JUDGMENTBY: TERRELL, AG CJ

The accused was originally charged, first with cheating one Neo Ban by dishonestly inducing him to deliver the sum of $ 10.00, and secondly, with cheating See Ban Thye by dishonestly inducing him to deliver the sum of$ 88.00.

The prosecution adduced evidence to shew that the accused sold matches for Chop Nam Thye on a commission basis, the commission being 40 cents on each case sold. This was admitted by the accused. It was also proved and admitted by the accused that two cases of matches were sold to Neo Ban for $ 22.00, and that the accused collected $ 10.00 out of the $ 22.00 due from Neo Ban and retained such sum in his possession. Similarly, eight cases of matches were sold to See Ban Thye, Chop Cheng Wah Heng, for $ 88.00 the whole of which was retained by the accused.

The evidence for the prosecution included the proprietor of Chop Nam Thye, the bill collector of Chop Nam Thye, the abovenamed Neo Ban and See Pong Thye (See Ban Thye), the proprietor of Chop Cheng Wah Heng and a clerk in the last named Chop.

From their evidence it was established that the matches were in each case sold at the end of May on one months credit, and that at the end of June the accused himself collected the sums above mentioned. On the 30th June the accused absconded and was not seen again until he was arrested two months later. The collection of the moneys by the accused was discovered early in July when the bill collector of Chop Nam Thye attempted to collect the moneys from the customers and found that they had already paid the accused.

So far there can be no dispute. The prosecution further gave evidence that the accused was paid his commission immediately a sale was effected and not when payment was made, that there was nothing due to the accused for commission, and that the only person who was entitled to collect payment was the bill collector who had a proper receipt book for the purpose. The receipts which were to be handed over when the customers paid were put in as Exhibits 6 and 7.

At the close of the case for the prosecution the learned Magistrate held that there could be no conviction on charges of cheating the customers. I think this ruling was correct. The person who suffered from these transactions was the proprietor of Chop Nam Thye and not the customers. The charges were accordingly amended to charges under S. 403 (criminal misappropriation); the accused claimed trial on the amended charges.

He gave evidence admitting the main points of the prosecution case as detailed above. His defence was in effect that he was authorised to collect bills, that he was owed $ 62.00 for commission, and that he had not yet gone into accounts with the proprietor.

The learned Magistrate, thereupon, acquitted the accused and the Crown lodged an appeal.

The grounds of judgment consist of eight lines and are so manifestly inadequate that if I were not satisfied that the case is clear beyond all possible doubt, I should have called upon the learned Magistrate to supply further and better grounds for his decision.

As the grounds of judgment are so short, it will be convenient to set them out in full. I have subdivided the judgment into numbered paragraphs for easy reference:--

"(1) In this case the complainant can produce no proper books of

account to shew how and when commission was paid to the accused.

(2) There are contradictions in the prosecution evidence on material

points, and

(3) I am satisfied that this evidence is substantially false.

(4) I have taken full opportunity of watching the demeanour of the

witnesses.

(5) The accused gives a frank statement and although closely

questioned on the material points, has satisfied me with his

evidence.

As to (1), if the payment of the commission can be proved aliunde, a dishonest commission-agent is not entitled to an acquittal merely because the complainant has not kept the

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