Low Hop Bing JCA:

Introduction

[1] The accused faces three charges under s. 2(1) of the Emergency (Essential Powers) Ordinance No. 22 of 1970 ("Ordinance 22") in the Melaka High Court. After a protracted trial, he was found guilty and convicted. On each charge, he was sentenced to two years' imprisonment to run concurrently, and a fine of RM20,000.00 or six months in default (collectively "the sentence").

[2] This is the accused's appeal against the conviction and sentence.

[3] For brevity and convenience, a reference hereinafter to a section is a reference to that section in Ordinance 22, unless the context otherwise requires.

The Charges

[4] In essence, the three charges preferred against the accused (collectively "the charges") are that at three separate meetings held at the meeting room of the Melaka State Executive Council ("the EXCO"), as a member of the administration, to wit, a member of the EXCO, he committed corrupt practice by using his public position for his pecuniary advantage in that he did take part in the meetings and decisions of the EXCO in relation to three separate applications by Ivory Heights Sdn. Bhd. ("Ivory Heights") in which he had an interest. The dates and time of the meetings, and the particulars of the applications may be tabulated as follows:

Date and Time of Meetings Particulars of Applications

(1) 7 September 1994 at about 10am For alienation of State land in the mukim of Bertam and the mukim of Bachang, in the district of Melaka Tengah for 60 years mukim lease under PT 463 comprising 3.3718ha and 60 years State lease under PT 4799 comprising 6.8230ha (collectively "the State land").

(2) 21 December 1994 at about 10am For conversion of the period of lease from 60 years to 99 years in respect of the State land alienated to Ivory Heights on 7 September 1994.

(3) 23 August 1995 at about 10am For the areas of the State land alienated to Ivory Heights on 7 September 1994 to be extended from 3.3718ha to 3.6204ha in respect of land under PT463, and from 6.8230ha to 7.2019ha in respect of the land under PT 4799.

Essential Ingredients

[5] Specifically in relation to the charges, it is incumbent on the prosecution to prove the following essential ingredients:

(1) that the accused was a member of the administration; and

(2) that in such capacity, he committed corrupt practice:

(a) by using his position for his pecuniary or other advantage;

(b) by taking part in the EXCO meeting on a matter relating to his trade, business or profession; or

(c) by taking part in any decision likely to affect his pecuniary interest therein.

(See eg, Haji Abdul Ghani Ishak & Anor v. PP [1981] 2 MLJ 230 at p. 232 per Wan Yahya J (later SCJ) and PP v. Datuk Tan Cheng Swee & Ors [1979] 1 MLJ 166 at p. 174 per Chang Min Tat FJ (as he then was).

[6] In the instant appeal, the pertinent ingredients for consideration and determination are (1) and (2a) above.

Member Of The Administration

[7] Under s. 2(2), the expression "member of the administration" has the meaning assigned to it in art. 160(2) of the Federal Constitution which, where relevant, merits reproduction as follows:

"Member of the administration" means in relation to a State, a person ... holding office as member (other than an official member) of the Executive Council;

[8] On the evidence adduced at the trial, it has been established and indeed it has never been disputed that on the dates stated in the charges, the accused was a member of the EXCO and hence a member of the administration as defined in s. 2(2). (See also PP v. Dato Haji Mohamed Muslim bin Haji Othman [1983] 1 MLJ 245 at p. 246 HC per Hashim Yeop A Sani J (later CJ (M)).

Use Of Position

[9] In addition to my analysis later in this judgment, it is uncontroverted that in his position as an EXCO member, the accused did attend the aforesaid EXCO meetings in which the aforesaid applications of Ivory Heights were deliberated and approved, and that the accused had neither declared his interest in Ivory