Mohd Ghazali Yusoff JCA:

[1] This is an appeal by the Public Prosecutor against the decision of the learned judicial commissioner, High Court, Tawau who upheld the decision of the learned magistrate wherein she ruled that the institution of criminal proceedings against the respondent for offences under the Employees Provident Fund Act 1991 ("the Act") and the conduct of the prosecution was invalid and consequently had struck-off the proceedings.

The Background

[2] On 10 March 1998, an officer from the Employees Provident Fund ("EPF") laid a complaint before the magistrate against the respondent, a locally incorporated company in relation to offences committed by the respondent under s. 43(2) of the Act , viz. , failure by an employer to pay to the EPF monthly contributions in respect or on behalf of an employee. Section 43(2) of the Act reads:

Any person being an employer who fails, within such period as may be prescribed by the Board, to pay to the Fund any contributions which he is liable under this Act to pay in respect of or on behalf of any employee in respect of any month shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term not exce