Ong Hock Thye (Malaya) AGCJ:

The appellant was tried in the High Court at Johore Bahru on the following charges:

(1)"That you at about 6.00 a.m. on 17 August 1964 in the Security Area as proclaimed by the Yang di-Pertuan Agong vide FLN 243 of 13 August 1964 namely Kg Hospital, Pontian Besar, in the District of Pontian, in the State of Johore, without lawful excuse had under your control a firearm, to wit, one rifle without lawful authority and that you have thereby committed an offence punishable under s. 57(1)(a) of the Internal Security Act, 1960."

(2)"That you at about 1.35 p.m. on 17 August 1964 in the Security Area as proclaimed by the Yang di-Pertuan Agong vide FLN 243 of 13 August 1964 namely Kg Hospital, Pontian Besar, in the District of Pontian, in the State of Johore, without lawful excuse had under your control ammunitions, to wit, two handgrenades and 35 rounds of 303 ammunition without lawful authority and that you have thereby committed an offence punishable under s. 57 (1) (b) of the Internal Security Act, 1960."

At the close of the prosecution the DPP conceded that there was no case to answer on the first charge. Thereupon the appellant was formally acquitted of such charge. Counsel for the appellant next submitted that there was no case to answer on the second charge. The learned trial Judge, however, ruled otherwise and the appellant proceeded to make his statement from the dock, which was simply a denial that he had anything on his person other than a sum of $106. He called no witness, but Counsel on his behalf then made an application to recall ASP Zainal Abidin (PW7) for further cross-examination, the object and purpose of which was said to be "further clarification as to the arms and ammunitions." The application was rejected by the learned trial Judge on the ground that "the purpose of calling for the witness was to show that there was a flaw in my reasoning as to the evidence with reference to the handing over of the exhibits." Counsel having nothing further to say except to quote from Gour (6th Edn.) vol 3 at p. 1730, the trial Judge found the appellant guilty and having convicted him, passed sentence of death according to law.

The appellant now appeals against his conviction on various grounds. Broadly speaking they are: (i) that the prosecution had failed to establish the vital connecting link between the handgrenades and ammunition alleged to have been found by the two soldiers in the appellant's trousers and those subsequently examined by the ammunition technician (PW3) and the armament officer (PW6) ; (ii) that in the context of the whole of the prosecution evidence, the evidence of the same soldiers should not have been held as adequate to fill the therein in material particulars and (iii) that the refusal of the application by the defence to recall the witnesses for further cross-examination ought to raise doubts as to the possibility or probability of a miscarriage of justice.

The evidence may be summarised as follows: Immediately after information received of the sea-borne landing of Indonesian infiltrators in Pontian on 17 August 1964 a platoon of the six Battalion of the Royal Malay Regiment wentinto action. At about 1.35pm on the same day Private 10518 (PW4) and Private 13540 (PW11) captured a man whom they identified as the appellant. From the pockets of his trousers they alleged that PW4 recovered 35 rounds of 303 ammunition and two handgrenades. The finding, according to them, was witnessed by Lieutenant Badaruddin, Corporal Ramli and a special branch officer. To quote them ipsissima verba PW4 said, "After capture ... my officer, Cpl Ramli and the special branch man came to us. While I was examining the accused's person the others arrived," and PW11 deposed that "whilst accused was being searched by PW4 Lt Badaruddin, the Corporal and the special branch man were also present and witnessed the search."

The two soldiers then escorted the appellant in a land rover to the Pont