Adams J:

This was an appeal by the Deputy Public Prosecutor against the acquittal by the learned Magistrate, Sagamat, of seven persons who were charged with an affray by fighting in public contrary to s. 160 of the Penal Code.

The facts are that on the evening of 20 September 1960, at Jalan Omar, Pekan Jabi, Segamat there was a political meeting in connection with the recent Town Council elections. Apparently members of the rival party created a disturbance by driving motor cars and motor cycles past the area of the meeting sounding their horns violently. One of the prosecution witnesses got up on the platform and appealed to the rival party not to drive the vehicles and sound their horns noisily. The first defendant who was taking part in the meeting on his way home was attacked by the other six defendants. The six defendants who were from the rival party also attacked the second witness for the prosecution who managed to break loose and run away.

The Magistrate found that there had been a fight between two or more persons and that the fight was in a public place but refused to call on the defence because he said that there was no evidence that the fight must have disturbed the public peace. It was because of this finding that the learned Deputy Public Prosecutor appealed.

I think the learned Magistrate had misunderstood the commentary given in Ratanlal (19th Edn.), pp. 372 & 373. It says this:

'Disturb the public peace.' - It is essential that there must be a disturbance of the public peace. - The offence under this section postulates the commission of a definite assault or breach of the peace. Mere quarrelling in a street over money matters without exchange of blows is not sufficient.

This clearly postulates that once there has been a fight With blows struck, there has been disturbance of the peace and no further proof by the prosecution is necessary. This is also so in England.

Under the English Common Law an affray is a public offence to the terror of the Queen's subjects and all the prosecution has to prove is that the prisoners fought in a public street or highway. (See Archbold, 23rd Edn, p. 1308).

The learned Magistrate was therefore wrong in holding that there was no case to answer in the case of defendants 2, 3, 4, 5, 6 and 7. He was however correct (but for the wrong reason) in holding that there was no case to answer in the case of Koo Gee Leong the first defendant because he was attacked by the other six defendants and in so far as the evidence of the prosecution goes he retaliated in no way whatsoever and therefore cannot be said to have been fighting.

The learned Deputy Public Prosecutor has said that he does not wish to take the matter any further. He merely wishes the Magistrate's erroneous conception of what had to be proved in a case of this nature be put right. Although, therefore, I would allow the appeal, I make no order thereon.

Appeal allowed.

*See now 24th Edn, p. 1343.