Suffian LP:

Mr. Cecil W.A. Rajah was the State Game Warden of Pahang stationed in Termerloh. He was charged in the Sessions Court, Kuantan, under s. 4(c) of the Prevention of Corruption Act 1961, with making false travelling claims in respect of four days in April 1974, with intent to deceive the Government. The case for the prosecution was that these claims had been made in respect of journeys which in fact he had not made. On 27 July 1978, the learned President acquitted and discharged him at the end of the prosecution case, holding that no prima facie case had been made out against him which, if unrebutted, would warrant a conviction.

The learned Public Prosecutor appealed, and the learned appeal Judge on 16 May 1980 allowed the appeal, set aside the order of acquittal and discharge and ordered that the defence be called.

The defence has not yet been called and the trial concluded, for on 9 June 1980, the accused applied under s. 66(1) of the Courts of Judicature Act 1964, to the learned Judge for an order that certain questions of law of public interest raised in the appeal be reserved for the determination of the Federal Court.

Apparently during the trial the learned President visited one of the scenes, accompanied by all concerned and then returned to Court. The accused's complaint relates to what the learned President did and did not do in reference to this visit, as can be seen from the questions posed on his behalf, which are as follows:

(a) In a criminal trial what are the powers, principles, functions and procedures that govern the holding of a view of the locus in quo? and/or,

(b) Whether a view coupled with demonstrations is part of the evidence so much so that it may of itself outweigh all the other evidence in the case so that the trial Court can find its decision upon it without more? and/or,

(c) Whether or not Alverstone CJ was correct in stating the law on the view of the locus in quo in London General Omnibus Company Ltd. v. Lavell [1901] 1 Ch 135, 138 as follows:

It is quite true that by r. 4 of Order L it is provided that the Judge may `inspect any property or thing concerning which any question may arise' in the action; but I have never heard it said, and, speaking for myself, I should be very sorry to endorse the idea, that the Judge is entitled to put a view in the place of evidence. A view, as I have always understood, is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence, and to apply the evidence?

and/or,

(d) In a criminal appeal to the High Court against an order of acquittal entered by a Subordinate Court what are the principles and powers which govern the jurisdiction of the High Court to reverse the Trial Court where the acquittal is founded on the credibility of witnesses?

On 11 August 1980, the learned Judge dismissed the application on the ground that no points of law of public interest are involved in the questions posed which needed a reference under s. 66(1) of the Act. He said:

If there was any point of law raised therein, they were clearly in reference to the already known, accepted and established principles or one following the principles which had been laid down by the cases cited by the applicant himself. To allow such applications would merely, therefore, be opening the flood gates to having matters referred to the Federal Court which ordinarily the accused person would be prevented from doing in an appeal.

It should be observed that at this stage we are not concerned with the merit of the questions. All we are concerned with is whether or not we should allow the application that the questions be referred to us; and we should determine them only if we so allow, but the trial should continue before the learned President as ordered by the appeal Judge if we do not so allow.

Mr. Edgar Joseph Jr. on behalf of the applicant referred us to Tameshwar v. The Queen [1957] AC 476, Karamat v. The Queen [1956] AC 256, Reg.