Azmi LP:

[1] The following question which arose out of Kuching High Court Appeal No K 8 of 1969 Wan Razali Kassim v. The Public Prosecutor was referred to the Federal Court by the learned PP under s 66(2) of the Courts of Judicature Act 1964,

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"If a magistrate, without misdirecting himself, has made a finding of fact based on actual evidence before him, which finding of fact is corroborated in material particulars by inferences reasonably and properly drawn by him from other evidence adduced before him, and such magistrate has convicted the accused as a result of such finding of fact, such conviction not being against the weight of evidence in the case, is it open to a Judge of the High Court, on hearing an appeal against such conviction, to upset or interfere with such finding of fact?"

[2] Wan Razali Kassim, hereinafter referred to as the accused, was convicted by the learned first class magistrate on a charge of corruptly accepting $40 from one Ho Shan Jan (hereinafter referred to as PW 3) as an inducement for forbearing from taking action against PW 3 for using a motor cycle whilst he was not covered by a third party risk insurance policy as required by the Road Traffic Legislation, an offence punishable under s 4(a) of the Prevention of Corruption Act 1961 and was sentenced to six months' imprisonment. He appealed against the conviction and sentence to the High Court at Kuching and his conviction and sentence were quashed by the appellate Court.

[3] The evidence for the prosecution may be summarised as follows:

[4] PW 3 whilst driving a motor cycle on 9 December 1968, in Kuching met with an accident and as a result he, his pillion rider and a pedestrian were injured. Whilst at the hospital he was interrogated by the accused who apparently with another senior officer was investigating the matter. PW 3 was discharged the same evening but was told by accused to see him again at the police station and to bring the insurance policy covering the use of the motor cycle.

[5] PW 3 accordingly saw the accused on 11 December and showed him the insurance policy. It transpired that the policy did not cover PW 3 but only his father the owner of the vehicle. The accused thereupon explained to PW 3 that he had, in the circumstances, committed an offence and for that he could be fined $50 or $100, but at the same time informed PW 3 that he could help in the matter. Accused told PW 3 to go away and wait as he wished to speak to another man who then appeared. After apparently consulting the other man the accused asked PW 3 how much he was prepared to pay. Finally it was agreed between the two of them that PW 3 should pay $40 to the accused but when the accused said that he had no money then, it was further agreed that they should meet again the same evening at a bus station in the town at 8pm and the accused also requested PW 3 to put the money in an envelope.

[6] After this meeting with the accused, PW 3 went to see a friend, a police mechanic and told him what had transpired. As a result PW 3 was taken to see ASP Chai. After hearing PW 3's story, ASP Chai planned a trap for the accused. He told PW 3 to meet him at 7.30pm the same evening at a certain place.

[7] As part of the plan senior inspector Dollah dusted four $10 notes with anthracene powder, which under ordinary light is colourless but under ultra violet light would give a green or blue flourescence colour. ASP Chai then placed the dusted notes in an envelope after the envelope had also been dusted with anthracene powder. They were then put into another but clean envelope. The whole bundle was handed to PW 3 who was to hand over the dusted envelope to the accused at the agreed meeting place.

[8] PW 3 arrived at the rendezvous and met the accused. He handed the dusted envelope and money to the accused who took out the money from the envelope, counted it, put it back into the envelope and pushed it into his pocket. Then suddenly, according to PW 3, accused took the envelope out of hi