Chong Siew Fai CJ (Sabah & Sarawak):

[1] This case came before us by way of a reference under s 66 of the Courts of Judicature Act 1964. The said s 66 was repealed on 24 June 1994. However, leave was granted prior to that. The question permitted to be brought up for determination is:

Whether it is open to a second Appellate Court to analyse, comment and take into account the evidence adduced on a charge of which an accused person had been acquitted to support his conviction on a second remaining charge.

Previous Proceedings

[2] At the material time, the applicant was a Magistrate serving in the Magistrates' Court at Jalan Duta, Kuala Lumpur Initially he was tried on the following two charges before the Sessions Court in Kuala Lumpur:

(a) under s 3(a)(i) of the Prevention of Corruption Act 1961, for corruptly soliciting for himself a sum of RM15,000 from one Wong Sow Ying through one Por Choo Aik alias William as an inducement to acquit and discharge the said Wong Sow Ying of an offence in a criminal case (hereinafter referred to as "the charge of soliciting.")

(b) under s 4(a) of the Prevention of Corruption Act 1961 for corruptly accepting for himself a sum of RM15,000 from one Por Choo Aik through one Ong Leong Chuan as an inducement to acquit and discharge one Wong Sow Ying of an offence in a criminal case (hereinafter referred to as "the charge of accepting").

[3] On 8 March 1993 the learned Sessions Court Judge discharged and acquitted the applicant of both charges without calling for the defence, ruling that no prima facie case against the applicant had been made out.

[4] On appeal by the prosecution, the High Court affirmed the acquittal and discharge respecting the 1st charge under s 3(a)(i) of the Prevention of Corruption Act 1961 but allowed the appeal on 2nd charge under s 4(a) of the said Act and ordered the applicant to enter upon his defence in respect thereof. The case was thus sent back before the same learned Sessions Court Judge who, after hearing the defence, again acquitted and discharged the applicant of the 2nd charge. Once more the prosecution appealed to the High Court against the acquittal and discharge. On 25 April 1994, the learned appellate Judge (other than the Judge hearing the 1st appeal), after hearing arguments, allowed the appeal by the prosecution, set aside the acquittal, convicted the applicant and sentenced him to three years' imprisonment and a fine of RM5,000 in default 12 months' imprisonment.

The Question Referred

[5] Now coming back to the question referred and set out above. The question is of a general nature without alluding to any part of the evidence allegedly having been "analyse comment and taken into account." However, in the course of his submission, learned Counsel for the applicant referred to certain parts of the evidence respecting which he argued that the learned Judge should not have relied on. The learned Deputy Public Prosecutor, on the other hand, contended otherwise. We shall refer to these later.

[6] On the general question as posed ie without reference to any particular evidence, the answer, in our view, may be found in 6, 7, 8 and 9 of the Evidence Act 1950. The sections are set out below:

6. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places.

7. Facts which are the occasion, cause or effect, immediate or otherwise of relevant facts or facts or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity for their occurrence or transaction, are relevant.

(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

(2) The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and t