GROUNDS OF DECISION

1. The charge against the respondent was dishonestly using as genuine a forged document, to wit, Mitachi Import Export (S) Pte Ltd Invoice (Exhibit P1) no. 1216 dated 25th December, 1988 for RM33,000.00 in support of his claim made to the Regional Manager MAS, Kuching, which he knew at the time he used it to be a forged document and thereby committed an offence under S 471 and punishable under S 465 of the Penal Code.

2. At the close of the prosecution's case, after hearing the submissions of the parties, the learned Magistrate ruled on 17th June, 1992 that the prosecution had failed to establish a prima facie case against the respondent, and he acquitted and discharged the respondent without calling his defence.

3. On appeal, the High Court, on 28th September, 1992, applying the prima facie standard of proof, held that there was a case for the respondent to answer, and set aside the [3] order of acquittal, and ordered the respondent to enter his defence. The High Court decision was affirmed by the Supreme Court on 16th June, 1997.

4. In his written judgment, the learned Magistrate listed out 5 essential elements which must be proved by the prosecution (page 33 Appeal Record) under S 471 of the Penal Code, viz,

1) ;that the document was a forged one;

2) ;that the accused used such document;

3) ;that he used it as genuine;

4) ;that he knew that the document was a forged one; and

5) ;that he used it dishonestly.

Applying the prima facie standard of proof as enunciated in Haw Tua Tau v Public Prosecutor (1981) 2 MLJ 49 and Munusamy v Public Prosecutor (1987) 1 MLJ 492 , the learned Magistrate found that elements (1), (4) and (5) had not been established, and acquitted the accused without calling for his defence.

5. When the case was reheard in the Magistrate Court in 1998 the test applicable at the close of the prosecution had changed to one of beyond reasonable doubt. In both cases of Bahruni Bin Ismail v Public Prosecutor (1997) 2 MLJ 265 and Dalip Bhagwan Singh v Public Prosecutor (1998) 1 MLJ 1 , the Federal Court held that for offences committed before 31st January, 1997, the proper test applicable is beyond reasonable doubt.

6. Now at the re-hearing of the case, it is incumbent for the Magistrate to re-assess the evidence in this case, and to decide whether there is a case to answer applying the correct standard of proof i.e. beyond reasonable doubt since the offence alleged to have been committed, was before 31st January, 1997. See Masri Tan Sri Dato Mohamad & Anor v Public Prosecutor (1998) 1 CLJ Supp. 270. The learned Magistrate came to [4] the conclusion that there was no case for the accused to answer, and he discharged and acquitted the accused on 8th July, 1998.

7. The learned Magistrate held that element (1), (4) and (5) had not been proved beyond reasonable doubt:-

Element (1) that the document was a forged document;

Element (4) that he knew or had reason to believe that the document was a forged one; and

Element (5) that he used it dishonestly.

8. In the Petition of Appeal dated 22nd September, 1998, the complaint therein is only against the findings on element (1). There has been no specific complaint against the findings of the Magistrate on elements (4) and (5). Learned counsel for the respondent. Mr. Chong Siew Chiang, submitted that even if the appellant succeeds (which is denied) to show that the Magistrate was wrong in his finding on element (1) above, since there has been no complaint against his findings on elements (4) and (5) the appeal must necessarily fail. With respect, I agree that the learned counsel's submission is correct, the appeal must be dismissed.

9. Learned Deputy Public Prosecutor submitted that ground 3 of the Petition of Appeal i.e. "the order of acquittal is against the weight of evidence adduced as a whole" covers elements (4) and (5). Learned counsel submitted that ground 3 in the Petition of Appeal does not state specifically what point of law or fact is alle