Edgar Joseph Jr J:

This Appellant, Nachatar Singh s/o Bhag Singh, was prosecuted in the Sessions Court, George Town, with a single count of attempting to obtain a bribe of RM100 in contravention of s. 4(a) of the Prevention of Corruption Act 1961 ("the Act"), the charge being as follows:

That you on 12 March 1980 at about 11.00 p.m. at Jalan Hilir Pemancar, Sungai Glugor, in the district of Georgetown, in the state of Penang, being an agent, viz. Police Volunteer Reserve of the Royal Malaysian Police Force, did corruptly attempt to obtain from one Fadzil bin Abdul Kareen, for yourself, a gratification of a sum of cash RM100, as an inducement for forbearing to do an act in relation to your principal's affairs, to wit to refrain from taking appropriate action against the said Fadzil bin Abdul Kareen for driving a motor cycle No. PQ 1271:

i. Without a valid driving licence,

ii. Without a valid road tax,

iii. Without wearing a crash helmet and

iv. Without displaying the front vehicle registration number.

and that you have thereby committed an offence punishable under s. 4(a) of the Prevention of Corruption Act 42/61 (Laws of Malaysia Act No.57).

In the result, he was convicted and sentenced to 8 months' imprisonment. He now appeals against that conviction and sentence.

Before me, the conviction was at first attacked, by way of preliminary point, namely, that bearing in mind that the charge was one of attempting to obtain a gratification, the learned President had misdirected herself as regards the burden of proof; in particular, the burden on the defence. The following passages in the judgment of the learned President were singled out for special treatment:

The learned DPP Encik Wahab cited the case C.N. Peters v. The State AIR [1959] Allahabad 483 wherein it was held that where the accused in his attempt to rebut the presumption takes several stands, the very multiplicity of the stands destroy the bona fide of them, and they become inadequate to rebut the presumption. (Emphasis supplied.)

I found that the defence was improbable and no doubt had been cast on the prosecution case even on a balance of probabilities.

(Emphasis supplied.)

The learned Deputy, who immediately appreciated correct law, conceded that there had indeed been a misdirection as regards the burden of proof as upon a charge of attempting to obtain a gratification in contravention of s. 4(a) of the Act, no presumption could possibly arise in aid of the case for the prosecution and there could therefore be no question of the defence having to rebut the same. However, he sought to salvage the conviction by inviting me to apply the proviso since it was said, that upon the evidence, the learned President would inevitably have arrived at the same decision even had she not misdirected herself as aforesaid.

In these circumstances, I invited both the learned Counsel and the learned Deputy to address me on the merits of the appeal.

The whole of the material evidence was then closely and critically examined before me and it does not appear to me to be necessary to discuss it again in detail.

Suffice it to say, at the risk of being trite, that the learned President had a great advantage, denied to this Court, of seeing and hearing the witnesses but, it has been said, that demeanour is not a touchstone of truth. It may well be also to remember what was said by Lord Wright and often quoted from his judgment in Powell & Wife v. Streatham Manor Nursing Home [1935] AC 267 of the possibility of Judges being deceived by adroit or plausible knaves or by apparent innocence.

Demeanour therefore needs to be tested against the rest of the evidence and the probabilities of the case. If therefore it can be demonstrated that the learned President's assessment of the credibility of the witnesses was arrived at as a result of having overlooked or misunderstood considerations relevant to the issue of credibility her conclusions as to credibility cannot in justice be regarded as unim