NRICs of PW3, PW4 and PW5; and (iii) whether consequently the accused had restrained them in order to refrain them from voting.

Held, acquitting the accused: (1) the evidence on each charge has to be considered separately. Further before a prima facie case can be said to be established, the duty of the court is to carry out a maximum evaluation of the evidence to determine whether or not the prosecution has established each essential ingredient of the offence beyond reasonable doubt; (2) pursuant to reg 14 of the Elections (Conduct of Elections) Regulations 1981, the electoral roll shall provide prima facie evidence for determining whether or not a person is entitled to vote at an election in any constituency. As the names of PW3, PW4 and PW5 appeared in the master roll, they must be regarded as registered voters and as such, under reg 5 of the Elections (Registration of Electors) Regulations (Sarawak) 1971, they were entitled to vote; (3) from the evidence of the various prosecution witnesses, the prosecution had presented two conflicting versions of when the accused arrived at and left the polling station. Since the evidence led by the prosecution was not free from reasonable doubt, the prosecution could not be said to have established beyond reasonable doubt an essential ingredient of the offence that the accused was in the vicinity of the polling station at SRK Nanga Assan at about 1pm on 25 April 1995. In all probability the accused had arrived there at 2pm. As such, even if the accused had collected the NRICs of PW3, PW4 and PW5, it could not be said that he had restrained them in order to refrain them from voting since polling closed at 2pm that day; (4) in the event that the finding of fact that the accused arrived at the polling station at 2pm was wrong, the accused still could not be said to have refrained PW3, PW4 and PW5 from voting by having taken away their NRICs because a voter could cast his vote without an identity card. This was in view of the fact that the discretion to allow a voter to vote was with the presiding officer of the respective polling stations. If there was any restraining, it was by the longhouse folks who took strong objection to PW3, PW4 and PW5 casting their votes at SRK Nanga Assan. In the absence of any evidence that the accused had initiated the actions of the longhouse folks, the accused could not be said to have restrained the complainants in order to refrain them from voting.

Public Prosecutor v Wong Sing Nang [1996] 5 MLJ 301 Sessions Court, Miri (Supang Lian J).

The respondent was charged with an offence under s 18(1)(a) of the Environmental Public Health Act (Cap 95) (the Act). The prosecution alleged that the offence had been committed by his throwing a cigarette butt down on the floor in Pearl Centre. The respondent did not deny throwing down the cigarette butt, but asserted that the prosecution was further required to show, on his part, an intention to walk off without properly disposing of the cigarette butt. The district judge agreed, essentially, with this assertion. The respondent was acquitted and discharged. The prosecution appealed against the order of acquittal and discharge.

Held, allowing the appeal: (1) the only mental element required for an offence under s 18(1)(a) of the Act was the basic intent to commit the physical act of depositing, dropping, placing or throwing refuse. The prosecution had only to show that an accused committed the physical act of throwing away refuse voluntarily and deliberately, not out of accident or automatism. The prosecution was not required to show, over and beyond this, the intention to walk away without properly disposing of the refuse; (2) it followed from the above that an offence under s 18(1) of the Act was what one would term a 'strict liability' offence: once the act of throwing away refuse was shown to be a deliberate (and not accidental) act, the prosecution need not go on to show the presence of some blameworthy state of mind. In this case the respondent did not deny throwing down the cigarette butt; and the evidence showed that it was an intentional or deliberate act. The prosecution had established the charge against the respondent under s 18(1)(a) of the Act; and the appeal was accordingly allowed.

Public Prosecutor v Yong Heng Yew [1996] 3 SLR 566 High Court, Singapore (Yong Pung How CJ).

The accused was originally charged for discharging a firearm with intent to cause death or harm, an offence punishable under s 3 of the Firearms (Increased Penalties) Act 1971 ('the Act'). According to the evidence, the accused had robbed a goldsmith shop. As soon as he stepped out of the shop, the accused was seen firing his gun in the direction of the adjoining shops. In the submission of no case to answer, counsel for the accused submitted, inter alia, that: (i) the identification parade held, using a one way mirror, was entirely improper; (ii) the charge was defective, as the prosecution evidence indicated that the alleged robbery was committed inside the shop but the firearm was discharged outside the shop; and (iii) there was no proof that the accused had a firearm. The court subsequently amended the charge under s 3 to s 4 of the Act and added a charge under s 308 of the Penal Code (FMS Cap 45) ('the Code') and called upon the accused to enter his defence. The accused elected to give evidence on oath and in the defence, he admitted that he staged the robbery and had the complainant's gold ornaments with him when he walked out of the shop. He, however, raised one issue in his defence which was that he was not in possession of a firearm and had not discharged a firearm as his was only an imitation firearm.

Held, convicting and sentencing the accused: (1) where there is sufficient cause, it is certainly not improper to conduct an identification parade using a one-way mirror provided that such parade may only take place when the accused's solicitor, friend or appropriate adult is present or the parade is recorded on video. In this case, however, the identification parade was conducted in a manner that was less than fair as the accused was not given an opportunity of seeing the actual identification process and his accusers. While the accused did decline the presence of his solicitor, none of the other safeguards was adopted. Further, the witnesses at the identification parade were assembled in the same room before the identification was carried out. This was less then desirable as it might give the witnesses an opportunity to fortify and even correct their recollection of the person to be identified; (2) in a case dealing with the discharge of a firearm in the course of a scheduled offence there was no need for the firearm in question to be produced, unlike a case dealing with the possession of firearm. That being so, the non-production of the firearm here was not a defect in the prosecution's case; (3) and (ii) the accused 'at the time of his committing the robbery' discharged a firearm with intent to cause death or hurt to anyone. As such the discharge of the firearm must be before the completion of offence. At the close of the prosecution case, there was no doubt whatsoever as regards the robbery, the discharge of a firearm, and the fact that the robber was undoubtedly the accused. However, the accused discharged his firearm not at his victims but at the constables lurking nearby. Therefore, it was not proved that the accused discharged a firearm 'at the time of his committing the robbery' and the charge under s 3 of the Act was not made out; (4) the discharge of the firearm was an act separate and distinct from the robbery and by itself was a punishable offence. Therefore, the charge under s 3 of the Act should be amended to one under s 4 of the Act and a charge under s 308 of the Code was added as another charge; (5) the ingredients to be proved for an offence under s 3 of the Act were: (i) a robbery committed by the accused;the defence of an imitation gun was disbelieved and at the end of the defence, no doubt was cast on the prosecution case that (i) there was an exchange of gunfire outside the complainant's shop; and (ii) the firearm discharged by the accused was the firearm exhibited during the robbery. The three bullet slugs found at the scene, although the actual location where it was found was in doubt, was the independent and corroborative evidence of a gun battle between the constables and the accused.

Public Prosecutor v Ong Poh Cheng [1996] 4 MLJ 279 High Court, Pulau Pinang (Jeffrey Tan JC).

Goh Ang Huat v Public Prosecutor [1996] 3 SLR 570 High Court, Singapore (Yong Pung How CJ).

See CRIMINAL LAW, para 800.

This was an appeal by the Public Prosecutor against the acquittal of the defendant who was charged with the offence of consuming a controlled drug codeine in contravention of s 6(b) of the Misuse of Drugs Act (Cap 27). The defendant maintained that he had taken only the medicine prescribed by a Tuton hospital which must have contained codeine. The prosecution's appeal was on the grounds, inter alia, that the magistrate erred in law by failing to recognize and consider the presumption that exists under s 28(4) of the Misuse of Drugs Act and that the magistrate failed to give due consideration to the weight to be attached to the defendant's unsworn testimony.

Held, allowing the appeal: (1) although there may have remained a doubt in the magistrate's mind as to whether the defendant had consumed codeine lawfully, this doubt was on the basis that it was for the prosecution to prove that the consumption was unlawful, ie that it contravened s 6(b). It was for the defendant to establish the legality of his consumption of the codeine. The magistrate therefore applied the wrong burden and there ought to be a retrial; (2) proof by the prosecution that a controlled drug was found to be present in a defendant's urine brings into force the provisions of s 28(4). When it has done this, it is for the defendant to show, on a balance of probabilities, that he did not consume the drug in contravention of s 6(b) of the Act; (3) the court does not think that it would be correct to give no credence to a defendant's statement which is made from the dock and which is not cross-examined. It must, so far as it goes, be weighed with the other evidence as if it was of similar validity, in spite of the warning given. It would be unreasonable to draw an inference adverse to an unrepresented defendant, as the result of his decision to make an unsworn statement from the dock.

Public Prosecutor v Muhammad Sulkanain bin Suleiman Criminal Appeal No 21 of 1996 High Court, Brunei (Roberts CJ).

The appellant was found by a police patrol at the foot of a block of flats with 183 sachets of a granular substance subsequently analysed to contain not less than 112g of diamorphine. The trial judge rejected the evidence of the appellant that the drugs were not actually found on him, and hence were not in his possession. The trial judge also held that the appellant's credit was impeached because of discrepancies between the appellant's oral evidence and a statement that he had given. A witness for the appellant, one Andy, was found not to be a credible witness. Following from his findings, the trial judge found that there was no reasonable doubt that the drugs were in the appellant's possession, and that there was no rebuttal of the presumption of trafficking under the Misuse of Drugs Act (Cap 185). The appellant contended that the trial judge's findings of fact were in error, and that the evidence of the appellant should have been preferred over that of the prosecution.

Held, dismissing the appeal: (1) the evidence of the police officers showed possession of the drugs by the appellant; (2) the trial judge was entitled to find that Andy's evidence was not reliable; (3) the appellant's allegations that he was tired and confused when he gave the statement could not be accepted as the appellant had been arrested two days before the giving of the statement and his statement was fairly detailed (¶ 40). Additionally, there was a conflict in evidence between Andy and the appellant concerning whether an exact time was agreed and whether there was in fact an appointment at all. This was a material contradiction as it went to the root of his explanation as to why he was at the place that day. The trial judge was thus justified in finding that the appellant's credit was impeached; (4) there was ample evidence for the trial judge to find that the paperbag was in the possession of the appellant, and he failed to rebut the presumption of trafficking.

Chang Chee Kong v Public Prosecutor [1996] 3 SLR 217 Court of Appeal, Singapore (Yong Pung How CJ, Lai Kew Chai and Chao Hick Tin JJ).

The appellant was convicted in the High Court on two charges of trafficking heroin. The first charge was in respect of 3.59g of diamorphine found on his person when arrested by CNB officers. The second charge was for possession of 104.91g of diamorphine for the purpose of trafficking. The following were recovered from the appellant's flat after his arrest: 636.4g of heroin which was subsequently analysed to contain 104.91g of diamorphine, two digital weighing scales, numerous unused plastic sachets, spoons, pliers and envelopes. Both the appellant and his wife, Saidah, were heroin addicts. The appellant and Saidah were charged with trafficking heroin. The charge against Saidah was dropped about five months later. At the trial, the appellant challenged the admissibility of a statement recorded from him under s 121 of the Criminal Procedure Code (Cap 68). He claimed that parts of the statement were concocted by the recording officer, Inspector Chew, who told him that if the appellant admitted to drug trafficking, he would reduce Saidah's charge to a non-capital charge and save him from the gallows. Inspector Chew was also alleged to have promised the appellant that he would let the appellant's brother and daughter visit him if he made a satisfactory statement. The appellant said, further, that he was suffering from withdrawal symptoms at the time the statement was recorded. The allegations were denied by the recording officer. After a voir dire, the s 121 statement was admitted into evidence. In the s 121 statement, the appellant had admitted to trafficking in heroin. The appellant's defence was that all the heroin found in his flat was for his and Saidah's consumption. Medical experts were called on both sides to give their opinions on the appellant's level of addiction and consumption. The trial judge disbelieved the appellant's defence and convicted him on both charges after amending the second charge. The second charge was amended to reflect the fact that the appellant and Saidah were consumers of heroin. The appellant appealed. One of the grounds of appeal was that the trial judge had erred in rejecting the evidence of the defence's expert witness, Dr Lim, who opined that the appellant was capable of consuming two-and-a-half 8g sachets of heroin a day.

Held, dismissing the appeal: (1) Dr Lim's evidence was entirely hypothetical and provided no basis on which a finding could be made of the appellant's level of consumption of heroin; (2) the appellant's evidence of his and Saidah's consumption of heroin and the rapid escalation of their rate of consumption was utterly unconvincing and lacked credibility. Furthermore, the drug-related paraphernalia was telling evidence of trafficking; (3) (per curiam) the Court of Appeal's decisions in Yeo Hee Seng v PP [1995] 1 SLR 193 and Ong Lee Koon & Anor v PP [1995] 2 SLR 750 complemented each other. Where there was no reliable evidence of the rate of consumption, the court should not embark on an apportionment of the total quantity of the drugs in question as to what amount was for consumption and what amount was for trafficking as any such apportionment would be conjectural and purely arbitrary. In this appeal, there was no reliable evidence on which a meaningful apportionment could have been made.

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

The appellant was convicted on two charges of being in possession of diamorphine for the purpose of trafficking. The appellant, who was a suspected drug trafficker, was seen by CNB officers keeping surveillance on 4 July 1995 standing at a bus-stop carrying a black plastic bag. They moved in and arrested the appellant. Inside the plastic bag they found two packages, each gift-wrapped. The two packages contained in all 20 sachets of heroin. With a key seized from the appellant, the CNB officers gained entry to the appellant's flat where they found another 40 sachets of heroin. After the appellant's arrest, urine samples were taken from him for analysis. His urine tested positive for morphine. The appellant had a history of drug addiction. Since his release from the drug rehabilitation centre in March 1995 he had been tested regularly and had consistently tested negative. He had failed to report for testing the day before his arrest. The appellant made an investigation statement, the voluntariness of which was not challenged, in which he admitted that the heroin was in his possession for the purpose of selling it. He said he was no longer a drug addict but had smoked some heroin two days before his arrest to test it. At the trial he claimed that he was in possession of the heroin for his own personal consumption and not for sale. The trial judge accepted the evidence of Dr Leow who testified for the prosecution that the appellant was a mild addict of heroin. The doctor had ample opportunity to observe the appellant and assess the degree of his addiction. It was his opinion that the appellant consumed at most one to two straws of heroin per day and not the half sachet which the appellant claimed. The trial judge consequently rejected the appellant's testimony that he had lied in his investigation statement and was telling the truth in his evidence in court, and found the appellant guilty. The appellant appealed.

Held, dismissing the appeal: (1) the appellant's counsel based his submissions mainly on the supposition that without the evidence of Dr Leow the conviction of the appellant would have been against the weight of the evidence. This was a misconception as Dr Leow's evidence was not at all necessary for the prosecution to prove the appellant's possession of the heroin. Once possession was proved, and it was from the fact that the heroin was found on him and in his bedroom as well as from his admissions as contained in the agreed statement of facts, Dr Leow's evidence became necessary only to rebut the appellant's contention that the heroin was for his own consumption. The burden of proof was on the appellant and the standard of proof required was on a balance of probabilities. Without Dr Leow's evidence the question would simply have been whether the appellant's evidence itself was credible enough to rebut the presumption of trafficking by showing on a balance of probabilities that the heroin was for his own consumption; (2) the first ground on which it was sought to exclude Dr Leow's evidence was that Dr Leow had not given evidence at the preliminary inquiry and that a valid notice under s 188(3) of the Criminal Procedure Code (Cap 68) (CPC) had not been given. The appellant contended that the notice served did not comply with s 188(3) in that it did not adequately state 'the substance of the evidence intended to be given'. The court found that the notice which had stated that Dr Leow would be giving evidence on the appellant's 'drug addiction level based on the medical report which has been served on the counsel' read with the statement in the medical report was sufficient to constitute the substance of his evidence at trial to satisfy the requirements of s 188(3). Furthermore, it was not for the prosecution to prove that the appellant was a mild heroin addict but for the appellant to prove on a balance of probabilities that he was more than a mild heroin addict and was in possession of the heroin for his own consumption and thereby rebut the presumption of trafficking which arose in this case. In essence Dr Leow's evidence was rebuttal evidence given in anticipation of the appellant's defence that he was in possession of the heroin for his own consumption. Therefore, s 188(3) of the CPC had no relevance in this situation; (3) the other ground for excluding Dr Leow's evidence was that he was not an expert in the particular field of heroin addiction, not having done any research or clinical studies on drug withdrawal. The court found that Dr Leow's long experience in handling drug users and his opportunities for observing them eminently qualified him as an expert to express opinions on the correlation of the degree of addiction to the degree of the withdrawal symptoms.

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).

The two accused were jointly charged with trafficking in a controlled drug by having in their possession ten sachets containing 5.80g of diamorphine, an offence under s 5(1)(a) of the Misuse of Drugs Act (Cap 185) read with s 5(2) and punishable under s 33 of the Act. A second charge of trafficking in a controlled substance in relation to 40 sachets of diamorphine was also brought under s 5(1)(a) read with s 5(2) of the Act and s 34 of the Penal Code (Cap 224) and punishable under s 33 of the Act. The two accused were arrested after information was given to the police that delivery would be made of the ten sachets to a specified address. The second accused was carrying the ten sachets in two envelopes on their person. They both remained silent when asked who the drugs belonged to. The two accused were then taken to the first accused's flat where a search recovered 40 sachets containing not less than 27.40g of diamorphine and various equipment such as weighing scales, additional plastic sachets, spoons pincers and foils. The first accused claimed to be a hard core drug addict with a long history of addiction including detention on three occasions in drug rehabilitation centres. He claimed to have relapsed into taking drugs within three to four months of his last release and by February 1995 claimed to be using two sachets per day. He admitted the 40 sachets recovered from his flat belonged to him but claimed to have purchased them in a one pound package for personal use. He gave various reasons for the purchase of the one pound and differing reasons for the pound being repacked by himself into 60 sachets and at one point claimed that the second accused repacked it for him while he was 'high'. The first accused claimed to be supporting his habit with his work as a runner for a bookie and his wins from betting. The first accused pleaded guilty to the first charge and both accused claimed trial to the first charge. The question for consideration was whether the first accused had on a balance of probabilities rebutted the presumption and shown that the 40 sachets in his possession were for his personal use.

Held, acquitting the second accused on both charges and convicting the first accused on the second charge: (1) on the evidence and the admission of the first accused of possession of the 40 sachets in his flat and the presumption of s 17 of the Act, a prima facie case had been made out which if unrebutted would warrant his conviction; (2) his detailed evidence of his pattern of drug use before his arrest was that he was high every day during his waking hours. Expert medical evidence showed the first accused to be suffering from moderate withdrawal symptoms after his arrest. The two sachets which the first accused claimed to consume each day would contain approximately 1.2g of pure heroin and the expert medical opinion was that it was 'highly unlikely' that a drug addict could consume that amount each day; (3) while the medical evidence is relevant it is not crucial as the question to be asked is whether the first accused is to be believed? On his evidence the first accused was disbelieved as he had sought to exaggerate the pattern and rate of his consumption. He gave evidence that he smoked a maximum of 15 straws per day which is greatly less than the 40 straws obtainable from two sachets. His various reasons for repacking the one pound were also rejected, particularly as he had pleaded guilty to the charge relating to the ten sachets which also came from the same one pound purchase. His claim to income from horse racing activities was unsubstantiated; (4) the evidence of the first accused was unreliable and it was not possible to quantify the amount that he and the second accused were using. The undisputed evidence was that ten sachets had been removed and 40 were still in his flat which left ten available for consumption. The presumption that the 40 sachets were in the possession of the first accused for the purpose of trafficking was unrebutted and the first accused was convicted and sentenced to death.

Public Prosecutor v Teh Thiam Huat & Anor Criminal Case No 1 of 1996 High Court, Singapore (Sinnathuray J).

The appellant was convicted in the High Court of having trafficked in not less than 332.80g of diamorphine. On appeal, he raised three grounds. First, that the trial judge had erred in finding that the appellant's cautioned statement, wherein he had stated that the drugs belonged to him, had been made voluntarily. Second, that the trial judge had erred in finding that the appellant had been in possession of the drugs. Third, that the trial judge had erred in accepting the evidence of the appellant's wife which was fraught with discrepancies.

Held, dismissing the appeal: (1) there was no reason to disturb the trial judge's findings of fact in relation to the voluntariness of the statement. These were fully supported by the evidence and arrived at after assessing the demeanour of the witnesses during the voir dire; (2) the trial judge, who had applied the principles enunciated by the Court of Criminal Appeal in Tan Ah Tee v PP [1980] 1 MLJ 49 which had adopted Warner v Metropolitan Police Commissioner [1969] 2 AC 256, did not err in finding that the appellant was in possession of the drugs; (3) it was clear that the appellant had full knowledge of the nature and existence of the drugs. This, coupled with his physical proximity to the drugs and the fact that the room was rented by him, together with the admission in his s 122(6) statement that the drugs belonged to him, amply justified the trial judge's finding that possession had been made out; (4) the various discrepancies in the evidence of the wife of the appellant had been fully considered and taken into account by the trial judge before arriving at his decision and even without the evidence of the wife, there was ample evidence to conclude that the appellant was in possession and control of the drugs.

Rosli bin Shamsuri v Public Prosecutor Criminal Appeal No 49 of 1995 Court of Appeal, Singapore (Yong Pung How CJ, M Karthigesu and LP Thean JJA).

The appellant was arrested on 30 January 1996 at People's Park Centre after a CNB surveillance operation. He led CNB officers to a hotel at Joo Chiat Road. In the hotel room that the appellant occupied, the CNB officers found a blue waist pouch containing ten white paper envelopes. Inside these envelopes were a total of 95 sachets of heroin. There were two envelopes each containing 20 half-sized sachets, three envelopes each containing ten half-sized sachets and five envelopes each containing five full-sized sachets. The CNB officers also found one half-sized sachet of heroin in a white plastic box under the dressing table. Drug paraphernalia such as an electronic weighing scale, metal tongs, 261 empty plastic sachets and 12 empty envelopes were also found. After analysis, the 96 sachets found in the hotel room were ascertained to contain not less than 31.45g of diamorphine, which formed the subject-matter of the charge on which the appellant's trial proceeded. The appellant also made two long statements, one on 13 February and one on 14 February 1996, in which he made many material admissions of fact. The trial judge admitted the statements after expunging certain portions of both statements on the ground that they were prejudicial and irrelevant because they referred to the appellant's previous trafficking activities. The appellant's defence was that not all of the 96 sachets of heroin found in the hotel room were for the purpose of trafficking. He only intended to sell 30 half-sized sachets to one of his customers (DW2) over the course of one and a half months. The remaining 66 sachets were for the appellant's own consumption because his supplier, 'Seow Er', was going into hiding for one and a half months. The appellant did not call 'Seow Er' to give evidence. However, DW2 did testify on behalf of the defence that he had agreed with the appellant on an arrangement whereby the appellant would deliver 30 half-sized sachets to him over one and a half months. As for his drug consumption rate, the appellant claimed that, at the time of his arrest, he was consuming one and a half sachets of heroin a day. Dr Lim Yun Chin, a psychiatrist in private practice, gave expert evidence for the defence. The prosecution called Dr Leow Kee Fong, the Registrar of Changi Prison Hospital, to give expert evidence in rebuttal. The two experts' evidence were conflicting in that they could not agree whether there was a direct co-relation between the appellant's mild heroin withdrawal and his consumption rate. The judge rejected the appellant's defence. He did, however, accept the appellant's evidence that the single half-sized sachet of heroin found in the white plastic box was for his own consumption. He thus amended the charge to one of possession of 95 sachets of substance containing not less than 31.24g of diamorphine for the purpose of trafficking and convicted the appellant on the amended charge. On appeal, counsel for the appellant attacked the judge's grounds of decision by raising the following contentions, that (a) DW2's evidence should have been accepted as the truth since it was consistent with the appellant's testimony, (b) the appellant's previous acts of trafficking as set out in an expunged paragraph of the long statement of 14 February should not have been considered, (c) the organised manner in which the drugs were found did not indicate that the appellant must have intended to traffic in them, (d) Dr Leow's expert evidence should not have been preferred over Dr Lim's, (e) it was not for the appellant but for the prosecution to call 'Seow Er' to give evidence, and (f) the drugs should be apportioned to reflect the amount that the appellant intended to sell to DW2 and the remainder that he intended to consume.

Held, dismissing the appeal: (1) the judge found that there could not have been an agreement between DW2 and the appellant that DW2 would buy from the appellant 30 half-sized sachets over six weeks. This was because he disbelieved the evidence of DW2 and the appellant. They were simply not credible witnesses. The findings of the judge in this respect were eminently supportable on the evidence. In any event, even if the agreement had been shown to exist, this would not by itself have proven that the remaining 66 sachets of heroin in the hotel room were all meant for the appellant's consumption; (2) it was patently clear from a reading of the expunged paragraph and by comparing it to the relevant passage in the judge's grounds of decision that the judge had not relied upon the contents of the expunged paragraph at all. In fact, there was no indication anywhere in the grounds of decision that the judge had admitted the contents of the expunged paragraph in evidence; (3) the judge was entitled to find that the manner of placing 5, 10 or 20 sachets in each envelope was evidence of a systematic manner of distribution and for drawing the natural inference that this distribution must have been for the object of facilitating trafficking. It was obvious that the appellant's evidence that the distribution of the sachets amongst the envelopes was random and without any plan could not possibly be believed in the circumstances under which the sachets were actually found; (4) the judge had actually made no ruling as to whether any one side's expert evidence was to be preferred over the other. Although the judge did take the view that evidence of the appellant's mild heroin withdrawal could be considered to determine his consumption rate, he hastened to add that such evidence should be treated with the greatest caution. The most, therefore, that could be said was that the judge had declined to completely disregard the evidence of the appellant's mild heroin withdrawal. Nevertheless, it was clear that the judge's rejection of the appellant's defence of personal consumption was based more on a finding that the appellant's evidence itself was not credible, rather than a finding that Dr Leow's evidence was to be favoured over that of Dr Lim's; (5) the judge did not hold that the appellant was under any duty to call 'Seow Er' to testify for the defence. The judge only made the remark that, if at all, it was for the appellant to call 'Seow Er' to testify for the defence in reply to the appellant's argument that it was incumbent on the prosecution to call 'Seow Er' to testify. The judge was clearly right in holding that it was not necessary or incumbent on the prosecution to call 'Seow Er' to give evidence. There was no gap in the prosecution's case in the absence of the testimony of 'Seow Er'; (6) there was no credible or reliable evidence upon which the judge could properly assess the appellant's rate of heroin consumption with respect to the 95 sachets of heroin found in the envelopes. Apportionment was thus correctly ruled out.

Low Theng Gee v Public Prosecutor [1996] 3 SLR 476 Court of Appeal, Singapore (Yong Pung How CJ, Lai Kew Chai and Chao Hick Tin JJ).

During a raid on the appellant's flat, 34 plastic sachets of a granular substance were found. In addition, vegetable matter, some in a sachet and some loose, were recovered, along with a plastic bag containing 3,971 empty plastic sachets. The sachets of granular substance contained 25.29g of diamorphine while the vegetable matter would have contained cannabis had it not been wet and decomposed. The appellant tested positive for cannabis consumption. When charged, the appellant did not have anything to say. However, in his defence he testified that he had been asked to keep for someone a bag, containing other cannabis besides a portion he had bought for his own consumption. He did not check its contents. It was only when he was trying to dispose of the contents during the raid that he found it to contain heroin. The trial judge, convicting the appellant, found that the presumption under s 17 of possession of heroin for the purposes of trafficking was unrebutted by the appellant's evidence. Such trafficking was also established by the packing of the heroin into sachets and the discovery of similar empty sachets in the bag in the kitchen. Moreover, an adverse inference was drawn from the failure of the appellant to relate his defence at the time he was charged. On appeal it was argued that the presumption under s 17 did not arise as the appellant had no possession of the heroin for he thought until the time of the raid that the bag contained cannabis only.

Held, dismissing the appeal: (1) the trial judge was correct in rejecting the appellant's evidence, which was in the circumstances incredible; (2) as it was not in dispute that the appellant was in possession of the heroin and that he knew what heroin looked like and what the sachets contained at the time of disposal, the presumption under s 17 operated. The rejection of the appellant's evidence meant that there was no rebuttal of that presumption.

Razali Bin Hussain v Public Prosecutor Criminal Appeal No 55 of 1995 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant was convicted in the High Court of having trafficked in no less than 97.37g of diamorphine. On appeal, he raised six grounds. First, that the charge was duplicitous and prejudicial to the appellant in that it was too widely framed. Second, that the appellant's cautioned statement was irrelevant to the charge and prejudicial to the accused. Third, that the trial judge had erred in finding that the cautioned statement had been made voluntarily. Fourth, that the trial judge had erred in relying on and interpreting an oral statement made by the accused to the investigating officer. Fifth, that the trial judge had erred in coming to the conclusion that a bag that the appellant had been seen carrying earlier that day was the bag in which the drugs were ultimately found. Lastly, that the trial judge had been wrong in rejecting the evidence of the appellant and the evidence of one of his witnesses exonerating the appellant. [bbHeld, dismissing the appeal: (1) the findings and observations of the trial judge were fully supported by the evidence and were unassailable; (2) there was no merit in the appellant's contentions that the charge was duplicitous and prejudicial. It was clear from a reading of the charge in the instant case that the appellant would realize that he stood accused of only one offence, that of trafficking in not less than 97.37g of diamorphine; (3) the criteria for admissibility of a statement is voluntariness and, once that has been established, the statement ought to be admitted and the question would then become one of weight to be attached to the statement; (4) there was no reason to interfere with the trial judge's findings of voluntariness in relation to the appellant's cautioned statement; (5) the trial judge was clearly entitled to rely on and interpret the oral statement made by the appellant to the investigating officer in the way he did; (6) the evidence adduced by the prosecution regarding the observation kept on the appellant and his own cautioned statement fully supported the interference that the appellant had brought the same plastic bag from his car to the bedroom on the day in question; (7) having regard to the fact that s 147 of the Evidence Act is set out in full in the trial judge's grounds of decision, there was also no basis for the submissions that s 147(5) had not been fully considered merely because the conditions therein were not expressly dealt with thereafter; (8) the finding that Loo Koon Seng had been paid to testify favourably for the appellant totally destroyed whatever credibility that Loo Koon Seng may have had.

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).

The appellant was arrested with 13.03g of diamorphine found in his possession. A large amount of cash and valuables, as well as a pager phone were also found on the appellant. There was no dispute that the drugs belonged to the appellant. The appellant's defence was that the drugs were for his personal consumption. After the defence expert, Dr Lim, had given evidence on the appellant's rate of consumption, the prosecution applied to call their expert, Dr Leow, in rebuttal. The defence objected but the district judge allowed the application. At the end of the trial, the district judge accepted Dr Leow's evidence over that of Dr Lim's. The district judge found that the presumption that the drugs were in the appellant's possession for the purpose of trafficking was not rebutted. Despite Dr Leow's evidence that the appellant would be consuming three to five straws of heroin, or 1/6 of a packet a day, the district judge declined to do any apportionment. The appellant appealed.

Held, dismissing the appeal: (1) in a case where the presumption of trafficking was invoked against the accused in a prosecution for drug trafficking, and the defence was that the drugs found in the accused's possession were for his own consumption, the court should normally allow the prosecution to call expert evidence in rebuttal of the defence's expert evidence in relation to the accused's capacity to consume drugs. It did not make any difference that the defence of self-consumption was revealed in the accused's statements to the authorities; (2) on the evidence, the district judge was entitled to prefer Dr Leow's evidence over that of Dr Lim's; (3) although it was not possible for a drug addict to assess his daily consumption with precision and an accused could not be disadvantaged if the investigating authorities chose not to weigh and analyse each sachet of drugs individually, he must at the very least be able to give a coherent account of his rate of consumption. If no reasonably consistent account was given, he could not be said to have discharged the legal burden of rebutting the presumption of trafficking. In the present case, the district judge's decision to reject the appellant's account of his rate of consumption was one he could reach on the evidence before him; (4) before any meaningful apportionment could be made, there must be credible evidence that part of the drugs was meant for self-consumption. There must also be credible evidence of the rate of consumption as well as the number of days the supply was meant for. Credible evidence did not mean the mere say-so of the accused. If all an accused could adduce was a bare allegation, the onus was on the trial judge to believe, or not to believe him. An appellate court would be most reluctant to disturb any such finding; (5) even accepting that part of the drugs were meant for consumption and that the appellant consumed, on the average, 1/6 of a sachet a day, that would not get the appellant very far, because there was no credible evidence as to how many days' supply of the drugs were meant for the appellant's own consumption. It would be unfair to require a trial judge to pluck a figure out of thin air to do the apportionment. The district judge could not be criticised for declining to do so; (6) (per curiam) reservation was expressed as to whether what was said by Rajendran J in PP v Dahalan bin Ladaewa [1996] 1 SLR 783 was not overly broad. Evidence of drug trafficking paraphernalia and large amounts of cash and valuables found on the appellant was not adduced solely to show that the appellant had been trafficking in drugs. They were adduced as circumstantial evidence of the appellant's state of mind. Sections 14 and 15 of the Evidence Act (Cap 97) were relevant.

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

The accused was charged with trafficking in 43.28g of diamorphine. The accused had been in possession of a bag when he was spotted by the police. The accused threw the bag away in his attempt to evade arrest but the bag was recovered and searched and found to contain one packet of granular substance, 32 sachets of a granular substance and 8 sachets of a blackish substance, many empty sachets, weighing scales, spoons, straws, pincers, a mobile phone and pager and a long straw containing a granular substance. A urine analysis of the accused revealed the presence of morphine. The accused made a long statement following his arrest which was made without any apparent threat or inducement. This statement was made in the form of a series of questions and answers and the accused was apparently forthcoming and normal. The accused however claimed that he was not told the nature of the charge against him when he was arrested although he knew drugs were found on him. The accused claimed he pleaded with an inspector for a lesser charge and that the inspector replied that they should talk and after he had made his statement the inspector would speak to the DPP who would speak to the court. The accused suffered withdrawal symptoms after his arrest and was warded for treatment for six days. The accused had asked from the time of his arrest to see his family as well as for cigarettes. In addition he repeated his request for a lesser charge to be brought. The accused repeatedly made these requests and the inspector repeatedly replied that he would do his best to grant them once the long statement was taken. The long statement was taken and the accused was then allowed to smoke and receive visits from his family. In the statement the accused claimed to be a heavy addict who was offered cheaper supplies by his dealer if he were to buy in bulk. The accused claimed to make arrangements with five friends to combine their orders and buy in batches of 10Ð20 until he was offered an even cheaper deal for one pound. The accused claimed to be using three sachets per day at the time of his arrest. The withdrawal symptoms he was suffering from at the time of his arrest were classified as mild although the accused claimed the drugs were for his consumption and not for trafficking. A voir dire was held to ascertain whether but for the promises and inducements offered by the inspector, the accused would have volunteered the long statement.

Held, convicting the accused: (1) principles of law governing the admissibility of statements made by an accused in custody are well settled. The statement is admissible provided the provisions of s 24 of the Evidence Act (Cap 97) are complied with but it is equally incumbent on the court to consider whether the statement appears to have been made by any threat, inducement or promise from a person in authority and to approach the issue from the point of view of the accused; (2) the question of oppression relates to the manner and method of interrogation and may be described as questioning which by its nature, duration or other attendant circumstance excites hopes such as release or fears so that the interrogated persons' will is sapped, per Seow Choon Meng v PP [1994] 2 SLR 853. 'If the threat or inducement created substantial and effective fear of prejudice or hope of advantage there was no longer any room for the theory that the confession could be admissible if the prejudice or advantage was purely collateral. The true test was whether the confession was voluntary or not': per Chow Eng v PP (1924) 4 FMSLR 287 at 291; (3) a case of trafficking had been made out which if unrebutted would warrant conviction; (4) the undisputed fact was that the accused was in possession of 43.28g of diamorphine (in the three separate lots) and his physical act of carrying them attracted the presumptive provisions of s 17 of the Act. To rebut the presumption the accused had to show on the balance of probabilities that the drugs were not meant for the purpose of trafficking. The question was whether the accused's explanation was worthy of belief. Ong Ah Chuan v PP [1981] 1 MLJ 64 notes that the purpose of an act is a matter of inference from what the accused did. Therefore the act of conveying from one place to another any drugs in a larger amount than would be needed for personal consumption would in the absence of any plausible explanation be an irresistible inference of trafficking. The larger the amount carried, the more plausible needs be the evidence to rebut the presumption; (5) the fact that the accused may well be a severe drug addict (requiring hospitalization for six days for treatment for withdrawal symptoms) does not assist as even a severe addict could traffic in the drugs which he may be in possession of. Even if the accused could consume all the drugs he was in possession of it did not immediately follow that he was not a trafficker, per Lee Yuan Kwang v PP [1995] 2 SLR 349 at 365; (6) the replies of the inspector to the requests of the accused were no more than a courteous response rather than an endeavour to produce a statement. No inducement or promise was held out to the accused to extract the long statement. While the matter is to be discerned from the point of view of the accused and his frame of mind the accused could not have been detracted by the ambivalent promises from the inspector. The statement was admitted as voluntarily made;many factual questions required satisfactory answers from the accused to explain his actions; however, the observations drawn from his evidence was that he was not being truthful. The substantial amount of drugs found, the presence of the weighing scale and the many unused sachets all lent support to the presumption of trafficking. Trafficking even covers the act of returning drugs to their rightful owner as the requirement is merely the transfer of possession from one to another, per Lee Yuan Kwang v PP. The undisputed fact was that the accused was seen moving or transporting the drugs at the time of his arrest.

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

Chng Seow Hong v Public Prosecutor Criminal Appeal No 51 of 1995 Court of Appeal, Singapore (Yong Pung How CJ, Lai Kew Chai and Goh Joon Seng JJ).

See CRIMINAL LAW, para 746.

The appellant and one Gwee Siew Kuan ('Gwee') were convicted of having the common intention of trafficking opium. The house in which they were living was raided and 13 slabs of the drugs were found in the store-room which was locked. Some utensils for cooking the drugs were also found in the premises of the house. The prosecution relied heavily on the statement made by Gwee in the course of the investigations, the voluntariness of which was not questioned by Gwee. In the initial parts of her statement, she stated that she had no knowledge that the slabs were opium and alleged that they belonged to one 'Ah Pek' who had rented a room in their house. However, she later confessed that she had told a lie and thus changed her story. Gwee stated that one Ah Poh had asked her to sell drugs for him. Gwee had arranged to meet a person whom Ah Poh would send over to her house, to hand her the drugs. The appellant knew of this and had even helped to count the drugs and put it into the store-room. Gwee also told the appellant that some of the opium was cooked at the house and that they received some money for allowing the opium to be cooked there. Gwee elected to remain silent at the trial. The appellant's defence was that he did not know of the contents of the packets containing the drugs. He had merely done a favour by placing the packets in the store-room of his house for safekeeping for a friend, Lim Beng Tat. He denied Gwee's version of events as narrated in her statement. The trial judge rejected the appellant's version of events and accepted Gwee's voluntary statement as truthful and reliable, although she was only 15 years old. The trial judge also found that they were acting in concert and that there was a prearranged plan to take delivery of the opium from Ah Poh and to sell it for him. Thus the prosecution had proven its case beyond reasonable doubt. The appellant appealed. He argued that he did not have possession of the opium for the purpose of trafficking, that he did not have a common intention with Gwee to traffic the opium and that due to Gwee's age, the contents of her statement were unreliable and no weight should be placed on it.

Held, dismissing the appeal: (1) the trial judge was correct in accepting Gwee's evidence as reliable as it had detail and consistency of detail which gave it credibility. Moreover, her age did not render the evidence in the voluntary statement any less reliable. The trial judge was also right in deciding that the appellant's version of events could not be believed; (2) as Gwee's evidence in her voluntary statement was accepted as truthful and reliable, it followed that the elements of possession and knowledge were made out against the appellant which he had failed to rebut. In this case, it was not necessary to prove common intention, but in any event, the common intention was undoubtedly present.

Lim Peng Ann v Public Prosecutor Criminal Appeal No 1 of 1996 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Chao Hick Tin J).

The accused was charged with the trafficking of more than 15g of diamorphine. The prosecution case was that the accused and another man (Sanusi) were arrested at 10.40am on 6 July 1994 at the Karachi Restaurant when, as a result of a routine check by some police officers, it was discovered that the accused was wanted for failing to report for a urine test. It was the testimony of the arresting officer (Cpl Rajandran) that the accused looked as if he was under the influence of drugs at the time of arrest. The accused was in possession of a clutchbag which was later found to contain, inter alia, 24 sachets containing 28.36g of diamorphine in an envelope, a handphone and about $3,000. The accused was also wearing a lot of gold jewellery. One Sgt Lai was told to interview the accused to ascertain that trafficking was suspected before referring the case to the CNB. Sgt Lai, accordingly, interviewed the accused from 2.15pm to 2.30pm that day and interviewed Sanusi immediately thereafter. No interpreter was used. Later at about 6.20pm, just before leaving the office, he noted what the accused told him in his pocket book, and destroyed the piece of paper on which he had originally noted down the accused's answers. The prosecution sought to adduce in evidence the conversation between the accused and Sgt Lai and the extract from the pocket book. In his pocket book, Sgt Lai had recorded the accused as having said that he 'intended' to sell the 'sachets of powdery substance' for $150 a sachet. The defence objected to this conversation or the extract from the pocket book being admitted in evidence and a trial-within-a-trial (the first voir dire) was held to determine admissibility. Cpl Rajandran told the court during the voir dire that the accused had been asleep when he went to the accused's cell that afternoon to fetch him for the interview by Sgt Lai. He had to wake the accused up before he could escort the accused to the interview room. During the interview the accused had still looked sleepy. Evidence was also adduced during the voir dire to show that Sgt Lai had not followed the procedure detailed in the Police General Orders (PGO) with respect to the recording of statements in pocket books. After the voir dire, the main trial continued. The accused's s 122(6) statement, in which the accused recounted his history as an intravenous drug user, was admitted after various deletions. Witnesses, including expert witnesses and medical officers, were called by both parties to testify on the issue of the extent of the accused's addiction as that had become a relevant issue. This led to the first voir dire being reopened as the accused claimed that he could not remember what had transpired between him and Sgt Lai, having been at the time under the effect of an intravenous intake of heroin combined with erimin, a hypnotic drug. At the end of the prosecution case, the undisputed evidence before the court was that the accused was in possession of the 24 sachets containing the diamorphine. The provisions of s 17(c) of the Misuse of Drugs Act (Cap 185) were, therefore, triggered and a presumption arose that the accused had the heroin in his possession for the purpose of trafficking. There was in addition the unchallenged evidence of Sanusi that he regularly obtained heroin from the accused. There was clearly a prima facie case against the accused and the court, therefore, called on his defence. The accused elected to give evidence. The accused told the court that the 24 sachets he had with him when he was arrested were for the consumption of Sanusi and himself. He said that he would consume slightly less than one sachet of heroin per day. Their combined consumption, he said, was about 1[1/4] to 1[1/2] sachets per day. The accused said that he and Sanusi would consume all the 24 sachets found on him (22 full and two half sachets) within 14 days. By himself he would consume about 14 to 15 of the sachets in two weeks. His explanation for the cash and jewellery on him was that on 5 July 1994 he and the other workers had been paid their salary, and he had won more money by gambling. The rest of the money was his savings. He said that he bought gold as an investment. It was his practice to always carry with him all cash and other valuables wherever he went. The accused denied that he had the 24 sachets with him in order to deliver the 24 sachets or any part of them to anyone. The expert witness called on behalf of the defence testified, based, inter alia, on the scars found on the accused's arm and the accused's history of drug intake, that the defendant was a severe addict. The expert witness called by the prosecution for rebuttal agreed, on examining the accused's arms during the hearing, that the accused was a chronic intravenous abuser.

Held, acquitting the accused of the original charge and convicting him on an amended charge of trafficking in less than 15g but more than 10g of diamorphine: (1) it was not true that, outside of inducement, threat and promise, the only instance when the court could exclude a statement was when the statement was not the statement of the accused. On a plain construction of s 122(5), it appeared that, where the proviso did not apply, the court was vested with a discretion to admit or reject such statements; (2) an oral statement of an accused person was not inadmissible merely because of non-compliance with the mandatory provisions of s 121 of the Criminal Procedure Code (Cap 68). There was, however, good reason why the legislature had, in s 121, spelt out the manner in which statements were to be recorded. Similarly, there was good reason why the Commissioner of Police under powers given to him under s 55 of the Police Force Act (Cap 235) issued PGO specifying in lucid detail the manner in which pocket books were to be kept. The fact that s 122(5) provided that oral statements were admissible in evidence should not be treated as licence for police officers to ignore the PGO and the provisions of s 121 and render these safeguards meaningless; (3) in the light of all the evidence, the accused was a drug addict and had in fact consumed heroin and erimin the morning of the interview. The accused's evidence that he had little or no recall of what transpired between him and Sgt Lai was, therefore, accepted. Since the statement was recorded at a time when the effect of the erimin was at peak, there was more than a reasonable doubt that the accused's mind did not go with the statements he was making when he was interviewed by Sgt Lai; (4) the fact that the accused, at the time that Sgt Lai interviewed him, was not in a fit state to be interviewed was by itself sufficient for the court to rule the statement inadmissible. The absence of a Malay interpreter and the irregularities in the way Sgt Lai kept a record of what the accused said, in addition, made it unsafe to admit in evidence what the accused had allegedly told Sgt Lai. In the exercise of the court's discretion, therefore, the alleged statement was not admitted; (5) since the accused had admitted that he would be supplying heroin to Sanusi from the 24 sachets and it was in evidence that Sanusi would pay the accused for the heroin he consumed, the presumption that the accused was trafficking in the heroin found in his possession that morning was not rebutted. The question which arose, therefore, was whether, in view of the accused himself being an addict, he was trafficking in more than 15g out of the 28.36g of diamorphine contained in the 24 sachets. The burden was on the accused to show, on the balance of probabilities, that he was trafficking in 15g or less of the diamorphine contained in the 24 sachets and that the rest was for his personal consumption; (6) if indeed part of the drugs found in the possession of an addict was for his personal consumption, then the accused would not be trafficking in such part; (7) having heard the evidence of both prosecution and defence witnesses, the court had no doubt that the accused was a very severe addict and that he had been an intravenous abuser from mid-1993. The accused's evidence that he was consuming nearly one sachet of heroin per day was entirely plausible; (8) the total amount of diamorphine in the 24 sachets (including the two half sachets) was 28.36g. Each sachet would, therefore, contain about 1.2g of diamorphine. From the 24 sachets the accused would, in two weeks, consume between 14g of diamorphine (if he consumed 1g per day) and 16.8g (if he consumed one sachet) per day. On these figures the amount of diamorphine that he was trafficking in would be between 14.36g and 11.56g; (9) it was sufficient that he did so on the balance of probabilities. In the light of all the evidence, he had succeeded in doing this; (10) for any addict, the amount of heroin consumed in a day would depend on various factors, including availability, company, mood and opportunity. One could not therefore assess the daily consumption with precision. Nevertheless an assessment had to be made;to avoid the death penalty it was not necessary that the accused satisfy the court beyond reasonable doubt that the amount he was trafficking in was 15g or less;(per curiam) (a) where, as in this case, the violation of the provisions of the CPC and the PGO was flagrant, it was incumbent on the prosecution to either offer some reasonable explanation for such violation or desist from attempting to adduce statements taken in disregard of these provisions as evidence before the court. It was important that in conducting a prosecution, the prosecutor should consider carefully the circumstances under which a statement, oral or written, was made and seek to adduce evidence of that statement only if the circumstances warranted it. Failure to observe this principle would result in very considerable time being unproductively taken up in conducting trials-within-trials. It would be far better if these energies were directed into a more thorough investigation of the case against the accused; (b) it was simply not enough, in respect of a drug addict, for the prosecution to rely on the evidence of an investigating officer that an accused person appeared normal as evidence that the accused was not a severe addict, since he would not be a medical officer and could not be relied upon to assess the medical condition of an accused. It was very important, especially when drug addicts in possession of relatively small quantities of heroin were charged with trafficking, that a full medical examination for drug addiction was conducted as soon as possible after arrest. This was all the more important where the prosecution took the view that the severity of drug addiction could be measured by the severity of withdrawal symptoms. Withdrawal symptoms would only last for a relatively short time. If the symptoms were not immediately monitored, then that evidence would be lost and this could be highly prejudicial to the defence. There was also the danger of intravenous scars disappearing with time.

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

The appellant was convicted in the High Court on a charge of trafficking in two blocks containing 1,587g of cannabis by delivering them to one Mahendran, an officer of the Central Narcotics Bureau. Mahendran was introduced to one 'Din' to discuss his proposed purchase of cannabis in an entrapment operation. Din later met Mahendran and introduced the appellant to the latter. Mahendran agreed to purchase two kilograms of cannabis from Din for $4,800. Arrangements were made for either Din or the appellant to contact Mahendran. The appellant eventually informed Mahendran that he would meet him with the cannabis on 17 October 1995 at the Lavender MRT Station. The appellant handed over the cannabis, contained in a bag, to Mahendran as arranged. He began walking away even though Mahendran had only paid him $4,700. He was arrested immediately thereafter. At the trial, the prosecution sought to admit an inculpatory cautioned statement, in which the appellant had said that he had delivered a bag containing the ganja to Mahendran. The appellant challenged the admissibility of the statement, claiming that he had never said the word 'ganja' but had only known that the bag contained 'barang' and had referred to it as such. He claimed that the word had been suggested by the recording officer who had raised his voice threateningly and said 'you know this is ganja' or 'barang is ganja'. The trial judge ruled that no threat had been uttered and the statement had thus been voluntarily made. In his defence, the appellant maintained that he did not know what was in the bag. He thought it only contained 'barang' which could mean anything, such as medicine or shirts. He was only doing a favour for one 'Ramli', who had told him to give Mahendran the bag, promising him $300 in return. The trial judge rejected the defence. The appellant appealed, contending that the trial judge erred in his conclusion at the voir dire. He also contended that the trial judge erred in failing to consider the role played by Ramli and Din.

Held, dismissing the appeal: (1) in respect of the ruling in the voir dire, the learned trial judge was entitled to make the finding that no threat was made by the inspector who recorded the statement. There was nothing to suggest that the ruling was plainly wrong or against the weight of the evidence; (2) the appellant was the one who delivered the bag containing the cannabis to Mahendran, and the crucial issue was whether he knew that the contents of the bag were cannabis. Under s 18(1) and (2) of the Misuse of Drugs Act (Cap 185)('the Act'), he was presumed to have the drugs in his possession and to know that the drugs were cannabis. Whether he had rebutted these presumptions was purely a question of fact. The court agreed with the learned trial judge that he had not rebutted the presumptions; (3) even without the presumptions under s 18(1) and (2) of the Act, the totality of the evidence pointed clearly to the guilt of the appellant.

Muhamed Hazani bin Ghani v Public Prosecutor Criminal Appeal No 11 of 1996 Court of Appeal, Singapore (M Karthigesu and LP Thean JJA and Chao Hick Tin J).

The first and second accused were jointly charged with trafficking in 1514.6g of cannabis. They were arrested after a police sergeant had contacted the first accused and arranged to purchase a specified amount at which time the sergeant was told that no supplies were available and that he would be contacted once the supplies arrived. These arrangements were made with the first accused. An appointment was made to effect the purchase after the first accused told the sergeant that the cannabis had arrived. The first accused arrived with the second accused who waited while the sergeant and the first accused went off to discuss matters. The sergeant agreed to purchase 2kg at $1,500 per kilogram. The first accused told the sergeant to wait for his call and arranged to meet again at a different location. The first accused paged the sergeant and an arrangement to meet was made. The first accused said the cannabis was at a nearby construction site and they proceeded there. The sergeant waited while the first accused spoke to the second accused there. The second accused was recognised by the sergeant as the person he had met briefly earlier with the first accused. The first accused told the second accused to give a bag he had been holding to the sergeant whereupon a pre-arranged signal was given by the sergeant and the first and second accused were arrested after a brief chase. Two slabs of matter were recovered from the bag. Analysis of the matter revealed it to be cannabis. The first accused claimed that he had been arrested in a case of mistaken identity and that he was not the person who had negotiated with the sergeant. He claimed to have been sitting having a drink after finishing his work on a construction site when he heard shouting that the second accused, who was a friend, had been arrested and when he went outside he too was arrested. The second accused claimed that he had been misled into delivering the drugs because he did not know that the bag contained cannabis. He admitted he did know the first accused and said that he had met with the first accused who had told him that he wanted to meet him at his (the second accused's) work place but did not tell him why. He met the first accused at his work place. The first accused had arrived carrying a plastic bag. The second accused sat with the first accused and had a drink. At one point the plastic bag fell onto the floor and a package fell out. The second accused picked it up and rewrapped it before putting it back into the bag. The second accused said the first accused then made arrangements to meet a 'friend' and asked the second accused to come. The second accused accompanied him and waited with the bag. The first accused motioned for the second accused to come over and then indicated for him to bring the bag which he was told by the first accused to hand over to the 'friend'. The second accused saw people running towards him and he dropped the bag and ran. He claimed he ran because he had no identification papers, no work permit and had taken cough medicine which may contain drugs.

Held, convicting both the first and second accused and sentencing them to death: (1) at the material time there was no dispute that the second accused was delivering a plastic bag containing drugs to the sergeant. On the evidence, the presumption under s l8(1) of the Misuse of Drugs Act (Cap 185) applied and the second accused was presumed to have the drugs in his possession. By s 18(2), the second accused is presumed to know the nature of the drugs. The burden was on him to rebut this presumption. The evidence of the second accused was that he was unwittingly misled into carrying the drugs. His evidence was not believed; (2) the second accused's retracted portions of a statement contained a clear confession that he knew he was carrying drugs with the intention of delivering them. His reasons for retracting the statement, for fear of a third party, contained little credibility. The guilt of the second accused was established in his confession and his failure to rebut the presumptions under s 18(1) and (2); (3) the first accused's claim that he was arrested in error was not accepted. The arresting sergeant had had previous meetings prior to the arrest with the first accused. While recognition or identification of a person may not be easy if that person does not have any distinguishing features or had only been seen fleetingly prior to the arrest or when sighting was made in a poorly lit environment that was not the case here Ð the sergeant had met with the first accused on three occasions prior to the actual arrest. In these circumstances, it could not be accepted that the wrong man was arrested. For the wrong man to be arrested, the first accused had to not only be a 'dead ringer' for the first accused but had also to dress identically. The court was not convinced that the arresting sergeant could have been mistaken as to the identity of the first accused; (4) thirdly, the first accused's statement contained a confession that he made the arrangement to sell and deliver 2kg of cannabis to the arresting sergeant; (5) the first accused was deemed to be in possession of the cannabis carried by the second accused because the second accused was holding the cannabis with the knowledge and consent of the first accused. The first accused had given express instructions to the second accused concerning the cannabis; (6) the first accused contradicted himself materially and his statement was inconsistent with the evidence he gave in court. His credit was utterly impeached and the court was entitled to rely on his written statement as proof of the matters set out therein by the application of s 147(3) of the Evidence Act (Cap 97). The weight to be given to what a person has said when he is found to be an untruthful person is very low. His admissions were consistent with those of the arresting sergeant and the court was satisfied as to the common intention of the first and second accused to traffic in the cannabis; (7) the evidence against the first accused in relation to trafficking came from three areas Ð firstly, he was identified by the arresting sergeant as the person who had negotiated and arranged the sale. The arrangement of the sale and execution of the delivery constituted adequate proof that the first accused knew what the second accused was delivering; secondly, the second accused's statement corroborated the evidence of the arresting sergeant that the first accused knew where the cannabis was kept and that the first and second accused together retrieved it and delivered it as arranged;the contention that the scientific analysis of the cannabis was flawed and therefore could not be relied upon had no merit. The alleged flaw that the material was not weighed again after having had material discarded which did not pass the microscopic test had no application as no material was discarded because none did not pass the microscopic test.

Public Prosecutor v Zulkifli bin Awang Kechik and Pauzi bin Ab Kadir Criminal Case No 70 of 1995 High Court, Singapore (Choo Han Teck JC).

The appellants were jointly charged with trafficking in 852.3g of cannabis without authorisation in furtherance of a common intention, an offence under s 5(1)(a) of the Misuse of Drugs Act (Cap 185) (the 'Act'), read with s 34 of the Penal Code (Cap 223) and punishable under s 33 of the Act. The facts of the case, as held by the trial judge, were as follows. An undercover operation was executed by the Central Narcotics Bureau (CNB) in which CNB officer NO Rosli played the part of agent provacateur. NO Rosli visited the coffeeshop run by the first appellant. He was introduced to the two appellants by a 'CNB agent' and the parties then sat down to discuss the sale of cannabis by the first appellant to NO Rosli. In the ensuing conversation, the first appellant agreed to sell NO Rosli a kilogram of cannabis for $1,900. Thereafter, while the first appellant was answering a phone call, the second appellant suggested to NO Rosli that since he knew the supplier himself, NO Rosli could procure supplies through him directly thus bypassing the first appellant. Thereafter, NO Rosli was beckoned to the phone by the first appellant where he spoke to the supplier. The supplier assured him that more cannabis would be supplied and to take the one kilogram held by the first appellant first. After the phone conversation, NOÊRosli arranged to return to the coffee shop with the money. Rosli returned to the coffeeshop in a motorcar. The second appellant met him but did not deliver the cannabis. The second appellant said that the first accused would not hand the cannabis over without seeing the money. The second appellant shuttled to and fro between NO Rosli and the first appellant before the latter finally relented and passed a black plastic bag containing a bundle. NO Rosli signalled to nearby CNB officers who were keeping surveillance and they then moved in to arrest both appellants. The plastic bag was found to contain a block of greenish vegetable matter. At the trial, the scientific officer who carried out the tests on the vegetable matter, Dr Lee Tong Kooi, testified that he had used a screwdriver to break down the compressed block of vegetable matter into several thin slabs. He then used his fingers to separate the 'intact branches' from the rest of the matter. This weighed 852.35g, While using the screwdriver, some of the branches had broken into small bits because they were dry and brittle. Dr Lee grouped these broken pieces together as 'fragmented vegetable matter' which weighed 119.38g. A further small quantity could not be classified as either 'intact branches' nor 'fragmented vegetable matter' and Dr Lee set it aside as 'extraneous matter' which weighed 3.64g. Dr Lee then subjected the material to three tests to confirm the presence of cannabis. The first test was called the macroscopic test which involved a physical visual examination as to whether the matter exhibited the characteristic features of cannabis which mainly consist of fruiting and flowering tops. The second test involves a microscopic examination of the matter using a stereo zoom microscope. The characteristics looked for at low magnification were female flowers, fruits, bracts and leaves. Under high magnification, non-glandular and glandular trichomes were looked for as well as resin. In Dr Lee's opinion, these two tests must be complemented by a chemical analysis of the matter to determine the presence of tetrahydrocannabinol and cannabinol as these alkaloids must be present before any plant material could be considered to be of the genus Cannabis as required under the defining provision in the Act. Dr Lee found that the 'intact branches' satisfied all three tests and concluded that all 852.35g was cannabis although he only subjected 590.23g thereof to chemical testing. The 'fragmented vegetable matter' did not satisfy the macroscopic nor microscopic tests because they visually did not display sufficient features of the cannabis plant. Chemical tests proved, however, that they contained the requisite alkaloids. Dr Lee therefore classified them as 'cannabis mixture'. The defence submitted that since the compressed block contained 'cannabis' and 'cannabis mixture', the charge should have been for trafficking in 'cannabis mixture' and it was wrong to break the block down into the constituent parts. Since the block weighed 982.38g, such a charg e would not attract the death penalty which only applied, in relation to trafficking in 'cannabis mixture', when the weight was 1,000g and over. This was rejected by the trial judge. On appeal, the appellants challenged the learned trial judge's holding as to the proper application of the provision on 'cannabis mixture'. The second appellant also appealed against the finding of the trial judge that he had knowledge that the first appellant was selling cannabis to NO Rosli. His contention was that he thought he was delivering cigarettes and that he was merely running an errand for the first appellant.

Held, dismissing the appeal: (1) in the instant case, two separate vegetable matter. The crucial words in the definition of cannabis mixture were 'in any mixture of vegetable matter' and this can only mean two or more separate vegetable matters. It was clear from the evidence that the block of compressed greenish vegetable matter was composed of one and only one vegetable matter and no more. As a matter of fact, the question of 'mixture' or 'mixing' does not arise; (2) in all correctness, Dr Lee should not have certified the 'fragmented vegetable matter' as 'cannabis mixture' since it was not a 'mixture of vegetable matter'. He should have certified that it did not satisfy all three tests he had carried out for cannabis although he found the presence of tetrahydrocannabinol and cannabinol therein. However, this did not detract from his evidence that 590.23 g of the 'intact vegetable matter' satisfied all three tests. Since this was over the 500g of cannabis which attracted the death penalty, no chemical tests were carried out on the remainder of the 'intact branches' weighing 362.12g. In the circumstances the learned trial judge rightly amended the trafficking in cannabis charge from 852.3g to 590.23g; (3) the second appellant's alternative argument that he had no knowledge that the transaction involved illicit drugs was a most unlikely story and there was no reason to disagree with the trial judge who rejected his defence; (4) in enacting the amendments to the Act whereby the new offence of trafficking in cannabis mixture was introduced, Parliament was seeking to deter the camouflaging of cannabis by mixing the cannabis in broken form with another vegetable matter such as tobacco. 'Mixing' involves two separate substances;common intention was to be inferred from the facts and all the surrounding circumstances. In the present case, the second appellant was delivering the drugs to NO Rosli in furtherance of the plan to sell cannabis to the latter. The sale had been negotiated in the coffeeshop by both the first and second appellants with NO Rosli. The act of the second appellant was also the act of the first appellant. The elements of common intention were abundantly present.

Abdul Raman bin Yusof & Anor v Public Prosecutor [1996] 3 SLR 15 Court of Appeal, Singapore (Karthigesu And LP Thean JJA, Goh Joon Seng J).

The accused was charged with trafficking a controlled drug by having in his possession 3,488.91g of cannabis mixture for the purpose of trafficking. The defence submission was devoted solely to the threshold issue whether the prosecution had established prima facie an essential element of the charge. Defence counsel's entire submission was directed at the scientific evidence adduced by the prosecution. The prosecution's scientific evidence in summary was that macroscopically it was unable to be said conclusively that the exhibits examined were herbal cannabis. The microscopic examination, however, led to the belief that the matter originated from the cannabis plant. Chemical analyses confirmed the presence of tetrahydrocannabinol and cannabinol. Although no other vegetable matter was found in the exhibits, the substance was not certified as cannabis as it was not the practice of the Department of Scientific Services to do so unless it was established by macroscopic, microscopic and chemical tests that it was in fact cannabis. It could not be conclusively confirmed that every single fragment in the exhibit was of cannabis origin and so for the sake of giving the benefit of the doubt, the substance had been called cannabis mixture. The exhibits were certified as being cannabis mixture because such certification was in accord with the definition provided under s 2 of the Misuse of Drugs Act (Cap 185).

Held, discharging the accused: (1) the defence relied on the construction placed by the Court of Appeal on s 2 of the Misuse of Drugs Act in relation to the definition of 'cannabis mixture' in Abdul Raman bin Yusof & Anor v PP (CA No 13 of 1996) where the Court of Appeal was unambiguous in its enunciation that cannabis mixture meant 'a mixture of two or more separate vegetable matters'. In this case, the examined substance appeared to contain only one type of vegetable matter. Therefore, the certificates that the analysed substance was cannabis mixture were contrary to the views so clearly articulated by the Court of Appeal and, accordingly, were wrong in law; (2) it is trite law that the decisions of the upper tiers of the judicial hierarchy are binding on the lower tiers and it is not open to the tiers below to ignore or side-step such decisions as being unworkable. In this case, the definition of cannabis had been used by the Court of Appeal in determining the primary question whether the substance ought to have been classified as cannabis mixture. Therefore, the definition would have to be regarded as the ratio decidendi and not mere obiter dicta. It does not matter that the facts involved the question of separability of cannabis from fragmented vegetable matter. It is the legal rule espoused by the court that is important. Therefore, the court was bound by the doctrine of stare decisis to follow the decision of the Court of Appeal. The definition of cannabis mixture as enunciated by the Court of Appeal precluded the holding that the subject matter in this case was cannabis mixture.

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

The respondent was charged with trafficking in six slabs of vegetable matter containing not less than 4,834.5g of cannabis mixture, an offence punishable under s 33 of the Misuse of Drugs Act (Cap 185). S was charged with abetting the respondent by aiding him in the commission of the offence. The respondent was a Thai seaman who was the chief engineer on a ship. When his ship docked in Singapore, he and his subordinate S went to town. The respondent met up with A, a prostitute he was acquainted with. A asked the respondent to help her sell some Thai herbal medicine referred to as 'penya', with the assistance of A's acquaintance, Ah Toh. Ah Toh alerted the Central Narcotics Bureau (CNB). The respondent met the 'buyer' (actually an Inspector) at a hotel lobby to negotiate the deal. A few days later, the respondent collected a bag of cannabis, thinking it contained the Thai medicine. The respondent then proceeded to the hotel lobby to meet the 'buyer', leaving S outside with the bag. Subsequently, the respondent asked S to return him the bag. The respondent and S were then arrested and brought to CNB headquarters. During questioning there, the respondent was reported to have referred to the goods as 'ganja', although he insisted he had called them 'penya'. The trial judge acquitted both the respondent and S, basing his decision on three findings of fact: (1) that the respondent had not said 'ganja' when he first met the 'buyer'. The 'buyer's' evidence-in-chief contradicted his statements in cross-examination such that it was clear that the respondent had never used the word 'cannabis'. Rather, the 'buyer' had used it in evidence as a convenient reference to drugs. The respondent had also never mentioned 'ganja'; (2) that the respondent mentioned the word 'penya' and not 'ganja' during the questioning at the CNB headquarters; (3) that the respondent thought he was dealing in Thai herbal medicine. The Public Prosecutor appeal the respondent's acquittal.

Held, dismissing the appeal: (1) the trial judge was entitled to perceive and observe the respondent as he had, being well-trained to discern truth from falsehood in accused persons. He heard and saw the respondent give evidence, and had examined the evidence with great circumspection; (2) even if the stricter requirement of 'wilful blindness' is applied to the respondent because he did not check the contents of the bag, the respondent was still not blameworthy because he was too gullible and had trusted A; (3) a statement of the respondent which seemed false or contradictory with his evidence in court had to be read in context. It then became obvious the statement was in tandem with the rest of the respondent's version of the events; (4) it was unclear whether the whole of the respondent's statement under s 122(6) of the Criminal Procedure Code (Cap 68) had been recorded. Therefore, no adverse inference could be drawn against the respondent.

Public Prosecutor v Khampali Suchart Criminal Appeal No 8 of 1996 High Court of Appeal, Singapore (Karthigesu and LP Thean JA, Goh Joon Seng J).

The appellant was convicted and sentenced to death for having in his possession 25 packets of substance containing not less than 17.80g of diamorphine for the purpose of trafficking on 22 November 1994 along Geylang Road. He was arrested during a police spot-check for failing to report for urine test. At the trial, the appellant challenged the admissibility of the investigation statements in that they were involuntarily made. He alleged that he was unwell when the statements were taken from him. After the voir dire, the trial judge admitted the statement. The crux of the statement was that one Naning handed to the appellant the drugs and told him to deliver it to someone and he would be paid $200Ð$300 for doing that. At the appeal, the appellant contended that the trial judge erred in admitting in evidence the investigation statements and in rejecting the appellant's claim that half the quantity of drugs found in his possession at the time of his arrest were for consumption by him and Norma and only the other half was for sale.

Held, dismissing the appeal: (1) the appellant claimed in his evidence that he found it stressful to be handcuffed to his bed and wanted to be discharged. None of this was put to the doctor by the appellant's counsel. Even if he felt the discomfort he mentioned, he did not say that it was so distressful as to have sapped his free will and led him to make the statement. The court found no substance at all in the submission that the investigation statements ought not to be admitted as evidence; (2) there was no credible evidence of the appellant's rate of consumption. The bare assertions made by him could not be relied on. The learned judge rightly rejected the appellant's evidence. There was no evidential basis whatever to support the appellant's contention that half the quantity of the heroin found in his possession was for his and Norma's consumption and only the other half was for sale.

Roslan Bin Mohammad Sany v Public Prosecutor Criminal Appeal No 37 of 1995 Court of Appeal, Singapore (Yong Pung How CJ, M Karthigesu and LP Thean JJA).

The two accused were jointly charged that they, in furtherance of a common intention, did traffick in a controlled drug specified in Class 'A' of the First Schedule to the Misuse of Drugs Act (Cap 185) by having in their possession for the purpose of trafficking 17 packets of substance containing a total of not less than 480.10g of diamorphine. The first accused was additionally charged with having in his possession a further 22 sachets containing 11.09g of diamorphine for the purpose of trafficking. They were both arrested at the foot of the block of flats where the first accused lived. When the first accused was brought by the arresting officers to the flat in which he rented two bedrooms, they found 17 packets of diamorphine in the second bedroom and 22 sachets in the master bedroom together with an electronic weighing scale. A statement from the first accused was recorded, read to him and signed by him. The signature was later examined and found to be 'more likely than not' the signature of the first accused. At the trial, the first accused claimed he had rented the second bedroom to the second accused and that the 17 packets belonged to the second accused. He claimed that the drugs found in the master bedroom were for his own consumption. His evidence contradicted his previous statement in many aspects. The second accused claimed that he did not rent a room from the first accused and that the drugs did not belong to him.

Held, convicting the first accused and acquitting the second accused: (1) although the second accused was not a good witness as there were some inconsistencies in his evidence, nevertheless he did not throughout the long cross-examination admit any involvement with the drugs or say anything that connected him to the room, the bag or the drugs, or give cause for belief that he had anything to do with them. It raised questions about his credibility, but that did not change the fact that there was no reliable evidence or presumption to support the charge against him. The case against the second accused was dependent on the first accused's allegations and the first accused was a wholly unreliable witness; (2) the court found that the drugs in the master bedroom and the second bedroom were in the first accused's possession and that he had not rebutted the presumption that they were there for the purpose of trafficking. The two charges that he faced were amalgamated into a single charge and he was convicted on it. It might be that a portion of the 22 sachets in the master bedroom may have been intended for his own consumption, but there was no evidence that enabled that to be quantified, and bearing in mind the total weight in the amalgamated charge, any adjustment could not affect the mandatory sentence.

Public Prosecutor v Chua Kiat Ann & Anor Criminal Case No 2 of 1996 High Court, Singapore (Kan Ting Chiu J).

The appellant was convicted, alongside a co-accused, of a charge of having a common intention, together with a third person, to traffic in cannabis. The three of them were arrested at a police road block while in a rented car, where they had been consuming cannabis. The cannabis in question was found in a bag in the boot of the car. The prosecution adduced in support of their case a statement given by the co-accused, as well as a note, written by the appellant, found in an organiser of his kept in an attach? case belonging to the third person. The trial judge found that prima facie cases had been made out against both the appellant and the co-accused. In support of his conclusion, the trial judge relied upon the co-accused's statement and the appellant's note. It was found that the statement disclosed that the third person was seen making deliveries, and that the appellant had known of the presence of the cannabis in the boot. Reliance was also placed on the three of them being in the car together for six hours, that the appellant's personal items were found in the attach? case belonging to the third person, and that the note gave rise to the suspicion that the appellant was involved in trafficking. The trial judge then called for the defence, and preferring the evidence of the prosecution to that of the appellant and the co-accused, convicted them both. The appellant alone appealed, arguing that his defence should not have been called as the prosecution had not made out a prima facie case against him.

Held, allowing the appeal: (1) mere knowledge was insufficient to establish possession D there had to be an indication that there was control over the drugs. Where reliance was placed on s 18(4) of the Misuse of Drugs Act (Cap 185) no presumption could be drawn under s 17 of that Act. The prosecution could only have made out its case on the basis that there was common intention; (2) the facts of the present appeal did not indicate that there was any involvement by the appellant. All that the prosecution's evidence showed was that he was merely along for the ride. The link between the note and trafficking was tenuous. Neither mere knowledge of the presence of drugs in trafficking, the presence of the appellant in the car, his items being in the third person's attach? case, nor his mere acquiescence in and silence on the activities of his friends indicated the involvement of the appellant in a prearranged plan. And even if the facts adduced by the prosecution were taken together, they would not disclose any prearranged plan; (3) the prosecution's facts and reasonable inferences from those facts did not support the charge. The appellant's defence should not have been called.

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

The appellant had been observed by CNB officers leaving a Farjar Road flat that had been kept under surveillance. He was seen leaving the flat carrying a plastic bag. Thereafter, he hailed a taxi and was travelling in it when the CNB officers trailing the taxi stopped it and arrested the appellant. The white plastic bag was recovered from the floorboard of the passenger's seat on which the appellant had been seated and later analysed to contain 114.3g of diamorphine. The appellant was searched and two sets of keys were recovered from him. One set of keys was for a flat in Ghim Moh which belonged to the appellant's sister. His sister, however, no longer lived there and the appellant had 'borrowed' it for his own use. During the trial, both the appellant and his sister testified that the Ghim Moh flat's keys had been hidden under a metal drum outside the flat along the common corridor so that either of them and a third character, one Ah Huat, could have access to the flat at various times. When the CNB raided the Ghim Moh flat, they seized a digital weighing scale, a battery-operated plastic sealer, a metal spoon, a pair of scissors, a Phillips handphone and a radio scanner and adapter. At trial, the prosecution invoked the presumptions under s 18 of the Misuse of Drugs Act (Cap 185). The appellant did not dispute that he had possession of the bag but sought to rebut the presumptions raised by the contention that he thought the bag contained money. According to him, he was given the bag at the Farjar Road flat by one Lay Lay and a Malaysian, Kua. The appellant's instructions were to hand the bag to another Malaysian at a Ghim Moh car park. According to the appellant, both had said the bag contained 'money'. The trial judge rejected this defence as a fabrication as Kua's passports showed that he had not been in Singapore on the day in question. The appellant had, furthermore, denied any connection with the plastic bag in his s 122(6) statement. The trial judge also found that the appellant was transporting the drugs in order to further or advance the distribution of the drugs under the test propounded in Syed Feisal v PP [1992] 2 SLR 190. This was premised on the appellant's own testimony that he was giving the package to the second Malaysian. The trial judge further relied on the paraphernalia found in the Ghim Moh flat as well as the appellant's own evidence as to previous acts of trafficking to support the finding that he was transporting to further or advance the distribution of the drugs. On appeal, the finding of possession and knowledge of the nature of the contents of the plastic bag were not challenged. Counsel for the appellant challenged the trial judge's reliance on the paraphernalia and the previous acts of trafficking to find that the appellant was transporting in order to further or advance the distribution of the drugs.

Held, dismissing the appeal: (1) trafficking by transporting did not merely entail the physical conveyance of drugs. Whether the conveyance amounted to trafficking by transportation depended on the purpose of conveyance at the time of the conveyance. This purpose was not the intended use at the intended destination but the larger purpose of the intended use of the drugs. If they were solely for the use of the transporter and it was never intended that possession was to be parted with, whether at the intended destination or otherwise, then the conveyance did not amount to trafficking; (2) where an accused charged with trafficking by transporting had been found with a quantity of drugs far larger than was likely to be needed for his own consumption the inference that he was transporting them for the purpose of trafficking in them would, in the absence of any plausible explanation by him, be irresistible; (3) paraphernalia of the sort found in the Ghim Moh flat was relevant to an inquiry as to whether the person in possession of such items was trafficking in drugs. In this case, it was relevant to the inquiry as to whether the appellant had conveyed the drugs with the aim of furthering the distribution of the drugs. However, before such evidence could be relied on, it must be proven that the person against whom they were relied on had possession of them. The burden was, therefore, on the prosecution, in this case, to prove that the paraphernalia belonged to the appellant. Bearing in mind the possibility of other persons having access to the flat and the lack of any evidence linking the appellant to the paraphernalia other than the fact that he used the flat, the prosecution had not discharged this burden. The evidence relating to the paraphernalia should have been excluded and not relied upon; (4) the relevance of evidence relating to the appellant's previous acts of supplying a circle of addict friends with drugs was to be determined according to the principles applicable to similar fact evidence. This evidence was relied upon to reach a finding that the appellant had the requisite mental element when he transported the drugs. It was thus potentially relevant under ss 14 and 15 of the Evidence Act (Cap 97, 1990 Ed). However, the balancing test propounded by the House of Lords in DPP v Boardman applied under the Evidence Act. Under the Boardman test, the probative value of the similar fact evidence had to outweigh its prejudicial effect before that evidence can be relevant. The nature of similar fact evidence was such that it was always prejudicial. Whether the probative force of the evidence outweighed this prejudicial effect depended, inter alia, on the cogency of the evidence, the strength of inference that could be drawn from it and its relevance; (5) in the present case, the fact that the appellant had supplied his addict friends with drugs in the past was not evidence strong enough from which to infer that the appellant was trafficking drugs to the Malaysian at the Ghim Moh car park. Such evidence epitomized the sort of evidence the exclusionary rule was developed to deal with. Its effect was too prejudicial to the appellant and should not have been relied upon; (6) in the present case, the appellant himself had said that he intended to give the drugs to the Malaysian at the Ghim Moh car park. This was enough for the trial judge to come to the finding that he was conveying the drugs to further or advance its distribution even without relying on evidence of the paraphernalia or the similar facts. As such, there had been no miscarriage of justice; (7) (per curiam) Whether the Boardman balancing test [DPP v Boardman [1975] AC 421] applied to situations where what was sought to be proved with similar fact evidence was not within one of the matters identified in ss 14 and 15 of the Evidence Act was not in issue and would not be decided in the present case.

Tan Meng Jee v Public Prosecutor [1996] 2 SLR 422 Court of Appeal, Singapore (Yong Pung How CJ, Lai Kew Chai and Goh Joon Seng JJ).

The appellant faced two charges of drug trafficking under s 5(1)(a) of the Misuse of Drugs Act (Cap 185)('MDA'). The first charge involved one sachet hidden in his left sock containing 0.5g of diamorphine. The second charge involved 42 sachets containing 26.28g of diamorphine. These were recovered from two plastic bags which were hidden in a recess in the kitchen of his rented flat. When a CNB officer asked him how much was in the bags prior to their retrieval, he replied that there were 20 to 30 sachets. The appellant challenged the voluntariness of three incriminating statements. It was not disputed that he was asthmatic. He asserted that before the recording of the cautioned statements at the CNB, a male Chinese officer had threatened to remove his Ventolin inhaler unless he said 'yes' when questioned by the recording officer. He paid no attention to and was unable to describe the Chinese officer's appearance. As he was afraid that his inhaler might be taken away, he admitted to selling heroin in the second cautioned statement. When his long statement was recorded the following day, he was having an asthmatic attack and was afraid that his inhaler might be taken away. In the long statement, he admitted that the 42 sachets were intended for sale and also for his own consumption. The trial judge admitted the statements, finding that they had been made voluntarily. In his defence, the appellant claimed that he was a drug addict. He relied on heroin to relieve his asthma. The drugs in his sock were meant for his own consumption. He did not know about the existence of drugs in his rented flat. The flat was also occupied by one 'Chye Tee', who sometimes brought his friends there for drinks. The appellant had also previously sub-let the flat to some Thai women. He suggested that any of these persons could have hidden the drugs there. He also denied telling the CNB officer that there were 20 to 30 sachets in the kitchen. The trial judge rejected his defence and convicted him on both charges. The appellant appealed.

Held, dismissing the appeal: (1) there was ample basis for the trial judge to infer that the appellant was able to cope with his asthmatic condition. This inference was neither plainly wrong nor against the weight of the evidence; (2) the only allegation of impropriety was that the appellant had been threatened with the removal of his inhaler. The trial judge was satisfied that there had been no opportunity for any intervening episode involving the unidentified Chinese officer to have taken place. The trial judge was perfectly entitled to reject the appellant's contentions as to the voluntariness of his statements; (3) the appellant's assertions that the drugs could have been hidden by other persons who had access to the flat had to be scrutinized in the light of the contents of his long statement. By that statement, he admitted possession of the drugs for the purpose of trafficking. The statement also contradicted his oral evidence that other persons had access to the flat; (4) The prosecution was in no position to ascertain whether 'Chye Tee' really existed. More importantly, the appellant had made absolutely no mention of his defence concerning 'Chye Tee' or the Thai women until he commenced giving evidence during the trial. An adverse inference could properly be drawn against him pursuant to s 122(6) of the Criminal Procedure Code (Cap 68) for his failure to mention these facts; (5) apart from the inculpatory statements, there was sufficient independent evidence to show that the appellant had known of the existence of drugs in the kitchen. In the premises, there was no reason to interfere with the trial judge's finding that the appellant was the owner of the drugs; (6) there was little merit in the appellant's defence of personal consumption. Other than his bare allegations, there was no evidence that he had been a heroin addict in recent years, or that he had been consuming heroin to relieve his asthma. In addition, his statements revealed some ambivalence in his allegations. The defence would not carry much weight in the overall analysis.

Chng Seow Hong v Public Prosecutor Criminal Appeal No 51 of 1995 Court of Appeal, Singapore (Yong Pung How CJ, Lai Kew Chai and Goh Joon Seng JJ).

The appellant was charged for trafficking in a controlled drug by having possession of one plastic packet, one plastic straw and one sachet of subtonic containing a total of not less than 49.71g of diamorphine without any authorisation. On 19 March 1995, CNB officers raided the appellant's flat. The appellant, a drug absconder, was found squatting in front of the rubbish chute with his hand inside it. A sachet and a straw of granular substance lay on the floor beside him. A packet of granular substance was also recovered from the rubbish chute. The substances were found to contain 49.71g of diamorphine. When questioned, the appellant admitted that the drugs were his but that they were for his own consumption. Other items recovered from the flat included two handphones, a pager, a weighing scale stained with diamorphine and $3,150 in cash. The respondent's case was that although the appellant was a heroin addict, the quantity of drugs found were far in excess of his estimated level of consumption. The drugs had an approximate value of $23,300. Given the appellant's long record of detention in DRCs and his intermittent employment, he could only afford the drugs if he was a trafficker. The appellant stated that he bought the drugs for $3,000 using his savings which were from his occasional winnings from horse-betting. A large amount was bought as it was difficult then to obtain drugs. He stated that the drugs would have lasted him for about sixÊmonths and denied that the other items found in his flat were for trafficking. The appellant's counsel also submitted that if the appellant was a trafficker, he would have repacked the big packet into smaller sachets for resale. The trial judge found, inter alia, that it was unclear as to the appellant's rate of consumption per day and that the appellant sought to maximize his consumption to show that the drugs he had with him were for his own consumption. The trial judge also found that the appellant's evidence about his sources of income were fabrications. On the totality of the evidence, the trial judge found that the appellant was supporting his addiction by drug trafficking. The appellant was convicted as charged and he appealed.

Held, dismissing the appeal: (1) the findings of the trial judge were correct. The appellant's evidence of his daily heroin consumption was greatly exaggerated. He sought to maximize his consumption to show that the drugs he had with him were for his own consumption; (2) the appellant's evidence about his sources of income were fabrications. He was unemployed most of the time when he was out of the DRC, so he could not have saved any money from earnings from employment. His evidence that he made some money from betting on horses was something that came to his mind in the witness box. This evidence was investigated in cross examination and shown to be lies. The appellant was supporting his addiction by drug trafficking; (3) finally, the appellant had failed to rebut the presumption of trafficking by virtue of section 17 of Misuse of Drugs Act. By reason of s 5(2) of the Act, the appellant had committed the offence of trafficking in the heroin found in his possession.

Mohamed bin Ahmad v Public Prosecutor Criminal Appeal No 40 of 1995 Court of Appeal, Singapore (Karthigesu JA, LP Thean JA and Chao Hick Tin J).

The accused was charged for trafficking in 31.45g of diamorphine under s 5(2) of the Misuse of Drugs Act (Cap 185). On his arrest, the accused had admitted that there were 30 sachets of drugs in his hotel room. In fact, 96 sachets were found. 95 sachets were packed in ten white envelopes and stashed in a waist pouch while one sachet was found separately in a white box near the bed. The fact of possession of the 96 sachets of heroin was not disputed by the accused. The crux of the accused's defence was that he had only intended to traffick in 30 of the 40 half sachets, weighing 6.24g. The remaining 56 full sachets and 10 half sachets were intended for his personal consumption. He claimed that he had intended to surrender himself to a day rehabilitation centre after he had consumed his supply.

Held, convicting the accused: (1) it was accepted that an experienced doctor may be able to tell with a fair degree of certainty the co-relation between the physical withdrawal symptoms of an addict and the quantity of drugs consumed by that addict. However, there may be cases in which an addict who had consumed a small quantity of drugs might exhibit severe physical withdrawal symptoms and vice versa. Evidence of the withdrawal symptoms, which in the case of this accused were relatively mild, may be considered but with great caution. Not much weight would be given to the mild withdrawal symptoms of the accused per se. However, in this case, it was accepted that the accused did not show signs of a severe drug addict craving for the drug; (2) the evidence of the accused was unconvincing in its substance and delivery. 95 of the sachets were systematically packed into full and half sachets and these in turn were packed into white envelopes in sachets of five, ten and 20. All these envelopes were packed into a single pouch. There was evidence from the accused himself that he had at least three customers. It could not be believed on the evidence that his supplier would not be delivering any more drugs for some time and that that was the reason for his stashing that amount of drugs. Counsel for the accused submitted that since the prosecution failed to call this supplier an adverse inference must be drawn against their case. This witness was a necessary component of the defence and formed an integral part of its rebuttal of the presumption of trafficking. It was not incumbent on the prosecution to call him. If at all, the onus was on the accused to call him to corroborate the accused's evidence. Reliance was placed on the accused's statement that he had 30 sachets in his hotel room. The accused said that he meant that he had 30 sachets for selling. This was not accepted as it was not reasonable to assume that the inspector had meant to ask if there were drugs in the hotel room for trafficking only. There was also evidence of the standard tools of a drug trafficker in his hotel room; (3) (obiter) there is no question that previous conduct which tends to show that the accused was a person with the propensity to commit the offence for which he was charged is prejudicial and inadmissible. Previous convictions and criminal activities fall into this general category. However, where previous criminal conduct reveals a system of similarity in its perpetration it would be relevant under what has generally been known as the 'similar fact' rule in evidence. Previous criminal conduct may also be relevant if it is being introduced as rebuttal evidence or for the purpose of the impeachment of the accused if he gives evidence. Although rebuttal evidence may be introduced before the defence is called, the exercise of the court's discretion in such circumstances should be made with caution.

Public Prosecutor v Low Theng Ghee Criminal Case No 26 of 1996 High Court, Singapore (Choo Han Teck JC).

Low Theng Gee v Public Prosecutor [1996] 3 SLR 476 Court of Appeal, Singapore (Yong Pung How CJ, Lai Kew Chai and Chao Hick Tin JJ).

See CRIMINAL LAW, para 758.

The accused was charged with trafficking of cannabis by having the drugs in his possession without any authorisation under s 5(1)(a) of the Misuse of Drugs Act (Cap 185). In his defence, the accused claimed that he did not state that he agreed to 'sell' the drugs for K in his two statements to the investigating officers, but that he agreed to 'buy' the drugs from K. He also contended that the one kilogram of ganja that he bought from K were for his own consumption.

Held, convicting the accused: (1) as for the two statements that the accused gave to the investigating officers, there can be no doubt that the accused had admitted in them to having bought the drugs to sell them; (2) the court disbelieves the evidence of the accused that the one kilogram of ganja was for his own consumption. The accused was not a ganja addict as his evidence in the witness box was that he smoked heroin. The accused's urine samples were also negative for cannabinol derivative; (3) the accused had not on a balance of probabilities rebutted the presumption that the drugs he had in his posssession were for the purpose of trafficking.

Public Prosecutor v Omar bin Abu Bakar Criminal Case No 41 of 1995 High Court, Singapore (Sinnathuray J).

The accused was charged with trafficking of not less than 1,587g of cannabis by delivering them to M (an undercover CNB officer) without any authorisation under s 5(1)(a) of the Misuse of Drugs Act. The accused's defence was that he was an innocent carrier of the bag which contained the drugs, without any knowledge of its contents. He claimed that he was promised $300 for delivering the bag, by R. The sole issue in this case was whether the accused has on a balance of probabilities shown that he did not know that what he delivered to M was a bag of cannabis.

Held, convicting the accused: (1) it is clear that the accused's evidence is replete with matters of an incredible nature and there are immaterial irreconciliable discrepancies; (2) the accused has not, on a balance of probabilities, rebutted the presumption that he knew that there was ganja (cannabis) in the paper bag when he delivered it to M.

Public Prosecutor v Muhd Huzani bin Ghani @ Abu Hanifah Criminal Case No 11 of 1996 High Court, Singapore (Sinnathuray J).

The accused was charged with two offences of trafficking in a controlled substance by having in his possession a controlled drug specified in Class A of the First Schedule of the Misuse of Drugs Act (Cap 185). The first charge related to a sachet containing not less than 0.5g of diamorphine and the second charge related to 42 sachets containing not less than 26.28g of diamorphine. The accused was arrested at a bus stop and one sachet was recovered from his person. The 42 sachets were later recovered from the flat of the accused when it was searched. Also recovered was a weighing scale (non-functional), 23 pieces of cut paper and 45 empty sachets. The accused was admitted to hospital suffering from an acute asthmatic attack and upon discharge two cautioned statements were taken, one in relation to each charge The accused claimed that the statements were not taken voluntarily and a voir dire was held to determine their admissibility. The accused claimed that he was told by an unknown person that if he did not admit certain things in his statement that his asthma inhaler would be taken from him. He was not able to provide a detailed description of this person. He claimed to have agreed that he had committed the offences in his statements because he was afraid he would die without his inhaler. He did not report this threat to anyone. A review of the evidence found the statements to be admissible Ð the accused was taken directly to see the inspector with no interval for an approach to be made to him and he was able to use his inhaler at all times during the interview. The accused's two statements were ruled admissible. In the first statement he said he had nothing to say regarding the sachet on his person. In the second statement he admitted he sold drugs to support himself and claimed he also used drugs to relieve his asthma. In the investigation statement he said the drugs in his flat belonged to him and was for his consumption, that he did not repack the drugs and that he did not know what the empty sachets were for. In evidence he again changed his statement and said the drugs in his flat did not belong to him and that some unknown Thai women had access to the flat.

Held, convicting the accused on both charges and sentencing him to six years imprisonment on the first charge with no order for caning and imposing the mandatory death penalty for the second: (1) the accused's protestations that he made the admissions because he was unwell or afraid was not accepted. His evidence contradicted that of the inspector and that heard in the voir dire. His claim that some parts of his investigation statement were not made by him were also rejected; (2) his evidence about the Thai women was incompatible with his investigation statement and his claims to use heroin to relieve asthma attacks were not believed as he was not going to do any work that day and did not have any smoking implements with him; (3) the accused's credibility was in doubt. His claims that he did not know what the charges were against him were not accepted, nor were his claims to have been frightened by threats to take away his inhaler and his lack of a description of the person who made these alleged threats;the accused admitted during the investigation that the drugs in the flat belonged to him and were for his consumption. Although he claimed during the investigation that they were for the purpose of trafficking and consumption he retracted that when he made his defence that he did not know about them and that they were not his and retracted the claim that the drugs in the flat were partly for self-consumption.

Public Prosecutor v Chng Seow Hong Criminal Case No 57 of 1995 High Court, Singapore (Kan Ting Chiu J).

The accused was charged with trafficking of not less than 38.18g of diamorphine, by having them in his possession for the purpose of such trafficking. The accused's defence was that the drugs found in the flat were intended for his own consumption and therefore he would only be liable for possession of the drugs. The prosecution's case was that the accused was unemployed, had no savings and was trafficking in drugs to sustain his heroin addiction.

Held, convicting the accused: (1) the court rejected the accused's evidence that he intended to keep the drugs for his own consumption; (2) the accused was clearly a trafficker in drugs.

Public Prosecutor v Mazlan bin Sulaiman Criminal Case No 59 of 1995 High Court, Singapore (Sinnathuray J).

The accused was charged with trafficking of not less than 51.7g of diamorphine contained in 60 sachets, by having them in his possession for the purpose of such trafficking. The accused's defence was that he was addicted to heroin and that the 60 sachets found in his flat were for his own consumption.

Held, convicting the accused: (1) there was no reliable evidence to support the accused's claim that he was addicted to heroin and was consuming half a sachet daily. No smoking implements were recovered and all he said about his withdrawal symptoms was that he vomitted five or six times in the police station; (2) the court rejected the accused's claim that he was consuming half a sachet of diamorphine a day and that the 60 sachets he had were meant for his own consumption; (3) on the basis of the agreed facts, the admissions in the investigation statement and the accused's failure to rebut the presumption under s 17 of the Misuse of Drugs Act that the diamorphine was in his possession for the purpose of trafficking, the prosecution had proved its case on both charges beyond any reasonable doubt.

Public Prosecutor v Lim Chuan Huat Criminal Case No 72 of 1995 High Court, Singapore (Kan Ting Chiu J).

The appellant was charged with importing into Singapore not less than 793.5g of diamorphine contained in 15 packets of substance. The trial judge convicted and sentenced the appellant to death. The appellant appealed to the Court of Appeal, contending that: (1) the drugs found in his car when it was crossing the causeway between Singapore and Johore Bahru, were planted by a third person called 'Uncle'; (2) the evidence of his sister corroborated his evidence that he had nothing to do with the drugs; (3) the absence of his fingerprints on the drug packets lent support to the account of how the drugs came to be hidden in the car; (4) his reaction and conduct when the car was searched were consistent with his innocence; (5) there were inconsistencies and contradictions in the evidence of the customs officers.

Held, dismissing the appeal: (1) the crucial question was not whether 'Uncle' hid the drugs in the car but whether the appellant knew that he was conveying the drugs into Singapore from Johore Bahru when the appellant drove the car across the causeway. The trial judge found the testimonies of the prosecution witnesses cogent and compelling against the accused and that the appellant's evidence of how the drugs came to be hidden in the car wholly incredible. The court is in entire agreement with the trial judge; (2) the evidence of the appellant's sister had little or nothing to do with the question of whether he had anything to do with the drugs; (3) the crux of the matter was whether the appellant knew that the drugs had been placed in his car, not whether he actually handled the drugs. The absence of fingerprints was not a material one; (4) the appellant's reactions do not have any probative value; (5) the 'inconsistencies' relied on by counsel did not materially affect the overall weight of the customs officers' evidence. There was no reason to disturb the trial judge's findings that the prosecution witnesses were truthful witnesses; (6) the trial judge did not draw any adverse inference from the appellant's failure to mention 'Uncle' in his cautioned statement.

Too Chai Kim v Public Prosecutor Criminal Appeal No 47 of 1995 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The accused was charged with trafficking not less than 114.3g of diamorphine by transporting three packets of the drugs in a taxi from Bukit Panjang Road to Ulu Pandan Road, under s 5(1)(a) read with s 33 of the Misuse of Drugs Act. The main issues in this case were: (1) whether the accused knew what was in the plastic bag that was found to contain the drugs when he transported it in the taxi; and (2) whether in the circumstances of this case, the act of the accused in transporting the drugs was done to further or advance the distribution of the drugs. On the first issue, the defence of the accused was that he was carrying money in the plastic bag.

Held, convicting the accused: (1) the accused's evidence of his belief that the plastic bag which he was carrying contained money was untrue. His story was a fabrication. The court found as a fact that the accused knew that the plastic bag contained drugs; (2) the accused's evidence of what he had been instructed by L to do, ie that of delivering the drugs to someone at the car park in Ghim Moh, was clear evidence of transportation for trafficking. In any event, there was the accused's own evidence that he was a supplier of drugs to addicts. All this evidence, coupled with the paraphernalia found in the accused's flat which are things used by traffickers for the purpose of trafficking, showed that the accused was transporting 114.3 gm of diamorphine in the taxi to further or advance the distribution of those drugs.

Public Prosecutor v Tan Meng Jee Criminal Case No 78 of 1995 High Court, Singapore (Sinnathuray J).

Lee Meng Hong v Public Prosecutor [1996] 1 SLR 11 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Goh Joon Seng J).

See criminal procedure para 1107.

The first accused was charged with the offence of trafficking 4834.5g of cannabis mixture under the Misuse of Drugs Act ('the Act') while the second accused was charged with abetting the first accused by intentionally aiding him in the commission of the said offence under the Act. A CNB officer acted as agent provocateur posing as a buyer for the purchase of cannabis. The sale of the cannabis was effected with both the accused through the help of a CNB agent. Both accused claimed to have no knowledge of the contents of the bag.

Held, acquitting both the accused: (1) the facts clearly proved to a high degree of probability that the first accused did not know anything about the contents of the bag; (2) little weight is placed on the evidence that the first accused made mention of the cannabis in Malay as the CNB officer did not keep any contemporaneous record of this crucial piece of evidence and relied entirely on his memory, furthermore his evidence was inconsistent; (3) evidence of what transpired between the first accused and the CNB agent was not properly admissible under the Evidenc e Act as there is an absolute statutory bar under the Misuse of Drugs Act which precludes the calling of an informer.

Public Proseuctor v Khampali Suchart and Sangad Singsitha Criminal Case No 8 of 1996 High Court, Singapore (Lai Kew Chai J).

The accused was charged for trafficking in 112.0g of diamorphine. On 17 October 1995, the accused was arrested by police officers on patrol. While using a public telephone at the void deck of a flat at Marine Terrace, the accused saw police officers walking towards him; he replaced the receiver on the telephone set and walked towards the said officers; thereafter he was searched and arrested. A paper bag found with him contained the said drugs. The accused claimed that he was not in possession of the drugs because he was not holding the paper bag.

Held, convicting the accused on the offence of trafficking: (1) the accused had merely to raise a reasonable doubt that he was in possession of the bag of drugs or that he knew that the paper bag contained drugs. On the facts, he failed to rebut the presumption of trafficking as his defence was a bare denial that he had possession of the bag; (2) the credibility of the accused was impeached by the material contradictions in his written and cautioned statements and his oral testimony; (3) there was no reasonable possibility of the police officers making a mistake in identifying the accused with the paper bag in his hand and subsequently leaving it on the telephone booth. Moreover, their retrieval of the paper bag from the telephone booth was virtually instantaneous as they were only a few steps away.

Public Prosecutor v Chang Chee Kong Criminal Case No 10 of 1996 High Court, Singapore (Choo Han Teck JC).

The appellant was convicted of trafficking in 53.36g of diamorphine, an offence under s 5 of the Misuse of Drugs Act (Cap 185)('the Act'). The appellant was playing at a game machine at an amusement centre when he was checked by four police officers. A bag on the game machine next to the one the appellant was playing was found to contain the said drugs. The appellant's defence during the trial was that he did not know that the bag contained drugs. He further contended that no weight should be given to his s 122(6) statement as it was made while he was confused and suffering from the effects of drug withdrawal.

Held, convicting the accused: the defence was highly implausible; the accused had more than 500g of heroin with him at the time of his arrest, the thousands of empty sachets found in his room, the thousands of dollars found in his wallet and bag and the thousands of dollars deposited into his bank account the previous day were evidence that were consistent with the accused trafficking in heroin in a big way.

Public Prosecutor v Ahmad Ramlee bin Mohd Tahar Criminal Case No 5 of 1996 High Court, Singapore (Rajendran J).

The appellant was convicted of trafficking in 53.36g of diamorphine, an offence under s 5 of the Misuse of Drugs Act (Cap 185)('the Act'). The appellant was playing at a game machine at an amusement centre when he was checked by four police officers. A bag on the game machine next to the one the appellant was playing was found to contain the said drugs. The appellant's defence during the trial was that he did not know that the bag contained drugs. He further contended that no weight should be given to his s 122(6) statement as it was made while he was confused and suffering from the effects of drug withdrawal. On appeal, the same defence was argued, the appellant claiming that the trial judge had erred in concluding that the appellant's version of how he came to be in possession of the drugs implausible.

Held, dismissing the appeal: (1) the trial judge did not place any reliance on the appellant's s 122(6) statement in convicting the appellant. However, even if he did, he would not have been in error in doing so; (2) the trial judge's view that the appellant's defence was highly implausible was based on findings of fact which an appellate court would not disturb unless they were clearly reached against the weight of evidence.

Ahmad Ramlee bin Mohd Tahar v Public Prosecutor Criminal Appeal No 4 of 1996 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Lai Kew Chai and Goh Joon Seng JJ).

The first and the second accused were charged with trafficking in 19,703g of opium, a controlled drug under the Misuse of Drugs Act (Cap 185) ('the Act') and Penal Code (Cap 224). CNB officers raided the house in which the first and the second accused resided. A search of the premises was conducted where utensils relating to the smoking of opium and other utensils for the preparation of opium were found. Slabs of opium were also recovered from the store room in the house. At the time of the trial, the first accused was 14 years old while the second accused was 17 years old. The first accused elected to remain silent while the defence of the second accused was that he had no knowledge of the opium in his house.

Held, convicting both the first and second accused: (1) the first accused was nearly 15 years old at the time of the offence and was not a child under the Children and Young Persons Act, moreover there was nothing to suggest that she was incapable of giving rational answers by reason of her tender years; (2) the confessional statement of the first accused which materially affected the guilt of the second accused was taken into consideration against the second accused by virtue of s 30 of the Evidence Act.

Public Prosecutor v Gwee Siew Kuan & Anor Criminal Case No 75 of 1995 High Court, Singapore (Amarjeet JC).

The appellant and his female companion, one Tay Bee Hoon (TBH), both claimed trial in the High Court on a joint charge that, in furtherance of their common intention, they had trafficked in 40 sachets of heroin containing not less than 27.40g of diamorphine by having the heroin in their possession for the purpose of trafficking. The trial judge acquitted TBH and convicted the appellant on this charge. The appellant appealed against his conviction. The appellant's defence was that he was severely addicted to heroin; he gave evidence that he consumed two sachets of heroin a day. He had the means to support his heroin addiction from working as a 'runner' at the Turf Club during the weekends and from betting on horses. The 40 sachets of heroin found in his possession were for his and TBH's consumption over two weeks. Dr Leow Kee Fong, the registrar of Changi Prison Hospital, gave expert evidence for the prosecution on the appellant's likely degree of heroin addiction. Dr Leow examined the appellant on the day after he was arrested. Dr Leow was of the opinion that the appellant had suffered only from moderate heroin withdrawal symptoms and that it was highly unlikely that he was consuming two sachets of heroin a day. Dr Lim Yun Chin, a psychiatrist in private practice, testified on behalf of the defence. Dr Lim expressed his opinion that based on the appellant's 'psycho-social profile', he was a severe heroin addict who could possibly consume two sachets of heroin a day. On appeal, it was contended by counsel for the appellant that the trial judge had erred in rejecting the appellant's defence and for not relying on Dr Lim's expert testimony. Counsel also contended that the conviction of the appellant of the 'common intention' charge without an amendment was irregular because TBH was acquitted of this charge.

Held, dismissing the appeal: (1) on the appellant's own evidence, elicited under cross-examination, that he consumed 15 3-cm straws of heroin every day, he could not have been consuming two sachets of heroin a day as he claimed; (2) the appellant's evidence that he was earning about $6,000 per month from working during the weekends as a 'runner' for a bookmaker and that he had won $12,000 from betting on horses were all bald statements unsupported by any evidence; (3) although the appellant's three bank accounts showed that large sums of money were often withdrawn before a weekend and correspondingly large sums of money paid in after the weekend, he could not give a satisfactory explanation for this pattern of withdrawal. He could not connect any specific withdrawal with any specific purpose. In these circumstances, the learned judge was right to conclude that without more tangible evidence, it had not been shown that the withdrawals were related to horse racing activities; (4) once it was found on the evidence that it was highly unlikely that the appellant and TBH could consume the 40 sachets of heroin in two weeks and that the appellant did not have the financial means to support any level of addiction, this led to the irresistible inference that the appellant was financing his drug addiction from trafficking in drugs; (5) Dr Lim had not examined the appellant when he was exhibiting his withdrawal symptoms and he had not even interviewed the appellant before he proffered his opinion to the court. Dr Lim's evidence and opinions were hypothetical and could not displace the evidence and the opinions of Dr Leow who had personally examined the appellant and who had witnessed first-hand the appellant's withdrawal symptoms (see p 638DÐE); (6) section 34 of the Penal Code did not create a substantive offence. It laid down only a rule of evidence to infer joint responsibility. Accordingly, there was nothing irregular about the appellant's conviction on the charge of trafficking.

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

The accused was charged with trafficking in a controlled drug specified in Class A of the First Schedule to the Misuse of Drugs Act (Cap 185) by having in his possession for the purpose of trafficking 26.07g of diamorphine, an offence under s 5(1)(a) read with s 5(2) and punishable under s 33 of the Act. The accused was arrested after leaving his flat. He was carrying a paper bag which contained $6,000 cash and a mobile phone. The accused was taken to his flat where his girlfriend and another woman were arrested. The flat was searched and a bag containing 30 sachets of drugs was found. The accused made statements under s 122(6) and s 121 of the Criminal Procedure Code (Cap 68) in which he claimed that he was a relapsed drug user, having been detained at drug rehabilitation centres on three separate occasions and that he was using two packets per day. He claimed that with his girlfriend and friend he would buy drugs from his source by combining their orders and money as they were all three heavily addicted. He claimed that they had combined their money on the last occasion and asked the supplier to provide an amount of drugs to the value of their money. Separate charges were brought against the other two accused after the preliminary inquiry in which they each claimed that they owned ten sachets each. Further investigations then revealed that the other two accused had played no part in the ownership or possession of the 30 sachets and they were given a discharge not amounting to an acquittal. The two accused then testified on behalf of the prosecution. The friend testified that she had taken drugs with the accused and his girlfriend but that it was only a minute amount while the accused and his girlfriend had smoked 'a lot'. The accused's girlfriend testified that she and the accused would smoke half to one sachet each night. The accused had in his s 121 statement admitted to purchasing the drugs and keeping them in his flat which, in addition to 125 empty sachets also recovered which he claimed were bought to enable him to put the drugs into to consume whenever he wanted to do so outside his flat, lent support to the presumption that the drugs were in his possession for the purpose of trafficking. The accused claimed that they were for his personal consumption as he was a heavy addict. Expert medical opinions as to the level of his addiction were in conflict.

Held, convicting the accused on the amended charge and sentencing him according to law: (1) at issue was what was the accused's rate of consumption at the time of his arrest having regard to the evidence of the accused as to his usage and the expert medical opinions. The preferred medical opinion was that the accused was suffering from mild withdrawal symptoms on the night of his arrest which withdrawal symptoms 'were directly proportionate to the amount of heroin an addict consumed'. Some small allowance was made for the accused's age and general health in reducing the severity of the symptoms but the preferred medical opinion was that these factors were only gradient shifting factors which would only reduce the severity of the symptoms somewhat. The accused had contradicted himself in his s 121 statement as to his consumption rate and purchase of drugs and it was left to the court to determine his consumption on the basis of the expert evidence; (2) when there is a conflict of expert opinion on a material issue the court can prefer one over the other apart from assessing and determining the influence of the facts found in the trial on the expert opinions expressed. McLean v Weir [1977] 5 WWR 609 is authority for the proposition that if medical evidence is equivocal the court may elect which of the theories it prefers or it may reject both or adopt a third opinion; (3) the accepted medical evidence satisfied the three criteria for the acceptance of expert opinion Ð value, impressiveness and reliability. What was germane to the assessment of the expert evidence was the knowledge and familiarity of the expert, and his expertise in providing an opinion on the rate of consumption of the drugs having regard to the signs and symptoms an addict showed. The accused displayed mild symptoms which would indicate consumption of 1Ð2 straws daily and possibly up to 4 straws allowing for factors such as age and good health which would reduce the severity of the symptoms. The accused may have suffered moderate symptoms which would indicate consumption of up to 6Ð7 straws daily; (4) having regard to the accused's consumption rate the accused was allowed to possess only 6.6Ð7.56g for his own consumption leaving a balance of 18.51Ð19.77g for which the charge of trafficking was amended orally. The fact that the accused was buying larger amounts than he required for his own consumption and repacking the large quantities into smaller amounts together with his possession of a pager and mobile phone collectively supported the presumption of trafficking; (5) a further adverse inference was drawn from the accused's s 122(6) statement in which, in response to a request for an explanation of the drugs he replied that he did not know what to say Ð if the drugs were for his personal consumption it would have been easy for him to say so; (6) on a balance of probabilities the accused failed to satisfy the court that all the drugs were for his personal consumption.

Public Prosecutor v Muhammad Jefrry bin Safii Criminal Case No 71 of 1995 High Court, Singapore (Amarjeet Singh JC).

The appellant was arrested in April 1995 for consumption of drugs. Central Narcotics Bureau (CNB) officers obtained keys from him and gained entry into the flat where the appellant was staying. The flat was searched and one straw of heroin was found in the table drawer in the appellant's bedroom. The flat belonged to his brother and sister-in-law. On 2 May 1995, another party of CNB officers took the appellant to the flat and conducted another search. By this time, the padlock to the flat had been changed and entry was effected only with help from the owners of the flat. On this occasion, the CNB officers found drugs inside the base of a 'Sanyo' table fan in the appellant's room and underneath the floor board of a kitchen cabinet. The prosecution sought to admit the s 121 statement recorded from the appellant. The defence challenged the admissibility of the statement on the ground that it had not been made voluntarily. He alleged that the investigating officer had, inter alia, told him that if he was 'still like that', he had no choice but to charge his brother and sister-in-law as the owners of the flat, and recommend that the flat be confiscated. The investigating officer was also alleged to have said: 'your key cannot open the door why you scared? Won't get hanged. You give me a good statement. I know what to do.' At the voir dire, the trial judge did not make a finding as to whether the investigating officer had in fact said the things he was alleged to have said. Instead, he found (1) that s 24 of the Evidence Act (Cap 97, 1990 Ed) did not operate where a confession was made in order to save a third party, even if the latter were a family member, as such threat would not have 'reference to the charge against the accused', and (2) that the second alleged inducement where the appellant was told he would not get hanged Ð was too vague to fall under s 24. The statement was accordingly admitted. The thrust of the appellant's defence was that he had not known of the drugs that were hidden in the flat; he suspected they were placed there by some of his friends who had access to the flat. The trial judge did not think that the appellant's explanation could reasonably be true. Since he failed to rebut the presumption under s 17, the appellant was convicted on the charge of trafficking in the quantity of drugs. He appealed.

Held, allowing the appeal: (1) the purpose or object of s 24 of the Evidence Act was to ensure the reliability of a confession. This was founded on the premise that a confession brought about as a result of an inducement, threat or promise was not reliable and should be excluded. Giving s 24 a purposive construction, an inducement, threat or promise 'had reference to the charge against the accused person' if it was made to obtain a confession relevant or relating to the charge in question. Similarly, the 'advantage' or 'evil' had 'reference to the proceedings against an accused person', if it was gained or avoided (as the case may be) by the making of a statement relevant or relating to the charge brought against the appellant; (2) the first part of the statement made by the investigating officer (assuming that he did make it) was an inducement or threat. It was an inducement to the appellant to make the statement that was made and that statement was, in effect, a confession of the charge preferred against him. It fell within s 24 of the Evidence Act; (3) the second part of the statement amounted to a representation to the appellant that, as his key could not open the door to the flat, he had nothing to worry about and he would not be subject to the death penalty. Therefore, he was to give a good statement and leave it to the officer to make out the appropriate charge. Such a statement plainly was an inducement which had reference to the charge against the appellant and 'was calculated to influence his mind' with respect to his 'escape from the charge' brought against him, and was certainly not vague. It fell squarely within s 24, even if s 24 were to be construed strictly and literally; (4) having regard to the evidence, the prosecution had not proved beyond reasonable doubt that the appellant's s 121 statement had not been caused by any inducement, threat or promise falling within s 24 of the Evidence Act. The s 121 statement was, therefore, excluded in the consideration of the appeal; (5) having regard to all the evidence and the court's evaluation thereof, there was a serious doubt whether possession of the drugs in question by the appellant had been proved by the prosecution. In the circumstances, it was highly unsafe to uphold the conviction.

Poh Kay Keong v Public Prosecutor [1996] 1 SLR 209 Court of Appeal, Singapore (Karthigesu and LP Thean JA and Chao Hick Tin J).

The appellant was arrested at Changi Beach during a spot-check with three other persons. His urine samples were found to contain cannabis. He was charged with consuming a cannabinol derivative without authorization contrary to s 8(b) of the Misuse of Drugs Act (Cap 185) (the Act). Before recording the appellant's s 122(6) statement, the recording officer showed him the results of the urine tests (the DSS results). The appellant alleged that he had been assaulted and threatened during the recording of the statement. The district judge disbelieved the allegations and held that the statement was admissible. During the trial, the appellant alleged that there could have been a mix-up of the urine samples. However, he admitted that he consumed cannabis. His defence was that he had unknowingly smoked a spiked cigarette. The defence called the three persons arrested with him to give evidence to support his defence. The district judge disbelieved them and convicted the appellant. He appealed.

Held, dismissing the appeal: (1) there was no reason why the appellant could not have been shown the DSS results before the s 122(6) statement was recorded, provided that nothing more was done which could be construed as an inducement, threat or promise. In fact, the DSS results would have allowed the appellant to better make his decision as to what to say; (2) the district judge's decision to admit the s 122(6) statement was plainly based on her assessment of the witnesses' evidence in court, including their demeanour. There was nothing to show that she was not entitled to come to the decision that the allegations made by the appellant were untrue; (3) there was no reason to disagree with the district judge's finding that the appellant's allegation that there had been a mix-up of urine samples was spurious as none of the witnesses could suggest any basis for such allegation, to the extent that the appellant's urine sample was mixed up with the urine samples of someone apart from the defence witnesses. Since all their urine samples had contained cannabis, it was proved beyond reasonable doubt that both the appellant's urine samples contained the drug; (4) the notable feature of s 22 of the Act was the presumption that the accused had consumed that drug in contravention of s 8(b). This presumption was twofold as it presumed the commission of the offence, meaning that it presumed both the actus reus of consumption, and the mens rea required for the offence. When the burden of proof was on the accused, he had to discharge it on a balance of probabilities. It was therefore not sufficient in the circumstances that the appellant raise a reasonable doubt that he had not known that he had consumed the cannabis; (5) the allegation that there was a mix-up of the urine samples was inconsistent with the appellant's defence as the allegation was relied on as a substantive defence. In such a case, the appellant was implicitly saying that there was no cannabis in his urine samples, when his defence was that he had taken the drug unknowingly. The trial judge'S inference that the appellant was seeking to rely on any ground of defence he could think of, regardless of whether they were true, was justified; (6) the district judge based her finding that the defence witnesses were not truthful on their demeanour in court and on the whole of the evidence. In the circumstances, there were more than sufficient grounds for her to hold that the defence witnesses were untruthful; (7) (per curiam) there appeared to be an anomaly [with respect to the presumption in s 22] in that if the accused admitted that he committed the actus reus of the offence, but the prosecution was unable to prove, for any reason, that both his urine samples contained the controlled drug, then the mens rea element of the offence must be proven beyond reasonable doubt. If it could be shown that a cannabinol derivative would necessarily be found in the urine samples of someone who had recently consumed cannabis, an admission of consuming cannabis might be sufficient proof, by way of logical reasoning, that both his urine samples contained cannabis, and hence, he must rebut the presumption in s 22.

Vadugaiah Mahendran v Public Prosecutor [1996] 1 SLR 289 High Court, Singapore (Yong Pung How CJ).

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).

See CRIMINAL LAW, para 741.

The Central Narcotics Bureau (CNB) officers found cannabis in the appellant's flat which he confirmed belonged to him. At the CNB office, his urine tested positive for morphine, but not cannabis. He then made a voluntary statement to the CNB where he explained how he had obtained the ganja (cannabis) for sale. The same day, the appellant gave a statement under s 121 Criminal Procedure Code (Cap 68) in which he again spoke of how the ganja came to be in his possession as a prospective vendor. The appellant had been in various Drug Rehabilitation Centres for almost 14 years. After his latest release, he found employment. However, he resumed the consumption of heroin eventually. In his evidence, the appellant asserted that the ganja was for his own consumption and not for sale, contrary to his previous two statements to the CNB. He claimed to have smoked the ganja after obtaining it, although he had been off ganja for two years prior to that. The appellant did not have the usual paraphernalia of a drug trafficker in the flat when he was arrested. The High Court convicted him on two charges of trafficking in controlled drugs under s 5(1)(a) read with s 5(2) and punishable under s 33 of the Misuse of Drugs Act (Cap 185). The appellant appealed.

Held, dismissing the appeal: (1) the appellant had spoken truthfully in his first two statements to the CNB where he stated that the cannabis in his possession was for sale; (2) based upon those two statements and the urine test, the appellant was consuming morphine, not cannabis; (3) the appellant had not, on a balance of probabilities, rebutted the presumption that the cannabis in his possession was for trafficking. The prosecution had proved its case beyond reasonable doubt.

Omar bin Abu Bakar v Public Prosecutor Criminal Appeal No 36 of 1995 Court of Appeal, Singapore (Yong Pung How CJ, Lai Kew Chai and Goh Joon Seng JJ).

The first two accused were charged with trafficking in cannabis and cannabis mixture under the Misuse of Drugs Act (Cap 185), and the third accused was charged with abetting them. The first accused operated a coffee shop where an agent from the Central Narcotics Bureau (CNB) and Narcotics Officer (NO) R went to buy 2kg of cannabis. Upon their arrival, the second accused approached them. The second accused and the agent then had a private discussion elsewhere and then returned to the table. R asked the first accused if he had any cannabis for sale. The first accused replied in the affirmative, and the two struck a bargain. At that point, the third accused phoned the first accused. During the first accused's absence, the second accused tried to garner fresh business with R for himself. Eventually, R also spoke to the third accused on the phone, being given to understand that the latter was a supplier. It was agreed that the transaction would take place that afternoon. In the afternoon, R drove up to the coffee shop and horned. The second accused approached the car and thereafter shuttled between the car and the first accused to negotiate the mode of exchange. The second accused brought a plastic bag of drugs to R from the first accused. Both accused were arrested and made oral statements in the coffee shop as well as cautioned statements at the CNB offices. After a trial-within-a-trial, the court admitted both oral statements wherein both accused admitted that the plastic bag contained cannabis. The court also admitted the first accused's cautioned statement where he blamed the second accused and denied his involvement. The statements were admitted on the basis that there was no threat, inducement or promise. After the trial resumed, the second accused also denied involvement and blamed the first accused. There was also the issue of whether the drug was cannabis or a cannabis mixture.

Held, convicting all three accused: (1) the prosecution had proved beyond a reasonable doubt that there was unity of criminal behaviour as well as a pre-arranged plan between the first two accused to deliver the cannabis for sale. They had acted in furtherance of a common intention to traffic in cannabis and had not shown, on a balance of probabilities, any defence; (2) the Misuse of Drugs Act (Cap 185) was amended by the introduction of the new definition of cannabis mixture because the legislature wanted to deter drug traffickers from peddling drugs in a mixed form. The defence contended that so long as the cannabis was mixed with any foreign matter, the whole should be regarded as cannabis mixture. This was, however, not in accordance with the intention of Parliament; (3) the intact cannabis branches could be easily separated and identified by visual, microscopic and chemical analysis. Just because it was in a bundle with other substances did not qualify it to be classified as cannabis mixture.

Public Prosecutor v Abdul Raman bin Yusof & Ors Criminal Case No 4 of 1996 High Court, Singapore (Rubin J).

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).

See CRIMINAL PROCEDURE, para 949.

The accused was charged with trafficking of not less than 49.71g of diamorphine under s 5(1)(a) of the Misuse of Drugs Act. The accused's defence was that he was a heroin addict and the drugs were for his own consumption. He also alleged that due to his employment income, he had the means to finance the purchase of the drugs for his own addiction.

Held, convicting the accused: (1) the defence of the accused is rejected as it is far from clear from his evidence how many straws of heroin he consumed in a day as he kept changing his evidence. The accused had clearly sought to maximise his consumption to show that the drugs he had with him were for his own consumption; (2) on the totality of the evidence, the accused was supporting his addiction by selling drugs and the large packet of heroin he had with him was not for his own consumption but for trafficking it; (3) the accused had not on a balance of probabilities rebutted the presumption in s 17 of the Misuse of Drugs Act.

Public Prosecutor v Mohamed bin Ahmad Criminal Case No 48 of 1995 High Court, Singapore (Sinnathuray J).

The accused was charged with trafficking of not less than 49.71g of diamorphine under s 5(1)(a) of the Misuse of Drugs Act. The accused's defence was that he was a heroin addict and the drugs were for his own consumption. He also alleged that due to his employment income, he had the means to finance the purchase of the drugs for his own addiction.

Held, convicting the accused: (1) the defence of the accused is rejected as it is far from clear from his evidence how many straws of heroin he consumed in a day as he kept changing his evidence. The accused had clearly sought to maximise his consumption to show that the drugs he had with him were for his own consumption; (2) on the totality of the evidence, the accused was supporting his addiction by selling drugs and the large packet of heroin he had with him was not for his own consumption but for trafficking it; (3) the accused had not on a balance of probabilities rebutted the presumption in s 17 of the Misuse of Drugs Act.

Public Prosecutor v Mohamed bin Ahmad Criminal Case No 48 of 1995 High Court, Singapore (Sinnathuray J).

The appellant was arrested at the ground floor of a block of flats in which he lived. Two envelopes each containing 10 sachets of granular substance were found on him. From his flat, another four envelopes, each containing 10 sachets of granular substance were recovered, as well as paraphernalia of drug trafficking and drug consumption. On analysis, the granular substance in the 60 sachets was found to contain 36.18g of heroin. In his first cautioned statement, the appellant said that he received the drugs from a friend, Ali, who asked him to sell the drugs and to pass the sale proceeds to Ali. In his second cautioned statement, the appellant said that on the day of his arrest, he was asked by Ali to prepare sachets of drugs for collection by some of Ali's customers. In particular, he was asked to prepare sachets of drugs for one Mail. In his defence, the appellant said that he was a drug addict. He bought one pound of drugs for $3,500 from Ali for his own consumption. On the day of the arrest, Ali asked him to pack the pound of drugs into about 60 sachets for delivery to some of Ali's customers, including 20 sachets for Mail. The appellant did as he was told. However, as he was packing, he realized that if he were to deliver 60 sachets to Ali's customers, he would not have any drugs left for himself. He decided to deliver 20 sachets to Mail and keep the other 40 sachets for himself. His girlfriend, also a drug addict, shared drugs with him. The trial judge rejected his defence. Quite apart from the presumption within s 17 of the Misuse of Drugs Act (Cap 185), the trial judge found that the appellant was trafficking in the entire quantity of drugs and convicted him of the charge of trafficking in the drugs. On appeal, counsel for the appellant argued that on the evidence, the trial judge should have accepted that the appellant, a severe drug addict who consumed about 3g (gross) of drugs a day, was trafficking in only 20 sachets of drugs. The 40 sachets of drugs found in the flat were for the appellant's own consumption.

Held, dismissing the appeal: there was only the self-serving evidence of the appellant that he decided to keep the 40 sachets of drugs for his own consumption. The evidence to the contrary was as follows. The appellant's cautioned statements contained admissions that the drugs were for trafficking. In cross-examination, the appellant admitted that the drugs in his flat were given to him by Ali so that he could sell and deliver them to Ali's customers and that the proceeds of sale would be given to Ali, although he retracted this admission immediately after. The manner in which the drugs were packed was also indicative of or consistent with the intention of supplying and delivering the drugs to customers of Ali. There was also the paraphernalia of drug trafficking found in the flat. Lastly, the appellant's explanation of how he obtained money to purchase one pound of drugs for his own consumption was far from convincing. In the premises, there was no reason to reverse the trial judge's decision to reject his evidence. The appellant had also failed to rebut the presumption within s 17 of the Misuse of Drugs Act.

Mazlan bin Sulaiman v Public Prosecutor Criminal Appeal No 53 of 1995 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Chao Hick Tin J).

The appellant was arrested on 17 February 1995 by officers from the Central Narcotics Bureau (CNB) while carrying a white plastic bag intended for delivery to a male Chinese who was a CNB informer. Twelve packages, packed in two styrofoam boxes, were found in the bag, which upon analysis were found to contain 38.52g of diamorphine. The appellant was charged with drug trafficking under s 5(1)(a) of the Misuse of Drugs Act (Cap 185) (the Act). The charge specified that he was in possession of the drugs for the purpose of trafficking, and stated that the offence had been committed 'by virtue of s 17'. A statement pursuant to s 122(6) of the Criminal Procedure Code (Cap 68) (CPC) was recorded from the appellant between 4.25am and 4.55am on 18 February. The appellant stated that he had nothing to say. A further statement was recorded on 21 February 1995 under s 121 CPC. In the s 121 statement, the appellant stated that he had been promised $3,000 by one Richard for delivering the package. The appellant knew that the bag contained two styrofoam boxes but he had not opened them to check what they contained. He was arrested while carrying the plastic bag and walking towards a male Chinese who fitted the description given by Richard. The crux of the appellant's defence was that he had believed that he was delivering counterfeit money to Richard. The trial judge rejected the appellant's defence and convicted him as charged. The appellant had not mentioned his belief that the bag contained counterfeit money in either his s 122(6) statement or his s 121 statement. The judge was also not convinced that it was unremarkable to be paid RM3,000 to deliver a plastic bag to Bedok Reservoir Road. On appeal, the appellant emphasized that there was no evidence that he knew that he was carrying drugs. He reiterated his belief that he was only delivering counterfeit money for Richard. Counsel urged the court not to attach substantial weight to the appellant's failure to mention this fact in his statements. He explained that when the s 122(6) statement was recorded, he was too tired and hungry and all he wanted was to rest. As for the s 121 statement, he said that he did not think it was important to mention this defence, as his brother would be engaging a lawyer to defend him and he could relate this in greater confidence to the lawyer.

Held, dismissing the appeal: (1) there was no direct evidence to show that the appellant knew that the contents of the bag were drugs. Section 18(2) of the Act operated only to the extent of raising a presumption of the knowledge of the nature of a particular controlled drug, ie whether it was diamorphine, cannabis, cocaine and so on. To invoke this presumption, a person must first be 'proved or presumed to have had a controlled drug in his possession'. On the facts, the presumptions under s 18(1) and (2) arose. The possession of the drugs was presumed and not 'proved'. On the other hand, the presumption under s 17 did not apply as the presumption therein only arose where possession (not mere physical possession) had been proved; (2) on the evidence, the appellant had not rebutted the presumptions under s 18(1) and (2); (3) it raised a rebuttable presumption of a certain fact and was no different from the other sections raising rebuttable presumptions of certain facts, eg ss 18Ð22 of the Act. Having regard to the undisputed facts in this case, the charge was amended by (i) deleting the words: 'by having in your possession for the purpose of trafficking' and substituting therefor: 'by transporting for the purpose of delivery to a male Chinese' and (ii) by deleting the words: 'by virtue of s 17 of the Misuse of Drugs Act' and 'read with s 5(2)'; (4) the proposed amendment of the charge would not operate to the prejudice of the appellant. The essence of the charge had been clearly spelt out, and the particulars of the charge had been set out in the charge and were substantially correct. The material facts were not in dispute. There was clear and direct evidence which established all the ingredients of the offence of drug trafficking under s 5(1)(a) of the Act; (5) the prosecution erred in referring to ss 5(2) and 17 in the charge. Section 5(2) should not have been invoked as, on the agreed facts, the appellant's acts clearly fell within the definition of trafficking. As for s 17, it was unnecessary to refer to it at all in any charge under the Act, whether or not s 5(2) was invoked. It was an evidential section;whether the charge was framed in its original form or in the way proposed to be amended by the court, the appellant's defence was still an assertion of his belief that he was carrying counterfeit money and not drugs. Since this defence had not succeeded before the trial judge, the court amended the charge and dismissed the appeal.

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).

The defendant was charged with the murder of a 11-year-old boy whom she was looking after as an amah. The defence contended that the defendant had committed no offence in law because she fell within the provisions of s 84 of the Penal Code.

Held, convicting the defendant: (1) there is no difference between 'unsoundness of mind' and 'insanity' so that if a defendant establishes a defence under s 84 of the Penal Code, the provisions of s 320 of the Criminal Procedure Code must come into force and a special finding should be made; (2) the court is satisfied beyond reasonable doubt that the defendant did commit the offence of murder with which she is charged; (3) the court is also satisfied, on the balance of probabilities, that the defendant was incapable at the time of the act, of knowing the nature of the act; (4) the court therefore makes a special finding that the defendant did the act charged but was insane at the time she did it; (5) under s 321(4) of the Criminal Procedure Code, the case is to be reported to the Minister. Pending his order, the defendant is to be confined in a lunatic asylum or prison.

Public Prosecutor v Farida P Amandoron Criminal Trial No 2 of 1996 High Court, Brunei (Roberts CJ and Steven Chong J).

The accused was charged with five charges of rape of his two daughters, aged four and two respectively, under s 375 of the Penal Code. There were also five alternative charges brought under s 354 of the Penal Code of using criminal force against the same persons, with intent to outrage their modesty. The two daughters had been diagnosed as suffering from gonorrhea, a sexually transmitted disease. At the close of the prosecution case, the defendant's counsel submitted that he had no case to answer on any of the charges. There was no evidence of penetration to support the rape charges and the daughters did not make any allegation of rape. The defendant denied doing anything improper with the children, contending that there was a bad relationship between him and his wife and that he did touch the children's genital areas both when they were at home and in the hospital but only to clean them when they had passed motion or urine as his wife was unwilling to do so.

Held, acquitting the accused: (1) the defence submissions as regards the rape charges and as regards all charges were correct. There was no evidence on which the court could convict the defendant; (2) so far as the alternative charges were concerned, the court could not rely on the unsworn evidence of a very young child without corroboration; (3) the court was impressed by the defendant when he gave evidence. Charges such as these are difficult to prosecute because reliance has often to be put on witnesses, as here, who are young and very often not well corroborated; (4) the court has a doubt about the defendant's guilt on the alternative to charge 6.

Public Prosecutor v Ziziumiza bin Mohammad Criminal Trial No 5 of 1995 High Court, Brunei (Penlington Commissioner).

The four defendants were charged with committing gang robbery armed with deadly weapons and possession of firearms and ammunition without lawful authority. The defence of the three defendants was that they did not enter the house to rob its occupiers or to kill P, or at all; and that none of them carried a pistol. They alleged that their drinks were spiked by R, the first defendant and could not remember what happened to them on the night of the robbery.

Held, convicting the defendants: (1) the primary reason for the incursion was the killing of P which the first defendant was paid for. The secondary motive was the desire of the defendants to rob the house and its occupants; (2) the court did not believe the testimony given by the defendants. The court was satisfied that they entered P's house and that they were not so affected by drink or drugs; (3) the prosecution had established to the court's satisfaction that the three defendants were conjointly committing robbery of P's house and the robbery was carried out in circumstances amounting to gang robbery; (4) the prosecution had also proved that the three defendants were in possession of firearms which they knew to be loaded.

Public Prosecutor v Chong Yaw Mui & Ors Criminal Trial No 4 of 1994 High Court, Brunei (Roberts CJ and Steven Chong J).

Public Prosecutor v Ong Poh Cheng [1996] 4 MLJ 279 High Court, Pulau Pinang (Jeffrey Tan JC).

See CRIMINAL LAW, para 716.

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

See CRIMINAL PROCEDURE, para 908.

Pendakwa Raya v Sa'ari bin Jusoh & Anor Criminal Trial No 47-2-92 High Court, Johore Bahru (Mohd Ghazali J).

See CRIMINAL LAW, para 701.

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).

See CRIMINAL PROCEDURE, para 821.

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).

See CRIMINAL PROCEDURE, para 821.

Both the respondents were employees of Jabatan Kerja Raya and were jointly charged in the magistrate's court for an offence of theft in respect of two Robin hand compactors (exhs P4 and P5) in the possession of their employer, under s 381 read together with s 34 of the Penal Code (FMS Cap 45) ('the Penal Code'), and in the alternative, for voluntarily assisting in disposing of the allegedly stolen property under s 414 read with s 34 of the Penal Code. In his evidence, PW4 stated that he was on guard duty on 29 April 1991 from 6pm to 12am. However PW4 did not go on his rounds for the period between 11pm to 11.45pm due to the heavy rain. Subsequently at 11.45pm, PW4 discovered that a break-in had occurred. PW5 in his evidence confirmed the loss of exhs P4 and P5 on 30 April 1991 and lodged a police report on the same day. PW9 from whom the respondents had borrowed money, later testified that exhs P4 and P5 were given to him by the respondents as security for a loan of RM1,200. PW9 could not remember the date of the transaction but could recall that it was past 12am and the respondents were drenched as it was raining. PW9 then lent exhs P4 and P5 to his brother (PW7) sometime at the end of May 1991. PW7 later brought exhs P4 and P5 to the police station. The pick-up driver who helped PW7 carry exhs P4 and P5 was not called by the prosecution. There were two grounds of appeal: (a) that the learned magistrate had erred in fact and in law in holding that the prosecution had failed to prove common intention; (b) that the learned magistrate had erred in fact and in law in deciding that the prosecution had failed to reconcile the time of the incident to point to the guilt of the accused for theft. Learned counsel for the respondents submitted that on the facts of the case there was a pick-up driver who carried exhs P4 and P5 but was not called and that this was fatal to the prosecution's case.

Held, allowing the appeal: (1) from the acts and conduct of both the respondents and the relevant circumstances of the case, it could be inferred that the prosecution had proved common intention on the part of both the respondents in voluntarily assisting in disposing of stolen property; (2) from the evidence, the prosecution had proved that exhs P4 and P5 were stolen between 11pm and 11.45pm on 29 April 1991 and 12am on 31 May 1991. The offence of voluntarily assisting in disposing of exhs P4 and P5 was also committed during that period; (3) the prosecution had made out a prima facie case against both respondents in respect of the disposal of exhs P4 and P5. Although the evidence did not support the alternative charge as drawn, under s 173(h) of the Criminal Procedure Code (FMS Cap 6), the magistrate had a duty to amend the charge based on the evidence adduced by the prosecution; (4) considering the amended alternative charge, the prosecution had made out a prima facie case against both respondents in respect of the alternative charge of disposing of stolen property which, if unrebutted, would warrant their convictions; (5) the failure to call the pick-up driver was not fatal to the prosecution's case. The pick-up driver was the one who had helped PW7 carry exhs P4 and P5 from the jetty to the police station. The pick-up driver was not involved in this case. What was important was that PW7 identified exhs P4 and P5 as the hand compactors he had borrowed from PW9 and PW9 stated that exhs P4 and P5 were borrowed by PW7. There was therefore no break in the chain of evidence regarding exhs P4 and P5.

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

The appellant was charged with SP5, SP6 and SP7 (the co-accused) for armed robbery punishable under s 392/397 read with s 34 of the Penal Code (the Code). The sessions court judge found the appellant guilty and convicted him. A sentence of five years' imprisonment and three strokes was imposed. The appellant appealed against both conviction and sentence. In the trial against the appellant, the co-accused gave evidence for the prosecution. They testified that the appellant had agreed on the plan to commit the robbery and that the appellant stood guard outside the house during the robbery. Evidence was tendered that the accused had pawned the jewellery stolen during the robbery (the jewellery) 13 hours after the robbery. The appellant admitted going with the co-accused to the state where the robbery was committed but only as a driver only. He denied knowing or hearing any plan to commit robbery. He alleged that on the night of the robbery, he was asleep and was only awaken by SP7 two hours after the robbery. The defence submitted that the trial judge was wrong in law when he decided that s 34 was applicable with s 397 of the Code. The defence submitted that there was no evidence to corroborate that he committed the robbery and that the evidence of the co-accused could not support one another because they were accomplices and co-accused. Their plea of guilt would apply to themselves only and the trial judge was wrong in convicting the appellant solely on their evidence without corroboration and without giving sufficient warning of the danger of convicting on such evidence. The prosecution submitted that the evidence of the co-accused was not a plea of guilt but was direct evidence on oath in court. The defence also alleged that the trial judge had failed to consider the defence of alibi, and, therefore, there was a miscarriage of justice.

Held, dismissing the appeal: (1) thus, the common intention under s 34 does not extend to s 397 of the Code. Therefore, s 397 did not apply to the appellant because at the time of the robbery, he did not use any weapon whilst guarding the outside of the house. Therefore, the appellant ought to have been convicted under s 392. However, the mistake was not fatal as the appellant was also charged under s 392; (2) hence the co-accused's evidence in this case did not require corroboration to be admitted; (3) the co-accused had already pleaded guilty and had been sentenced accordingly. They were called to give evidence as the prosecution's witnesses. Therefore, their evidence cannot be regarded as a plea of guilt which required corroboration; (4) such approach was sufficient and correct; (6) from the records, it was clear that the trial judge had consider all aspects of the defence in his grounds of judgment including the defence of alibi, although briefly; (7) as s 397 does not create any substantive offence and was merely a rider to s 394, its provisions can only be invoked against an offender who actually acts in contravention of that section and against no other person, no matter how much that person may have acted in concert and in furtherance of the common intention to commit robbery;a co-accused giving evidence on his own behalf is not regarded as an accomplice giving evidence for the prosecution and therefore the rule regarding corroboration did not apply;if corroboration was still required, there was corroboration in this case. Corroborative evidence need not be direct; it is sufficient if it is merely circumstantial evidence of the accused's connection with the offence. Evidence showed that the accused had pawned the jewellery 13 hours after the robbery; he would not have pawned the jewellery if he had no connection with the robbery: (5) the trial judge had reminded himself a few times and was careful when he decided to admit the evidence of the co-accused;as the appellant was not armed at the time he committed the robbery, he should be convicted under s 392 and not s 397. It was doubtful whether the trial judge would have imposed the strokes had he not mistakenly decided that the appellant was committing armed robbery based on common intention under s 34. On this basis, the imposition of three strokes of rattan should be set aside. The five years' imprisonment was not excessive and therefore should remain.

Mohd Anuar bin Mohd v Pendakwa Raya Criminal Appeal No 42-4-1995 High Court, Kota Bharu (Hashim J).

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

See CRIMINAL LAW, para 776.

SP17, a special agent in the US Secret Service, was investigating into the source in Malaysia in relation to 28 counterfeit credit cards found in the US. He was informed by the New York City Police that SP18, a Malaysian residing in New York, had some counterfeit credit cards in his possession. SP17 later became friendly with SP18. According to SP18, the appellant ('the accused') had left the cards in his apartment when he visited him as a guest in September 1990. SP17, SP18, and the police in Malaysia then arranged to trap the accused. SP18 telephoned the accused in Malaysia and ordered 30 gold cards for the price of US$1000 each. In May 1991, SP18 came to Kuala Lumpur. On 8 May 1991, the accused arrived at the hotel which SP18 was staying in a car. SP18 got into the car and the accused drove off. According to SP18, the accused handed an envelope containing 28 credit cards and slips of paper with numbers, the types of credit card, and signatures. When the car arrived in front of the hotel, SP18 handed the envelope back to the accused, and alighted from the car in order to get the money to pay for the cards. A team of Malaysian police personnel had been monitoring the movements of the accused since he arrived at the hotel until SP18 alighted from the car. The police intercepted the accused's car and arrested the accused. The police discovered an envelope containing 28 cards under the seat next to the driver's seat. The accused was charged with possession of counterfeit credit cards under s 467 of the Penal Code (FMS Cap 45) ('the Code'). The sessions court judge convicted the accused and sentenced him to four years' imprisonment and a fine of RM20,000 in default eight months' imprisonment. The accused appealed. Counsel for the accused had attacked SP18 and SP17 as being unworthy of credit as their perverse conspiracy to get someone to commit a crime led the accused to do what he did. He referred to them as accomplices who needed corroboration for their evidence. It was also argued that it was necessary for the prosecution to prove that the accused had himself intended to use the counterfeit credit cards for forgery. His argument was that the prosecution had not proved that the accused was going to use them for himself to commit forgery, but in fact had showed that he intended to sell the cards to SP18.

Held, dismissing the appeal: (1) and (iv) that such forgery was punishable under s 467, ie in this case that the plates were intended to be used to forge documents which purport to be 'valuable securities'; (2) the evidence was clear that the accused had in possession the 28 credit cards. The evidence was overwhelming that these 28 credit cards were counterfeit cards having regard to the definition of 'counterfeit' in s 28 of the Code. The facts of the case and also the evidence given by the witnesses (SP17 and SP18) showed that the accused knew the cards to be counterfeit; (3) SP17 and SP18 were agent provocateur as they had, together with the Malaysian Police, laid a trap for the accused. The evidence of an agent provocateur is not that of an accomplice and does not require corroboration; (4) each of these 28 cards, according to the expert witnesses, can be used to make a permanent impression of the embossed particulars on paper, credit sale slips or sales vouchers when used with an imprinting machine. Thus, the ingredient of the offence that such plates were made to produce impressions is satisfied; (5) in order to establish that a document is forged, the prosecution must give conclusive evidence that the document is a false document within the meaning of s 464 of the Code, and further that it was forged with one of the intentions mentioned in s 463. In respect of each of the 28 counterfeit cards, it has to be shown that a person may dishonestly or fraudulently make a document or part of a document denoting the execution of the document (through an impression of the card on a sales voucher and then forging a signature on it), with the intention of causing it to be believed that such document or part of the document is made by the authority of the person by whom or by whose authority it was not made; (6) it is sufficient if the intention is that the same be used by anybody to commit forgery. It is not necessary for the prosecution to prove that the accused had himself intended to use the counterfeit credit cards for forgery; (7) and (iv) it pretended to have a genuine validity period for its use. The card with all the false statements was meant to be used as genuine upon presentation to a retailer to obtain good and/or services from the retailer; (8) the ingredients of the offence that have to be proved in this case are: (i) that the accused had in his possession 28 plates and that he knew them to be counterfeit; (ii) that such plates were made to produce impressions; (iii) that the plates were intended to be used for the purpose of committing forgery;the intention is not for the person found in possession of a counterfeit seal, plate or other instrument to himself use the same to commit forgery;as to the necessity of proof that the plates were intended to be used for the purpose of committing forgery, it is quite clear that in respect of each of the 28 counterfeit credit cards, the falseness of the card was that (i) it pretended to be issued by the issuer of that particular card; (ii) it pretended to be issued to the person named as holder of the card; (iii) it pretended to be issued under a genuine account number of the issuer;when a credit card is presented to the retailer after a purchase, the card is used to make a permanent impression on a credit sale slip or a sales voucher through the use of an imprinting machine. The card is used to create a document, ie a sales voucher. If a counterfeit card is used, what it does is to create a false document. When the sales voucher is signed, it creates a legal right in the retailer to be paid it is certainly a valuable security within the meaning of s 30 of the Code.

Tee Thian See v Pendakwa Raya [1996] 3 MLJ 209 High Court, Kuala Lumpur (KC Vohrah J).

This was an appeal by the accused against his conviction of three offences under s 468 of the Penal Code (FMS Cap 45) in that he had signed forged documents which he had reason to believe to be false in facts, intending that the documents shall be used for the purpose of cheating. The accused was the head of the Department of National Registration in Tawau, Sabah. As the head, he was conferred with authority to issue certain official documents on behalf of the Malaysia National Registration Department, one of which was the JPN 1/11 which is a receipt issued by a person who has reported the loss of his identity card. A receipt was issued by the accused to an Indonesian called Arifai in a house rented by the accused. He was also charged with issuing two other such receipts.

Held: (1) the accused had been convicted of the first count under s 468 of the Penal Code and the wording of the first count was attacked as being defective. Although the syntax may not have been proper, the words nevertheless conveyed the allegation that the accused had forged the document by signing it when it contained statements which the accused knew to be false and that he intended the document to be used for cheating. Therefore, the defect was not of such a nature as to have caused a miscarriage of justice; (2) as for the ingredients to be proved for the first count, only those concerning whether the statements were false to the knowledge of the accused needed attention as there was no dispute that the accused did sign the receipt. Given the circumstances of the case, and the accused's statement to the 'broker' who had arranged his meeting with Arifai that even non-citizens could apply for identity cards, it was not difficult to conclude that the least of the accused's considerations was whether Arifai was a Malaysian and had really had an identity card before, which was claimed to be lost, when such consideration should have been uppermost in his mind. This total indifference could be translated into knowledge on the part of the accused that Arifai did not have an identity card. The monetary benefit derived by the accused from the issuance of the receipt put the matter beyond doubt. As to the final ingredient of the offence, without any doubt, the receipt issued to Arifai was to enable him to pass as a Malaysian citizen and any enforcement officer would be deceived into believing, on the strength of the receipt, that he was a Malaysian. Therefore, the last ingredient had also been established. The accused had not raised any doubt in the case of the prosecution. The appeal against the conviction of the first count was dismissed; (3) as to the second and third counts, the prosecution were not able to prove the falsity of the statements in the documents. Therefore, the convictions on these two counts were set aside.

Ismail bin Hj Jamal v Public Prosecutor Criminal Appeal No T(41) 13 of 1995 High Court, Tawau (Ian Chin J).

The two appellants were charged in the court below for rioting under s 147 of the Penal Code (Cap 224). After a quarrel with PW1 and PW3 at a coffeeshop owned by the latter, the first appellant had paged for his son, the second appellant, who told him he would come over. Before the arrival of the second appellant, three unknown Chinese men entered the coffeeshop and sat at a table outside having drinks. When the second appellant arrived in his lorry, the first appellant came down from his flat to join him, carrying a hollow pipe. The first appellant then pointed out PW1 to the second appellant as the person who tried to beat him up. There were discrepancies between the prosecution and the defence versions as to what precisely happened thereafter. The prosecution contended that the second appellant entered the coffeeshop and confronted PW1, then picked up a stool and struck the latter with it. At about the same time, one of the three Chinese men picked up a bottle and hit PW1 on the head while the other two started to kick and punch him when he was on the floor. The defence version was that the second appellant had asked PW1 to come out of the coffeeshop to settle the matter but the latter did not comply. So the second appellant turned around to leave. At this stage, one of the three unknown Chinese men threw a bottle into the coffeeshop and when the second appellant heard the sound of a bottle breaking behind him, he thought he was about to be assaulted. He quickly turned around, picked up a stool and struck PW1 with it. The three Chinese men then left the shop. The second appellant also left. It was undisputed that the first appellant never took part in the assault but remained outside the coffeeshop throughout the relevant time. The trial judge concluded that the three Chinese men had been summoned by the first and second accused to take part in the assault of PW1. He found that all of them had the common intention to cause hurt to PW1 and that the charge against both accused persons had been proved beyond a reasonable doubt. They appealed.

Held, dismissing the appeal: (1) a common object falling within s 141 of the Penal Code was a prerequisite of an unlawful assembly. However, the question of whether the three Chinese men were friends of the appellants or indeed even whether they were known to them, was not central to the issue of common object. At the highest, it was relevant only in so far as they might form part of the overall evidence from which the court could draw an inference of common object. The mere fact that they were unknown to the appellants as contended by their counsel did not automatically mean that there was an absence of a common object as other direct and circumstantial evidence must still be considered; (2) a common object must be distinguished from a similar object. The same object only became common when all the persons who constituted the assembly were aware of it and concurred in it. Thus, if each group of men, namely, the appellants in one group and the three unknown Chinese men in the other, had a separate and individual wish to hurt PW1 but the object of each group was not shared by the other, then the charge would fail since there were fewer than five persons in each group. However, the facts here clearly showed that this was a concerted attack on PW1. In the circumstances, it was perfectly reasonable and valid to infer that all the offenders shared a common object to cause hurt to PW1 and they were, therefore, members of an unlawful assembly; (3) mere presence in an assembly of persons did not make an accused a member of an unlawful assembly, unless there was direct or circumstantial evidence to show that the accused shared the common object of the assembly. In every case, it was a question of fact to be inferred as to whether the accused happened to be innocently present at the place of occurrence or was actually a member of the unlawful assembly; (4) on the facts, the irresistible inference was that the first appellant was a member of the unlawful assembly. Thus he was constructively liable for any overt act committed by the other members of the assembly in pursuance of the common object by virtue of s 146, even though he never lifted a finger himself; (5) discrepancies in witnesses' testimonies could be explained by the simple reason that no two persons could describe the same thing in exactly the same way. In weighing the evidence of witnesses, human fallibility in observation, retention and recollection were often recognized by the court. The question here was whether the alleged discrepancies were sufficiently serious to destroy the credibility of PW1 and PW3. In the instant case, their testimonies were substantially consistent and the minute details that varied did not discredit them; (6) (per curiam) for there to be a common object, a common intention need not be established. The two could overlap sometimes but in an offence involving unlawful assembly, the law required only a common object. Thus there was no requirement of a prior meeting of the minds of the offenders before the formation of the assembly.

Lim Thian Hor & Anor v Public Prosecutor [1996] 2 SLR 258 High Court, Singapore (Yong Pung How CJ).

Lim Thian Hor & Anor v Public Prosecutor [1996] 2 SLR 258 High Court, Singapore (Yong Pung How CJ).

See CRIMINAL LAW, para 789.

The accused was on trial for killing a fellow prostitute. Her defence was essentially provocation; the deceased had apparently caused her to lose face on several occasions, and her friend had threatened the accused before.

Held, convicting the accused: (1) the accused had intentionally picked a quarrel with the deceased on the day of the killing; (2) in the absence of evidence, her defence that she was deprived of her mental faculties at the time of the killing was rejected; (3) since four of the wounds inflicted by the accused were each in itself sufficient to cause death, all the elements under s 300(c) had been proved beyond reasonable doubt; (4) the conduct of the deceased which caused her to lose face took place long before the fatal stabbing. Up to the moment the accused entered the deceased's room on that day, whatever provocation the deceased might have created previously could not be said to have been grave or sudden. Also, no reasonable person would lose his self control over the words uttered by the deceased on that day itself.

Public Prosecutor v Teo Kim Hong Criminal Case No 3 of 1996 High Court, Singapore (Choo Han Teck JC).

Both appellants were charged in the court below for committing the offence of murder in furtherance of their common intention by causing the death of one Somwang Yapapha (the deceased). The first appellant and the deceased were co-workers at Urbantech Electrical Engineering. They also lived together in the company's office cum factory premises at Block 30, Defu Lane, #02-112. Their relationship was not smooth as the deceased constantly borrowed money from the first appellant for drinking and gambling. The second appellant was another Thai worker who worked as a gondola shifter nearby. He and the first appellant became good friends. They often visited each other and had drinks together. All three of them knew one another. According to the first appellant, the deceased had threatened him with a hammer on 14 February over a complaint made by the first appellant to their employer, Seng Chiow Leng (Seng). The deceased had apparently said that he would kill the first appellant if he could not work in that office. The next day, 15 February 1995, the deceased had kept glaring at him at work. After returning from work at about 6pm, the first appellant proceeded to cook for the deceased and himself, and the second appellant joined them for food and drink. After dinner, both appellants left to get more liquor whilst the deceased stayed behind. When they returned, the deceased had retired but they woke him up, and he joined them for more drinks. It was then that a quarrel arose between the second appellant and the deceased. The second appellant dared the deceased to hit him. This led to a fight in the course of which the deceased hit the second appellant with a bottle, and the latter punched the deceased which floored him. The second appellant then hit the deceased, delivering four blows to his head with a sledge-hammer. After that, he ran away. During the fight, the first appellant claimed that he was frightened and had hidden behind some boxes. In essence he claimed that it was the second appellant, and not he, who had killed the deceased. However, he admitted that when he came out of his hiding place after the second appellant had run away, he saw the deceased lying face downwards on the floor motionless. Believing that the latter was dead, the first appellant picked up the sledge-hammer and claimed to have tapped the back of the deceased's head with it once because he recalled the deceased's threats and became 'crazy'. Following that, he admitted that he then smashed the glass panel of the office door as well as the ABC stout bottle found near the deceased's body. He gave no apparent reason for these acts. He further admitted that it was he who had washed the sledge-hammer clean and placed it in the toilet after the killing. He also admitted that he had washed the jeans and T-shirt he was wearing that night, and that it was after doing all this that he telephoned Seng who arrived and informed the police. The second appellant's evidence was at variance with the evidence of the first appellant. He said that at about 10pm they had run out of liquor. He and the first appellant went out to get some more but the deceased stayed behind. On their return, they found that the deceased had gone to bed but they woke him up and he joined them for more drinks. During this drinking session, the deceased got aggressive with the first appellant and he, the second appellant, tried to pacify the deceased. But the deceased turned on him and hit him with a bottle. He was then seated on a stool and being startled when hit with the bottle, fell backwards onto the floor. Before he could get up he saw the deceased approaching him with a broken bottle in his hand. Fearing that the deceased was going to attack him with the broken bottle, he grabbed a claw-hammer that was lying nearby and swung it at the deceased. He hit the deceased on the side of his neck. He then sprung up and hit the deceased with the claw-hammer once again forcefully on his left chin, dropped the hammer and ran out to his quarters. He, however, maintained that the first appellant had not complained to him of the deceased's attitude towards the first appellant nor had the first appellant complained of the deceased's confrontation of the first appellant on 14ÊFebruary when they were out buying more beer on the night of 15 February. The trial judge rejected both versions of the appellants. He essentially accepted the prosecution's submission that, on the facts, the first appellant had a motive to kill the deceased. He found that the first appellant had confided in the second appellant who was younger and sympathetic to him. Then, on that fateful night, both appellants lured the deceased to his death. They had deliberately called the deceased down to drink with them after returning from the provision shop, instigated an argument and attacked him. Both appellants used the sledgehammer to hit the deceased, resulting in two fatal injuries. Thereafter, the first appellant faked a fight. The trial judge disbelieved that the first appellant had only tapped the back of the deceased's head after the latter died. It was his view that a blow, rather than a tap, was delivered. Thus, he found that the two fatal injuries, one by each appellant, with a 10-pound sledgehammer were caused deliberately in the course of and as part of the concerted attack. Accordingly, he convicted both of them for murder. The appellants appealed.

Held,[eb dismissing the appeal: (1) common intention was a question of fact to be inferred from all the circumstances of the case. Common intention could also develop on the spot, so long as it preceded the commission of the offence. On the facts, at the very least, it could be inferred that the common intention to cause grievous hurt to the deceased was formed between the appellants shortly before the first appellant woke the deceased up and persuaded him to join him and the second appellant in partaking of the liquor they had brought from the provision shop. The fact that the deceased was woken up from his sleep to consume liquor clearly indicated that the two appellants had some pre-arranged plan in mind which eventually found expression in the ferocious assault to which the deceased was subjected from which he was unable to defend himself or ward off; (2) having arrived at the conclusion that there was the common intention to do grievous hurt to the deceased, and taken together with the forensic evidence, the further conclusion was that the two fatal skull fractures were inflicted in furtherance of the common intention to do grievous hurt to the deceased. It was apparent that the conduct of both appellants was so connected with each other as to constitute one transaction. Otherwise, the conduct of the first appellant after the assault could not be explained; (3) generally speaking, where common intention was shown to exist, the act of one was the act of the other or other confederates. The forensic evidence that the skull fracture at the back of the deceased's head, by itself and independently of the other fatal skull fracture on the deceased's forehead, would in the ordinary course of nature result in death made it unnecessary for a finding to be made as to who caused the other skull fracture, although the evidence inexorably pointed to the second appellant; (4) as regards the requisite intention or the knowledge for the offence of murder, it was evident that the fatal skull fracture inflicted by the first appellant on the back of the deceased's head with the sledge-hammer was not accidental. It was also not unintentional and would have in the ordinary course of nature caused death. The same could be said of the other fatal skull fracture on the forehead of the deceased. Since none of the exceptions of grave and sudden provocation, private defence and sudden fight could apply to the present facts, the offence committed was murder.

Samlee Prathumtree & Anor v Public Prosecutor [1996] 3 SLR 529 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Goh Joon Seng J).

The appellants were jointly charged and tried in the High Court with committing the murder of a taxi-driver on 22 January 1995, together with two unknown persons and in furtherance of the common intention of all four of them. The victim was found slumped in the driver's seat of his taxi with a gaping slash wound in his neck. Dr Wee Keng Poh, a forensic pathologist, conducted a post-mortem on the victim. He opined that the slash wound in the victim's neck was fatal and was sufficient in the ordinary course of nature to cause death. From the unsmudged large splashes of blood and blood sprays on the rear seat of the taxi, Dr Wee further opined that no one was seated in the rear when the victim's neck was slashed. The prosecution's case was founded mainly on two statements made by the first appellant following his arrest. These statements were admitted by the trial judge as a confession of the charge. The first appellant did not challenge the voluntariness of the statements, but he contended that what he said had not been recorded correctly. The statements disclosed that the second appellant had stabbed the victim in the neck with a knife which he took from his waist pouch. At the close of the prosecution's case, counsel for the second appellant submitted that the statements were not confessions of the charge and the second appellant's defence should therefore not be called. The trial judge disagreed and called on both appellants to enter their defence. In his defence, the first appellant repeated this assertion. He had been in the taxi with the second appellant and two others. He maintained that he was not aware that the second appellant had a knife. He claimed that he had tried to get out of the taxi when he discerned violence being used by the second appellant and one 'Wan', but he was prevented by the former and later by one 'Dorn'. When the stabbing occurred, he was still in the rear of the taxi, together with the second appellant and 'Dorn'. The second appellant sought to rely on a defence of alibi. He claimed that he was with one 'Bandit' when the murder allegedly took place. However, he did not call his alibi witnesses. The prosecution called them in rebuttal and their evidence refuted the second appellant's claim of alibi. The trial judge went on to convict both appellants as charged. The appellants appealed.

Held, allowing the first appellant's appeal and dismissing the second appellant's appeal: (1) the first appellant's statements were clearly confessions of a robbery committed on the taxi-driver. Taken as a whole the statements suggested the inference that the second appellant's act of stabbing the taxi-driver was consistent with the common intention of the four of them to rob the taxi-driver and was an act in furtherance of that common intention. Accordingly, the statements prima facie amounted to a confession by the first appellant of the offence with which he was charged and came within the meaning of s 17(2) of the Evidence Act (Cap 97, 1990 Ed). The statements being confessions were evidence against the second appellant of the charge; (2) the inconsistencies between the first appellant's assertions as contained in his statements and Dr Wee's observations substantially reduced the credibility of those statements and the first appellant's evidence as to the exact moment when the stabbing occurred. The only credible aspect of his statements was that the second appellant was one of the participants and that it was the second appellant who plunged the knife into the right side of the taxi-driver's neck; (3) the first appellant's evidence was not discredited by cross-examination. His evidence taken as a whole raised more than a reasonable doubt as to his continued participation in the robbery after he discerned a show of violence. In the circumstances, he would be given the benefit of doubt and acquitted of the charge of murder. He would be convicted instead of attempted robbery under s 393 of the Penal Code (Cap 224); (4) the second appellant's defence of alibi was denied by both the witnesses he had intended to call. The evidence of the first appellant that the second appellant had stabbed the taxi-driver in the neck was not shaken. The medical evidence clearly brought the injury within s 300(c) of the Penal Code. The injury was not accidental but was intended to cause such bodily harm that would in the ordinary course of nature result in death. The second appellant was therefore guilty of murder and his conviction would be confirmed.

Kraisak Sakha & Anor v Public Prosecutor [1996] 2 SLR 713 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Goh Joon Seng J).

The appellant was a prostitute. She assaulted the deceased, a fellow prostitute because the deceased had slept with the appellant's boyfriend four months previously, giving rise to bad relations between the appellant and the deceased. The next day, the appellant received a threatening phone call from a purported friend of the deceased. Four days later, the appellant purchased a diver's knife. She brought it to the brothel the following day. She then went to the deceased's room with the knife in a bag and questioned the latter about the phone call. A fight ensued, with the appellant fatally stabbing the deceased seven times. The deceased also received defensive injuries. The appellant's defence was that: (1) she was possessed when she took out the knife, and therefore did not intend to cause the injuries, thus not satisfying s 300(c) of the Penal Code (Cap 224); and (2) there was grave and sudden provocation by the deceased because the latter had slept with the appellant's boyfriend. The trial judge convicted the appellant, holding that the appellant had intended to cause the injuries because she knew where the knife was and stabbed the deceased seven times even though the deceased had resisted the attack. All the elements of s 300 of the Penal Code (Cap 224) had been proved beyond reasonable doubt. The trial judge rejected the defence of grave and sudden provocation under s 300 Exception 1 of the Penal Code (Cap 224) because the interval between the event giving rise to the provocation and the stabbing was too long. The appellant was convicted.

Held, dismissing the appeal: (1) (c) the appellant must not have taken undue advantage (this being a question of fact) or acted in a cruel or unusual manner (in this case the appellant used a knife and stabbed the deceased continually and forcefully); (2) for s 300 Exception 4 of the Penal Code (Cap 224) to apply, (a) blows must be exchanged even if they do not find their target (in this case the deceased only warded off the appellant's blows); (b) however the quarrel originated, the subsequent conduct of both parties must put them on an equal footing (in this case only the appellant was armed);the defence under s 300 Exception 4 of the Penal Code (Cap 224) therefore failed.

Teo Kim Hong v Public Prosecutor Criminal Appeal No 2 of 1996 Court of Appeal, Singapore (Yong Pung How CJ, Lai Kew Chai and Goh Joon Seng JJ).

At about 2.30am on 30 November 1994, the appellant was stopped by two police officers, one of whom was the deceased, for a spot check. The two police officers and the appellant stood behind the deceased's car with the deceased to the appellant's right and the other officer to the appellant's left. The appellant was told to put the bag he was carrying on the car boot and to disclose the bag's contents. After he had taken out a green jacket and a newspaper from his bag, he was asked what more he had inside the bag. The appellant suddenly withdrew an axe from the bag and swung it at the deceased. The appellant then dropped his axe and ran off. The deceased suffered a fatal cut to his face and died almost instantaneously. The appellant was subsequently found hiding on the sixth floor of a private apartment block some distance away and arrested. The appellant was charged in the High Court with the murder of the deceased. His defence was two-pronged: first, that the appellant did not have the intention to inflict the injury which caused the death of the deceased, and, second, that the appellant was suffering from an abnormality of the mind which substantially impaired his mental responsibility for his acts. The trial judge rejected the appellant's defence that he had no intention to inflict the injury which caused the deceased's death. The trial judge also held that the appellant had failed to make out the defence of diminished responsibility. Accordingly, he convicted the appellant of the charge of murder. The appellant appealed.

Held, dismissing the appeal: (1) the trial judge was correct in finding that the appellant had intended to inflict the injury on the deceased that was inflicted; (2) with regard to a defence of diminished responsibility, the court must consider not only the medical evidence but also all the surrounding facts. This the trial judge had done and the trial judge was fully justified in rejecting the defence of diminished responsibility.

Zainul Abidin bin Malik v Public Prosecutor [1996] 1 SLR 654 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant was charged with and convicted of the murder of his co-worker. The killing arose out of an incident in which the deceased had caused injury to a number of his co-workers who retaliated by assaulting him. The deceased voiced his desire for revenge against his assailants in the presence of the appellant. One Wilai was left to tend to the deceased. At one point, Wilai asked the deceased for the time, and was told that it was 4am. Subsequently, while the deceased slept, the appellant had come in, and compelled Wilai to either join him at a drinking party or go to bed. Wilai complied. After about half an hour, in which time the appellant had left the party twice before finally returning, one Dam looked in on the deceased, and found he was dead. A number of statements were taken from the appellant. In one he related how he had attacked the deceased with a pipe while the latter was in bed. Other statements were with respect to either the earlier incident or the subsequent disposal of the pipe and the method of attack. No challenge was made to the voluntariness of these statements. The forensic evidence was that death was caused by open head injuries resulting from blunt force trauma. Those injuries were sufficient in the ordinary course of nature to cause death. It was the forensic pathologist's testimony that death would have occurred rapidly, and that four to five blows were required. Blood spray patterns found near the body were consistent with the use of a long weapon, such as a pipe. The appellant in his defence said that he had not forced Wilai out, but had merely invited him for drinks. As for the deceased, the appellant did not deny killing him, but said that it had occurred during an incident in which the deceased had firstly kicked the appellant in the groin, and advanced menacingly towards the latter, who swung at the deceased several times with a pipe, the last of which hit the deceased on the head, causing the deceased to fall onto the bed. After his arrest, the appellant had complained to a doctor in prison of pain in his groin. The appellant contended that the statements made were ambiguous, that he had only committed grievous hurt and did not cause the deceased's death, that others could have killed the deceased and alternatively that he could rely on various defences. The judicial commissioner rejected the evidence of the appellant, and found that the deceased would not have died from injuries received earlier. Having rejected the appellant's story, none of the defences fell to be considered. The appellant was thus convicted. On appeal, it was argued that the judicial commissioner had erred in not considering the evidence of the pathologist that four to five blows were necessary; the appellant had said in his statement that he had landed fewer blows. It was also alleged that the evidence about the fight ought to have been accepted. Alternatively, it was said that the appellant could rely upon exceptions 1 and 4 to s 300 of the Penal Code.

Held, dismissing the appeal: (1) the judicial commissioner was correct in rejecting the appellant's testimony. There was no ambiguity or confusion in the statements. Despite inconsistencies, the judicial commissioner was entitled to rely upon such parts as he thought fit; (2) the appellant failed to mention the alleged fight preceding the death of the deceased in any of his statements, including the one made under s 122(6), Criminal Procedure Code (Cap 68). Therefore, the judicial commissioner was entitled to draw an adverse inference under s 123(1). Further, the facts did not support his narration, or the possibility that others could have killed the deceased; (3) motive was not a prerequisite of guilt. In any event, the evidence was that the appellant had thought it best not to allow the deceased to cause further harm; (4) as the evidence was that death would have occurred rapidly, and that at 4am the appellant was still well, the conclusion was that the injuries sustained earlier were not the cause of the death; (5) though the statements disclosed that the appellant struck the deceased only once or at most twice on the head, this portion had to be rejected, as the other evidence pointed to the death being caused by the appellant; (6) as the appellant's version was rejected, and it was found that the injuries were sufficient in the ordinary course of nature to cause death the elements of the offence were made out. On the version accepted, no defences were available.

Thongbai Naklangdon v Public Prosecutor [1996] 1 SLR 497 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant was convicted after trial in a district court on a charge of causing hurt to extort a confession contrary to s 330 of the Penal Code (Cap 224). He was a Police National Serviceman attached to the Central Narcotics Bureau (CNB) at the material time. He was found to have caused hurt to one Foo, together with two other CNB officers (PW2 and PW3) in the furtherance of their common intention. All three officers had originally been jointly charged. PW2 and PW3 eventually pleaded guilty. They were each sentenced to three years' imprisonment. The appellant was sentenced to four years' imprisonment. He appealed against his sentence. He maintained that the evidence established, at the highest, that he had only slapped Foo a few times. PW2 and PW3 were responsible for inflicting more serious injuries on Foo. He also contended that his sentence was inconsistent with that imposed on his accomplices. The mere fact that he had claimed trial should not have been held against him. In any event, PW3 had pleaded guilty only on the morning when the appellant's trial was scheduled to commence.

Held, allowing the appeal against sentence: (1) there was evidence of common intention which existed among the three officers to cause hurt to Foo and to extort a confession from him. In furtherance of that common intention, hurt was caused. The fact that the appellant may have inflicted a less serious form of assault did not necessarily furnish a basis by itself for a lighter sentence; (2) the offenders were all police officers. They acted in furtherance of their common intention to voluntarily cause hurt to extort a confession. In doing so, they lost sight of one of the key purposes of their appointment, which was to uphold standards of law and order. Clearly, a deterrent sentence was warranted; (3) the mere fact of claiming trial was not an aggravating factor. There may yet be no additional aggravating circumstance if the accused did not unnecessarily prolong his trial. In the present case, there was no suggestion that the appellant had unnecessarily prolonged his trial; (4) given that PW3 had pleaded guilty and was sentenced on the first day of the appellant's trial itself, there was no compelling reason for preserving a distinction between his sentence and that of the appellant. The appellant's sentence was thus reduced to three years' imprisonment; (5) (per curiam) a 'benchmark' sentence of two years' imprisonment may be appropriate in respect of 'non-aggravated' s 330 offences. However, where aggravating circumstances exist, it would not be inappropriate to take 30 months' imprisonment as a starting point in sentencing.

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

Abdul Raman bin Yusof & Anor v Public Prosecutor [1996] 3 SLR 15 Court of Appeal, Singapore (Karthigesu And LP Thean JJA, Goh Joon Seng J).

See CRIMINAL LAW, para 719.

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

See CRIMINAL LAW, para 744.

Public Prosecutor v Kwan Kwong Weng Criminal Case No 46 of 1996 High Court, Singapore (Amarjeet JC).

See CRIMINAL LAW, para 804.

The appellant was PW1's tuition teacher. He was charged with seven counts of using criminal force with intent to outrage PW1's modesty. Four charges alleged that he caressed PW1's thigh. The fifth alleged that he caressed PW1's thigh and squeezed her on the back. The sixth alleged that he caressed PW1's thigh and touched her left breast. The last alleged that he caressed her thigh, touched her breast and kissed her on the cheeks and lips. The prosecution called a number of other witnesses to support its case, but none of them gave corroborative evidence. The defence in respect of the first six charges was a total denial. In relation to the last charge, the appellant's defence was that PW1 agreed to be the appellant's god-daughter on that occasion. The appellant therefore kissed PW1 as a fatherly gesture. The defence called the appellant's wife, sister and niece to support his evidence. Their evidence also did not amount to corroboration of the appellant's evidence. The prosecution produced a tape recording of a telephone conversation between PW1's father and the appellant's sister in which the appellant's sister said that the appellant sometimes admitted to her that he did what was alleged by PW1. The magistrate held that it was unsafe to convict on this because the admission was not that of the appellant's. However, the magistrate was satisfied that PW1's evidence was unusually convincing. She disbelieved the defence witnesses and convicted the appellant on all the charges. The appellant appealed.

Held, dismissing the appeal against conviction but varying the sentences for the first five offences: (1) there was nothing in the grounds of judgment to indicate that the magistrate did not apply the correct burden or standard of proof. Even though the magistrate did not use the word 'beyond reasonable doubt', it was clear from the manner she approached the issues that she was looking for proof beyond reasonable doubt; (2) the burden of proof on the prosecution was to prove its case beyond reasonable doubt. It was not to prove the case beyond all doubts. The question in all cases was whether such doubts were real or reasonable, or whether they were merely fanciful. It was only when doubts belong to the former category that the prosecution had not discharged its burden, and the accused was entitled to an acquittal; (3) it would have been more accurate to say that the tape recording could not be relied on at all as it was hearsay. Nevertheless, nothing turned on this as the magistrate was aware that there was no admission by the appellant in the taped conversation. She had also accepted the appellant's sister's explanation that she said those things in order to placate PW1's father as plausible; (4) on the facts, there were some weaknesses in PW1's evidence. However, the magistrate was nevertheless entitled to reach the conclusion that the case had been proven beyond reasonable doubt. An appellate court would not lightly disturb the finding unless it could be shown to be plainly wrong or that there remained a lurking doubt. There was insufficient basis to disturb the convictions. The magistrate had meticulously identified all the relevant issues and had directed her mind towards them; (5) the sentence of one month's imprisonment for each of the first five charges were manifestly excessive. In respect of relatively minor acts of molest, where the accused had no previous conviction, a fine was generally more appropriate. The sentence on each of the first five offences were reduced to a $500 fine, in default one week's imprisonment; (6) (per curiam) (a) there was no basis for the proposition that a parent could not corroborate a child's evidence. There was no rule of law that a parent was not an independent witness merely because he was a parent of the witness; (b) there was nothing magical about the words 'unusually convincing'. They were but another way of saying that the witness's testimony was so convincing that the prosecution's case was proven beyond reasonable doubt, solely on the basis of that evidence; (c) a 'bare denial' did not carry the connotation that it could not be true. The submission that a prima facie case could not be answered by a bare denial could not be accepted. This was because if it was really the case that nothing at all happened, there would be nothing but a bare denial. It would be dangerous to discount the accused's evidence merely because it was a 'bare denial'.

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

The accused was charged with causing hurt to a bar hostess (the complainant) and of abducting her to force her to have illicit intercourse with him. He was also charged with three counts of rape against the complainant. The defence of the accused was that she had consented to have intercourse with him for payment. Three other men gave evidence on his behalf.

Held, acquitting the accused: (1) a witness who was a bar hostess or even a prostitute should not be prejudiced by virtue of her profession. Such persons could be as reliable and truthful as any other witness. However the complainant was found to be evasive, untruthful and unreliable; (2) on the other hand, the witnesses produced by the defendant corroborated what the accused had said, and the court found them to be witnesses of truth; (3) on the whole, the accused had raised a reasonable doubt against all five charges.

Public Prosecutor v Teo Boon Hong Criminal Case No 74 of 1995 High Court, Singapore (Choo Han Teck JC).

The accused was charged with two counts of having committed an offence under s 377 of the Penal Code (Cap 224) in that he had carnal intercourse against the order of nature with the complainant, a woman, by making her perform acts of fellatio. The accused was also charged with outraging her modesty by pressing her right breast. The complainant had gone with the accused to a hotel on two occasions and had sexual intercourse with him. On the second occasion, between the acts of intercourse, the complainant's evidence was that she performed fellatio on the accused at his request. The complainant had consented to the sexual intercourse and the fellatio. The issue to be decided was whether fellatio or oral sex performed voluntarily between persons of the same or opposite sex is an act of carnal intercourse against the order of nature and hence an offence under s 377 of the Penal Code.

Held, acquitting the accused: (1) or (c) in any manner between mankind and beast. The question which arises is whether the above three categories of offences set the absolute limit on offences under s 377 or whether it was also the intention of the legislature to prohibit fellatio or oral sex performed between a person of the same or opposite sex as being an act against the order of nature or an unnatural act. In all the circumstances, the court came to the conclusion that fellatio or oral sex does not come within the purview of s 377. If oral sex was to be included in s 377, the legislature would have made its intention clear; (2) the two counts of fellatio which the accused faced here could have constituted an offence of outraging the modesty of the complainant under s 354 had she not agreed or consented to the said acts or if it could have been found that her consent was vitiated by a misconception to the said acts which was not the case here. As there was consent, ie the fellatio was consensual, and she was of age, the court could not amend the two charges to one under s 354; (3) under s 377 of the Penal Code, the offences against nature or unnatural offences consist clearly of sexual intercourse, in public or in private: (a) per annum between man and man; or (b) in the same manner between man and woman;the prosecution evidence as to the charge of outraging the modesty of the complainant was inherently incredible. On the evidence, it was obvious that the complainant was not telling the truth. Further, the outraging modesty charge had not been preferred with the other charges upon arrest. The complainant had been making police statements for over four months but had not made a report of the outraging modesty charge. Therefore, a prima facie case was not made out.

Public Prosecutor v Kwan Kwong Weng Criminal Case No 46 of 1996 High Court, Singapore (Amarjeet JC).

The respondent was a traffic enforcement officer with the Registry of Vehicles. He was acquitted of a charge of having committed criminal breach of trust of $30, allegedly entrusted to him by one Ong Teng Huat (Ong). Ong, a Malaysian, had been stopped by the respondent while driving his Malaysian-registered vehicle without a valid Vehicle Entry Permit (VEP). Ong claimed that he gave the respondent $30 upon the latter's request. The respondent then told Ong to follow him to the Woodlands Checkpoint and thereafter to the police station. The respondent proceeded to lodge a police report recording Ong's offence of driving with an expired VEP. In his defence, the respondent said that he had stopped Ong and asked him to produce the VEP. Ong took out his wallet instead. The respondent told Ong that he did not want his money. Ong then handed over the VEP. On the respondent's instructions, Ong followed him to the Woodlands Police Station. The district judge accepted the respondent's version as being more credible, and acquitted him of the charge. The prosecution appealed.

Held, dismissing the appeal: (1) the weight of the evidence lent credence to the inference that Ong had motives of his own in raising the allegations of the respondent's corruption. The district judge had given careful consideration to the evidence before him, and his findings were supported by the evidence. There was no reason to interfere with his decision; (2) (per curiam) the defence should be entitled to know the prosecution's allegations with a reasonable degree of particularity. This was especially so where the offence was one of criminal breach of trust, which could take the form of five different species of actus reus. Had the facts been somewhat more complicated, intolerable confusion and serious prejudice to the defence might have resulted as the charge, as framed, contained insufficient particulars identifying the actus reus and mens rea.

Public Prosecutor v Anuar bin Arshad [1996] 2 SLR 52 High Court, Singapore (Yong Pung How CJ).

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

See CRIMINAL LAW, para 807.

Neo Ah Soi v Public Prosecutor [1996] 1 SLR 534 High Court, Singapore (Yong Pung How CJ).

See EVIDENCE, para 1056.

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

See CRIMINAL LAW, para 690.

The appellant was convicted in the High Court of having imported into Singapore by motor car from West Malaysia not less than 1803.3g of diamorphine. The appellant admitted that he had brought the seized packets into Singapore and that he knew they contained heroin. His defence was that he did so under the compulsion exerted on him by one 'Ah Long Seng', a loan shark, to whom he owed RM20,000 which he was unable to repay. According to the appellant, 'Ah Long Seng' had threatened to kill him and harm his family and even kidnap his son and put him to death unless he promptly paid back the loan or brought into Singapore a quantity of heroin for Ah Long Seng.

Held, dismissing the appeal: (1) the evidence adduced to support the defence of duress lacked specificity and, because it lacked specificity, it lacked credibility. The learned judge was not wrong in concluding that 'there was not the necessary factual foundation' for the defence that the appellant had imported the heroin into Singapore under the duress of the pain of death exerted on him by 'Ah Long Seng'; (2) (per curiam) in respect of the definition of duress, the Court of Appeal was also not persuaded to abandon s 94 of the Penal Code and the Malaysian and Singapore decisions thereon in favour of the wider doctrine of duress under the common law.

Wong Yoke Wah v Public Prosecutor [1996] 1 SLR 246 Court of Appeal, Singapore (Karthigesu and LP Thean JJA and Chao Hick Tin J).

The first charge against the appellant was for falsely affirming that he was unemployed since February 1992 in an affidavit dated 10 April 1992 which was used in a maintenance summons action. The second charge was for falsely affirming in an affidavit dated 7 January 1993 that the handwriting in an exhibit annexed to the same was that of his wife (Shi Fang), and not his. This second affidavit was to be used in support of an originating summons filed by the appellant to claim that the former matrimonial home was his, after Shi Fang had lodged a caveat against the title of the same. As regards to the first charge, the prosecution's contention was that the appellant had all along been working for his father (DW2) in the family's group of companies, of which Lian Huat Shipping Co Pte Ltd (Lian Huat) is the flagship company. It was undisputed that the appellant's father effectively owns and controls all the companies. Thus, the prosecution contended that, in reality, he was simply working for his father, and his appointments in the various companies were not indicative of his employment status. Therefore, the appellant's purported cessation of employment since February 1992 in the Lian Huat group of companies was a sham to avoid maintenance payment to his wife (Shi Fang) because he continued to assist his father in the business. Defence counsel argued that the statement made by the appellant pertaining to his unemployment was true and accurate. During the period between 1 February 1992 to 10 April 1992, he was not being paid any salary by anyone. He was not on good terms with his father, let alone report to him, and he was not receiving any allowance from the latter either. It was also undisputed that, during this period, he was not sent on any overseas business trips. Hence, this substantiated his claim that he had truly resigned from all of the family's companies by then. He only began assisting his father from July or August 1992 onwards when their relationship improved. But even then, he regarded himself as being unemployed because he was merely assisting his father out of obligation. It was only in April 1994 that he was re-employed by Lian Huat as its regional manager and received a regular income. With regard to the second charge, the alleged falsehood was the sentence in the appellant's affidavit which stated: 'The handwriting on the paper in exh ÒKPH-12Ó was hers.' Exhibit KPH-12 consisted of two sheets of paper (P9 and P10). The expert evidence revealed that, except for the numbers '15042.42' in P10, the appellant was the author of all the other handwriting in P9 and P10. The appellant claimed that his lawyer, Hee Theng Fong (PW6), had advised him that this was a court tactic, and that the mistake could be pointed out in court. So there was nothing to worry about in affirming the statement. But the prosecution contended that no such advice was given and argued that the evidence clearly showed that the appellant knew the statement would mislead the court; yet he affirmed to it. He was therefore rightly convicted of the charge. The trial judge accepted the prosecution's submissions. The appellant was thereby found guilty on both counts and sentenced to six months' imprisonment on each of the charges, the sentences to run concurrently. The appellant appealed.

Held, allowing the appeal on the first charge but dismissing the appeal on the second charge: (1) with regard to the first charge, even if it were accepted that the appellant had an improper motive to perjure so as to evade his maintenance responsibilities, it did not necessarily mean that there was an intention to mislead the court. Motive was merely a test of intention, and not an ingredient of the offence of perjury. It would therefore be wrong to automatically equate motive with an intention to perjure. On the totality of the evidence, there was a reasonable doubt that the appellant did think that he was unemployed when he affirmed his affidavit. Thus, there was no guilty intent to perjure, and he was accordingly acquitted of the first charge; (2) as for the second charge, it was obvious that the failure to mention that only the numerals were written by Shi Fang was a material omission which would mislead the court into entertaining an erroneous opinion on the authorship of the handwriting in exh KPH-12. On the evidence, there was no doubt that the appellant knew the statement had the effect of misleading the court, and he was not acting on the advice of his lawyer, as he alleged, when he made the statement. Where the evidence fabricated was intended to be used in a judicial proceeding, the offence is committed as soon as the fabrication was complete. Thus, the offence was committed the moment the affidavit was affirmed by the appellant.

Koh Pee Huat v Public Prosecutor [1996] 3 SLR 235 High Court, Singapore (Yong Pung How CJ).

The respondent was charged with, inter alia, voluntarily causing grievous hurt through poking the victim's eyes with her fingers, which led to the permanent privation of the sight of one of the victim's eyes. While testifying in court as a prosecution witness, the victim gave evidence which was inconsistent with a statement made to the investigating officer earlier (the statement). The prosecution successfully impeached her credit using the statement, which contained evidence against the respondent establishing that the hurt was caused voluntarily, and that the respondent intended to cause or knew that she was likely to cause grievous hurt. This statement, together with the evidence of an eye specialist, established the elements of the offence. The specialist's evidence was on the probability of the alleged act causing the privation of sight. He testified that it was less likely to have been caused by the jabbing of the eye by a finger, as compared to the hurt being caused by a blunt object. The prosecution sought to adduce the statement as evidence of the facts stated, relying on s 147(3) of the Evidence Act (Cap 97, 1990 Ed) (EA). However, the trial judge held that the statement could not be relied upon for the truth of the facts stated; he considered himself bound by the decision in PP v Sagar s/o Suppiah Ratnam (CC 6/94) (unreported), where it was held that s 147(3) could not apply to a statement governed by s 122 of the Criminal Procedure Code (Cap 68) (CPC). As elements of the offence were disclosed only in the statement, this meant that the offence was not made out on the prosecution's evidence. Additionally, the judge also held that the evidence of the specialist was such that a prima facie case of causation was not established. The prosecution appealed, arguing that s 147(3) EA was not inconsistent with s 122(1) CPC, and that the statement could be used as evidence of the facts stated. It was also argued that the judge had applied the wrong test in determining whether a prima facie case of causation had been made. It was further contended that there was evidence other than that contained in the statement to establish the intention to cause the hurt, as well as the intention or knowledge to cause grievous hurt.

Held, allowing the appeal: (1) there was no inconsistency between s 122 CPC and s 147 EA. Section 122(2) CPC made reference to impeachment in the manner provided by the Evidence Act, which pointed to s 157 EA. Section 157(c) in turn referred to impeachment by former inconsistent statements, which was governed by s 147, and that section, accordingly, brought in the whole of s 147; (2) although s 122(1) did prohibit the use of police statements except as provided for in s 122, statements under s 147 were considered as exceptions to such prohibition as they were caught within s 122(2). The fact that s 122(2) related to the use of statements for impeachment, this does not mean that those statements cannot be relied upon for the truth of the facts stated. The notion of impeachment has been altered by the passing of s 147(3). The legislative intention behind that is clear and must be given effect to. It is also making too subtle a distinction to allow a statement to be used to impeach and yet not allow it as evidence of the facts stated; (3) the purpose of s 122 is not the regulation of police statements but rather to ensure the reliability of statements made out of court, either on the basis of exceptions to the hearsay rule or on policy considerations; (4) only the proviso to s 122(5), which deals with statements of an accused, can be regarded as a provision concerned with regulation of impropriety rather than reliability. The position of a witness is in any event different from that of an accused. There are no overt safeguards against impropriety simply because there is generally no need for any. Even if there was such impropriety, that could be dealt with by the court's residual discretion; (5) the interpretation of s 122(2) and s 147(3) adopted was a natural development of recent case law; (6) if the truth of the facts stated in the statement was not admissible, the court may be denying itself a source of evidence which it would be artificial to exclude. That previous statement would also have been made close in time to the events; (7) section 147(5) provided for various factors to be taken into account, highlighting the dangers of falsification and inaccuracy. So long as these were borne in mind, there was nothing wrong in admitting such statements as evidence; (8) there was no requirement that there had to be corroboration of a previous inconsistent statement before evidence contained in that statement can be used as the sole evidence for conviction; (9) in determining whether a prima facie case has been made out for the purposes of s 189(1) CPC, it has to be presumed that all the evidence of primary facts are true, unless inherently incredible, and that there is nothing to displace inferences from primary facts which are reasonable in the absence of explanation; (10) the first two elements of the offence the accused was charged with, namely, (a) that the hurt was caused voluntarily and (b) that the accused intended to cause or knew that he was likely to cause grievous hurt, were established by facts and inferences from facts contained in the statement, which ought to have been accepted as evidence. As for the remaining element of causation, the evidence of the specialist was only that the causing of the privation by jabbing was unlikely, and not that it was inherently incredible. A prima facie case was thus made out; (11) some of the exceptions to s 122(1) are based on the notion of reliability of evidence, while others, including that governing previous inconsistent statements, are based on policy reasons requiring that they be accepted as evidence as well. The fact of the inconsistency may indicate that either version contains the truth;the other evidence sought by the prosecution to establish some of the elements of the offence Ð the testimony of another witness that the victim had told her the accused had caused the injury Ð was clearly hearsay and inadmissible.

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

The two accused were charged with committing murder by common intention under s 302 read with s 34 of the Penal Code (Cap 224). The fatal injuries which caused the death of the deceased were skull fractures at the forehead and at the back of the head, caused by blows from a sledge hammer. There were different versions in the oral evidence of the two accused as to how the deceased met his death and their evidence conflicted with their own statements and against the other.

Held, convicting the two accused: (1) common intention has to be inferred from the surrounding circumstances of the case as a whole; (2) however when all the strands are taken together, they must irresistibly lead to the conclusion that the accused in a murder charge had the common intention to cause the death of the victim; (3) individual strands of evidence may not lead to an inference of common intention;on a careful review of the evidence, the court disbelieved the evidence of the two accused as to how the deceased met his death. It was clear the the injuries on the deceased were brought about by a concerted attack on him by the two accused. The fatal injuries caused by the use of a sledge hammer were caused deliberately in the course of and as part of the concerted attack.

Public Prosecutor v Samlec Prathumtree & Anor Criminal Case No 49 of 1995 High Court, Singapore (Sinnathuray J).

The two accused were charged with having, together with two unknown persons and in furtherance of the common intention of them all, murdered a taxi driver. The main issues before the court was whether two statements made by the first accused amounted to confessions, and whether they could be taken into consideration against the second accused as well. It was also submitted on behalf of the first accused that no weight should be given to the first statement as the statement had allegedly not been read back to the first accused and did not reflect accurately what he had said.

Held, convicting both the accused: (1) the omission to state in the first statement that it had been read back to the first accused or that the first accused had been offered the opportunity to make any corrections was not a serious irregularity. What was important was whether the statement had in fact been so read over and whether he had signed it after correction, if any. In his case, the court accepted that this had been done and that the statement was accurately recorded; (2) although the first statement was not entirely of a plenary nature, it did connect the first accused with all the elements of the offence as it showed inferentially that the first accused and the second accused with two others were in complicity with each other and had acted concertedly in an act of robbery (although the motive had not been expressly identified) and that the act of the second accused which caused the death of the taxi driver was in furtherance of that common intention. It amounted therefore to a confession. The second statement was similarly a confession although it too was not of a plenary nature; (3) the first accused had no reason to lie about the complicity of the second accused, and his confessions constituted sufficient evidence of a prima facie case against both accused; (4) on the basis of all the circumstantial evidence and the incriminating portions of the statements made by the first accused, it was further held after defence was called that the prosecution had managed to prove its case against the two accused beyond reasonable doubt.

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

The appellant was charged in the court below with two offences. The first was for using criminal force on a public servant in the execution of his duty, contrary to s 353 of the Penal Code (Cap 224). The second was for using abusive words with the intent to provoke a breach of the peace, contrary to s 13(f) of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184). The complainant was one Hashim bin Hussein who was a CISCO corporal (the complainant). On 9 October 1995, he was driving a CISCO van together with ten other uniformed CISCO personnel along Bukit Batok Road when a bus driven by the appellant apparently overtook the van from the front without giving any signals. To avoid the collision, the complainant had to jam his brakes, but the bus went on and sped off. The complainant gave chase because he wanted to warn the appellant that his driving was dangerous to other road users. He said that despite turning on the blinkers and sounding the horn several times to indicate to the appellant to stop, the appellant still continued speeding off. The appellant, however, denied driving dangerously and speeding off. He claimed that he was in fact concentrating on the road ahead and did not hear or see any indication to stop. Finally, at a traffic light, the complainant managed to stop the appellant's bus by cutting into its path from the front. The prosecution case was that the appellant unleashed a barrage of vulgarities at the complainant when the complainant asked him to show his driving licence. This culminated in the appellant trying to snatch the complainant's pen, when the complainant was about to leave after jotting down the appellant's bus number and model. A little fracas ensued during which the complainant's uniform was tugged at by the appellant. The appellant, however, denied being vulgar and claimed that he had merely wanted to borrow the complainant's pen to write down the latter's particulars. In any event, the incident ended quickly when one Cpl Ismail bin Sabtu intervened and told the appellant to get his own pen. The appellant walked back to his bus to find a pen. But before he could return to the CISCO van, the complainant drove off. The trial judge accepted the prosecution's version of events. She found that criminal force had been used on a public servant in the execution of his duty. She also took the view that the use of criminal force had in fact occasioned a breach of the peace, and this proved that the appellant had the requisite intent to provoke a breach of the peace when the abusive words were uttered. Accordingly, she found the appellant guilty on both charges. The appellant appealed.

Held, dismissing the appeal on the first charge but allowing the appeal on the second charge: (1) at the time of the fracas, the complainant was a public servant in the execution of his duty, and he had acted lawfully in stopping the appellant. On the facts, criminal force had been used on the complainant, and the appellant had also to have intended to use such force in his moment of rage. Thus, the charge was made out and satisfied beyond a reasonable doubt; (2) violence was the essence of a breach of peace. Under s 13(f) of the Miscellaneous Offences (Public Order and Nuisance) Act, mere use of abusive words per se without any intent to cause violence would not suffice. In particular, where the abusive words were directed at the police, the legitimate expectation that the police would preserve the peace negated any alleged guilty intent of the accused to provoke a breach of peace on the police's part. However, there was nothing in s 13(f) to exclude a situation whereby such guilty intent emanates from the accused himself; (3) use of criminal force did not necessarily equate with 'violence' which was the essence of a breach of peace, bearing in mind that the definition of force was so wide as to encompass even touching. The extent of 'violence' required in an act occasioning a breach of peace was a question of degree. On the facts, the appellant's actions did not amount to 'violence' such that a breach of the peace had been occasioned. Accordingly, the trial judge had no basis to infer an intention on the appellant's part to provoke a breach of the peace. But even if the appellant's use of criminal force did amount to a breach of peace, the mere use of such criminal force, subsequent to the utterance of abusive words, did not on the evidence here lead to the conclusion that there was an intention to provoke a breach of peace at the time those words were being uttered.

Goh Ang Huat v Public Prosecutor [1996] 3 SLR 570 High Court, Singapore (Yong Pung How CJ).

The appellants were former directors of Inno-Pacific Holdings Ltd (IPH). They were originally charged in the subordinate courts with having dishonestly misappropriated moneys from IPH. These charges were amended on the first day of trial, and later reamended on the 17th day of trial. The appellants were eventually convicted on the reamended charges of having conspired with each other to commit criminal breach of trust, contrary to s 409, read with s 109 of the Penal Code (Cap 224). They were found to have dishonestly used IPH's funds in violation of s 157(1) Companies Act (Cap 50, 1988 Ed) (CA), thus causing IPH to disburse $8,453,629.20 to Aquiline Pacific Ltd (APL). Section 157(1) CA required them to act honestly and use reasonable diligence in the discharge of their duties as directors. The charges relied on the 'direction of law' limb in s 405 of the Penal Code, specifying the actus reus of the offence of criminal breach of trust as being the use of entrusted property 'in violation of any direction of law prescribing the mode in which such trust is to be discharged'. The district judge found that the appellants had conspired to use IPH's funds for the purchase of three blocks of shares in Lucky Man Properties Ltd (LMP), a Hong Kong listed company. The appellants had intended to acquire the LMP shares for themselves but did not have sufficient funds. They devised a scheme for IPH to finance the purchase of the LMP shares, with APL facilitating the purchase on IPH's behalf. After obtaining a mandate from IPH's directors for the purchase of the shares, the appellants proceeded to covertly purchase two blocks of LMP shares at HK$1.82 and HK$2.40 per share for each block respectively. They then arranged for two Malaysian private companies, Lambang Maju and Wartakaya, to purchase the shares from APL at a higher price. APL therefore made a profit from the sale. The district judge found that the appellants both had undisclosed beneficial interests in APL, and had knowingly placed themselves in a position of conflict of interests. She found that the appellants had failed to act in IPH's best interests, having taken dishonest risks with IPH's funds to make a wrongful gain for themselves in the form of APL's profit from the sale of LMP shares. She found support for this from, inter alia, the appellants' concerns with non-disclosure of the intended acquisition to the Stock Exchange of Singapore, and their failure to keep other officers of IPH informed of their activities. The district judge found that the appellants had used Lambang Maju and Wartakaya as their private vehicles to ensure secrecy and minimize disclosure. She found that the appellants had hoped to claim the LMP shares as their own should the opportunity present itself. She found the appellants' explanations for requiring secrecy and minimizing disclosure to be contradictory and not convincing. The appellants were convicted on the reamended charges and ordered to pay the prosecution's costs of $200,000. On appeal, the appellants contended that the reamended charges were bad in law. The introduction of s 157(1) CA into a s 409 Penal Code charge resulted in a real danger of prejudice in that they were at risk of being convicted for criminal breach of trust on the basis of breach of directors' duties under s 157(1) CA. In addition, the appellants submitted that the principal findings of the district judge were against the weight of the evidence. The appellants argued that there was never any ulterior motive behind the LMP share acquisitions. There were genuine commercial reasons to attempt to minimize disclosure of the LMP acquisition. The respondent submitted that the district judge's findings were supported by the evidence. The respondent suggested that should the court find the charges to be improper, the charges could be amended to one under s 157 CA and a retrial could be ordered.

Held, allowing the appeals against conviction and sentence: (1) the word 'mode' in the 'direction of law' limb of s 405 of the Penal Code connoted that there must be a degree of specificity in the direction of law in question. It should not be construed so expansively as to extend to a general direction to 'act honestly'; (2) the re-amended charges amounted to an allegation that the appellants had dishonestly used property in violation of a direction to act honestly. In effect, the actus reus was 'using property dishonestly'. This blurred the distinction between the actus reus and mens rea to an unacceptable degree; (3) the re-amended charges were materially defective in that s 157(1) CA was welded to s 409 of the Penal Code. The general exhortation to 'act honestly' contained in s 157(1) CA could not constitute a 'direction of law' for the purpose of s 405 of the Penal Code, as s 157(1) CA did not prescribe any specific mode in which the trust was to be discharged. The appellants were seriously prejudiced in that they were at risk of being convicted, and were convicted, of criminal breach of trust under s 409 of the Penal Code on the basis of breach of fiduciary duty under s 157(1) CA. On this basis alone, the appeals would have been allowed; (4) leaving aside the difficulty with the charges, the pivotal consideration was whether the appellants had acted 'dishonestly'. This had to be considered with reference to s 24 of the Penal Code. It was not enough for the respondent to suggest that the appellants were dishonest in having taken risks with the entrusted funds, such risks not being in the best interests of IPH; (5) the commercial realities of the transaction had to be carefully considered. The evidence supported the appellants' contentions that while they were genuinely concerned about undue disclosure of their acquisition plans, there was a fair amount of transparency in the arrangements. It did not support the inference that the appellants' concerns for non-disclosure or secrecy must have served to conceal a guilty purpose; (6) there was no cogent evidence that the appellants had acted in the pursuit of a common object or design involving the commission of criminal breach of trust. There was also little support for the district judge's finding that the appellants had some undisclosed interests in APL, and that they had intended to use IPH's funds to gain profit in their capacity as APL's shareholders. There were no 'unlawful means' employed in the process of acquiring the LMP shares. The nature and degree of dishonesty required under s 405 of the Penal Code had not been proved beyond reasonable doubt; (7) the charges had already been amended twice before. The re-amended charges eventually emerged only after 17 days of trial. To amend the charges yet again at the appellate stage, after 43 days of trial in the district court, and remit the case for a retrial would be unfair and highly prejudicial to the appellants.

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

The accused persons were charged with the offence of culpable homicide not amounting to murder under s 304(a) read with s 34 of the Penal Code. During the trial, the evidence raised doubts as to whether the victim was alive or dead when the alleged crime was perpetrated. There was also an issue as to whether the accused could be guilty of the substituted charge of attempted murder.

Held, convicting the accused of the offence of attempt: (1) on the evidence, it was simply not possible to say if the deceased was dead or alive when he was dragged to the muddy stream and when his throat was cut. As the case was grounded on the cutting of the throat at the muddy stream, the doubt went to the heart of the case; (2) the facts disclosed and admitted did not make out an offence of culpable homicide not amounting to murder; (3) when an accused person pleads guilty to a charge, a court may reject his plea. The plea may be rejected because the court is not satisfied with the facts, the law or his plea. He is not convicted on the charge at that stage of the proceedings, but that is not necessarily the end of the case. The difficulties may be resolved by amending the facts or the charge, or by removing any qualification in the plea; (4) the court exercised its powers under s 163(1) of the Criminal Procedure Code and amended the charge against the two accused by substituting the offence of culpable homicide not amounting to murder with one of attempted murder; (5) under the law of Singapore, it is possible to attempt to commit an offence that is impossible to accomplish. The determining factor is the actor's intention; (6) each of the accused was sentenced to eight years' imprisonment.

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

The accused was charged with attempted rape and rape committed on two nights respectively under s 376(1) read with s 511 of the Penal Code. The complainant was a maid employed and living with the accused and his family. In his defence, the accused stated that the complainant smiled at him and did not resist his advances and actions when he went into her room.

Held, convicting the accused: (1) consent or its absence and penetration may be gathered from all the attendant circumstances of a case; (2) it is axiomatic that in a crucial part of a case if the defence intends to ask the court to disbelieve a witness's evidence on a particular point, it is only right and proper that the matter should be put or put adequately to the witness in the witness box and the witness challenged if necessary on the matter. The court did not consider the accused's evidence that the complainant had given him a tempting smile to invite him into her room as credible; (3) the court found many aspects of the accused's own evidence as to the events in the complainant's room on both nights as negating consent in respect of the sexual assault of the accused culminating in the attempted rape on the first night and rape on the second night; (4) whilst the law recognizes that it is dangerous to rely on the evidence of a complainant unless it is independently corroborated in material particulars, the law also recognizes that it may do so if the court is completely satisfied that the complainant is telling the truth; (5) in law, corroboration can be founded in the evidence of an accused, ie an accused's evidence can serve to confirm the prosecution evidence in material particulars. Many aspects of the accused's evidence as to the events in the complainant's room on both nights and thereafter and the accused's statements admitting penetration corroborated the complainant's version of events that the accused had attempted to rape her forcibly the first night and succeeded in raping her on the second night.

Public Prosecutor v Lam Mun Choon Criminal Case No 62 of 1995 High Court, Singapore (Amarjeet JC).

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

See EVIDENCE, para 1069.

The appellant was tried in a joint trial with one Chua. The prosecution's case was that at 8am on 13 July 1993, in his office, the appellant gave to his site supervisor, Koh, $100 to hand over to one Goh, a general worker, who was in turn to pass it to Chua at the worksite during a PUB inspection of the work done by the appellant's firm. The charge merely alleged that the appellant gave the money to Chua through Goh at the worksite. When asked to give his s 122(6) statement, the appellant had said that he had nothing to say. At the trial, Koh gave evidence that the appellant gave the $100 to him with the aforesaid instructions. When he gave the money to Goh, he told Goh that the appellant wanted him to hand it to Chua. Goh's evidence, on the other hand, was that when Koh gave him the money, he merely pointed at Chua and said nothing. The appellant denied that he gave any money to Koh. His defence was that he was not even at the office on 13 July 1993. He claimed to be at a worksite at Marine Parade on the morning of 13 July 1993, but he could not remember who was with him at the time. His evidence was that whatever he had told the CPIB officers in his s 121 statement was the truth. The appellant called an employee of his, Low, to give evidence that he was not in the office on 13 July 1993. The prosecution relied heavily on a single paragraph in the s 121 statement in which the appellant denied that he handed any money to Koh in his office on 13 July 1993. The defence was not allowed a sight of the rest of that statement even after the defence witnesses had finished giving evidence. The district judge drew an inference against the appellant because the appellant did not dismiss Koh when he became aware that Koh had made the allegation against him. The district judge also drew an adverse inference against the appellant for not alleging in his s 122(6) statement that the allegation by Koh was a fabrication. Furthermore, he had not denied the charge in the s 122(6) statement. The district judge, therefore, held that the appellant was not a witness of truth. Furthermore, it was held that Low could not be regarded as an independent witness as he was still a subordinate of the appellant. On the other hand, Koh and Goh were held to be witnesses of truth. He held that the inconsistencies in their evidence were minor. The appellant was convicted along with Chua. He appealed. A motion to admit fresh evidence was allowed. The fresh evidence consisted of a witness's testimony that the appellant was with him at a worksite in Marine Parade on the morning of 13 July 1993.

Held, allowing the appeal: (1) both Koh and Goh were interested witnesses. Koh had good reasons to shift all the blame to the appellant, even to the extent of framing him. As Goh's evidence did not implicate the appellant, whether Goh had any reason to frame the appellant was of little bearing. What was highly relevant was that without Koh's own evidence, all the other evidence, including Goh's, pointed to and implicated Koh and nobody else; (2) the discrepancy between Koh and Goh as to whether Koh did or did not tell Goh that the money came from the appellant was, so far as the appellant was concerned, of crucial importance. This threw doubt on the reliability of Koh's evidence as he was an interested witness. His evidence could not be said to so convincing that a conviction could be founded solely on it; (3) the court could not accept the prosecution's submission that the appellant must have known of the crux of the prosecution's case by November 1993, when the s 121 statement was recorded as the court could only refer to a single paragraph of the s 121 statement to come to such a conclusion. This would have been a dangerous course to follow as the solitary paragraph could easily have been taken out of context. It was impossible to assess the weight to be attributed to this lone paragraph; (4) it was unfair to draw an adverse inference against the appellant for not denying the charge in his s 122(6) statement when he had already made the denial in his s 121 statement; (5) an accused is only expected to say things in his s 122(6) statement in answer to the charge. He is not expected to say anything in answer to some supposed or speculative charge which the prosecution could bring but did not. In the present case, none of the allegations involving Koh were mentioned in the charge. That being the case, the prosecution could hardly say that the appellant ought to have realized beforehand that Koh would be giving evidence against the appellant on these allegations. There was thus no reason to expect the appellant to say anything about Koh in his s 122(6) statement; (6) the district judge's finding that Low, who was an employee of the appellant's, was not an independent witness was tantamount to saying that no employee could ever be an independent witness for his employer. This was too wide a proposition of law. Low's evidence was clear and unequivocal. There was no reason to reject it out of hand unless the learned district judge was of the view that Low was prepared to commit perjury merely because he was an employee of the appellant's; (7) (per curiam) (a) since the appellant maintained that what he said in the statements was the truth, the contents of the s 121 statement would have become part of his testimony. The entire s 121 statement should, therefore, have been admitted and marked as evidence; (b) once the defence witnesses had finished giving evidence, there was no longer any basis for denying the defence sight of the accused's s 121 statement as there was no question of the defence tailoring evidence at this stage and all the material that would be required for the court to determine its relevancy would also be before the court; (c) by s 159 of the Evidence Act (Cap 97, 1990 Ed), an accused's s 121 statement could be used to corroborate his testimony. Hence, the defence was denied a relevant piece of evidence by the prosecution when it refused at this stage to let the defence have the statement. Where the case involved a bare allegation by a prosecution witness against the bare denial of the accused, such evidence could turn out to be of pivotal importance. Denial of such evidence was not conducive to a fair trial.

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

The appellant was an advocate and solicitor who had defended one Hartej Singh Sidhu (Hartej) during the latter's trial in the High Court on two charges of drug trafficking. Hartej and his co-accused Sarjit Singh s/o Anokh Singh (Sarjit) were convicted of the charges and sentenced to death. Their appeals to the Court of Appeal and their petitions to the President for clemency were dismissed. On 18 May 1996, the day before Hartej and Sarjit were due to be executed, the appellant visited Hartej at Changi Prison. He went to the prison together with one NK Rajah, the advocate and solicitor who had acted for Sarjit in his appeal to the Court of Appeal. Sarjit was also visited by his family, including his son Baldev Singh (Baldev). The prosecution alleged that in the course of the appellant's visit, Hartej signed a written confession in which he claimed sole responsibility for the drug offences he and Sarjit had been convicted of. The prosecution further alleged that the appellant approached Baldev and told him that Hartej's written confession would be handed over to him only if $100,000 was paid to Hartej's family in India. The appellant was tried in the district court on a charge under s 5(a)(i) of the Prevention of Corruption Act (Cap 241), of corruptly soliciting a gratification of $100,000 from Baldev. The charge alleged that he had acted in conjunction with Hartej. The appellant denied the prosecution's version of events. He argued, further, that even if he had committed the act of solicitation, he had done so only as Hartej's agent and not 'in conjunction with' Hartej; that, even if he had committed the act of solicitation, he had not done so corruptly; and that in any event a commercial or professional relationship had to be shown to exist between Hartej and Sarjit before the offence could be established. These arguments were rejected by the district judge who convicted him and imposed a sentence of five months' imprisonment. The appellant appealed against both conviction and sentence.

Held, dismissing the appeal: (1) so far as the factual aspect of the case was concerned, this was a case of the appellant's word against that of at least three prosecution witnesses. The appellant's allegation of ulterior motive on the part of the prosecution witnesses was based on sheer conjecture and was not to be believed. The High Court was satisfied that the district judge's findings of fact were entirely supported by the evidence and saw no reason to disagree with his preference for the prosecution's version of events; (2) as to the issue of the appellant's intention to solicit, it was not suggested that his act of solicitation was anything other than voluntary and deliberate. Accordingly, any argument that he had not actually intended to solicit the $100,000, even if his actions had given the appearance of a solicitation, amounted to no more than a specious exercise in semantics; (3) and on the facts the appellant could be said to have acted 'in conjunction with' Hartej in asking Baldev for $100,000 on 18 May 1996; (4) and that there must be a corrupt element in the act of solicitation itself (see p 653H). As to the latter element, counsel for the appellant did not dispute that a corrupt element existed in any transaction involving the exchange of money for a confession, since such a transaction constituted in essence a transaction in the nature of a bribe (see p 653I). As to the question of intent, the appellant had, in deliberately putting a price to Hartej's confession, treated justice as his to hawk and endangered the very basis of our system of justice: he had therefore acted with a corrupt intent; (5) as to the scope of the phrase 'any matter or transaction whatsoever', it was clear that the terms of this phrase did not include any restriction as to the type of matter or transaction covered by s 5. Certainly it did not restrict the scope of s 5 to cases involving contractual, professional or administrative relationships; (6) as to the appeal against the sentence of five months' imprisonment, it was not strictly accurate to say that the district judge had failed to consider, as a mitigating factor, the lack of any personal benefit accruing to the appellant from his act of solicitation. In any event, there was no inflexible rule that an accused who derived no personal benefit from a corrupt transaction should automatically be entitled to some sort of discount on his sentence. It was also of no mitigating value to say that the appellant had not really expected Hartej's statement to be taken seriously: the harm to the justice system occurred as soon as he asked Baldev to pay for the confession; (7) as to the construction of the phrase 'in conjunction with' in s 5 of the Prevention of Corruption Act (the Act), this phrase should be read, not in isolation, but in the context of the entire Act, with the purposes of the Act in mind. The stated purpose of the Act was not merely to prevent corrupt acts by public officers only or by persons acting as principals only, but 'to provide for the more effectual prevention of corruption'. To exclude from the scope of the Act cases where an agent proceeded on the instructions of his principal to commit a corrupt act would be to thwart the effective operation of the Act. The phrase 'in conjunction with' in s 5 was therefore to be construed so as to include the acts of agents who act on the instructions of their principals in carrying out corrupt acts;as to the issue of whether the appellant's act was a corrupt one, it was accepted that the appellant must be shown to have acted with a corrupt intention;the appellant's conduct was shocking and reprehensible, particularly in view of his status as a senior member of the Bar and a former police officer. Having regard to all the relevant circumstances of the case, the sentence of five months' imprisonment was manifestly inadequate. The High Court accordingly exercised its powers under s 256 of the Criminal Procedure Code to enhance the sentence to one of 12 months.

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

D, the deceased, was assaulted and killed by a group of youths, of which A was one. The fatal blow was inflicted by P. P was tried by jury and convicted of manslaughter. A was arrested after P's trial. He was indicted for murder. The Crown offered to accept a plea of guilty to manslaughter from A, but the offer was refused. A was convicted of murder. He appealed on three grounds: firstly, that evidence of P's conviction for manslaughter should not have been excluded; secondly, that the jury had been misdirected by the trial judge as to the participation of an accomplice in a common unlawful enterprise; thirdly, that it was an abuse of process to prosecute A for murder when the principal offender had only been convicted of manslaughter.

Held, dismissing the appeal: (1) evidence of P's conviction for manslaughter was inadmissible at A's trial. The decision in that trial was irrelevant to the present trial; (2) if two persons A and B participate in a common unlawful enterprise, there is sufficient mens rea for B to be convicted of murder if he realizes that A may kill or intentionally inflict serious injury and A does kill someone in the course of the venture; (3) the doctrine of abuse of process and the remedy of refusal to allow a trial to proceed are well established. There must always be a residual discretion to prevent anything which savours of abuse of process; (4) having reviewed the case, the Privy Council could find no aspect of the case which could credibly be described as an abuse of process, ie something so unfair and wrong that the court should not allow a prosecutor to proceed. The fact that the verdict was inconsistent with that in the trial of the principal offender did not make it an abuse of process for the prosecution to proceed with a charge that was justified by the evidence.

Hui Chi-ming v R (1992) 94 Cr App R 236 Privy Council Appeal from Hong Kong (Lords Bridge, Oliver, Goff, Jauncey and Lowry).

A person who subjects herself to abortion is an accomplice to the criminal act of abortion and corroboration of her evidence is desirable. Corroboration may be found in the evidence of visits to the accused.

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

In this case, the two appellants appealed against their conviction and sentence for abetment of bribery and bribery respectively. On appeal it was argued, inter alia, that: (a) the methods adopted by the police in this case in procuring the commission of a traffic offence by the lorry driver in approaching Teja Singh to use his infuence with the magistrate, thereby provoking him to commit the offence wherewith he was charged and in further aiding the commission of the offence of bribery by providing the funds were methods wholly foreign to the spirit of our law and that the courts should frown upon such questionable methods to the extent of refusing to accept the evidence of witnesses who stoop to use them; (b) the learned President of the Sessions Court exercised his discretion wrongly in trying the two appellants jointly.

Held: (1) the police officers were at most agents provocateurs and not accomplices and that on the facts of this case the evidence of the police officers was properly received in evidence; (2) the learned President exercised his discretion rightly in ordering a joint trial in this case; (3) the offences in these cases were of corruption in the course of the administration of justice and therefore the sentence of two years' rigorous imprisonment imposed were not excessive.

Teja Singh & Anor v Public Prosecutor [1950] MLJ 71 High Court, Johore Bahru (Spenser-Wilkinson J).

The customs officer in such circumstances is not an accomplice and his evidence did not require in law to be corroborated.

Ng Car Lee v R [1956] SCR 20 Supreme Court, Sarawak, North Borneo and Brunei

The appellant was charged (1) with carrying arms or alternatively with carrying component parts of a firearm; and (2) with consorting. On the first charge, one of the witnesses was a self-confessed bandit who gave evidence that he had seen the appellant in the bandit camp in the jungle and had seen him carrying a sten-gun. The learned trial judge, accepting the argument of the prosecution that only a person who can be jointly charged with the same offence as the accused is an accomplice, directed the assessors that there could not be an accomplice to a charge of carrying a gun, and the witness was therefore not an accomplice. The learned trial judge, however, went on to treat the evidence of the witness as no better than that of an accomplice and directed the assessors that his evidence required corroboration.

Held: (1) the view that the term 'accomplice' is confined to a person who could be jointly charged with the same offence as the accused is wrong, and as the evidence showed that the witness in this case concurred in the criminal designs for a certain time, he was therefore an accomplice; (2) even though the learned judge was wrong in directing the assessors that the witness was not an accomplice, the assessors were sufficiently warned by him as to the dangers of accepting his uncorroborated testimony; (3) there was in fact corroboration of the witness' evidence sufficient to entitle the assessors to accept his evidence and therefore, the appeal on the first charge must be dismissed.

Goh Ah Yew v Public Prosecutor [1949] MLJ 150 Court of Appeal, Federation of Malaya (Willan CJ, Spenser-Wilkinson and Russell JJ).

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

See CRIMINAL PROCEDURE, Vol 5, para 1987.

This was an appeal against the conviction of the appellant on a charge under s 3(b) of the Prevention of Corruption Ordinance 1937. There was evidence to show that at the suggestion of the appellant, Mr Waters, an Acting Deputy Superintendent of the Harbour Board Police, on three occasions carried chandu from the Harbour Board area and on each occasion was subsequently given a sum of money. One of the grounds of appeal was that Mr Waters was an accomplice, as apart from the protection afforded by s 48 of the Dangerous Drugs Ordinance an offence would have been committed by him.

Held: Mr Waters was not an accomplice and since the first suggestion came from the appellant he was not an agent provcateur.

Lian Teck Chew v R [1955] MLJ 28 Court of Criminal Appeal, Singapore (Murray-Aynsley CJ(S).

The accused was charged with offences punishable under s 414 and ss 465 and 471 of the Penal Code. At the trial, the learned magistrate held that a witness was an accomplice as he had assisted the accused in disposing of three bicycles. It was clear from the evidence that the witness did not assist the accused in disposing of the bicycles which were the subject of the charges before the court.

Held: (1) the witness did not fall within any of the three categories of accomplices as laid down in Davies v Director of Public Prosecutions [1954] AC 369; (2) where a magistrate wrongly held that a witness was an accomplice, the High Court, on revision, may set aside the order of acquittal and discharge and order a new trial.

Re Soo Leot [1956] MLJ 54 High Court, Kuala Lumpur (Buhagiar J).

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

Held, dismissing the appeal: the complainant was a trap witness at the most.

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

In deciding whether a witness should be treated as an accomplice, the trial judge should ask himself this question: 'Is there any evidence upon which I can properly rule that a witness was a participant in the offence?'

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

So far as the statutory provisions are concerned, there is nothing in law to justify the proposition that the evidence of a witness, who happens to be cognizant of a crime, or who made no attempt to prevent it, or who did not disclose its commission, should only be relied on to the same extent as that of an accomplice. The real question in such a case is the degree of credit to be attached to the testimony of such a witness; and that depends on all the facts and circumstances of the particular case.

Nar Singh & Anor v Public Prosecutor [1949] MLJ Supp 2 Court of Appeal, Kuala Lumpur (Willan CJ, Taylor and Spenser-Wilkinson JJ).

It is not necessary that the appellant should be in court or within the jurisdiction before an appeal can be heard.

R v Mabot & Ors [1890] 4 Ky 638 High Court, Straits Settlements (O'Malley CJ).

This was an appeal by the Public Prosecutor. The respondent in this case was charged in the sessions court with possession of some 20 packets of opium. He pleaded guilty and was discharged under s 173A of the Criminal Procedure Code (FMS Cap 6). When the appeal first came before Taylor J, no notice of any kind that an appeal was pending had been served on the respondent. The prosecution applied under s 314(ii) for a notice to be issued; this was done and it was returned unserved. Section 314(ii) reads: 'if the service of such last mentioned notice cannot be effected on the respondent the court shall proceed to hear the appeal in his absence.' The learned Deputy Public Prosecutor applied under that subsection for the appeal to be heard on the merits in the absence of the respondent.

Held: originally there was no appeal by the Public Prosecutor; the Chapter was framed on the view that he would be the respondent and provision is made for the record to be transmitted to him by way of service, but without being actually served. Much later, the code was amended to permit of an appeal on the merits by the Public Prosecutor, but s 314 was not amended; therefore, an appeal by the Public Prosecutor cannot be heard in the absence of the respondent.

Public Prosecutor v Goh Thor Kiah [1952] MLJ 91 High Court, Selangor (Taylor J).

A conviction on a charge under the Minor Offences Enactment cannot be entered, in the absence of the accused upon receipt of a letter from the accused pleading guilty, without hearing evidence to establish the commission of the offence.

Public Prosecutor v Brahim bin Manar & Anor [1960-1963] SCR 72 Supreme Court, Sarawak, North Borneo and Brunei

A tin containing opium was found in the luggage boot of a motor car of which the accused was the owner. The record showed that the accused was convicted and sentenced to a fine of $5,000 and six months' imprisonment, but after the case and in the absence of the appellant, the learned President fixed the period in default of fine (which he overlooked at the time of sentencing the accused) as 12 months.

Held, inter alia: the learned President had no jurisdiction to amend the recorded sentence in the absence of the accused.

Choo Teck Soon v Public Prosecutor [1954] MLJ 63 High Court, Kuala Lumpur (Wilson J).

See CRIMINAL PROCEDURE, Vol 5, para 2066.

An order made in this case by the revising judge in the absence of the accused was an order to the prejudice of the accused and therefore was made without jurisdiction. Since the appellant was not a person convicted before the High Court, he has no right of appeal under s 18 of the Sarawak, North Borneo and Brunei (Courts) Order in Council 1951. Application refused.

TA Barlow v R [1954] SCR 99 Supreme Court, Sarawak, North Borneo and Brunei

[Annotation: The revising judge subsequently revoked his order.]

Rahim bin Usoff & Ors v Public Prosecutor [1985] 1 MLJ 241 High Court, Johore Bahru (Shankar J).

See CRIMINAL PROCEDURE, Vol 5, para 462.

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

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

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

The record showed that at the close of the case, the learned President found the accused guilty before his counsel addressed the court. When the President's attention was drawn to this by defence counsel, before sentence was passed, he gave counsel an opportunity to make his submissions. However, counsel declined to do so.

Held , inter alia: as defence counsel did not avail himself of that opportunity, it could not be said that opportunity to address the court was denied to counsel.

Monteiro v Public Prosecutor [1964] MLJ 338 High Court, Malacca (Ismail Khan J).

The three accused saw the complainant on 22 October 1961, and the second accused, who was the only one of the three who spoke, asked the complainant to join his gang for self-protection. The entrance fee was stated as $7.20 and the monthly subscription $2 per head. On 1 November 1961, the three accused returned to collect the money in accordance with the arrangements with the complainant. The demand for the money was again made by the second accused. All the three accused were arrested immediately thereafter and charged. The first and second accused were convicted in the sessions court. The learned President based his conviction of the first accused on the fact of his presence during both visits. The first accused appealed.

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

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

The accused was charged with housebreaking by night to commit theft under s 457 of the Penal Code. At the end of the prosecution case, when the learned President amended the charge to one under s 380 of the Penal Code, counsel for the accused withdrew from the case on refusal of the court to adjourn the hearing for 12 days on the amended charge, though the court was willing to grant a short adjournment. One of the grounds of appeal was that the court should have given the accused an opportunity of obtaining another counsel.

Held, inter alia: in view of the strength of the evidence, it was clear that the presence of counsel for the defence at that stage would have made no difference and therefore, the accused was in no way prejudiced.

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

A magistrate should not admit in evidence, even against a well known offender, evidence of general bad character of the accused; if he does so, the conviction is liable to be quashed.

Mamsah v Mohamed Lebbye [1881] 3 Ky 130 High Court, Straits Settlements (Wood J).

Where a witness for the prosecution, having been cross-examined by counsel for the defence with a view to showing his animus against the accused, was questioned by the court regarding the accused's character and an answer was received without objection on the part of the defence that the prisoner was a nak leng, meaning 'loafer',

Held: the evidence of the accused's bad character was wrongly admitted.

R v Mong Pahn [1905] 10 SSLR 96 Court of Appeal, Straits Settlements (Cox CJ (dissenting).

Though the jury regarded the accused as persons of bad character, there was nothing to show that that in any way deterred the jury from doing their duty to judge them on the evidence alone.

Tan Kheng Ann & Ors v Public Prosecutor [1965] 2 MLJ 108 Federal Court, Singapore (Thomson LP, Wee Chong Jin CJ (Singapore).

An accused should not be cross-examined by counsel for a co-accused as to his character.

Nair v R [1954] MLJ 206 High Court, Singapore (Murray-Aynsley CJ).

It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.

Ewin v Public Prosecutor [1949] MLJ 279 Court of Appeal, Federation of Malaya (Willan CJ, Callow and Spenser-Wilkinson JJ).

[Annotation: The fact that a person is unable for the moment to satisfy his creditors is not evidence of criminal or grave moral misconduct and as such, the evidence of financial embarrassment is inadmissible: Lim Kong v Public Prosecutor [1962] MLJ 195.]

The appellant, a well known public character from the police's point of view, was found trying to pawn a paper umbrella worth a few cents. He was arrested, tried and convicted under s 35(i) of the Minor Offences Enactment (Cap 46) which reads as follows: 'Any person who has in his possession or conveys in any manner anything which may be reasonably suspected of being stolen or fraudulently obtained shall, if he fails to account satisfactorily how he came by the same, be liable to a fine of fifty dollars, or to imprisonment for three months.'

Held: the character of the accused, by itself, is not sufficient to raise reasonable grounds for suspicion that the property had been stolen.

Ali bin Yusof v Public Prosecutor [1940] MLJ 276 High Court, Federated Malay States (Murray-Aynsley J).

No document should be admitted in evidence which will tend to show that the accused is a man of bad character or that he was guilty of other criminal offences not contained in the charge.

Tan Geok Kwang v Public Prosecutor [1949] MLJ 203 Court of Appeal, Federation of Malaya (Willan CJ, Spenser-Wilkinson and Russell JJ).

[Annotation: See also Rauf v Public Prosecutor [1950] MLJ 190 and Public Prosecutor v Loh Swee Kon [1951] MLJ 159.]

Evidence that the accused has a bad character is irrelevant during the trial.

Muthusamy v Public Prosecutor [1948] MLJ 57 High Court, Malayan Union (Taylor J).

Where the complainant's evidence was in effect found to be completely unreliable, it was not safe to rely on the conduct of the accused after the alleged incident in order to reach the conclusion that he was guilty of the offence with which he was charged.

Ling Ngan Liong v Public Prosecutor [1964] MLJ 20 Federal Court, Ipoh (Thomson LP, Barakbah CJ and Tan Ah Tah J).

The appellant was charged in the court below with driving a car at a roundabout in a dangerous manner, an offence under s 25(1) of the Road Traffic Ordinance 1941, and punishable under the same section. The appellant denied the charge, but admitted that his car was there at the alleged time and urged that he passed round the roundabout in the correct and legal manner. The learned magistrate, after the conclusion of the evidence, visited the scene of the incident in the company of the prosecuting officer, but in the absence of the accused or his counsel and without having informed either of them of the time when he proposed to view the scene. As a result of his visit, he formed certain opinions on which his judgment was largely based. No evidence was produced as to the importance of the 'lay out'.

Held: if the 'lay out' was of importance, evidence should have been produced on the subject.

Harban Singh v R [1954] MLJ 158 High Court, Singapore (Murray-Aynsley CJ).

The omission of the accused's name in the police report made by a witness does not in any way detract from the weight and value which the trial judge had attached to the testimony of the complainant himself.

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

Section 265 of the Criminal Procedure Code (Cap 21) requires a magistrate to record the questions asked as well as replies thereto.

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

Per Callow J: 'I should mention, before concluding, the complaint by Mr Salt that the accused was brought to the court below in manacles. An accused person is innocent until he is proved guilty, and restraint is not usually required unless the accused is violent or has committed a crime of violence or there is a likelihood he may attempt to escape. As to whether violence or escape was anticipated in this case I do not know. I hope those responsible for the custody of accused persons will bear these observations in mind and refrain from the use of handcuffs on unconvicted persons unless essential.'

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

The appellant had been convicted on a charge of armed robbery. On appeal it was argued, inter alia, that a fair trial of the appellant was prejudiced by reason of the fact that he was kept handcuffed throughout the trial.

Held, dismissing the appeal: in the circumstances of this case, there was nothing wrong in the judge granting the application that the appellant be handcuffed during the trial and the trial of the appellant was in no way prejudiced.

Yaakub bin Ahmad v Public Prosecutor [1975] 2 MLJ 223 Federal Court, Kuala Lumpur (Gill CJ (Malaya).

An accused person has the right to decide whether or not he will be a witness in the case, and consequently, unless he so elects, he cannot be compelled to give evidence by or on behalf of anyone. If a co-accused desires to call him, he must be warned that he need not give evidence unless he wishes and that, if he does so, he will be liable to be cross-examined by the prosecution.

Liew Sang v Public Prosecutor [1948] MLJ 83 Court of Appeal, Federation of Malaya (Pretheroe Ag CJ (Malaya).

[Annotation: See Criminal Procedure Code (Cap 68, 1985 Ed), s 196.]

There is no exception to the general rule that an accused person is entitled to have proceedings interpreted to him in any language which he desires to use. He cannot be obliged to use even the language which is his native language, if he does not want to. It is the duty of the court to find an interpreter for the language required and the court must be satisfied that the interpreter is competent to do his work efficiently.

Fong Hong Sium v Public Prosecutor [1950] MLJ 293 High Court, Kota Bharu (Briggs J).

In this case, the accused was Tamil speaking. There was no Tamil interpreter available at the trial and so the evidence was translated into Malay and the accused gave his evidence in Malay.

Held: this was a wrong procedure and there must be a re-trial.

Nalliah v R [1948] MLJ 185 High Court, Singapore (Murray-Aynsley CJ).

After an accused has pleaded guilty, if the statement by the prosecuting officer of the facts of the case made for the purposes of sentence does not in itself disclose an offence, this should put the magistrate on his inquiry, but it is not necessarily a sufficient ground upon which an appellate court will allow the accused to withdraw his plea of guilty. It is the duty of an interpreter not only to make sure that he and the accused understand one another, but also to inform the court if there is any difference of language between them which might cause difficulty; and it is the duty of the magistrate to ensure, as a matter of routine, that this is always done.

Huang Chin Shiu v R [1952] MLJ 7 High Court, Penang (Spenser-Wilkinson J).

Every accused person has a right, if he so desires, to be defended by an advocate and should be given sufficient time to instruct counsel.

Chong Fah Hin v Public Prosecutor [1948-49] MLJ Supp 139 High Court, Kuala Lumpur (Russell J).

The case against the accused had been adjourned to 11 April 1968 for hearing. Counsel for the appellant wrote to the magistrate stating that he would be engaged on 11 April 1968 and requesting an adjournment to another suitable date. The learned President of the Sessions Court replied that the application would be considered in open court but on 11 April 1968, when counsel did not appear, the trial proceeded in his absence. No mention was made of the application for adjournment.

Held: the appellant had the right to choose his own counsel and to be defended by such counsel. In this case the appellant had been prejudiced in his defence by the total absence of consideration of the application filed by the solicitors for the appellant. In the circumstances the appeal should be allowed and a retrial ordered.

Bakar bin Ahmad v Public Prosecutor [1969] 4 MC 294 High Court, Malacca (Sharma J).

Under s 138 of the Sarawak Criminal Procedure Code, a preliminary inquiry is permissive and the omission to hold one does not constitute an error in law. There is no suggestion that it was the duty of the government or the judge or anybody else to appoint anyone to represent the appellant, and the omission to provide the appellant with legal assistance cannot be a ground for challenging the conviction. It was the duty of the assessors to determine the facts, and it was for them to say, if there was any evidence to go before them, whether any witness was an accomplice.

Kong Siew Yap v R [1950] SCR 41 Privy Council Appeal from the Federation of Malaya

Any trial where the accused is deprived of a reasonable opportunity of obtaining the services of counsel will of necessity be regarded as a mistrial. To secure this, the day of hearing should not be fixed at too early a date.

Sim Kee Tong v R [1948-49] MLJ Supp 151 High Court, Singapore (Murray-Aynsley CJ and Gordon Smith J).

Teng Boon How v Pendakwa Raya [1993] 3 MLJ 553 Supreme Court, Malaysia (Harun Hashim, Mohamed Azmi and Edgar Joseph Jr SCJJ).

See CRIMINAL PROCEDURE, para 3309.

The accused was brought before the sessions court to answer a charge of voluntarily causing grievous hurt with a dangerous weapon under s 326 of the Penal Code (FMS Cap 45). The sessions court, however, postponed the trial and ordered the accused to be sent to a mental hospital for observation for one month under s 324(iii) of the Criminal Procedure Code (FMS Cap 6) ('the CPC'). When the accused was subsequently brought before the sessions court again to answer the charge, the sessions court invoked s 344 of the CPC, and made an order committing the accused to a mental hospital under s 344(iii) of the CPC. In invoking s 344 of the CPC, the sessions court appeared to have relied on the medical report of the psychiatrist who had examined the accused. The said medical report stated that the accused was of unsound mind, that he was under the influence of mental illness at the time he was alleged to have committed the said offence, and that he was fit to plead and attend trial in court. The principal issue before the court was whether the sessions court was right in invoking s 344 of the CPC in view of the said medical report.

Held, setting aside the sessions court's order committing accused to mental hospital: (1) the said medical report was equivocal and the statements contained therein were contradictory. On the one hand it stated that the accused was of unsound mind, while on the other hand it stated that the accused was fit to plead and attend trial; (2) the sessions court did not state in its judgment whether it was satisfied by the said medical report that the accused was of unsound mind and incapable of making his defence; (3) in such circumstances, the sessions court should not have invoked s 344 of the CPC and ordered the accused to be committed to a mental hospital under s 344(iii) of the CPC; (4) the medical report also appeared to have confused the accused's state of mind at the time of the trial with his state of mind at the time of the alleged commission of the offence. The procedure in the case of lunacy at the time of the trial and lunacy at the time of the commission of the offence are entirely separate matters leading to different consequences, and these two matters must not be confused together; (5) therefore, the court set aside the sessions court's order under s 344(iii) of the CPC committing the accused to a mental hospital, and further ordered that the accused be brought before the sessions court for it to decide whether the accused is actually of sound mind and capable of making his defence; (6) the court also observed that the accused was being incorrectly charged under one charge with two offences, when in fact, each offence should have been the subject of a separate charge, although both offences could be tried together. In this context, the court recommended a perusal of 5 Mallal's Digest (4th Ed) paras 628 to 646 which sets out the common law relating to the framing of charges.

Public Prosecutor v Haji Sudin bin Sube Criminal Revision No T(43)-2 of 1993 High Court, Tawau (Ian Chin J).

Where after the accused had appealed for leniency in mitigation, the prosecutor informed the magistrate that although the accused had no previous conviction he was a fighter in a secret society,

Held: the statement of the prosecutor was entirely irrelevant in so far as sentence was concerned.

Goh Bok Seng v Public Prosecutor [1965] 2 MLJ 66 High Court, Singapore (Wee Chong Jin CJ).

See CRIMINAL PROCEDURE, Vol 5, para 2425.

The appellant (the 1st and 2nd accused were acquitted) appealed against his conviction on the ground that the verdict of the jury was imperfect inasmuch as: (a) although there were three accused persons jointly charged with one offence, they returned a separate verdict in respect of each accused person, which, upon the facts of the case presented by the Crown, it was not open to them to do so; (b) even if the jury were entitled to return a separate verdict in respect of each accused person, that verdict was an indivisible one having regard to the nature of the charge, and they were not entitled to bring in a verdict of 'not guilty' against the 1st and 2nd accused and a verdict of 'guilty' against the appellant.

Held: (1) there was no substance in the above ground of appeal in that the principal question for the consideration of the jury was whether they were satisfied that the accused, or any of them, were amongst the group of five or six persons; (2) the learned judge put the issues properly and carefully before the jury and correctly distinguished the cases of each of the three accused persons; (3) the case of the appellant was eminently distinguishable from that of his two co-accused and that the jury could hardly have come to any other conclusion but that the appellant was guilty of the offence with which he was charged.

Lim Chew Yoong v R [1960] MLJ 111 Court of Criminal Appeal, Singapore (Rose CJ, Chua and Ambrose JJ).

Where there is no adequate or proper evidence rebutting an accused's testimony as to the manner in which he spent the moneys in the course of the business, and establishing that he had converted those moneys, which formed the subject matter of the charge, to his own private use, a conviction thereon cannot be supported.

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

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

See CRIMINAL PROCEDURE, Vol 5, para 34.

In a case where the charge contains one or more ingredients or questions and the accused is not represented by counsel, each ingredient and each question involved should be explained by the magistrate himself through the interpreter to the accused.

Koh Mui Keow v R [1952] MLJ 214 High Court, Singapore (Brown J).

Por Choo Aik v Public Prosecutor [1993] 2 MLJ 131 High Court, Kuala Lumpur (Mohd Hishamudin JC).

See CRIMINAL PROCEDURE, Vol 5, para 3105.

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

See CRIMINAL PROCEDURE, Vol 5, para 347.

When an accused person is not represented by an advocate, magistrates should not overlook the provisions of s 202 of the Criminal Procedure Code (Sarawak Cap 58). A note should be made if the said section was complied with.

Kung Siang Ng v Public Prosecutor [1965] 2 MLJ 14 High Court, Sibu (Lee Hun Hoe JC).

A1 was charged with four counts of forging cheques which is punishable under s 467 of the Penal Code (FMS Cap 45). A2-A3 were charged with two counts of abetting X and Y in the commission of the offence of dishonestly using as genuine two of the forged cheques. A1-A3 were tried jointly at the sessions court. A1 and A3 were represented by B but he later discharged himself before the close of the prosecution case. Despite B's discharge, the sessions court judge proceeded with the trial and the prosecution immediately called a police officer as a prosecution witness to tender A1's oral cautioned statement. A1 confessed to the forgery in that cautioned statement. B subsequently informed the court that he would continue to act for A1 and A3. Upon B's objection to the admissibility of A1's cautioned statement, a 'trial within a trial' was held. At the end of the 'trial within a trial', A1's cautioned statement was admitted in evidence. The prosecution case against A1 rested solely on his cautioned statements. The prosecution also sought to introduce A3's cautioned statement. During the 'trial within a trial' in respect of A3's cautioned statement, B once again discharged himself as A1's counsel but continued to act for A3. C then appeared for A1 and he applied for a short adjournment so as to enable him to obtain the notes of evidence of the proceedings. The prosecution objected to C's application and this objection was upheld by the sessions court judge. At the end of the 'trial within a trial', A3's cautioned statement was also admitted in evidence. C subsequently discharged himself as A1's counsel. B did not turn up to act for A3 for the rest of the trial. A2 was represented by another counsel throughout the trial. The sessions court judge called for the defence of A1-A3. A1 elected to remain silent while A2-A3 gave statements from the dock. A1-A3 were convicted of all the charges framed against them. A1 appealed to the High Court against his sentence while A2-A3 appealed against both conviction and sentence. A1 had been imprisoned for more than three years since the date of his conviction. A2-A3 were granted a stay of execution of their imprisonment sentences.

Held: (1) the sessions court judge should have refrained the prosecution from introducing A1's cautioned statement until it was ascertained whether A1 was objecting or not to the admission of his cautioned statement. The sessions court judge should have informed A1 of his right to object to the admission of his cautioned statement and not allow the prosecution to take an unfair or undue advantage over an undefended accused person. A1's 'trial within a trial' was not a proceeding to regularize or justify the admission of his cautioned statement that had already been recorded in evidence; (2) although the court should be strict in dealing with applications for postponement, the court owes a duty to an accused person to ensure that he has the benefit of counsel who would be properly able to act on his behalf. Since C had just been retained, a short adjournment would further the interest of justice as C needed the notes of evidence to be properly prepared to safeguard A1's interest; (3) the appeal record did not show whether the sessions court judge had complied with s 257(1) of the Criminal Procedure Code (FMS Cap 6) by calling the attention of the undefended A1 and A3 to the principal points in the prosecution evidence in order for them to have an opportunity to explain. The appeal record also did not show that the sessions court judge had explained to the undefended A1 and A3 the main points of the prosecution witness' testimony so as to enable them to cross-examine such a witness properly; (4) even without considering the merits in this case, there was a mistrial because the trial had not been conducted in accordance with proper procedure, fairness and justice; (5) in respect of A1, the court would exercise its power of revision and quash his conviction. A retrial would not be fair and proper in A1's case considering his imprisonment since his conviction. A1 was accordingly acquitted and discharged; (6) although A2 had the benefit of counsel, in view of the fact that there was a joint trial and incriminating evidence implicating him was contained in the cautioned statements of A1 and A3, A2's conviction would also be tainted; (7) in respect of A2-A3, they would be re-tried before another sessions court judge.

Awaluddin bin Suratman & Ors v Public Prosecutor [1992] 1 MLJ 416 High Court, Kuala Lumpur (Mohtar Abdullah J).

Awaluddin bin Suratman & Ors v Public Prosecutor [1992] 1 MLJ 416 High Court, Kuala Lumpur (Mohtar Abdullah J).

See CRIMINAL PROCEDURE, Vol 5, para 54.

The appellant was charged with stealing car audio accessories, an offence punishable under s 379 of the Penal Code (FMS Cap 45). The appellant was unrepresented during his trial. The magistrate called for the appellant's defence and explained to him the three options available to him. The appellant elected to give evidence on oath. At the end of the trial the appellant was convicted of the charge and was sentenced to two years' imprisonment. The appellant appealed to the High Court against his conviction and sentence. The appellant argued that the magistrate had failed to comply with s 257(1) of the Criminal Procedure Code (FMS Cap 6) by not drawing to the appellant's attention the points in the prosecution case against him. The appellant also claimed that the magistrate had drawn an adverse presumption against him under s 114(g) of the Evidence Act 1950 because of his failure to call Au Hock as his witness.

Held, dismissing the appeal: (1) the proceedings in the magistrate's court were sufficient to satisfy s 257(1) of the Code; (2) even if there had been an omission under s 257(1) of the Code, the conduct of the appellant's defence had not been prejudiced and s 422 of the Code therefore cured such an omission; (3) the appellant testified that the car in this case was similar to one belonging to his friend Au Hock. The appellant, however, did not call Au Hock to be his witness. The magistrate's comments about Au Hock were prompted by the appellant's evidence and had not gone any further. Accordingly the magistrate had not misdirected herself on this point; (4) the appellant's defence was a mere denial and had failed to cast any reasonable doubt on the prosecution case; (5) the appellant's sentence was affirmed on the following grounds, namely, he was caught red-handed, he had a previous conviction and theft of items in cars is rampant.

Abdul Majid Hamzah v Public Prosecutor Criminal Appeal No 18 of 1989 High Court, Kota Kinabalu (Syed Ahmad Idid J).

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

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

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

[Annotation: See also the cases digested under the subject heading Criminal Procedure (Trial) (Statement from dock).]

The appellant, who was represented by counsel, when called upon for his defence, chose to make a statement. One of the grounds of appeal was that at the close of the defence, the learned President refused to allow counsel to make his submission. Counsel for the defence sought to file with his petition of appeal an affidavit stating that after the appellant had made a statement from the dock, he was not allowed by the learned President to make any submission.

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

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

The appellant, who was charged with murder, elected at the close of the prosecution case to make an unsworn statement. At the end of his statement, the judge put certain questions to him. On appeal, it was argued that the judge was wrong in putting those questions.

Held: (1) an accused person who makes an unsworn statement should not be questioned by the trial judge except for the purpose of clearing up ambiguities; (2) in this case, the questions put went further than mere clarification and actually elicited important facts and admissions which would not otherwise have been before the jury and, moreover, these matters were referred to again in the summing up of the judge; (3) it was impossible to say in these circumstances that the questions did not have the effect of prejudicing the appellant and therefore, the conviction must be set aside.

Suhaime bin Haji Serat v R [1956] MLJ 252 Court of Criminal Appeal, Singapore (Whyatt CJ, Knight and Tan Ah Tah JJ).

[Annotation: See Editorial Note in [1937] MLJ xxxii.]

When an accused elects to make a statement from the dock, he is not subject to cross-examination.

Ip Ying Wah v Public Prosecutor [1958] MLJ 34 High Court, Kuala Lumpur (Buhagiar J).

The erroneous administration of affirmation to an accused person in a preliminary inquiry does not vitiate the proceedings or make the committal order void.

Public Prosecutor v Thamboosamy & Ors [1922] 3 FMSLR 18 Court of Appeal, Federated Malay States (Woodward CJC and Branch JC).

At the trial, the second appellant stated that he wished to call a witness whose name and address he gave. He had not given the name of this witness at the preliminary inquiry, nor to the officer-in-charge of the prison for transmission to the Registrar, Supreme Court, as provided by s 144(iv) of the Criminal Procedure Code (Cap 6). The learned trial judge refused this application.

Held: the learned trial judge should have granted the request of the second appellant to call the witness, as he had given his name and an address within thirteen miles of the court, even though the second appellant had not given the name of the witness at the preliminary inquiry, nor to the officer-in-charge of the prison for transmission to the Registrar, Supreme Court, as provided by s 144(iv) of the code.

Yap Sow Keong & Anor v Public Prosecutor [1947] MLJ 90 Court of Criminal Appeal, Singapore (Willan CJ (Malayan Union).

R v Wong Ki Chin [1955] MLJ 39 High Court, Penang (Spenser-Wilkinson J).

See CRIMINAL PROCEDURE, Vol 5, para 562.

D1-D3 had been charged in the juvenile's court with an offence which was alleged to have been committed in November 1988. The prosecution was conducted by X. X tendered D3's cautioned statement and a 'trial within a trial' was held. Before the conclusion of the 'trial within a trial', the case was adjourned because X went on maternity leave. Subsequently the case was postponed a few times because X was not available to proceed. Y appeared for the prosecution in X's absence. Y could not continue prosecuting on the ground that the prosecution case was already at an advanced stage. The magistrate finally acquitted D1-D3 under s 173(f) of the Criminal Procedure Code (FMS Cap 6) in May 1990. The prosecution appealed to the High Court. D1-D3 firstly argued that before 10 February 1989 the Public Prosecutor had no right of appeal against the decision of a juvenile's court. D1-D3 also contended that it was only from 10 February 1989 onwards, with the enforcement of the Juvenile Courts (Amendment) Act 1989 that the Public Prosecutor had such a right of appeal. D1-D3 thus alleged that since the 1989 Act came into force after the date they were alleged to have committed the offence, the date of their arrest and the date they were first brought to the court, the Public Prosecutor had no right of appeal in this case. D1-D3 further argued that the 1989 Act had no retrospective effect. D1-D3 also claimed that the circumstances of the case meant that the Public Prosecutor had decided not to further prosecute them under s 254(1) of the Code.

Held, allowing the appeal: (1) appeal is part of the judicial process to ascertain one's rights and liabilities. The right of appeal however does not affect one's rights and liabilities. The 1989 Act in conferring on the Public Prosecutor a right of appeal, is therefore procedural in nature because it does not affect a juvenile's rights and liabilities. Accordingly the 1989 Act being procedural in nature had retrospective effect; (2) the 1989 Act also applied in this case because at the time it came into force, D1-D3's trial had not been concluded and they had no right to be protected; (3) the prosecution was thus entitled to appeal in this case; (4) the court cannot acquit an accused under s 173(f) of the Code before the prosecution has closed its case. In this case Y's inability to continue prosecuting in X's absence could not be construed to mean that the prosecution had closed its case. The magistrate could not therefore acquit D1-D3 before the prosecution had adduced 'all such evidence as may be produced in support of the prosecution'; (5) s 254(1) of the Code only applies if the Public Prosecutor has made a policy decision not to further prosecute the accused and has expressly informed the court as such. Since the magistrate had acted in reliance on s 173(f) of the Code in this case, s 254(1) of the Code could not thus apply; (6) D1-D3 were therefore ordered to be re-tried in another juvenile's court.

Public Prosecutor v Pang Wai Kong & Ors [1992] 2 MLJ 204 High Court, Kuala Lumpur (Abdul Aziz J).

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

At the close of the prosecution case, counsel for the accused submitted that the prosecution had failed to establish the charges against the accused. The magistrate, however, heard the prosecution in reply and thereupon called on the accused to enter upon his defence. The accused, through his counsel, then announced that he was 'not putting up any defence'. The magistrate reserved judgment and in a written judgment delivered later acquitted the accused.

Held: in view of the fact that the magistrate heard the prosecutor in reply and had called upon the accused to enter upon his defence, which showed that in his opinion a prima facie case had been made out against the accused, the acquittal was against the weight of evidence and should be set aside.

Public Prosecutor v Man bin Abas [1935] 1 MC 160 High Court, Federated Malay States (Mudie J).

[Annotation: An order of acquittal at the conclusion of the preliminary inquiry is wrong. A preliminary inquiry is not a trial and at its conclusion, there is no delivery of judgment: Re Low Kuan Meng [1962] MLJ 265. An order of discharge at the conclusion of the preliminary inquiry cannot be revised by the High Court so as to substitute an order of acquittal in its place: Lian Boon Khiam & Ors v R [1962] MLJ 18.]

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

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

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

The accused was charged under s 57(1)(a) and (b) of the Internal Security Act 1960 (Revised 1972) with having possession of firearms and ammunition. The prosecution called two main witnesses, PW3 and PW9, both of whom were police officers. PW3 stated that on 6 October 1986 at 6.50am he led a police raid at a house in Air Itam, Penang together with 16 other police officers, including PW9. When they entered the house compound, PW3 saw, at a distance of approximately 12 to 15ft away, the accused walking towards him to the front gate while holding a grey bag ('P4') in his hand. As soon as the accused saw the police, he tried to escape but was apprehended after some struggle. P4 was examined in front of the accused and was found to contain certain firearms and ammunition. No incriminating items were found in the house. PW3 went on to say that at about 9am on the same day, one Sgt Ramli found a closed black steel cylinder ('D22') in the compound outside the house containing one pistol, two revolvers and 109 bullets. PW3 also said that he lodged a police report ('P27') at about 12.30pm on the same day. When PW3 was asked in cross-examination whether he had refreshed his memory with this report, he replied in the affirmative. When in cross-examination PW9 denied the question put to him that the contents of P4 were in fact found in D22 and not in P4, counsel for the defence immediately applied for a court order that a copy of P27 be supplied to him by the prosecution to enable him to cross-examine the witness if necessary. The prosecution objected. Following the court's order that the copy of P27 be supplied to the defence, the prosecution recalled PW3 and formally tendered P27 as an exhibit. He then asked PW3 to explain the very material discrepancy between his oral testimony and P27. This was opposed by the defence counsel.

Held, acquitting and discharging the accused on both charges without calling for his defence: (1) the complete removal of the original provision in s 113(1) of the Criminal Procedure Code ('the CPC') by virtue of Act A324 has the effect of clearly and decisively removing the pre-amendment distinction between first information and non-first information police reports. There was thus no justification for the refusal of the learned deputy public prosecutor to supply a copy of PW3's report to the defence on the ground that the same was not a first information report or for any other reason, it being also a public document by virtue of s 35 of the Evidence Act 1950; (2) the only residual distinction that remains is that whereas a first information report may be tendered and admitted in evidence under s 108A of the CPC, if only due to its value for the purposes of comparing its material with subsequent materials derived from investigations ensuing the first information report, it is nevertheless impermissible to read ss 35 and 157 of the Evidence Act as permitting the prosecution to use statements made and recorded after investigations have commenced, be it in the form of police reports or otherwise, eg non-first information reports, to corroborate the testimony of a witness; (3) a police report is the sort of document which s 107(i) of the CPC says has to be reduced to writing, and as such it is clearly a document in writing within the purview of ss 91 and 92 of the Evidence Act, which excludes the admission of parol evidence for the purpose of contradicting, varying or subtracting from its terms. This was not a case where the prosecution was trying to impeach PW3; (4) and if his oral evidence in court is false, he may be charged under s 194 for having given false evidence. Such evidence which would attract a criminal charge against the witness either way could not be used to found a prima facie case against the accused; (5) if in a case the prosecution leads two sets of evidence, each one of which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the court would be left without reliable and trustworthy evidence upon which the conviction of the accused might be based. The accused inevitably would have the benefit of such a situation; (6) the infirmities and unsatisfactory features in the prosecution's case make it unsafe for the court to call the accused to enter upon his defence. There was, inter alia, no evidence as to where PW3 kept the exhibits and who guarded them during the time between 9am (when the exhibits were found) and 12.30pm (when PW3 lodged the police report). Further, the bullets recovered from P4 and from D22 were not individually marked to distinguish the two respective recoveries; (7) the court agreed that there had been a very deliberate and material suppression of evidence by the prosecution in that P27 was not introduced by the prosecution when PW3 gave evidence contradicting his police report which was in the prosecution's hands. The prosecution only sought to produce P27 for clarification purposes after they were caught with their pants down; (8) in view of PW3's admission that he had reviewed P27 before he gave evidence and had also on occasion even referred to it while he was examined and pointedly cross-examined on the contents of P4 and D22 respectively, he had indeed given evidence in an unethical manner and had utterly discredited himself as a witness; (9) the court views with abhorrence the cavalier manner in which PW3 had held out to the court that what he was seeing was what he was saying, without disclosing the gross discrepancies in what he saw in P27. P27 states, inter alia, that the three revolvers were found in D22, the black metal cylinder outside the house, but yet he testified that the same were found in the grey bag (P4) that the accused was holding when apprehended; (10) as P27 was a report lodged on the day of the offence, it is far more likely that all the offending items in the first and second charges were found in D22 and not on the person of the accused. The basic foundation of the prosecution's case, that the accused was caught red-handed with P4 containing the offending items while walking away from the house, thus crumbles; (11) the contents of PW3's police report and his oral evidence in court cannot both be true. If the police report is false, then PW3 may be charged under s 182 of the Penal Code for having lodged a false report;as PW9 must have been aware of the contents of P27, his evidence is equally discreditable for having chosen to corroborate and support PW3's evidence in almost every detail.

Public Prosecutor v Lee Eng Kooi [1993] 2 MLJ 322 High Court, Penang (Vincent Ng JC).

A1-A2 were charged with causing hurt to X. At the trial the prosecution did not call the investigating officer, Y, as a witness. Y was instead offered to the defence at the close of the prosecution case. The magistrate called for A1-A2's defence. A1-A2 did not call Y to give evidence. At the end of the trial, the magistrate acquitted A1 and convicted and sentenced A2. A2 appealed against his conviction and sentence while the prosecution brought a cross-appeal against A1's acquittal and A2's sentence.

Held, allowing A2's appeal against conviction; dismissing the prosecution's cross-appeal: (1) an investigating officer is an unbiased officer appointed to investigate into a complaint by a complainant who made a police report. He would have in his possession relevant information which could and should be revealed during cross-examination; (2) Y was very material in this case and the failure of the prosecution to call him left serious questions unanswered and this gave rise to a serious gap in the prosecution case; (3) it was not for the defence to call Y to supplement the prosecution case. It is for the prosecution to prove its case. The defence has the right to establish reasonable doubts on the prosecution case during the prosecution case itself; (4) the prosecution evidence in this case fell short of proving a prima facie case by the failure to call Y.

Public Prosecutor v Abdul Majid bin Manap & Anor Criminal Appeal Nos 41-159-89, 41-154-89 and 41-155-89 High Court, Johore Baru (James Foong JC).

The first respondent ('the respondent'), accused of criminal breach of trust, was the Timbalan Pengerusi of Majlis Agama Islam Negeri Johor and by reason of that office, the Yang DiPertua of the Jabatan Agama Johor ('JAJ'). In the day to day running of the Majlis, it was assisted by several committees including the Jawatankuasa Zakat dan Fitrah ('the Committee') which had a bank account with Malayan Banking Bhd, Johore Bahru which constituted a trust fund. The respondent controlled the trust fund. PW7, a clerk at the JAJ, testified that sometime in November 1985 the respondent instructed him to draw two cheques each for RM500,000 but to leave blank the space set out in the cheques for naming the payee ('the name space'). At the same time, the respondent instructed PW7 to prepare vouchers in respect of the cheques and two accompanying letters, the vouchers and letters to bear the name of Malayan United Finance Batu Pahat ('MUF'). PW7 carried out his instructions and handed the two cheques, vouchers and letters to the respondent who signed the cheques and returned all these to PW7. These were countersigned by the secretary of JAJ. The documents were thereafter returned to the respondent. Two fixed deposit receipts ('FDRs') bearing maturity date 2 January 1986 were purportedly issued by MUF and handed to PW7 who kept them in his safekeeping. Over a period of two years the FDRs were renewed from time to time. On the first of these occasions, PW7, as instructed by the respondent, prepared letters addressed to MUF instructing them to renew the fixed deposits for a further period of three months, and the letters of renewal with the two FDRs were handed by PW7 to the respondent to sign. A few days later, the respondent returned to PW7 the two FDRs and a bank draft for RM22,000 representing interest purportedly paid by MUF to the trust fund in respect of the two fixed deposits, to be credited into the trust fund. The same modus operandi applied to subsequent renewals. Subsequently, upon a change of Yang DiPertua, it was discovered that there had been no such deposits with MUF, and a police report was then lodged. A bank officer of Malayan Banking, Batu Pahat testified that the two cheques were paid into the account of one LS Chua, and another officer of Malayan Banking, Johore Bahru testified that the amounts represented by the cheques were debited from the trust fund account. The respondents were acquitted and discharged without their respective defences being called by the sessions court. The judge found that leaving the name space blank could be inferred as an act of negligence. The prosecution appealed.

Held: (1) the conduct of the respondent throughout the transaction was unbusinesslike. It was not normal nor reasonable. It was extraordinary and highly irregular. Coupled with this was the fact that the respondent did not use the normal method of transmission, namely, the post or a courier service, but personally handed the purported transmission of all documents from the JAJ to MUF and vice versa; (2) if a person entrusted with money belonging to another is proved to have acted in relation to that money so as to cause wrongful gain, not necessarily to himself, but to some other person, that person must be held to have used or disposed of that money in breach of trust and to have done so dishonestly; (3) as decider of law, the judge must consider whether there is some evidence (not inherently incredible) which, if he were to accept as accurate, would establish each essential element in the alleged offence (per Lord Diplock, Haw Tua Tua v PP); (4) upon all the evidence adduced by the prosecution, unchallenged by the respondent, there is an irresistible inference to be drawn, namely, that the respondent handed the two cheques to LS Chua, who then inserted his name in each of them as payee and paid them into his account, and that this is what the respondent intended to and knew would happen; (5) the judge should have drawn this inference, and not the inference she in fact drew. She should therefore have called upon the respondent for his defence; (6) the acquittal is therefore set aside and the judge is directed to call upon the respondent for his defence; (7) there is nothing further to consider against the second respondent as the court has disregarded the evidence of LS Chua in considering this appeal and as the grounds of appeal against him were abandoned by the deputy public prosecutor in the course of hearing the appeal. The appeal against the second respondent is thus dismissed.

Pendakwa Raya v Dato' Rahmat bin Asri & Anor Criminal Appeal No 42-5-91 High Court, Muar (Richard Talalla J).

A magistrate is not justified in acquitting an accused person without calling upon his defence when the prosecution has established a prima facie case which, if unrebutted, would have warranted the accused's conviction.

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

Karpal Singh & Anor v Public Prosecutor [1991] 2 MLJ 544 Supreme Court, Kuala Lumpur (Abdul Hamid Omar LP, Ajaib Singh and Jemuri Serjan SCJJ).

See CRIMINAL PROCEDURE, Vol 5, para 3418.

Public Prosecutor v Soon Tiew Choon [1976] 1 MLJ 189 High Court, Ipoh (Hashim Yeop A Sani J).

See CRIMINAL PROCEDURE, Vol 5, para 1933.

The respondent being the managing partner of Soon Teck Finance Co, had been charged with 11 charges under the Moneylenders Ordinance 1959. These 11 charges were consolidated into one charge on the date of hearing. The accused claimed trial on both sets of charges. After hearing two witnesses for the prosecution, the court ordered the trial to proceed on one of the original 11 charges and at the close of the case for the prosecution, the court acquitted the respondent on this charge. Thereupon the prosecution applied for an adjournment of the remaining charges to enable it to call a witness. Counsel for the defence objected to the application whereupon the court made an order of acquittal on the remaining 10 charges.

Held: it was clear from the provisions of the Criminal Procedure Code (Cap 132, 1955 Ed) and on the authority of Kuppusamy v PP [1948] MLJ 25 that the learned magistrate had no jurisdiction to make the order of acquittal which he made.

R v Chong Song Chun [1961] MLJ 313 High Court, Singapore (Wee Chong Jin J).

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

No conviction should be recorded against a person charged before a court with an offence punishable by such court, where the court finds that the charge is proved, but is of the opinion that the offender should be discharged conditionally on his entering into a bond with or without sureties under the provisions of s 183(2) of the Criminal Procedure Code (SS Cap 21). The order in such a case should follow the wording of the section in question.

Public Prosecutor v Jomi [1957] MLJ 192 High Court, Malacca (Smith J).

[Annotation: See Re DE Henry [1958] MLJ 224 where the accused was unconditionally discharged under s 183(2) of the Criminal Procedure Code (SS Cap 21).]

It has frequently been reiterated that unless there is some very good ground to the contrary, the discharge of an accused person should amount to an acquittal: PP v Mat Zain [1949] MLJ 148; Goh Oon Keow & Anor v R [1949] MLJ 35 and Seet Ah Ann v PP [1950] MLJ 239. Spenser-Wilkinson J in varying a magistrate's order by directing that the discharge amounted to an acquittal said: 'If the prosecution are not ready to proceed with their case after reasonable adjournments have been granted, an accused person should not be allowed to suffer from the dilatoriness of the prosecution by being left with a charge hanging over his head indefinitely. Where the prosecution are unable to proceed for the time being owing to the difficulty of obtaining a witness or for some other cause and are able to satisfy the court that they will proceed with the prosecution within a reasonable time, then there would be good grounds for a discharge not amounting to an acquittal. In this case, however, although counsel apparently only asked for a discharge not amounting to an acquittal I think the proper order would have been a discharge amounting to an acquittal.'

Public Prosecutor v Suppiah Pather [1953] MLJ 126 High Court, Penang (Spenser-Wilkinson J).

[Annotation: This case is reported as an Editorial Note. See Ariffin v Public Prosecutor [1935] MLJ 126 and also Tan Ah Chan v R [1955] MLJ 218, where the same learned judge held that unless good cause is shown, the court should order a discharge under s 187 of the Criminal Procedure Code (SS Cap 21) to amount to an acquittal.]

Goh Oon Keow v R [1949] MLJ 35 High Court, Singapore (Murray-Aynsley CJ).

See CRIMINAL PROCEDURE, Vol 5, para 111.

In this case, the accused had earlier been charged with an offence under the Prevention of Corruption Act 1961 (Act 57), but had been discharged not amounting to an acquittal. The accused was subsequently charged with the same offence and produced before the sessions court, Ipoh, whereupon the President struck off the case.

Held: (1) unless there are good grounds to the contrary, a discharge under s 254 of the Criminal Procedure Code (FMS Cap 6) should amount to an acquittal. Good grounds would arise where the prosecution is unable to proceed for the time being, but can satisfy the court that the temporary impediment is not insurmountable and that it will proceed within a reasonable time; (2) an order of discharge not amounting to an acquittal is no bar to a second prosecution and therefore, the order of striking off the case was unjustified and erroneous in law.

Public Prosecutor v Syed Abdul Bahari Shahabuddin [1976] 1 MLJ 87 High Court, Ipoh (Abdoolcader J).

This was an appeal from the order of the learned magistrate at Penang made on 13 June 1967 when the appellant was discharged, such discharge not amounting to an acquittal, on an application by the prosecuting officer. Counsel for the appellant objected strongly thereto and submitted that no grounds had been given in support of the application and therefore, the order should be a discharge amounting to an acquittal. A short adjournment was granted and the prosecuting officer on resumption gave as the reasons for his request: firstly, that a civilian witness was still untraced and subpoena had not been served and secondly, it was intended probably to proceed against the appellant by way of departmental action. The learned magistrate gave as his ground for not granting the appellant's counsel's request that 'I held I had no power under the Criminal Procedure Code to discharge the accused amounting to an acquittal without a trial'. This case related to an offence alleged to have been committed on 28 July 1966 and the summons was applied for almost five months later on 22 December 1966. The case was finally called on 13 June 1967 when the order appealed from was made.

Held: the power enabling the discharge of the accused person without acquitting him is a power which should be exercised sparingly and grudgingly and only where the court is satisfied for good cause shown that the public interest insistently demands that it be used. Our courts have consistently adopted the line that unless some very good ground is shown, it would not be right to leave an individual for an indefinite period with a charge hanging over him. In the circumstances of this case, the order of the learned magistrate should be varied so that the discharge should amount to an acquittal.

Koh Teck Chai v Public Prosecutor [1968] 1 MLJ 166 High Court, Penang (Ong Hock Sim J).

Proceedings had been instituted upon the complaint of a person under s 133 of the Criminal Procedure Code (FMS Cap 6) against the appellant. The complainant appeared at the hearing and asked for an adjournment. The magistrate discharged the appellant, but directed that the discharge should not amount to an acquittal. Against this order the appellant appealed.

Held: except in cases coming within the special circumstances under s 254 of the Criminal Procedure Code (FMS Cap 6), a magistrate cannot acquit an accused person until the evidence for the prosecution has been heard.

Kuppusamy v Public Prosecutor [1948] MLJ 25 High Court, Federated Malay States (Murray-Aynsley J).

The appellant's trial was set down for trial in the subordinate courts. His counsel applied for the dates to be vacated. The appellant was subsequently remanded at the Sembawang Drugs Rehabilitation Centre. The prosecution then applied for an order of discharge not amounting to an acquittal. The appellant appealed and contended that the discharge ought to amount to an acquittal, in the alternative, that the matter be reinstated and disposed of expeditiously.

Held, dismissing the appeal: (1) when the public prosecutor decides to inform the court that he will not further prosecute the defendant upon a charge, he does so in the exercise of his discretion vested in him by art 35 of the Constitution and s 336(1) of the Criminal Procedure Code (Cap 68) ('the CPC'). There is no suggestion that the court may interfere with the prosecutorial discretion to make such a decision; (2) a discharge per se is no more than a mere release from particular proceedings which are being stayed. It is obvious from s 184(1) of the CPC that the court has no discretion when the public prosecutor informs the court that he will not further prosecute the defendant upon a charge. The court's discretion arises only as a result of s 184(2), to direct whether or not such a discharge shall amount to an acquittal; (3) the court's discretion in this respect is not whether an acquittal would entitle the defendant to a plea of previous acquittal under s 239 of the CPC but whether the prosecution may be seen to have unconstrained licence for indefinite and possibly unconscionable delay. This discretion is unfettered and is subject to the usual principles governing the exercise of judicial discretion; (4) the indefinite apprehension of criminal proceedings being recommenced is inevitable in virtually every case in which s 184 is invoked. In many cases the prosecution is not in a position to commit itself to a deadline for such recommencement. It would be an unwarranted restriction to demand such a commitment as it is not required by statute. Such an apprehension is not conclusive but simply a factor to be weighed in the balance with the other circumstances; (5) in this case, there is no reason to think that the prosecution intends to leave matters suspended indefinitely or that it had any improper motive. On the contrary, the appellant is presently undergoing a course of treatment which ought not to be disrupted. Moreover, under s 37 of the Misuse of Drugs Act (Cap 185), the period of treatment is finite.

Arjan Singh v Public Prosecutor [1993] 2 SLR 271 High Court, Singapore (Yong Pung How CJ).

A was charged with abetment of two counts of voluntarily causing hurt and one count of voluntarily causing grievious hurt. On the day of the trial, the prosecution applied for a discharge not amounting to an acquittal because the three complainants had returned to their country.

Held, ordering a discharge amounting to an acquittal: it was clear that the prosecution could not proceed because the complainants had returned to China and their whereabouts were unknown. The prosecution was unable to say if any of the complainants would ever return to Singapore. Under the circumstances it was unfair to leave the charges hanging over the head of the accused. The court exercised its discretion to order a discharge amounting to an acquittal.

Public Prosecutor v Goh Beng Teck Magistrate's Appeal No 35 of 1989 District Court, Singapore (Soon Kim Kwee, District Judge).

The accused was charged with causing mischief under s 427 of the Penal Code (Cap 224, 1985 Ed). On the date of hearing, the prosecution was unable to close its case as a material witness had not attended. Although granted two adjournments, the prosecution could not trace the witness. A third adjournment was refused and the prosecution indicated that it was unable to proceed. The accused applied for a discharge amounting to an acquittal.

Held, allowing the application and acquitting the accused: (1) under s 184 of the Criminal Procedure Code (Cap 68, 1985 Ed) ('the Code'), the court has the discretion to grant discharges and to decide whether these discharges should amount to an acquittal. In exercising its discretion, the court must balance two conflicting interests: that of the public in seeing offenders are punished against that of the accused in being free from a charge hanging over him indefinitely. But the literal words of s 184 clearly envisages discharges not amounting to acquittals as the general rule, not the exception; (2) in the instant case, as five years had elapsed since the commencement of the prosecution, since the missing witness was the representative of the victim company, as the loss suffered by the victim company may be recouped from the accused and as the prosecution had still not traced the witness after more than half a year, it would be unjust to allow the charge to remain hanging over the accused.

Public Prosecutor v Tay Siong Oon [1990] 3 MLJ xxiv Magistrate's Court, Singapore (Surenthiraraj, Magistrate).

A was charged with an offence under s 6(a) of the Prevention of Corruption Act (Cap 241) in July 1985. After repeated adjournment in order to allow the prosecution to trace a crucial witness, the DPP finally applied in February 1987 for a discharge not amounting to an acquittal. The district judge ordered a discharge not amounting to an acquittal under s 184 of the Criminal Procedure Code (Cap 68), declining in the process to follow the decision of a High Court judge on the point. A appeal against this order.

Held, allowing the appeal: (1) s 184 of the CPC gives to the court an unfettered discretion to direct in an appropriate case that a discharge shall amount to an acquittal; (2) in the instant case five years had elapsed since the charge was first brought against A. The prosecution had ample time to trace the witness, who still could not be found. It was unfair to A to have the charge hanging over his head indefinitely; (3) the district judge had declined to follow the decision of the High Court apparently on the basis that it was per incuriam. A lower court has no power to depart from a binding decision on the basis that is per incuriam. The High Court decision was in any case not per incuriam and the district judge was wrong not to have followed it; (4) the appeal was allowed and A was acquitted.

Goh Cheng Chuan v Public Prosecutor [1990] 3 MLJ 401 High Court, Singapore (Thean J).

The five respondents were jointly charged with the offence of gambling a game of 'See Goh Lak' in a public place punishable under s 7(2) of the Gambling Ordinance 1957 (Cap 138) ('the Ordinance'). The respondents pleaded guilty. The prosecution tendered one porcelain bowl and three dices as evidence. The learned magistrate dismissed the charge and released the respondents unconditionally on the ground that the game 'See Goh Lak' was not prohibited in the Ordinance. In his grounds of decision, he stated that he exercised his discretion to discharge the respondents unconditionally pursuant to s 173(g) of the Criminal Procedure Code (FMS Cap 6) ('the CPC'). The public prosecutor appealed, contending, inter alia: (1) that since the respondents pleaded guilty, it was not incumbent upon the prosecution to prove the modus operandi of the case and whether it was a game for money or money's worth; and (2) alternatively, that since the respondents had pleaded guilty to something which was not an offence, the learned magistrate could not accept the plea but should have rejected it and set the case down for trial.

Held, dismissing the appeal: (1) the learned magistrate arrived at his decision after having considered the evidence contained in the brief facts of the case and other exhibits tendered. It could not be on account of him considering it 'at any previous stage of the case' as spelt out under s 173(g) of the CPC. The learned magistrate had fallen into error by quoting s 173(g) of the CPC as the basis for the exercise of his discretion. The discharge under s 173(g) cannot amount to an acquittal; (2) under the law, if the discharge amounts to an acquittal, the respondents cannot be prosecuted any further on the same charge after the order made unless and until the order is set aside by the appellate court. If the discharge does not amount to an acquittal, the prosecution's prerogative remains as to whether in the future the respondents would or would not be charged on the same charge; (3) having heard all the prosecution's evidence as contained in the brief facts of the case, an accused is entitled to an acquittal if upon such hearing the court finds that no case against him has been made out which if unrebutted would warrant his conviction; (4) the learned magistrate by discharging the respon-dents unconditionally has found that the prosecution has not proved the charge, ie it has failed to make out a prima facie case. The discharge must therefore be construed as amounting to an acquittal notwithstanding that he said that he was acting pursuant to s 173(g) of the CPC. His error has not occasioned a failure of justice and therefore is curable by s 422 of the CPC; (5) the discharge must be one of acquittal under s 173(f); (6) the game of 'See Goh Lak' was not one of those specified in the First or Second Schedule to the Ordinance; (7) it is the cardinal principle of criminal law that the prosecution must prove its case beyond a reasonable doubt. The mere presence of the exhibits at the scene or mere possession of them by the respondents cannot be an inference that the game they played was one of chance or mixed chance and skill or for money or money's worth; (8) in the circumstances, the place where the game was played cannot be said to be a common gaming house and the game played by the respondents was not gaming within the meaning of the Ordinance. Hence, the fact that it was played in a public place would not contravene s 7(2) of the Ordinance; (9) the learned magistrate was obliged to set the case down for trial and reject the plea only in circumstances under s 173(c), which was not the case here for the respondents pleaded guilty unequivocally and did not claim to be tried.

Public Prosecutor v Ng Mong Kia & Ors [1993] 3 CLJ 384 High Court, Kuching (Abdul Kadir J).

In this case, at the trial, the prosecution indicated to the court that the complainant, whose motor cycle was alleged to have been stolen by the respondent, had not been traced and an adjournment was requested. When the learned magistrate indicated his disinclination to grant the adjournment, the prosecuting officer suggested a discharge. The magistrate thereupon discharged him, such discharge amounting to an acquittal.

Held: (1) the case of Koh Teck Chai v PP [1968] 1 MLJ 166 refers to a case where the prosecution indicates to the court under s 187(1) Criminal Procedure Code (SS Cap 21) that it does not propose to carry on with the charge and has no relevance to a case where the prosecution wants to carry on with the charge against the accused, but for the moment is unable for some reason to do so; (2) where the material witnesses are untraceable and there is no reasonable prospect of their coming forward, the prosecution should act under s 187 of the Criminal Procedure Code (SS Cap 21) or enter a nolle prosequi; (3) in this case, the order of acquittal and discharge should be set aside and the accused be ordered to stand trial on the charge preferred against him.

Public Prosecutor v Khoo Kay Jin [1973] 1 MLJ 259 High Court, Penang (Chang Min Tat J).

The defendant was alleged to have neglected to exercise due control over his motor car on 14 August 1973 at about 11.00 p.m. at Bulatan Data, Kuala Lumpur. The return date of the summons was 24 October 1974. When the case came up for hearing on 11 November 1974, the prosecution said that its witnesses were not available and hearing was postponed to 28 November 1974. On the adjourned date, the prosecution said an important witness was absent and the magistrate discharged the defendant not amounting to an acquittal. Thereafter, the prosecution applied for a fresh summons. The hearing date was adjourned again as the magistrate was on leave. When the defendant appeared on 23 December 1975, the prosecution sought for an adjournment on the grounds that investigation had not been completed. Counsel for the defendant objected on the grounds that there had been several postponements in the past and the charge should not be left hanging on the defendant's head for so long. The magistrate thereupon acquitted and discharged the defendant. The case had been called for on revision and the question before the court was whether the magistrate was right in making the order of acquittal at that stage.

Held, setting aside the magistrate's order of discharge and acquittal: (1) the prosecution's case had not been heard and the only power the magistrate had was to order a discharge under s 173(g), Criminal Procedure Code (FMS Cap 6) such discharge not amounting to an acquittal. In any event, a magistrate may only exercise his powers under s 173(g), Criminal Procedure Code (FMS Cap 6) if he considers the charge to be groundless. The magistrate therefore had no power to order an acquittal; (2) according to art 145 of the Federal Constitution, only the Attorney General has the power to institute, conduct or discontinue any proceedings for an offence. Until he makes up his mind, the courts have to wait. Magistrates therefore have no business to usurp the functions of the Attorney General. If the police are slow, complaints should be made to the Attorney General who in the final analysis is answerable to Parliament.

Public Prosecutor v Hettiarachigae LS Perera [1977] 1 MLJ 12 High Court, Kuala Lumpur (Harun J).

A was charged with harbouring R having reason to believe that he had committed robbery. As R had not been dealt with yet, the proceedings against A were stayed until after the trial of R. A applied for a discharge not amounting to an acquittal on the ground that she would otherwise be remanded for a long time as the trial of R would not take place for some time.

Held, dismissing the application: A had been offered bail of S$5,000, which was a reasonable sum. She was unable to raise the money. The court felt that there was a strong likelihood of A absconding if she was released without bail, especially since A was a foreigner. The fact that A was unable to raise bail was not a ground upon which to grant her a discharge not amounting to an acquittal.

Isidra D Tomopiat v Public Prosecutor Magistrate's Appeal No 355 of 1988 District Court, Singapore (Colin Chai, District Judge).

The respondent was charged with an offence to be tried on 28 April 1993. On that date the prosecution was unable to proceed as the prosecutor had confused the hearing dates and no witnesses had been subpoenaed to attend court. The district judge granted a discharge not amounting to an acquittal. The prosecution appealed. It was argued by counsel for the respondent that if the respondent had forwarded similar reasons for an adjournment it would not have been granted and therefore there was no good reason to grant the prosecution an adjournment.

Held, allowing the appeal; (1) in ordering a discharge the district judge had relied on s 184 of the Criminal Procedure Code (Cap 68) ('the CPC'). It was quite clear that the staying of proceedings and the discharging of the defendant under this section were contingent upon the Public Prosecutor informing the court that he will not further prosecute the defendant upon the charge. In other words, the court had no jurisdiction to stay proceedings and discharge the defendant under this section in the absence of such information. In the present case not only was such information absent but quite the contrary, the court was informed that the prosecution had every intention of prosecuting the respondent upon the charge, only not on that date. The district court had no jurisdiction to stay the proceedings or to grant a discharge not amounting to an acquittal; (2) (obiter) the Constitution and the CPC conferred on the Attorney General a status which was denied to all other parties appearing before the court. He was specifically given the power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence. In him was vested the control and direction of criminal prosecutions and proceedings under the CPC. In the performance of his duties, he had the right of audience in, and took precedence over any other person appearing before, any court or tribunal in Singapore. Thus it was unsound to contend generally that, ceteris paribus, an argument which availed the Public Prosecutor in any case ought also to avail the defence in the same case.

Public Prosecutor v Kolandavelu [1993] 3 SLR 446 High Court, Singapore (Yong Pung How CJ).

The accused was charged with an offence under s 11(3) of the Trade Description Act 1972 under the first summons. The hearing was fixed on 10 December 1991 but the prosecution was unable to proceed and the magistrate ordered that the accused be discharged, the discharge not amounting to an acquittal. Subsequently, the prosecution preferred a fresh charge against the accused under a fresh second summons. The magistrate dismissed the second summons by holding that the time limit required to prosecute the accused in the second summons had lapsed under s 19 of the Trade Description Act 1972. The public prosecutor appealed, arguing that the second summons should be regarded as part of a continuing process arising from the first summons, notwithstanding the fact that the second summons was filed and registered after the expiration of the three-year limitation period and consequent upon the order of discharge not amounting to acquittal.

Held, dismissing the appeal: (1) the effect of the order of discharge not amounting to acquittal would put an end to the prosecution arising from the first summons although there was still a discretion given to the prosecution to file a fresh charge which might be on similar facts; (2) where the prosecution had decided to file a fresh charge under a fresh criminal summons, it had to be regarded as having commenced from the date of the said summons containing the fresh charge. The prosecution under the second summons was instituted more than three years after the commission of the offence and time had lapsed.

Public Prosecutor v Sim Lee Kun Criminal Appeal No 50 of 1994 High Court, Sibu (Steve Shim J).

This was a revision of a case pursuant to s 325 of the Criminal Procedure Code (Cap 62) upon the application of the Public Prosecutor. In the magistrates court, the accused had claimed trial to a charge under s 411 of the Penal Code (FMS Cap 45) and his hearing was scheduled for 28 October 1991. However from then on the hearing never took place owing to four adjournments, three at the instance of the prosecution and one at the court's instance and the hearing was adjourned to 28 October 1993. On this date, when the case was supposed to proceed to trial, the prosecuting officer asked for an adjournment to enable the matter to be referred to the Deputy Public Prosecutor to determine whether to proceed or to withdraw the charge against the accused. There was no objection from counsel for the accused. The case was adjourned to 25 November 1993 and on this date the court was informed by the prosecuting officer that his instructions were to proceed with the case and that the instructions came from his superior officer and not the Deputy Public Prosecutor. The magistrate, however, ordered that the investigation papers be referred to the Deputy Public Prosecutor and adjourned the case for further mention to 17 December 1993. On this date, the prosecuting officer informed the court that he had forwarded the investigation papers to his immediate boss to be forwarded to the Deputy Public Prosecutor but the file was never sent. He had however been instructed to proceed by the OCP upon direction by the OCCI. Counsel for the accused, however, asked the court for a discharge not amounting to an acquittal as the adjournments due to the failure of the prosecution to obey the court's instruction had caused unnecessary hardship to his client. The magistrate ordered a discharge not amounting to an acquittal as the order to refer the file to the Deputy Public Prosecutor was disobeyed.

Held, setting aside the order and ordering a retrial before another magistrate: (1) the power and authority of the magistrate in such a case was to hear, try, determine and dispose of the case in a summary way and that of the Public Prosecutor was to have control and direction of the prosecution and proceedings which prosecution before a magistrate's court was to be conducted by police officers not below the rank of Inspector acting on the Public Prosecutor's behalf. Each body has no control or supervisory power over the other in connection with their respective matters. Although in some instances the magistrate may advise the prosecuting officer to have certain matters referred to the Public Prosecutor to enable the smooth functioning of proceedings, the ultimate decision remains with the prosecution. The advice of the magistrate cannot be construed as an order, non-compliance of which would constitute contempt; (2) the magistrate had erred when he ordered a discharge not amounting to an acquittal as the order could only be made when the court considered the charge to be groundless or, in a private summons case, on the day fixed for hearing of the case the complainant is absent and the offence may lawfully be compounded, or when an application made by the prosecution was turned down by the court and the prosecution was unable to proceed with the trial. Here, the magistrate made the order on the ground that those in the police department refused to comply with his order that the investigation papers be referred to the Deputy Public Prosecutor.

Public Prosecutor v Hon Jiew Criminal Revision No KG 2 of 1994 (II) High Court, Kuching (Abdul Kadir Sulaiman J).

In Magistrate's Appeal No 78 of 1984, Arnold Ah Chak, a detective sergeant of the Singapore Police Force, faced two charges that he on two different days in June 1983 did corruptly obtain for himself from two prostitutes gratification in the form of sexual intercourse as inducements to return them their passports and not putting them on the blacklist for immigration purposes. He was alleged to have committed offences under s 6(a) of the Prevention of Corruption Act (Cap 104, 1970 Ed). When the case was called on for hearing on 26 March 1984, the learned Deputy Public Prosecutor applied for the accused to be discharged not amounting to an acquittal in respect of the two charges as the prosecution could not go on due to the fact that the two prostitutes, as principal witnesses for the prosecution, were not available. The learned district judge ordered that the accused be discharged not amounting to an acquittal on the two charges. His sole ground was that the prosecution was unable to proceed because of the unavailability of the two witnesses. Since it was not withdrawing the charges, the prosecution had not informed the court that '(it) will not further prosecute the (accused) upon the charge(s)' within the meaning of that phrase (as substituted) in sub-s 183(1) of the Criminal Procedure Code (Cap 113, 1970 Ed). He accordingly held that 'there was nothing (in the provisions of the Criminal Procedure Code) which could empower (him) to discharge the accused amounting to an acquittal'. In Magistrate's Appeal No 41 of 1984, K Abdul Rasheed was charged with the offence of having, in May 1982 with two named persons and in furtherance of their common intention, committed theft of two sums of cash under s 380 read with s 34 of the Penal Code (Cap 103, 1970 Ed). When the case came on hearing on 16 February 1984 before the learned district judge, the prosecuting officer applied for an order that the accused be given a discharge not amounting to an acquittal. Counsel for the accused objected and asked for an acquittal. The case was stood down. At the resumption of the case in the afternoon, the district judge understood the prosecution to say that it was not withdrawing the charge, although the records show that the prosecution had merely renewed its application for a discharge not amounting to an acquittal. The prosecution did not inform the court of the reason or reasons why it was not going on with the prosecution beyond that stage.

Held: (1) in exercising its power under s 183(2) of the Criminal Procedure Code, a court must bear in mind and give due regard to the right of the prosecution to proceed at a later stage. On the other hand, there is ample persuasive authority for the proposition that unless some good ground is shown, it would not be right to leave an individual saddled with a charge in which proceedings are stayed for an indeterminate period; (2) in Ah Chak Arnold's case, the learned district judge had misdirected himself, in that he had proceeded on the erroneous basis that he had no power to direct an acquittal because the prosecution had not informed the court that it will never ever prefer the same charges against the appellants. The court would therefore direct that the discharge in Magistrate's Appeal No 78 of 1984 shall amount to an acquittal; (3) in K Abdul Rasheed's case, there was no consideration given at all to the question whether or not it was unfair to subject the accused to a charge hanging over his head for an indefinite period. From the grounds of decision of the learned district judge, it was implicit that the practice of the court was to order a discharge not amounting to an acquittal if the prosecution indicated that it was not withdrawing the charge. If this was the practice, it was clearly wrong. The appeal in this case should therefore be allowed.

Abdul Rasheed v Public Prosecutor; Ah Chak Arnold v Public Prosecutor [1985] 1 MLJ 193 High Court, Singapore (Lai Kew Chai J).

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

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

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

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

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

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

The effect of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim res judicata pro veritate accipitur is no less applicable to criminal as to civil proceedings and accordingly, where the accused has been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the retrial on the first charge and the accused was equally entitled to rely on his acquittal, in his defence at the retrial, since the facts proved in support of the one charge were clearly relevant to the other.

Sambasivam v Public Prosecutor [1950] MLJ 145 Privy Council Appeal from Federation of Malaya (Lord Simonds, Lord MacDermott, Lord Reid, Sir John Beaumont and Sir Lionel Leach).

In this case, the appellant was originally charged on three charges of taking gratification as a public servant in contravention of s 161 of the Penal Code. The first of these charges was dismissed and the case proceeded on the remaining two charges. At the end of the prosecution case, the learned President of the Sessions Court found that the appellant had no case to answer on the second charge and the appellant was acquitted on this charge. He also ordered that there was a case to answer on the third charge. The appellant thereupon proceeded with his defence and he was convicted and sentenced upon that charge. In his grounds of judgment, the learned President stated (inter alia) that he found as a fact that Lee Koi, that is the person concerned in the second charge, did give money to the appellant and this was one of the grounds on which he refused to accept the appellant's explanation in his defence.

Held: as the appellant had been acquitted on the second charge, the learned President should have accepted this as establishing the innocence of the appellant on that charge and he had misdirected himself in taking into consideration the evidence on the second charge and in relying on it in coming to his decision.

Murugiah v Public Prosecutor [1950] MLJ 282 High Court, Ipoh (Thomson J).

In this case, the question arose in the course of a trial upon a charge of carrying a firearm under reg 4 of the Emergency Regulations 1948. The accused had previously been charged with the offence of consorting under reg 5(1), and had been acquitted of that charge. As part of the evidence to substantiate the charge of carrying a firearm, it was proposed to call as a witness the person with whom the accused was alleged to have consorted, and the learned judge ruled that any evidence which tended to show that the accused had been guilty of the offence of consorting was inadmissible upon the charge of carrying a firearm, and in consequence of this ruling the witness was not called. This question was referred to the Court of Appeal upon a certificate by the Attorney General under s 33 of the Courts Ordinance 1948. During the course of the argument the Attorney General was given leave to amend the wording of his reference, which as amended read as follows: 'Whether evidence, otherwise relevant and admissible, which shows or tends to show that an accused person had committed an act constituting an offence or part of an offence in respect of which he has been acquitted at a previous trial, is inadmissible at a subsequent trial even if the acts sought to be proved are so connected with the offence subsequently charged as to form part of the evidence upon which it is to be proved.'

Held: the law is that evidence which shows or tends to show that an accused person was guilty of an offence of which he had been acquitted is admissible at a subsequent (or the same) trial upon a different charge, provided that (a) the evidence is so connected with the offence charged as to form part of the evidence upon which it is to be proved; and (b) the evidence would not have been sufficient to establish the charge of which the accused was acquitted. To this extent, and with the limitation contained in (b), the answer to the reference is that such evidence is not inadmissible. Sambasivam v PP [1950] MLJ 145 distinguished. Murugiah v PP [1950] MLJ 282, in so far as it purports to be authority for excluding any evidence which tends to show that the accused was guilty upon a charge of which he has been acquitted in considering his guilt upon another charge, is overruled.

Public Prosecutor v Loh Swee Kon & Anor [1951] MLJ 159 Court of Appeal, Federation of Malaya (Foster Sutton CJ (FM).

The defendants had been charged for an offence under s 12 of the Merchandise Marks Ordinance 1950. At the hearing, counsel for defendants informed the court that the three defendants were agreeable to compounding the case under s 30 of the ordinance on certain terms, which included that the defendants should plead guilty and that the prosecution should not press for a deterrent sentence. Accordingly the defendants pleaded guilty, the facts were given and the defendants were acquitted and discharged.

Held: (1) the procedure adopted in this case was not that which should be done where it is intended to compound a case. The practice is for the prosecutor to apply to the court for permission to compound the case or to inform the court that the parties have come to a settlement; (2) as the defendants had pleaded guilty, the magistrate was bound under s 182(m)(ii) of the Criminal Procedure Code (Cap 21) to pass sentence according to law: the order of acquittal and discharge is contrary to s 182(m)(ii) of the Criminal Procedure Code and is further not authorized under s 30(4) of the Merchandise Marks Ordinance, which merely says that the compounding, if allowed, should have the effect of an acquittal, so that if proceedings should be subsequently instituted upon the same facts the defendants could plead 'autrefois acquit'; (3) in the circumstances, the order of acquittal and discharge must be set aside and instead, the defendants bound over under s 290 of the Criminal Procedure Code to be of good behaviour for one year.

Re Chang Cheng Hoe & Ors [1966] 2 MLJ 252 High Court, Penang (Ong Hock Sim J).

The respondents were charged under s 148 of the Penal Code (Cap 224) on 5 June 1992. After several adjournments, a pre-trial conference was scheduled for 28 November 1992. The pre-trial conference was then adjourned on several occasions due to the prosecution's inability to procure the relevant investigation papers. On 29 January 1993, the Registrar of Subordinate Courts wrote to the Attorney General expressing his concern and dissatisfaction over the delays. The pre-trial conference was then fixed for 27 March 1993 but the prosecution did not have the necessary papers also on this occasion. The defence counsel for the respondents applied for a discharge and the district judge ordered a discharge not amounting to an acquittal in exercise of powers vested in him under s 184 of the Criminal Procedure Code (Cap 68). The public prosecutor appealed to the High Court.

Held, allowing the appeal: (1) the trial of the respondents commenced on the day the plea was taken in the subordinate courts and the respondents in this case claimed trial; (2) the district judge had no powers to order a discharge under s 184 unless and until the public prosecutor informs the court that he will not further prosecute the respondents and in the instant case, the public prosecutor did not inform the court that he will not further prosecute the respondents; (3) the learned district judge can only exercise his powers to grant a discharge amounting to an acquittal or otherwise after the public prosecutor informs him that he will not further prosecute the person charged; (4) this conclusion is also supported by provisions in the Constitution and the Criminal Procedure Code (Cap 68) which gives the public prosecutor unfettered control over all criminal prosecutions and proceedings; (5) such powers conferred upon the public prosecutor must be exercised conscientiously, with restraint and in tune with changing times.

Public Prosecutor v Chieu Poi Guan & Ors Magistrate's Appeal No 170 of 1993 High Court, Singapore (Yong Pung How CJ).

Koh Teck Chai v Public Prosecutor [1968] 1 MLJ 166 High Court, Penang (Ong Hock Sim J).

See CRIMINAL PROCEDURE, Vol 5, para 79.

Public Prosecutor v Hettiarachigae LS Perera [1977] 1 MLJ 12 High Court, Kuala Lumpur (Harun J).

See CRIMINAL PROCEDURE, Vol 5, para 87.

A magistrate can only discharge an accused person under ss 171(g), 171(n) or 252(i) of the Criminal Procedure Code 1926 in a summary trial. Apart from these exceptions, a magistrate must acquit or convict the accused.

Abdullah v Public Prosecutor [1935] MLJ 145; [193334] FMSLR 360 High Court, Federated Malay States (Howes J).

On a charge of theft, the prosecution having established a prima facie case which, if unrebutted, would have warranted the accused's conviction, the magistrate is not justified in acquitting the accused without calling upon the defence.

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

In this case, the Public Prosecutor appealed against the acquittal of the accused in respect of 3 charges under s 12(1)(d) of the Passports Act 1966 (Act 150). That section provides that any person who with intent to obtain for himself or any other person a passport or other travel document knowingly makes any false statement which to his knowledge is false in any material particular shall be guilty of an offence punishable under that section. The charges were that the accused knowingly made false statements separately on the application forms of W, L & M respectively to the effect that he had known these applicants for a certain number of years and signed against those statements with the name 'Mohd Kassim bin Yatim, PJK'. The court was told that it had been the practice for the immigation officers to accept recommenders for applications for passports from amongst persons who are holders of PJKs. The applicants testified that their application forms were filled up by a certain Chinese petition writer who typed out the particulars in the forms and who also told them he could find a suitable recommender for them. The forms were returned to the applicants and the recommendation made and appeared to have been signed by a person named 'Mohd Kassim bin Yatim, PJK'. The applicants paid the petition writer a sum of money for the recommendation. They testified that they never saw much less knew who the said 'Mohd Kassim bin Yatim' was and therefore to that extent the statements in the applications were false. As the Chinese petition writer could not be traced by the prosecution, there was an absence of a direct link were false. As the Chinese petition writer could not be between those signatures and the accused. The prosecution adduced evidence of other witnesses who were familiar with the accused's handwriting and signature and also the evidence of the handwriting expert. The learned President concluded that the handwriting expert was not absolutely certain that the signatures were made by one and the same person and on that ground alone acquitted and discharged the accused.

Held, dismissing the appeal: (1) evidence of experts can never go beyond an opinion and can never therefore be of absolute certainty. It has always been accepted that expert evidence especially of handwriting can never be conclusive; (2) in this case, it could not be said that at the close of the prosecution evidence, the prosecution had established a prima facie case, which if unrebutted would warrant a conviction, and therefore the respondent was rightly acquitted and discharged.

Public Prosecutor v Mohamed Kassim bin Yatim [1977] 1 MLJ 64 High Court, Ipoh (Hashim Yeop A Sani J).

Merely to record the word 'doubtful' is not sufficient. It is ambiguous and does not convey any sense.

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

See CRIMINAL PROCEDURE, Vol 5, para 914.

This was an appeal against the conviction of the appellant on a retrial on a charge of criminal breach of trust. The principal ground of appeal was that the appellant was entitled to the benefit of the plea of autrefois acquit on the ground that his original conviction had been set aside.

Held: where an appellate court in an appeal from a conviction reverses the conviction, it should either acquit or discharge the accused or it should order a retrial by a competent court and if it fails to follow either of these courses and if there is no question of the trial in the court a quo being a nullity, then the order setting aside the conviction must be held to be an acquittal.

Ariffin v Public Prosecutor [1953] MLJ 126 High Court, Ipoh (Thomson J).

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

See CRIMINAL PROCEDURE, Vol 5, para 914.

The expression 'cautioned and discharged' is not authorized by law and it is not satisfactory in practice because it leaves the matter in doubt whether the court actually found the accused guilty of an offence or not.

Mekte Awang v Che Maste Awang [1948] MLJ 36 High Court, Malayan Union (Taylor J).

Public Prosecutor v Lee Chan Sang [1989] 1 MLJ 224 Supreme Court, Malaysia (Hashim Yeop A Sani Ag CJ (Malaya).

See CRIMINAL PROCEDURE, Vol 5, para 1679.

In this case, a complaint was laid by the petitioner before a magistrate in respect of an offence under s 323 of the Penal Code (Cap 119, 1955 Ed) and after the matter had been referred to the police for investigation, the magistrate issued a summons against one Fong Kei Kwong under s 325 of the Penal Code, which according to Schedule C of the Criminal Procedure Code (Cap 132, 1955 Ed) is not triable by a magistrate. When the case came up for mention before a magistrate, the Deputy Public Prosecutor informed the court that the prosecution had instructions to withdraw the charge. The learned magistrate discharged the accused, the discharge amounting to an acquittal. The petitioner thereupon applied to the court for revision of the summons. A preliminary question was raised as to whether a complainant such as the petitioner should be granted audience at the hearing of the petition for revision in the exercise of the court's discretion.

Held: (1) in the circumstance of this case, the court would exercise its discretion to hear the complainant or his counsel on his behalf and counsel for the complainant should be given permission to represent the complainant on the revision; (2) the learned magistrate in this case had no jurisdiction to try the offence under s 325 of the Penal Code and therefore, had no power to acquit; (3) as there had been a glaring excess of jurisdiction in this case, the court would exercise its power of revision by altering the order of the magistrate and expunging the words 'amounting to an acquittal'.

Ee Yee Hua v Public Prosecutor [1969] 2 MLJ 123 High Court, Singapore (Winslow J).

The appellants were charged with various offences against Proclamation No 43. Certain charges were withdrawn and in respect of these the learned district judge made an order of discharge not amounting to an acquittal. Against this order, there was an appeal. The learned Chief Justice altered the order to one amounting to an acquittal. He pointed out that the power given by s 187 of the Criminal Procedure Code to the prosecution may, unless vigilance is displayed by courts of summary jurisdiction, result in oppression and that it is the duty of such courts to prevent this.

Goh Oon Keow v R [1949] MLJ 35 High Court, Singapore (Murray-Aynsley CJ).

Unless good cause is otherwise shown the court should order a discharge under s 187 of the Criminal Procedure Code (Cap 21), such discharge amounting to an acquittal.

Tan Ah Chan v R [1955] MLJ 218 High Court, Penang (Spenser-Wilkinson J).

The accused was charged with robbery. It appeared he had been previously charged with the offence, but the charge had been withdrawn and he had been discharged, the discharge not amounting to an acquittal. In the course of his judgment, Callow J dealt with various unsatisfactory features of the trial and inter alia ruled: when a charge is withdrawn and the accused discharged, the discharge should amount to an acquittal unless good cause is otherwise shown. An accused person is entitled to trial and determination; only in exceptional circumstances should the charge be permitted to remain indefinitely held against him.

Public Prosecutor v Mat Zain [1948-49] MLJ Supp 142 High Court, Alor Setar (Callow J).

On the withdrawal of a charge by the prosecution against the accused on a charge under the Betting Ordinance, the magistrate made an order of discharge simpliciter and not an acquittal.

Held: where the prosecution withdraws a charge, it has been the established practice to acquit the accused.

Public Prosecutor v Ng Nam Onn [1964] MLJ 455 High Court, Kuala Lumpur (Ong J).

The deceased was convicted of the charge of corruptly accepting a gratification under s 4(a) of the Prevention of Corruption Act 1961 (`the Act') and was sentenced to a day's imprisonment and a fine of RM4,000 in default to one year's imprisonment. He was also ordered to pay a penalty of RM500 to the Government of Malaysia pursuant to s 13 of the Act which provided that the penalty shall be recoverable as a fine. He paid both the fine and the penalty. The deceased appealed against the conviction. While the appeal was still pending and before the hearing thereof had commenced, the deceased died. When the appeal came on for hearing at the High Court, upon knowledge of the death of the deceased, the deputy public prosecutor submitted that the effect of the death on the appeal was finally to abate the same having regard to s 320 of the Criminal Procedure Code (FMS Cap 6) (`the Code'). The appellate judge held that the widow of the deceased had no legal interest in the outcome of the appeal and since the fine and the penalty were paid by the deceased before his death, and without the benefit of an equivalent provision like s 70 of the Indian Penal Code, the widow had no locus standi to prosecute the appeal (see [1994] 3 MLJ 434). He further held that the clear words in bracket of the second limb in s 320 of the Code refer only to an appeal against a sentence of fine and could not be read to include a composite sentence of both imprisonment and a fine plus a penalty as in the present case. The widow of the deceased, desirous of pursuing the appeal, referred the following questions of law to the Supreme Court under s 66(1) of the Courts of Judicature Act 1964 (since repealed): (i) whether by reason of s 320 of the Code, an appeal by an accused to the High Court from conviction and a composite sentence of fine and imprisonment passed against him by the sessions court, in respect of offences of corruptly accepting and corruptly soliciting a gratification in contravention of ss 4(a) and 3(a) respectively of the Act, finally abates on the death of the appellant during the pendency of the appeal; and (ii) whether the legality or propriety of such composite sentence of fine and imprisonment necessarily involved an examination of the validity of the conviction itself.

Held: (1) appeals by the Public Prosecutor when an accused person had been acquitted pursuant to s 306 of the Code, and appeals against conviction where the only sentence imposed was that of imprisonment would abate on the death of the accused during the pendency of the appeal; (2) the rule of abatement of criminal appeals contained in s 320 of the Code would not apply to appeals from a sentence of fine or a composite order of sentence combining the substantive imprisonment with fine; (3) when considering appeals which survived notwithstanding the death of the accused during their pendency, the legality or propriety of the sentence of fine was, of course, open to challenge and consequently, the validity of the conviction was also open to challenge. It followed that if the conviction was unsustainable, the sentence, whatever it may be, would have to be set aside.

Choo Cheng Liew (representative of the estate of Sunny Yap Eu Leong, deceased) v Public Prosecutor [1997] 1 MLJ 345 Federal Court, Kuala Lumpur (Eusoff Chin Chief Justice, Edgar Joseph Jr And Wan Adnan FCJJ).

The respondent was charged but acquitted on two similar charges for knowingly living on the earnings of two prostitutes. On 16 April 1996, the anti-vice officers from CID carried out a sting whereby two male anti-vice officers checked into a hotel room and dialled a number 7334267 to procure the services of two prostitutes. The officer spoke to a female, one Anna, to book two prostitutes, and the number he called was traced to a handphone by the number 98183928. When the prostitutes arrived, they said they were sent by Anna and were to receive S$200 each. Both prostitutes were detained and questioned. They said they were driven to the hotel by one Lim How Kim (Lim) who was subsequently detained when he came in a car to pick them up. The respondent and her husband were later arrested, but a search of their premises revealed nothing. The respondent, however, stated in her police statement that the handphone by the number 98183928 belonged to her and she used it exclusively but, she claimed, it was lost a few days ago. She also admitted in her statement that she was the one who placed a newspaper advertisement for facial services wherein it was stated that anyone interested could call Anna at 7334267. At the close of the prosecution's case, the trial judge was not satisfied that a case against the respondent had been made out with respect to the two charges. The prostitutes testified that they worked for Lim and had never met Anna. Lim also testified that he took their earnings and did not give any commission to the respondent whom he claimed he did not know. The trial judge found that there was insufficient evidence to prove that the respondent was the person who took the bookings for the prostitutes, especially when access to a handphone could have been obtained by anyone. Hence, he acquitted the respondent. The prosecution appealed.

Held, allowing the appeal: (1) the two critical questions to be answered were whether it could have been reasonably inferred that the Anna who took the bookings of the prostitutes was the respondent and whether the respondent had received a cut of the prostitutes' earnings through Lim. The issue was what could have been reasonably inferred from the primary facts; (2) on the facts, it was reasonable to infer that the Anna who communicated with the prostitutes and took their bookings was the respondent. It was also reasonable to infer that the Anna whom the anti-vice officer contacted for the booking of the prostitutes was the respondent; (3) on the facts, although there was no evidence to directly implicate the respondent with having received any commission from the earnings of the two prostitutes, there was prima facie evidence to prove that the respondent was receiving some payment for her efforts. It was not necessary at this stage to prove beyond a reasonable doubt that part of the prostitutes' earnings had found its way to the respondent, only that it was a reasonable inference that she had received a cut of the earnings through Lim, which was such an inference in this case. Therefore, she was knowingly living in whole or in part on the earnings of the prostitution of another person under s 146 and a prima facie case had been made out against the respondent.

Public Prosecutor v Liew Kim Choo [1997] 2 SLR 443 High Court, Singapore (Yong Pung How CJ).

The respondent was charged, together with one M, with the offence of importing into Singapore 3,860.92g of diamorphine in furtherance of their common intention, contrary to s 7 of the Misuse of Drugs Act (Cap 185) ('the Act'), read with s 34 of the Penal Code (Cap 224). At the close of the prosecution case, the respondent was acquitted without the defence being called. The learned trial judge found that the presumption against the accused had been rebutted by the evidence in the prosecution case. Firstly, the trial judge relied on a statement made by the other accused, M, when charged that 'Virat (respondent) does not know what I am doing'. Secondly, he referred to the evidence of one investigating officer, T, to the effect that his investigations showed that it was M, the first accused who responsible for the offence. Thirdly, the learned judge referred to the inconsistent evidence regarding the respondent's behaviour on disembarking from the launch. The prosecution appealed against the acquittal. The question was whether, on the facts of this case, a submission of 'no case' could properly be accepted by the court.

Held, allowing the appeal: (1) the presumption in s 18(2) of the Act had not been rebutted and the respondent's defence should have been called; (2) the burden was on the respondent to prove on a balance of probabilities that he did not know that it was a controlled drug that he had in his possession; (3) as regards the unsworn statement made by M, under s 122(6) of the Criminal Procedure Code (Cap 68), the learned trial judge should not have taken it into account as tending to exonerate the respondent.

Public Prosecutor v Virat Kaewnern [1993] 2 SLR 9 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Chao Hick Tin and Warren LH Khoo JJ).

There were two charges against the respondent. The first charge was in respect of making a customs import declaration. The second charge was that the respondent was concerned in importing a jeep and four vans ('the vehicles') which were prohibited goods, an offence under s 135(1)(a) of the Customs Act 1967 and punishable under s 135(1)(iii) of the 1967 Act. The prosecution adduced evidence to show that the respondent had been issued an import license to import 30 units of vehicles under a certain tariff classification ('the licence'). The respondent however took delivery of the vehicles which were of a different tariff classification. There was no valid import licence for the vehicles. The respondent had been in the business of selling imported vehicles since 1970 and his firm was given a quota to import 30 vehicles each year. In 1980, the respondent had been given a letter by the director of the Ministry of Trade and Industry to use part of the quota allocated to his firm for the purpose of importing seven vans ('the letter'). The respondent testified that he honestly believed that the letter authorized him to import the vehicles. The respondent further said that he was unaware of the prohibition in respect of the vehicles. The magistrate acquitted and discharged the respondent of both charges at the end of the trial. The vehicles were however ordered to be forfeited. The prosecution appealed to the High Court only against the respondent's acquittal and discharge in respect of the second charge. The respondent lodged a cross-appeal against the forfeiture of the vehicles. The magistrate found that since 1980, the respondent had, by virtue of the letter, actually imported vans and jeeps without any query so long as the importation was kept within the quota of 30 vehicles. The prosecution contended that the licence did not entitle the respondent to import the vehicles.

Held, dismissing the appeal and the cross-appeal: (1) it was reasonable and proper for the magistrate to come to the conclusion that based on previous transactions, the respondent was justified in labouring under the impression that he could import reconditioned vehicles under the licence so long as the quota of 30 units was not exceeded; (2) in an appeal against acquittal, the burden is on the prosecution to prove not only that the magistrate's finding is not justified in law or by evidence but also that the accused is guilty beyond all reasonable doubt. The acquittal ought not to be interfered with unless the appellate court comes to the conclusion that the appraisement of evidence made by the magistrate is so unreasonable or perverse; (3) s 127(1) of the 1967 Act is clear and mandatory. The court shall order forfeiture notwithstanding that there may be no conviction provided that an offence against the 1967 Act has been committed and the goods were the subject matter of or were used in the commission of the offence. The fact that the accused is not guilty or that no one is convicted is not a relevant factor; (4) in this case, it was clear beyond all reasonable doubt that the vehicles were prohibited goods and were imported contrary to the prohibition. An offence against the 1967 Act had been committed and the vehicles were the subject matter of the offence. Hence despite the acquittal of the respondent, the vehicles were rightly forfeited.

Public Prosecutor v Mohd Omar Lopez [1993] 1 CLJ 222 High Court, Kuching (Chong Siew Fai J).

Public Prosecutor v Yeo Choon Poh [1994] 2 SLR 867 Court of Appeal, Singapore, (Yong Pung How CJ, Karthigesu JA and Chao Hick Tin J).

See CRIMINAL LAW, para 491.

The first and second respondents were husband and wife while the third respondent was their son, then 15 years old at the time of the offences charged. The complainant was a Filipina maid employed in the respondents' household. The first respondent was charged with having voluntarily caused the complainant grievous hurt by punching her on the face and kicking her in the ribs. The second respondent was charged with having voluntarily caused her hurt by punching her on the face while the third respondent was charged with voluntarily causing her hurt by kicking her in the stomach. They were alleged to have attacked the complainant at some time between 5.30pm and 6pm on 18 June 1990. On the evening of the same day, the complainant was out at Punggol Point Restaurant with the respondents when she suddenly approached strangers nearby to ask for help and resisted attempts by the first respondent to compel her to return to the company of his family. She was eventually taken to hospital where a medical examination showed her to have suffered various injuries, including three fractured ribs which later formed the basis of the charge against the first respondent. Some bruises which appeared to be a few days' old were also discovered on her chest and abdomen. All three respondents denied the charges against them. It was suggested that the complainant might have been injured through falling from a stepladder while cleaning an air-conditioner in the respondents' flat. At the conclusion of the trial the district judge, holding that he found the complainant's evidence unsatisfactory, acquitted the respondents. The prosecution appealed against the orders of acquittal.

Held, allowing the appeal and convicting all three respondents on the charges remaining against them: (1) the case really turned upon the comparative plausibility of the respective accounts of events proffered by the complainant and the three respondents. The district judge's decision was based largely on his unfavourable assessment of the veracity of the complainant's testimony. However, his assessment was based not so much on her demeanour as a witness but on inferences drawn from the content of her evidence. As such, the appellate court was in as good a position as the trial court to assess the same material; (2) having examined the evidence on record, the arguments of counsel and the district judge's grounds of decision, the appellate court was of the view that the evidence in the case did not altogether support the conclusions made by the district judge on the veracity of the complainant's evidence: for example, his finding that she had lied about previous assaults. Also the complainant's credibility ought not to have been adjudged to be adversely affected by immaterial factors such as her inability to specify to the hour the exact time when the respondents attacked her; (3) moreover, the complainant's allegations were substantiated by undisputed objective evidence. In particular the height of the stepladder she allegedly used and the height of the respondents' flat made it very unlikely that she could have fractured her ribs in falling from the stepladder. Her conduct at Punggol Point Restaurant, which manifested desperate fear, was further evidence tending to demonstrate the general veracity of her testimony; (4) taking into consideration all relevant factors, therefore, the appellate court was of the view that the complainant's account of events should have been preferred over those of the three respondents and that the charges against the respondents should have been found proven beyond reasonable doubt. Accordingly, the appeal was allowed and the acquittals set aside. The first respondent was convicted on the charge of voluntarily causing grievous hurt to the complainant and sentenced to nine months' imprisonment. The second and third respondents were convicted of voluntarily causing hurt to the complainant and fined S$1,000 each (in default, one month's imprisonment).

Public Prosecutor v Choo Thiam Hock & Ors [1994] 3 SLR 248 High Court, Singapore (Yong Pung How CJ).

A magistrate is entitled to disbelieve a witness at the trial and he usually gives reasons for the opinion which he has formed, but a general reference by the magistrate in his grounds of judgment to the demeanour of witnesses, without condescending to any particulars, may give rise to the suspicion that an attempt is being made to bolster up a verdict which is contrary not only to the weight of the evidence, but to the probabilities and which could not be supported on a detailed examination of the evidence.

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

This was an appeal by the public prosecutor against the acquittal of magistrate Thavananthan a/l Balasubramaniam ('the respondent') by the sessions court on the charge of corruptly accepting a gratification of RM15,000. The respondent was alleged to have received the said money from an accused person who had appeared before him in the magistrate's court on a charge of assisting in carrying on a public lottery.

Held, allowing the appeal, reversing the judgment of the sessions court and finding the respondent guilty as charged: (1) in respect of the discrepancies in the evidence of the prosecution witnesses which the sessions court made much of against the prosecution's case, the court opined that discrepancies may be found in any case for the simple reason that no two persons can describe the same thing in exactly the same way. In weighing the testimony of witnesses, human fallibility in observation, retention and recollection are often recognized by the courts; (2) a witness who has made himself an agent for the prosecution before the actual commission of the offence is not an accomplice; (3) corroborative evidence need not be direct. It is sufficient even if it is merely circumstantial evidence of the accused's connection with the offence; (4) once it was established that the said money was passed or handed over to the respondent, the onus was on the respondent to rebut the presumption that he had accepted the money corruptly. The respondent must show that he accepted the money innocently, eg as a loan or a gift. In this regard, the evidence adduced by the respondent was insufficient to rebut the elements of the charge against him; (5) it is a misconception that the courts will readily find its own official guilty whenever a charge is brought against him. This is because the courts will always have to comply with the requirements of s 173(f) of the Criminal Procedure Code (FMS Cap 6), ie there must be evidence which will warrant a conviction before such a decision can be arrived at.

Public Prosecutor v Thavananthan [1994] 2 MLJ 436 High Court, Kuala Lumpur (Syed Ahmad Idid J).

The respondent was charged on two counts: (1) gaming, punishable under s 6(1) of the Common Gaming Houses Ordinance 1953; and (2) using criminal force on two police officers, punishable under s 353 of the Penal Code. The charges were separately tried and in both cases, the respondent was acquitted without being called on to enter his defence. The prosecution appealed against the acquittal in both cases, but withdrew the appeal on the first charge. According to the prosecution, a gazetted senior police officer with a party of police officers conducted a raid on the premises in question 'on the instruction of the OCPD'. There was no search warrant, nor was the search made in compliance with s 18(1)(d) of the Common Gaming Houses Ordinance. During the course of the raid, the respondent resisted arrest by a show of force, to with he kicked the abdomen of one officer and bit the leg of another.

Held: (1) the effect of the acquittal of the respondent on the first charge, in view of the withdrawal of the appeal against it, was that the innocence of the respondent on the charge of gaming in a common gaming house was completely established; (2) irrespective of whether the entry and search is legal or illegal, the powers of a police officer to arrest a person are limited and the exercise of such powers can only be justified on statutory grounds. In this case, the offence in the first charge was a non-sizeable offence and the purported arrest of the respondent could, on the facts of the case, neither be justified under s 24 of the Criminal Procedure Code nor under s 23(i)(e), and therefore the arrest itself was illegal and the resistance thereto was not unlawful. Consequently, the respondent was not guilty of the offence under s 353 of the Penal Code; (3) as in this case there was a prima facie case under s 352 of the Penal Code, the case must be remitted to the magistrate for him to amend the charge accordingly and call on the respondent for his defence.

Public Prosecutor v Ong Kee Seong [1960] MLJ 156 High Court, Seremban (Ismail Khan J).

In this case, on a charge under s 39(B)(1)(a) of the Dangerous Drugs Ordinance 1952, the jury returned a majority verdict of 5 to 2 of not guilty. The accused was acquitted. The Public Prosecutor appealed to the Federal Court and reliance was placed on the recent amendment to s 50 of the Courts of Judicature Act 1964 (Act 91).

Held, dismissing the appeal: (1) by virtue of s 229 of the Criminal Procedure Code (FMS Cap 6), the court or judge has no discretion but to accept the jury's verdict; (2) the Federal Court has no power to quash an acquittal in such circumstances.

Public Prosecutor v Tai Chai Geok [1978] 1 MLJ 166 Federal Court, Kuala Lumpur (Gill Ag LP, Ong Hock Sim Ag CJ (Malaya).

The respondent was charged with another with the offence of armed robbery contrary to ss 392 and 397 of the Penal Code. The learned President, while accepting the identification by witness of the accused at an identification parade and noting in his record that he had no doubt that the 'accused took part in the robbery', held that the defence had cast a reasonable doubt on the prosecution story. The defence case was an alibi.

Held: (1) although the onus was on the prosecution throughout to prove the guilt or innocence of the accused, in this case as it was on record that upon identification the learned President had said he had no doubt the accused took part in the robbery, therefore, it would require very solid grounds to hold that the defence had cast a reasonable doubt on the prosecution story; (2) on the evidence, the accused-respondent ought to have been convicted as the best evidence of the alibi was not produced and tested.

Public Prosecutor v Lim Kuan Hock [1967] 2 MLJ 114 High Court, Penang (Ong Hock Sim J).

Negligence is a fact to be proved at all times by the prosecution. It would avoid a good deal of obsecurity of thinking if magistrates would merely decide in each case what facts have been proved. In this case, the magistrate had acquitted the accused on a charge of driving without due care and attention. At the hearing of the appeal, counsel for the respondent argued that the doctrine of res ipsa loquitur did not apply in a criminal case.

Held, allowing the appeal: in this case the prosecution had produced a prima facie case against the respondent as the evidence showed that the bus had failed to negotiate a sharp right hand bend and therefore, the magistrate should have called on the defence.