C.J.F.M.S. They all went off and left this man in charge?

Hay, Yes. I do not know why the attendants were not charged, but I am really concerned with the position consequent on the learned Magistrates finding of fact and in the light of the decision in Cheow Keok v Public Prosecutor (1940) 9 MLJ 103. I think, My Lord, that for the purpose of this case, we can take the finding of fact in paragraphs 1 and 2 of the Grounds of Decision.

C.J.F.M.S. That the degree of negligence was insufficient to justify conviction under this Section?

D.P.P. That is so. The Magistrate said that the defendants were telling the truth, that they made a clean breast of what amounted to grave dereliction but which did not amount to criminal negligence having regard to the definition of "negligence" recently enunciated by the Court of Appeal.

C.J.F.M.S. You are contending that it is not necessary to establish a high degree of negligence?

D.P.P. That is right. My position now, My Lord, is this: here we have a case where negligence has been found: it has not the sufficiently high degree of negligence to satisfy the standard set by the judgment in PP v Cheow Keok (1940) 9 MLJ 103. My Lord, I will not affront Your Lordships reason or run the risk of Your Lordships reproving me for my lack of it by suggesting to Your Lordships that in a code such as the Penal Code we can read a word like "negligence" to mean one thing in one Section and another thing in another Section. I should not venture to stand here before Your Lordships and suggest that. To my mind the only possibility of getting Your Lordships to allow this appeal is to ask you to reconsider the decision in Cheow Keok.

C.J.F.M.S. Do you realise that in this court there are two of the judges who gave that decision. Do you suggest we can review our own decision?

D.P.P. My Lord, I do not see why you should not review your own decision. There is a case where Mr. Justice Darling reversed his own decision. [To a Question by the C.J.S.S.] That was the fortune telling case.

C.J.F.M.S. Are we not bound by our own decisions?

D.P.P. I say no, My Lord.

C.J.F.M.S. Is not the Court of Criminal Appeal bound by its own decisions?

D.P.P. My Lord, there is another Court of Appeal immediately above it.

C.J.S.S. Lord Hewart himself has said that the Court of Criminal Appeal is bound by its own decisions.

D.P.P. On the other hand, the English Court of Appeal has at least on two occasions overruled its own decision.

C.J.F.M.S. Assuming that it is desirable to overrule our decision in Cheow Keok (1940) 9 MLJ 103 a similar interpretation was placed on the section in India and Ceylon. You are asking to place a different interpretation to that?

D.P.P. I have not got so far as yet. With regard to that I have a very recent decision from the Gold Coast.

C.J.F.M.S. The Gold Coast does not use the Indian Penal Code.

D.P.P. The Privy Councils decision is that the Criminal Code of the Gold Coast "must be construed in its application to the facts of the present case free from any glosses or interpolations derived from any expositions, however authoritative, of the law of England or of Scotland." I will go into that at length with all the other authorities when I get to that stage of my argument. The first question is whether Your Lordships are satisfied that you can, if necessary, reconsider Cheow Keok. I will present Your Lordships with these authorities. The first, My Lords, is Wynne-Finch v Chaytor (1903) 2 ChD 475 at p 485. Judgment having been stated, the finding of the Court goes on as follows:--

"There is, however, a decision of the Court of Appeal in Daglish v

Barton (1900) 1 QB 284 which is inconsistent with this view. The

Court on that occasion consisted of the late A. L. Smith, L.J. and

Vaughan Williams, L.J. the latter of whom expressed the doubt as to the

true meaning of the sub-section, and now agrees with the present

judgment. With the greatest respect,