Mohamed Dzaiddin J:

This is an appeal against sentence. The appellant was charged at Jalan Duta Magistrate's Court on 26 June 1982 for an offence under s. 454 Penal Code (house-breaking in order to commit theft) and claimed trial. He was subsequently convicted and was sentenced to four years imprisonment.

His sole ground of appeal is that the sentence is manifestly harsh. At the onset of the proceeding, the learned Deputy Public Prosecutor pointed out that from the evidence in the Appeal Record, the appellant could not have been convicted for an offence under s. 454 Penal Code. Instead, he should have been convicted for theft in a dwelling house punishable under s. 380, Penal Code. He has therefore asked me to exercise my revisionary powers under the Criminal Procedure Code by substituting a conviction for a charge under s. 380, Penal Code.

My powers of revision are provided under s. 325 of the Criminal Procedure Code. These powers are consistent with s. 31 of the Courts of Judicature Act 1964. There are a number of authorities with regard to the powers of revision. In Mallal's Criminal Procedure, Fourth Edn., p. 482, it is stated as follows:

The powers of revision are given to the High Court alone, and the powers of revision are given to the High Court in the case of any proceeding the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge. Their Lordships are clearly of opinion that when the High Court has before it on appeal a record of a criminal proceeding, the condition precedent is performed, and the High Court can then, though the record has only come to its knowledge in the appellate proceeding, proceed to exercise its revision powers if it chooses to do so," per Lord Atkin in Chunbidya v. R., LR 62 IA 36; AIR 1935 PC.35.

The principles which should guide the Courts in the exercise of the revisionary powers have been clearly set out by Jenkins CJ in R. v. Lachiram, ILR 28 Bom 533 at p. 566 - see Mallal's Criminal Procedure, Fourth Edn., at P. 482.

Now, the next question for me to decide is whether or not I am permitted under the law to alter the conviction for another offence, i.e., under s. 380 of the Penal Code. The powers of the Judge of a High Court in an appeal against sentence to alter a finding is found in s. 316(b) of the Criminal Procedure Code where it is stated that at the hearing of the appeal the Judge may in an appeal as to sentence:

(i) reverse the finding and sentence and acquit or discharge the accused, or

(ii) alter the finding, maintaining the sentence, or with or without altering the finding reduce or enhance the sentence or alter the nature of the sentence.

In Sivalingam v. PP [1982] CLJ (Rep) 330, the Federal Court in a reference on a question of law of public interest held that in hearing an appeal from a conviction the power of the Judge to alter a finding must be exercised subject to ss. 166 and 167 of the Criminal Procedure Code. It is stated that the requirements of ss. 166 and 167 of the Code mu1st be satisfied before a High Court in the exercise of its appellate jurisdiction alters or substitutes a conviction for a different offence. It is further held that to warrant a substitution there must be clear evidence that a case for the substituted offence would have been made out or established in the Court below. In the case referred to, the accused was convicted and sentenced for an offence under s. 420 (cheating) of the Penal Code in the lower Court. He then appealed against conviction and sentence to the High Court. The appellate Judge found that an offence under s. 420 was not proved, but was satisfied that an offence under s. 409 (criminal breach of trust) had been established. He therefore substituted the charge to one under s. 409 of the Penal Code. He dismissed the appeal and maintained the conviction and sentence.

On reference to the Federal Court, Abdul Hamid FJ said as follows:

Our law clearly allows the