HYNDMAN-JONES CJ

This was a case arising out of a fire at the premises of one SIM LIAN MOOI, a pineapple factory in Sumbawa Road, in the early morning of 29th August. The two Appellants, P.C.'s 55 and 58, were present at the fire, No. I, it is alleged, being on guard inside a godown across the road, from which goods were being moved in anticipation of the fire spreading.

The fire was put out, and No. I went to Corporal 51 and to Detective Inspector JOYCE and stated that he had seen SIM LIAN MOOI'S coolie carrying a kerosene oil tin and a lamp from the burning building into godown across the lane and locking them away. Mr. JOYCE took him to the premises at 6 a.m., when a lamp and tin were pointed out by him in support of his story.

On this information the coolie in question was arrested and charged with arson, the charge being afterwards dropped.

On the afternoon of the arrest, however, No. 2 visited the towkay and asked for $300 each, for himself and for No. I. In return he promised that he would "report fair" and alter the case at the trial by saying it was a tin used for carrying water, and so get the coolie acquitted.

SIM LIAM MOOI put him off till 9 p.m., and in the interval reported the matter to the Chief Inspector. Notes of the value of $300 were marked, and he returned to his house accompanied by the Chief Inspector and Mr. HAWTREY, Assistant Superintendent of Police. No. 2 was outside the house, saw the Europeans coming and made his escape. No. 1 was inside the house, asked for money, was given the marked notes, and was arrested with them in his possession as he left the house.

No. 2 was afterwards arrested, and both were taken by Mr. HAWTREY before the Second Magistrate. I have been supplied with a statement showing a history of the case. It seems that the Second Magistrate transferred the case to a Bench Court. There the charges were amended at the request of the Deputy Public Prosecutor. No. I was charged under s. 182 (giving false information to a public servant) and s. 161 (taking illegal gratification). No. 2 was charged with abetment of the latter offence.

At the trial Mr. HAWTREY, an Assistant Superintendent of Police, himself appeared, and was the first witness sworn for the prosecution. No sanction was produced, the A.S.P. submitting that it was not required and his evidence was sufficient. After the case for the Crown was closed, the accused's Counsel, Mr. R.W. Braddell, raised three points of law. The Bench Court overruled him on all these points. Mr. Braddell thereupon decided to call on evidence. The accused were convicted, and now appeal.

The points argued below have now been urged in appeal, and the first turns upon the question whether the consideration promised in return for the gratification was an "official act." It has been submitted that the giving of evidence is not an official act, and therefore s. 161 of the Penal Code does not apply. Two cases have been cited in support of this contention. Connor v. Tan Jim Sin 3 Kyshe, 114, and Reg. v. Low Lau Sew 4 Kyshe 76.

In each of these cases the act in respect of which the gratification was received was quite clearly extra-official. In the present case what the accused proposed to do was not to give evidence in support of the charge on which they had caused the coolie CHAN KIM TIAN to be arrested, but to give evidence in his favour; and I doubt if that can properly be called an official act. But section 161 discloses three varieties of offence. It provides for the punishment of a public servant who takes a gratification as a motive or reward (a) for doing or forbearing to do an "official act"; (b) for showing or forbearing to show "official" favour or disfavour; (c) for rendering service or dis-service with another public servant as such.

In the first two of these, the words "official act" or the words "in the exercise of his official functions" appear. In the third they do not. The magistrates held that the accused had brought them