Winslow J:

Counsel for the appellant, Mr. Leslie Rayner, preferred eight grounds of appeal against the conviction and sentence of six months imprisonment of the appellant on a charge of corruption under s. 6(a) of the Prevention of Corruption Ordinance, 1960 (No. 39 of 1960). The appellant was a police officer attached to the Mobile Squad of the Traffic Police and the allegation against him was that he had corruptly obtained $20 as a reward for forbearing to take action against one Tan Geok Leng who had been riding a motor-scooter without "L" plates whilst holding a provisional licence.

There is little doubt that the appellant received $20 from Tan Geok Leng. The only question is whether he received the $20 as a corrupt gift as claimed by the complainant or a commission for having found a buyer for the motor-scooter alleged by the defence to belong to one, Tan Hong Seng. According to the appellant the complainant had asked him to find buyers for motor-scooters for which he would be paid a commission.

The learned District Judge found that "the defence had failed to rebut the case made out against the appellant." He did not believe the defence story because in his opinion it was completely untrue. Having said this the learned District Judge unfortunately, in the course of his analysis of the reasons for his disbelieving the defence story made the following finding, "There was no evidence at all that the appellant ever went to the office during those six months to look for the complainant in order to collect his commission." This is contradicted by the evidence of the appellant himself who said that he had been to the complainant's office three or four times during that period prior to the day in question. Even Counsel for the Crown, who made forceful and somewhat tenable submissions on the other grounds of appeal, was unable but to concede that this was a serious misdirection.

The learned District Judge then went on to say that Tan Hong Seng was not called as a witness by the defence. He then proceeded to say "If the defence story was true then Tan Hong Seng could have corroborated it in material particulars." He further said that Tan Hong Seng could have given very useful evidence for the defence on two points.

It seems to me that the learned District Judge allowed himself to be swayed by the failure of the defence to call Tan Hong Seng as a witness and misdirected himself in requiring corroboration of the defence story. I am not satisfied that he did not draw an inference adverse to the defence story from the fact that Tan Hong Seng had not been called as a defence witness under illustration (g), s. 115 of the Evidence Ordinance which provides a presumption that -

evidence which could be and is not produced would if produced be unfavourable to the person who withholds it.

It is clear from the authorities that there is no duty cast upon the defence in a criminal trial to call any evidence.

As Spenser-Wilkinson J said in Goh Ah Yew V. Public Prosecutor.

There is no duty upon an accused to call any evidence. He is at liberty to offer evidence or not as he thinks proper and no inference unfavourable to him can be drawn because he adopts one course rather than the other.

It is only a short step from saying that if the defence story were true the evidence of a person who was not called as a witness could have corroborated it in material particulars to saying that if that person had been called as a witness he would not have corroborated the defence story.

In view of these misdirections I do not think it is desirable or necessary for me to deal with the remaining grounds except to say that, in my view, the complainant was not an accomplice as was argued by Counsel for the appellant. I therefore allowed the appeal and quashed the conviction.

Appeal allowed.