Roberts, C.J.

I received a letter from Hj Md Noor bin Abdullah, the father of the appellant, Noorazman bin Hj Md Noor ("the defendant").

I replied to that letter, on 13th March, 1996, asking the father if the defendant wished to appeal. I did not receive any reply to this. However, on an examination of the record of the trial of the defendant, a number of features emerged. These prompted me to set down the appeal for hearing in revision. (It was later described as a Criminal Appeal in error, but I did not change the number).

The record of the trial of the defendant in BSB Case No. 310/96 states that the Brief Facts were admitted.

There is, unfortunately, nothing to show what these facts were, or if they were such as to show the commission of an offence by the defendant.

The prosecution of the defendant was said to be related to BSB Cases No. 312/96 and 309/96.

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In Case No. 309, the defendant is not mentioned. In Case No. 312, in which Supardi and Zulkifli were the defendants, it was stated, in the facts put before the magistrate, that both of them went to the house of their friend Noorazman and surrendered the items for safe keeping.

There is nothing in these facts which supports the allegation that Noorazman knew, or ought to have known, that the goods were stolen.

When the defendant was asked if he had anything to say to the Court, he replied, in mitigation "I do not know items were stolen property. I just knew them from my village".

The defendant was charged with dishonesty receiving stolen property, contrary to section 411 of the Penal Code. An offence is committed against this section only if the prosecution has proved that the defendant receives or retains stolen property "knowing or having reason to believe the same to be stolen property".

The magistrate should have changed the defendant's plea to one of "not guilty", as soon as the defendant alleged that he did not know that the items were stolen property, since this might have amounted to defence to the charge.

It is, of course, possible that the magistrate would have come to the conclusion, having heard the evidence, that the defendant knew, or had reason to believe, that the items concerned were stolen property. But I think that the defendant should have had an opportunity to make his defence.

The defendant's father also complained that those who stole the items were bound over, in Cases 309/96 and 310/96, whereas the defendant was fined $500 for a lesser offence.

No reason was given for this difference by the magistrate. It may be because the defendant was older than the defendants in Cases 309/96 and 310/96, but this is not stated.

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In view of the above, I thought it right (and Mrs Hasnah for the public prosecutor agreed) to quash the conviction, order a retrial of the defendant and order that the fine of $500, already paid by the defendant's father on the defendant's behalf, should be returned to him.

DATO SIR DENYS ROBERTS

Chief Justice.

Appellant In person.

Mrs Hasnah for Public Prosecutor.