JUDGMENT

David Wong Dak Wah J:

[1] The respondent was charged with the following charge:

That on the 11th day of July, 2000 at about 11.15 am, at the vicinity of Pejabat Daerah Kota Samarahan in the Samarahan District, in the state of Sarawak, one Hendrick Tan Boon Kai (m) was ordered to be apprehended of an offence punishable under section 302 of the Penal Code by C/Insp. Anot bt. Kian, public servant in exercise of her lawful powers as such public servant, and that you knowing of the said order for apprehension, at the same date, time and place mentioned above, harboured the said Henderick Tan boon Kai, with the intention of preventing him from being apprehended, and that you have thereby committed an offence punishable under section 216 of the Penal Code.

[2] The learned Magistrate at the end of the prosecution case discharged and acquitted the appellant, resulting in this appeal.

[3] The learned Senior Federal Counsel listed six grounds of appeal and after hearing and reading the submissions of counsels, I am of the view that this appeal raises one issue and that is whether or not the respondent had the intention to prevent the arrest of one Hendrick Tan Boon Kai as required under s. 216 of the Penal Code.

[4]Section 216 of the Penal Code reads as follows:

(1) Whenever any person convicted of, or charged with an offence, being in lawful custody for that offence, escapes from such custody, or whenever a public servant, in the exercise of the lawful powers of such public servant, orders a certain person to be apprehended for an offence, whoever, knowing of such escape or order for apprehension, harbours or conceals that person with the intention of preventing him from being apprehended, shall be punished in the manner following, that is to say, if the offence for which the person was in custody, or is ordered to be apprehended, is punishable with death, he shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine; if the offence is punishable with imprisonment for life, or imprisonment for ten years, he shall be punished with imprisonment for a term which may extend to three years, with or without fine; and if the offence is punishable with imprisonment for not less than one year but less than ten years, he shall be punished with imprisonment for a term which may extend to one-fourth part of the longest term of the imprisonment provided for such offence, or with fine, or with both.

(2) In this section "offence" includes also any act or omission of which a person is alleged to have been guilty out of Malaysia which if he had been guilty of it in Malaysia would have been punishable as an offence and for which he is under any law relating to extradition or fugitive offences, or otherwise liable to be apprehended or detained in custody in Malaysia and every such act or omission shall for the purpose of this section be deemed to be punishable as if the accused person had been guilty of it in Malaysia.

Exception-This provision does not extend to the case in which the harbour or concealment is by the husband or wife of the person to be apprehended.

[5] The facts were these. One Hendrick Tan Boon Kai (Hendrick) was arrested by the police and brought before a 2nd class Magistrate (the administration officer at Kota Samarahan) on 11 July 2000 for remand. The respondent was the counsel acting on behalf of Hendrick. The application for remand was unsuccessful and Hendrick was released unconditionally. Upon being released, PW6 instructed PW2 to re-arrest Hendrick. The respondent however prevented the arrest by getting Hendrick hurriedly into his car and sped away.

[6] Based on those facts the learned Magistrate made the following findings:

Unless there is an admission, the intention of the accused can only be inferred by the court from the facts and circumstances surrounding his action.

In this case, the accused was a lawyer for a suspect in a murder case, and his client was subsequently ordered