McElwaine CJ SS:

The judgment of the Court of Appeal was read by:

The appellants were convicted under s. 392 of the Penal Code of robbing Chan Hock Seng of $80 in cash, and sentenced to eighteen months RI.

There is a great deal in the case which is unsatisfactory. The robbery is alleged to have taken place at about 10 p.m. on 14 December. Chan Hock Seng made no report until he was interviewed by a detective on 19. The detective got his information from one Haroun who professed to be an eye-witness but who did not attempt to render assistance to Chan.

The defence was that the complainant, the accused and others were gambling near a rubber estate, that Haroun kept watch for the police and that the complainant lost heavily. The informer Haroun was the moving spirit in the prosecution. He professed to be a reformed gambler with two or three convictions to his credit. After the alleged robbery he went into the second accused's barber shop where the first, second and third accused were present and a fourth man who was acquitted. He had never been in that shop before, and was not on speaking terms with the second accused. Here Haroun professed to see the first accused order and pay for drinks, taking money from a square bag in which was a dhoby receipt, and the second accused take out a round bag from which dropped a pawn ticket which he had seen the complainant purchase earlier that evening. He said that though he had never spoken to the second accused the latter pressed a drink on him and told him not to disclose the secret. Haroun was wrong in the amount on the pawn ticket and in the colour of the writing on the dhoby chit.

The complainant, another gambler with a conviction, knew the first accused. He picked out his photo from a police album, but at an identification parade not only did he not pick him out as one of the alleged robbers but categorically stated that he was not one of the robbers.

In the report which he was more or less compelled to make to the Police he said that apart from a Punjabi he did not know the nationality of his assailants, yet he identified the second accused. There were several other contradictions in his statement and his evidence and the amount he paid for the pawn ticket. His explanation of the discrepancy was contradicted by a Crown witness.

Two independent witnesses, Hendrick and Rodrigo, who lived near where the defence said the gambling had taken place, saw three people running away, and also saw the complainant who told them that $80 had been taken by those people. Rodrigo said that complainant said he had been hammered and robbed of $70 and that he and Hendrick advised complainant (who said he did not want assistance) to report to the police but that he replied that he did not like to go and make a report. On the other hand, however, the complainant when speaking to Tan Hock Hee merely mentioned that he "had lost his money."

Two boys who were called as Crown witnesses went back on their depositions swearing that Haroun had told them what to say. One of these boys said that he saw the accused and complainant gambling.

We entertain grave doubts whether the defence story is not substantially true. The learned Judge thought that unquestionably there had been a robbery, but we cannot accept that view of the facts. It is also unfortunate that the police photograph of the first accused was produced and put in evidence. Although we were informed that the first accused had never been convicted, the photograph was bound to give a bad impression. It was mounted on a card with several other photos of Indians. It bore a police number and was a combined profile and full face photo. It was obviously a police record and putting it in evidence was tantamount to saying that this man was a bad character. In Lai Ah Kam v. R [1939] SSLR 216; 8 MLJ 306 the Colony Court of Criminal Appeal, following R v. Dwyer [1925] 2 KB 799 quashed a conviction because such a photograph as the present was shown to