Lee Hun Hoe CJ (Borneo):

The applicants applied for leave to refer several questions under s 66(1) of the Courts of Judicature Act 1964. After hearing the parties we granted leave on one question of law which we considered to be of public interest which had arisen in the course of the appeal in the High Court. The question reads:

1

In the appeal against acquittal from the decision of the Subordinate Court to the High Court can the High Court call for a demonstration by a chemist and if so whether the High Court can disregard the result and or effect of the demonstration in its judgment.

It is necessary to set out briefly the facts. On 22 November 1979 in the Sessions Court, Kelang, two charges were preferred against the two applicants for offences under s 4(a) and punishable under s 4 of the Prevention of Corruption Act 1961. Under each charge they were alleged to have accepted RM100 from Mak Chen as an inducement for doing an act, that is, by giving a favourable report in respect of a traffic accident. At the close of the prosecution case the 2nd charge was amended by the substitution of the words `sketch plan and map" for the words "favourable report". Both applicants were acquitted and discharged on the 1st charge. But they were called to enter their defence on the 2nd charge. The learned President made clear that he did so because of the presumption under s 14 of the said Act. Eventually, he acquitted and discharged them on the 2 charges. In his judgment he did not make clear whether the presumption had been rebutted or not. The prosecution appealed against the acquittal.

Before the learned Judge the prosecution managed to convince him that the learned President was wrong in acquitting the two applicants for two reasons. First, the learned President held that PW1 never asked for the sketch plan and map when there was in fact clear evidence that PW1 did ask for the sketch plan and map which was corroborated by PW3. Secondly, the learned President had not made any finding whether the defence had rebutted the presumption. These were the two matters which had created the doubt in his mind. If he had not concluded wrongly on the two matters there would be no doubt in his mind. In such a situation the learned Judge could either revert the case back to the learned President to make his finding and touch on the explanation of the two applicants or to order a retrial. Unfortunately, the learned President had left the service. Also, this case was heard de novo on three occasions and had been going round the Courts for more than ten years. This is a sad reflection on the administration of justice and should not be allowed to be repeated. The learned Judge, in trying to salvage the wreckage, decided to review the evidence and come to a conclusion. But, before doing so he asked the Prosecution to arrange for the chemist to give a demonstration on the use of anthracene powder. At p 296 of the Appeal Record the learned Judge made the following notes:

(Chemist demonstrates to the Court the effect of anthracene powder on documents and its effectiveness in contaminating material or the human body which comes into contact with it. Demonstration reveals that the powder does not stick on a smooth surface, like the cover of a book; it can be wiped off.)

This demonstration has clearly influenced his approach to the case. The applicants said the learned Judge did not touch on this in his judgment. There is no necessity for him to do so as he had expressed himself on this. For on the same page of the Appeal Record he stated that:

After having seen the demonstration, I feel that I must now view the case somewhat differently. I thought I could give my decision today but now there has to be some rethinking ...

Consequently, he found both applicants guilty on the 2nd charge. In view of the exceptional circumstances of the case he sentenced each applicant to a day's imprisonment and a fine of RM1,000 in default a month's imprisonment.

The applicants conc