Hashim Yeop A Sani J (delivering the judgment of the Court):

This case has a long history. On 31 December 1975 the appellant, Rasiah Munusamy, was convicted by the learned Magistrate, Malacca, for an offence under s. 197 punishable under s. 193 of the Penal Code. The charge read as follows:-

That you on 1 March 1975 at about 4.30pm at the Melaka Airport Immigration Check-point, in the District of Melaka Tengah, in the State of Melaka, issued a Certificate, to wit, a Special Pass No. 136844, which is required by law to be given and knowing that such certificate is false in a material point, to wit, that Mdm. Mariaie is a holder of Malaysian Passport, and that you have thereby committed an offence under s. 197 and punishable under s. 193 of the Penal Code.

On 16 November 1976 the appeal came before the High Court, Malacca and on 27 December 1977 the appeal was allowed and the conviction and sentences set aside. In the written judgment of the learned Judge he clearly stated (in para 5 of the judgment) that he had gone through all the grounds and found that there were no merits in them except that the Special Pass (P6) was in his opinion, not a certificate "required by law to be given" under s. 197 of the Penal Code.

On application by the learned Public Prosecutor, the learned Judge acting under s. 66 of the Courts of Judicature Act, 1964 reserved for the decision of this Court the following question of law of public interest which arose in the course of the appeal and the determination of which by the Judge affected the event of the appeal:

whether a special pass issued under reg. 14(3) of the Immigration Act, 1963 (Laws of Malaysia Act 155) is a certificate required by law within the meaning of s. 197 of the Penal Code, FMS Cap. 45.

This Court gave its judgment in Public Prosecutor v. Munusamy . The answer to the question referred was in the affirmative. In that judgment this Court also agreed with Mr. Palasuntharam, Counsel for appellant, that the whole case may now be reargued as a regular appeal to satisfy the Court that the conviction by the learned Magistrate was wrong.

The charge against the appellant concerned an event which occurred at about 4.30pm on 1 March 1975 at the Malacca airport. The facts constituting the prosecution case are briefly as follows. Madam Mariaie (PW2) arrived by plane at the airport accompanied by her two children, Vasugi and Panneerchelvam. PW2, although said to have been born in this country was in fact not a citizen and was a holder of an Indian Certificate of Identity (P5). Quah Boon Huat (PW6), an immigration officer, was on duty then. While PW6 was clearing passengers, the appellant who apparently also had arrived by the same plane came to the check-point and instructed PW6 to issue a Special Pass to PW2. Appellant gave PW6 verbal instructions to the effect that the lady (PW2) was a holder of a Malaysian passport. Thus the statement on Special Pass (P6) "Holder of Malaysian Passport" was written by PW6. After PW6 had written out P6 he asked appellant to sign it. But appellant did not want to do so and said that since PW6 was the head of the team on duty that day PW6 should sign it. PW6 said he had to sign it as instructed since the appellant was his head of department. He then handed over P6 to appellant. PW2 was in fact a holder of an Indian Certificate of Identity (P5) and not a holder of Malaysian passport.

The procedure at any entry point in this country is explained briefly in the evidence of Zakaria bin Sulong (PW4) who was also an immigration officer. He said that when a visitor wishes to visit Malaysia, the visitor has before the plane lands, to fill in a form (disembarkation card). The immigration officer incharge will then know what type of Pass should be issued to the visitor. According to PW4 the types of Passes are "Social Pass, Business Pass, Visit Pass, Temporary Work Permit Pass and Special Pass." The types of Passes are in fact described in reg. 8(1) of the Im