Abdul Malek Ahmad JCA:

The appellant had been found guilty and convicted by the Sessions Court under s. 467 of the Penal Code. The original charge against him read as follows:

That you on 14th October 1991, at Lot 663, Jalan Kelinik, in the district of Kuala Selangor, in the State of Selangor Darul Ehsan, did forge a valuable security, that is, a licence to purchase firearm and ammunition, bearing serial No. B274599 authorising the false transfer of firearm ownership to Lee Poh Sin I.C. No. 3235499 and dishonestly using the forged valuable security as genuine which you have reason to believe that it is forged and therefore you have committed an offence under section 467 of the Penal Code read together with section 471 of the same Code.

Before the last prosecution witness was recalled, the prosecution tendered the following amended charge:

That you on 14th October 1991, at Lot 663, Jalan Kelinik, in the district of Kuala Selangor, in the State of Selangor Darul Ehsan, did forge a valuable security, that is, a licence to purchase firearm and ammunition, bearing serial No. B274599 authorising the false transfer of a firearm to Lee Poh Sin I.C. No. 3235499 and dishonestly using the forged valuable security as genuine which you have reason to believe that it is forged and therefore you have committed an offence under section 467 of the Penal Code and punishable under the same section of the Code.

He was sentenced to five years' imprisonment and fined RM5,000 or one year's imprisonment in default by the Sessions Court on 18 October 1995. The High Court dismissed his appeal on 18 January 1997.

The appeal came before us on 2 March 1998 when learned counsel for the appellant presented his motion to add another ground to the petition of appeal, which had been filed on 31 October 1997 and which had already listed thirteen grounds. The additional ground was that the learned High Court judge who heard the appeal was in error in not concluding that the learned trial judge in the Sessions Court who relied on the prima facie test at the close of the case for the prosecution when calling for the defence of the appellant was wrong in applying the wrong burden of proof and which was illegal and not curable under s. 422 of the Criminal Procedure Code F.M.S. Cap. 6 (hereinafter "the Code") or the proviso (hereinafter "the proviso") to sub-s. (1) of s. 60 (hereinafter "the subsection") of the Courts of Judicature Act 1964 (hereinafter "the Act") .

We had allowed the motion as the learned Deputy did not object. The matter was adjourned to the following day when learned counsel for the appellant, in arguing this additional ground, said that since the Sessions Court Judge had adopted the prima facie test, this was a misdirection on the burden of proof which rendered the whole proceedings an illegality.

The subsection provides:

60. Powers of Court of Appeal.

(1) At the hearing of an appeal the Court of Appeal shall hear the appellant or his advocate, if he appears, and, if it thinks fit, the respondent or his advocate, if he appears, and may hear the appellant or his advocate in reply, and the Court of Appeal may thereupon confirm, reverse or vary the decision of the High Court, or may order a retrial or may remit the matter with the opinion of the Court of Appeal thereon to the trial court, or may make such other order in the matter as to it may seem just, and may by that order exercise any power which the trial court might have exercised.

Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

He then cited the landmark Federal Court decision in Khoo Hi Chiang v. Public Prosecutor and Another Appeal [1994] 1 MLJ 265 where Edgar Joseph Jr, SCJ ended his judgment in the following manner.

In the circumstances, although the judge applied the H