Howes J:

In this case the appellant was convicted and fined $10 on the following charge: "That on 27 June 1939, you as executor of Chung Thye Chong were required under s. 101 of the Probate and Administration Enactment by the Supreme Court, Ipoh, to exhibit therein an inventory of the estate of the said Chung Thye Chong within 30 days and you have intentionally omitted to comply with the requisition and you are thereby deemed to have committed an offence punishable under s. 176 of the Penal Code."

The appeal has been argued under three main heads. The first was whether it was proved that the appellant had intentionally omitted to comply with the requisition to exhibit an inventory.

Whilst the words "intentionally omits to comply" in s. 101 sub-section (iii) are somewhat difficult to interpret, the Magistrate found as a fact that the appellant had done so.

It appears that on 27 June 1939 the requisition referred to in s. 101(iii) of the Probate and Administration Enactment was served on the appellant, requiring him to file an inventory within 30 days from the date of the notice, viz. 19 June 1939.

Application was made by the appellant's solicitors to the Assistant Registrar and the time for exhibiting the inventory was extended another 30 days, viz. to the 22 August 1939. The inventory was not filed within this time, and on 18 January 1940, a summons against the appellant was issued, out of which the present appeal arose.

In a letter dated 20 July 1939, to his solicitors M/s. Cheng Ean and Soon Chee of Penang, the appellant wrote: "With regard to the accounts required by the Registrar of the Supreme Court, Ipoh, I am afraid I cannot do anything except file an account showing the $30,000 on which estate duty has been paid in the Colony. I believe the estate of Chung Thye Chong deceased has no other assets in the Federated Malay States on which estate duty is payable."

No mention in that letter is made of the preparation of any inventory, but the appellant told the Magistrate that he thought his solicitors would file an account and inventory, and consequently he took no further steps.

In his evidence, the appellant admitted having received the requisition, and stated, "I tried to comply with it." In addition to the above letter, he produced an itemised bill of costs from his solicitors which showed that he consulted them in Penang on 6, 11, 13 and 15 of December 1939, with regard to the accounts, but there is no mention of their having received instructions to prepare the inventory which was the subject matter of the charge.

In the Magistrate's Court a clerk to the appellant's solicitors gave evidence, and stated referring to the paragraph in the letter above quoted, "We took this as instructions to file accounts. We set about getting the material. We thought we had to prepare an estate duty account for the Federated Malay States".

This witness made no mention of the preparation of an inventory. The question therefore arises as to whether this omission to file an inventory can be regarded as intentional.

There was no suggestion that appellant's omission was accidental, and he gave no evidence to show that it could be regarded as otherwise than intentional. Had he been able to produce evidence of any direct instructions to his solicitors to prepare the inventory and accounts, it might well have been that the Magistrate would have considered that the appellant had done all he could reasonably do.

As it was, the appellant sought to take shelter behind his solicitors, who were not called as witnesses. If there had been evidence that, in disregard of instructions from him, they failed to supply the inventory, or if the appellant had shown that he had given them material with which to prepare the inventory, the position would have been different. The appellant was well aware of his obligations; and the fact that he applied for, and obtained an extension of time from the Registrar, but took no further steps, proves t