Syed Sheh Barakbah J:

This is an appeal by the appellant against the conviction and sentence of 4 months' imprisonment passed on him by the learned President of the Sessions Court, Sungei Patani.

The charge is as follows:

That you between 28 April 1960 and 22 May 1960, at the Forest Checking Station, Sik, in the District of Gurun, in the State of Kedah, being an agent, namely a Forester, employed by the Government of the Federation of Malaya, in the Forest Department, Kedah, did knowingly use with intent to deceive your principal, certain documents to wit, 6 Timber Removal Passes in respect of which, the principal is interested and which contain statements that they were issued in respect of timber removed by one Tham Chew Chee Cheang which statement is false in material particular and which statement to your knowledge was intended to mislead your principal and that you have thereby committed an offence punishable under s. 3(c) of the Prevention of Corruption Ordinance, 1950.

The facts of the case have been fully set out by the learned President in his grounds of judgment and I therefore need not go through them in detail. The brief facts are as follows:

PW1 had no license to fell timber in April and May 1960. In that period he took timber out through the Forest Checking Station where appellant worked as officer-in-charge. Dues were paid to the appellant for the timber taken out. PW1 used two lorries to transport the timber driven by PW3 and PW4. The appellant issued removal passes to these drivers not in the name of PW1 but in the names of other licensees including Tan Sue Chee Chong (PW8). PW8 had given permission to PW9 to renew his license under his name. Neither PW8 nor PW9 gave permission to the appellant or anyone else to use PW8's name for timber removal by PW1. Two other licensees, PW12 and PW13 were also mentioned in the removal passes issued by the appellant to PW3 and PW4. They also did not give permission to use other names on the passes. The removal passes were signed by the appellant.

On 20 August 1960, PW1 made a report to the police stating that the appellant had demanded $240 as coffee money, failing which he would not be allowed to take out timber. Subsequently he gave $240 marked notes given to him by the police to the appellant. The appellant took only $100 asking PW1 to keep the balance as he was hard up and the timber had not been brought out yet. The police then arrested the appellant and found marked notes on his person. The appellant made a cautioned statement to the police stating that the money was in payment of a loan made by him to PW1.

There were five grounds of appeal. During the course of the hearing the learned Counsel for the defence abandoned grounds (a), (b) and (e) leaving only grounds (d) and (e), namely -

(d)The learned President was wrong in law in refusing the application of defence Counsel to recall certain prosecution witnesses during the course of the trial. The right to recall is absolute and the failure of the learned President to allow this is fatal to the trial and the conviction and sentence therefore cannot stand.

(e)The learned President has misdirected himself on the question of burden of proof in criminal cases and has in fact required the defence to prove their innocence.

I shall deal with ground (e) first. In his judgment at p. 36, para. B, last two lines, the President states -

Obviously, accused is abetting the illegal transaction of PW1, and there being no corroboration of his evidence it must be accepted with suspect.

From this it would appear that the learned President was placing the burden on the appellant. In my opinion the learned President has misdirected himself as in all criminal cases it is for the prosecution to prove their case beyond reasonable doubt because there is a presumption in law that every man is innocent and that if he is to be proved guilty the burden is on the prosecution. It is not for the accused to prove his innocence.

W