Chang Min Tat J:

The appellant was at the conclusion of his trial at the Sessions Court in Penang convicted on the following alternative charge:

That you on 9 March 1972 at about 3.15 p.m. at the ground floor of Police Headquarters. Penang Road, in the District of Georgetown, in the State of Penang, did use threatening, abusive and insulting words on ASP Ariffin bin Hj. Mohd. Aris to wit by uttering the words:

'Shut up, don't talk about s. 127A to me. I demand to see my client or else I will take up this matter.' 'You are trying to be funny, one of these days I will see that you get sacked from the Police Force,' 'You tap my client, I will sue you in Court, I know that you have been beating up my client.'

Whereby a breach of peace was likely to be occasioned and you have thereby committed an offence punishable under s. 14 of the Minor Offences Ordinance No. 3 of 1955.

and fined $50 in default I month's imprisonment. The fine was paid. The appeal was from the conviction.

A first ground of appeal was that the charge was bad for duplicity. An objection to this charge on this ground was taken at the commencement of the trial and if I may say so, out of respect, correctly taken at this stage. The matter did not appear however to be strenuously pursued and the DPP who prosecuted considered it sufficient merely to contend that it was not. The learned President Sessions Court ruled against the submission, but without giving his reasons for his decision. He also did not deal with the objection in his grounds of judgment.

Mr. Lim Ewe Hock who now appeared for the appellant thought that having regard to s. 448 of the Criminal Procedure Code (SS) a charge that on the face of it contained two offences was fatal to the prosecution only if it had occasioned a failure of justice. As I understood him, he did not press the point, but of course, if the charge was not bad for duplicity, then no question arose whether there had been any miscarriage of justice.

On this ground, I am fortunate in having my attention drawn to a decision that came out after the instant case was decided in the lower Court. It is the case of Vernon v. Paddon [1973] 1 WLR 663. The Divisional Court of the Queen's Bench in England had to decide whether a charge of using threatening and insulting words and behaviour whereby a breach of the peace was likely to be occasioned, contrary to s. 5 of the Public Order Act 1936, was bad for duplicity. Now this particular section as amended reads as follows:

Any person who in any public place or at any public meeting (a) uses threatening, abusive or insulting words or behaviour .... with intent to provide a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence.

On the construction of this section, Melford Stevenson J. had this to say, at p. 666:

No one in my view can read those words without realising that what the section is aimed at is the punishment of any form of human conduct which is intended to provoke a breach of the peace or whereby a breach is likely to be occasioned. That is the essential feature of the offence. The fact that the adjectival phrases, and they plainly are adjectival phrases, used to describe the behaviour or conduct which may result in a breach of the peace, are expressed disjunctively does not in my view militate at all against the view that this action is aimed at one offence.

He went on to say:

Whether that construction be right or wrong, I personally have no doubt that in a case such as this which springs from one clearly identifiable incident described in the evidence, there is no useful purpose to be served by requiring the prosecution to dissect the constituent elements of the offence so that words and behaviour are separately identified, so that the question whether they are threatening or abusive is separately alleged and proved. To do that, it seems to me, would be to accept a legalistic view of this section which would de