JUDGMENTBY: NEAL J

(delivering oral judgment): This matter came before me by way of Criminal Revision. It had previously come before me on an application that the accused in Taiping Magistrates Court Criminal Case No. 1080 of 1959 be admitted to bail by this Court. I declined to make any such order and pointed out that the appropriate procedure was an application for bail to the Magistrate and his refusal for granting could be the subject of appeal or revision by this Court. Accordingly counsel addressed the Magistrate in writing applying for bail and in support of his application for bail were tendered copies of affidavits filed in this Court wherein the applicant stated facts which threw some doubt as to whether or not he has been guilty of an offence under section 326 of the Penal Code. Instead of dealing with that written application as a fresh application for bail upon the grounds therein stated, the Magistrate in his reply said that he had refused bail once and he stated he had based his refusal on the statement of the law on section 388 of the Criminal Procedure Code as interpreted by Mr. Justice Spencer Wilkinson in R v Char Choon Weng & Ors [1956] MLJ 81 where, in dealing with section 388(i) of the Criminal Procedure Code, that learned Judge said:--

"In my opinion there is no doubt in law that where an accused is

charged with an offence punishable with life imprisonment a Magistrate

has no power under section 416(1) to grant bail whether that offence is

or is not also punishable with death."

Section 416(1) of the Straits Code is similar in terms with our section 388(i). It will be noted that the terms used in the Criminal Procedure Code do not refer to the charge but to the question of reasonable grounds for believing the guilt in respect of a particular offence. In my opinion, there is a wide distinction between the charging of an offence and of there being reasonable grounds for believing guilt. It may well be that in the initial stages of a criminal prosecution the fact that the Public Prosecutor has elected to charge a man with an offence coming within the proviso of section 388(i) may provide prima facie evidence of such reasonable grounds, but the law still remains that there must be reasonable grounds for believing the guilt. As I said, I am inclined to the view that the statement of the law by Mr. Justice Spencer Wilkinson, to which I have referred, is an incorrect one, but for purposes of deciding the application before me, it is unnecessary for me to go that far. When R. v. Chan Choon Weng & Ors. was decided the Criminal Justice Ordinance No. 14/53 had already become law. Section 2(1) therein provides:--

"No person shall be sentenced by a Court to penal servitude; and every

law conferring power on a Court to pass a sentence of penal servitude

in any case shall be construed as conferring power to pass a sentence

of imprisonment for a term not exceeding the maximum term of penal

servitude for which a sentence could have been passed in that case

immediately before the commencement of this Ordinance."

After the 30th April, 1953, all offences punishable with penal servitude had to be construed as if the words "penal servitude" were replaced with the term "imprisonment".

In reply to this argument, the learned Deputy Public Prosecutor suggested that section 2 was in effect an amendment of the words "penal servitude", wherever they appear, including section 388(i), to imprisonment. I am unable to agree with him because section 2 is clear in its terms when it says that it is only the laws "conferring power to pass a sentence of penal servitude" which are amended to a term of imprisonment not exceeding the maximum term of penal servitude for which a sentence could have been passed in that case immediately before the commencement of the Ordinance. I am strengthened in the view I take by the fact that the Legislature found it necessary to expressly am

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