Terrell A-G CJ:

The facts and arguments sufficiently appear from the judgment.

This was an appeal by Fuan Ah Pock against his conviction by the Second Magistrate on a charge of theft. The evidence for the prosecution anyway so far as the identification of the accused was concerned, rested on the evidence of Mun Chiok Hai, a boy ten years of age.

It was argued on the appeal that there were so many improbabilities and inconsistencies in the case for the prosecution that it was not safe to convict. These, however, are all questions of fact and an appellate Court rarely interferes with the findings of the Magistrate who heard the witnesses. The learned Magistrate accepted Mun Chiok Hai as a witness of truth, and unless there is some principle of law which should have prevented the acceptance of his evidence without corroboration, the accused was clearly guilty of the offence charged.

It is true that the witness made certain statements to one Choy Ah Kiew, a maidservant in the house, which confirm his evidence in various important particulars, although not as to the identity of the accused. Under s. 157 of the Evidence Ordinance such statements are treated as corroboration of a witness (see Rex V. Koh Soon Poh but such corroborative evidence standing by itself is not usually regarded as sufficient corroboration of an accomplice within the meaning of s. 115 illustration (b) of the Evidence Ordinance. For the purpose of this appeal the evidence of Mun Chiok Hai must be regarded as uncorroborated.

Although there is not in Malaya as in England any statutory provision that the unsworn evidence of a child of tender years must be corroborated by some other material evidence implicating the accused, I accept the ruling of the Johore Court of Appeal (Sir Walter Huggard CJ, SS and Gerathy J) in Lee Mion v. PP of Johore, 3 MLJ 124 that the principle of requiring corroboration in the case of an accomplice is equally applicable where the conviction depends on the unsworn evidence of a child. Now under s. 134 of the Evidence Ordinance an accomplice is a competent witness, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. It is, however, an established rule of practice that in trials before a jury or assessors the danger of accepting such evidence must be clearly put by the trial Judge. The same principles should be applied in accepting the evidence of a child of tender years.

In a trial before a Magistrate it often happens that there is nothing in the record to show that in considering the evidence the Magistrate has directed himself to the rules of evidence with which he can be presumed to be familiar. In the Johore case the Court ruled that it could not be assumed that the trial Judge (sitting without assessors) had directed his mind to the danger of accepting the uncorroborated testimony of a child witness when there was nothing in the record to indicate that he had done so.

I think it is obvious that this principle may easily be carried too far. It might be argued, for instance, that because there was nothing in the record to show that the Magistrate appreciated that the burden of establishing their case was on the prosecution, he might have misdirected himself on this point, or that, in the case of a prosecution under s. 304(A) of the Penal Code, he did not appreciate that a high degree of negligence must be established. If that were the law no conviction would stand, and for the future every judgment would have to be prefaced by a statement that the Magistrate was familiar with the law and the rules of evidence applicable to the case, and had carefully considered them in arriving at his decision. I find myself, therefore, unable to agree with the ruling of Aitken J in White v. PP of Kedah, Kedah Criminal Appeal No. 5 of 1359 (27 June 1940) not yet reported where he held that the conviction under s. 304A of the Penal Code must be set aside because the Magistrate had