Spenser Wilkinson, J

My attention has been drawn to this case on the question of the order for one year's police supervision.

The learned President convicted the accused and, under the provision of section 290 of the Criminal Procedure Code, released him on a bond to be of good behaviour.

It is to be observed that in Section 290 the Code uses the expression:-

"The Court may, instead of sentencing him at once to any punishment, direct that he be released "

Section 12(4) of the Criminal Procedure Code provides that "a District Court may, in addition to any other punishment to which it may sentence him, direct that he shall be subject to the supervision of the police". In Public Prosecutor v Ng Teck Chuan KL - Miscellaneous Application No 16 of 1947 (unreported) it was held that binding over under section 294 of the F.M.S. Criminal Procedure Code was not a "punishment" and that as payment of compensation and costs under section 426 can only be ordered "in addition to any other punishment" such an order could not be made where the accused was only bound over. In my opinion the result of the similar wording in section 12(4) is that if no "punishment" is inflicted on the accused, no order for police supervision can be made. Where it is the intention of the Court to order police supervision it is essential that some punishment, however slight, should be imposed upon the accused first.

This, however, is not the sole ground upon which I am of opinion that the order for police supervision in this case cannot stand. The section only authorises police supervision where the second conviction is for an offence punishable with two years' imprisonment or upwards. Under the combined effect of sections 511 and 456 of the Penal Code the accused in this case had committed an offence punishable with only 18 months' imprisonment.

Another point arises out of this record. I desire to issue a word of warning with regard to the calling of witnesses after the close of the case for the defence. The following passage from the judgment in Kuala Lumpur Criminal Appeal No. 47 of 1949 (unreported) is relevant:-

"Although that section empowers a Court to call evidence 'at any time' there is a clear and distinct limitation upon this discretionary power. I have had occasion before to point out that although a section of the Code may give the Court a very wide discretion, such discretion must be exercised subject to such well-known legal principles as are applicable in each case. It has been laid down by the Court of Criminal Appeal in England that after the defence has been closed no further evidence should be called either by the Court or by either party unless the cause for such evidence is one which no human ingenuity could have foreseen ( Rex v Day 1940 1 All ER 402).

In Kee Seng Nee v Rex (1949) MLJ 210 Murray-Aynsley, C.J. held where the Magistrate recalled certain prosecution witnesses after Counsel for the defence had addressed the Court that this was in the circumstances an irregularity and he quashed the conviction.

In Balfour v Public Prosecutor (1949) MLJ Supp 8 the Court of Criminal Appeal referred with approval to the case of Rex v Day (1940) 1 All ER 402 and expressed the opinion that the calling of a witness after the close of the defence in that case by the trial judge, though not illegal, was a wrong exercise of discretion, and that the evidence ought to be excluded.

There is a digest in (1949) MLJ 70 of a decision of Callow, J. to the effect that the Court may call further evidence, even after the close of the defence, if the evidence appears essential to the just determination of the case, but it is not clear from this digest whether the case of Rex v Day (1940) 1 All ER 402 was cited to the learned Judge and it may be there were special circumstances in that case which justified the calling of the evidence.

In Kee Seng Nee v. Rex supra Murray-Aynsley, C.J. said:-

"It is true the evidence so obtained did not amount to much but the Magistrate

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