Thomson CJ:

The judgment of the Court was delivered by -

This appeal arose from proceedings taken against the appellant under s. 114 of the Straits Settlements Bankruptcy Ordinance, the relevant portions of which read as follows:

At any time after the public examination of the debtor a Judge may, if he thinks fit, order the bankrupt to undergo imprisonment of either description for a term which may extend to three months, if it appears to him that the bankrupt- .......................................

(c) has contracted any debt provable in bankruptcy without having any reasonable ground of expectation of being able to pay it; or

(d) has brought on or contributed to his bankruptcy by rash speculations or extravagance in living.

The appellant who carried on the business of an oil mill, was adjudged bankrupt and a Receiving Order was made in respect of his estate on 25 June 1956. His statement of affairs which was filed on 13 August 1956, showed liabilities amounting to $242,506 and assets of $35,911.

The public examination of the appellant was concluded on 5 November 1956, and the present proceedings against him were commenced on 6 March 1957.

These proceedings were commenced by Notice of Motion to the effect that the Court would be moved for an order that the appellant undergo imprisonment on the grounds that he had contravened s. 114(c) of the Ordinance by contracting ten specified debts provable in bankruptcy without having when he contracted them any reasonable ground of expectation of being able to pay them and that he had contravened s. 114(d) by contributing to his bankruptcy by three speculative transactions in rubber futures of which full particulars were given and which were said to be rash speculations. The case came on for hearing before Shepherd J and he held that the appellant had contravened s. 114(c) in respect of all but three of the specified debts and that he had contravened s. 114(d) in respect of all the specified transactions and sentenced him to three months' imprisonment in respect of the contravention of s. 114 (c) and three months' imprisonment in respect of the contravention of s. 114(d), these sentences to run concurrently.

Against the whole of that decision the appellant appealed. On 13 February 1958, we allowed the appeal against so much of the learned Judge's decision as related to s. 114(c) but dismissed it insofar as it related to the learned Judge's decision under s. 114(d).

As regards s. 114(c) the principal ground of appeal was that in effect ten contraventions were alleged against the appellant, that these were dealt with together and that to have done so was wrong by reason of s. 174 of the Criminal Procedure Code in force in Penang which provides in effect that no more than three criminal charges can be tried together. It was also said that at least some of the debts which were in question were not debts "provable in bankruptcy". For reasons which I am about to state we did not find it necessary to consider either of these grounds of appeal although our not doing so must not be taken as any sort of indication that we disagreed with the dictum of McElwaine CJ, in the case of Poi Eng Lian v. The Official Assignee, FMS [1947] MLJ 126 that "the Criminal Procedure Code has nothing to do with a case like the present."

In our opinion, which we express with respect, the learned trial Judge was unduly influenced by the view he took of the case of Fryer 10 LT (NS) 197. That was a case where a bankrupt who had no capital and with no experience in shipping goods to Australia, which in 1861 was a very long way from London in terms of time, obtained goods on credit and shipped them to Australia where they were ultimately sold at very great loss. This was held to be rash and hazardous speculation within the meaning of s. 159 of the Bankruptcy Act, 1861, rash and hazardous speculation being described as such as no reasonable man or no man of ordinary commercial prudence under similar cir