Spenser Wilkinson J:

The facts and arguments appear sufficiently from the judgment below.

This was an application for bail pending appeal on the part of two persons convicted in Magistrates Court Cases Nos. P (Town-I) 75 and 76 of 1954. The applicants were sentenced to twelve months' imprisonment upon a charge under s. 411 of the Penal Code and also to one month's imprisonment on a second charge under the Minor Offences Ordinance, the sentences to run concurrently. The learned President who was sitting as a Magistrate refused bail.

At the conclusion of the hearing I intimated that the application would be dismissed and that I would give my full reasons for this decision later, which I now do.

There is a conflict of authority on the subject of granting bail pending an appeal from the Lower Courts to the High Court. In 1907 Fisher J in the case of Johore V. The King held that the intention of the relevant section of the Criminal Procedure Code is that execution shall be stayed pending appeal on the finding of reasonable security and there is no arbitrary discretion in the Court to refuse it. In the course of his judgment in that case he said:

I feel it necessary to say that bail ought not to be refused in such a case, for if it is, a man who has been convicted on insufficient evidence or wrong grounds may be forced to undergo rigorous imprisonment for weeks before he can get his conviction quashed, a miscarriage of justice of a very grievous kind. If an

appeal is manifestly frivolous, or if security cannot be given which is reasonably sufficient to ensure that the accused will not run away, bail may rightly be refused-but not, I think, otherwise.

In 1911 the same learned Judge expressed a similar opinion in the case of Rex v. Lim Soh Chwee and Low Quee CGH 178 the judgment of which is set out in Braddell on Common Gaming Houses, p. 178. The learned Judge in this case said (at p. 189):

That the Magistrate thinks the appeal is frivolous is no reason at all - it amounts only to an emphatic expression of his opinion that the conviction is right. That would be a reason for refusing bail in every case, . . . . . .

Both these cases are referred to in the commentary in Mallal's Criminal Procedure, 3rd Edn., at pp. 362 and 360 respectively and have, I believe, been acted upon in this country for many years.

My attention, however, has been called to a recent decision of the High Court in Kuala Lumpur in Doraisamy s/o Palanimuthu v. PP (KLM) Criminal Application No. 2 of 1954-unreported). In that case Wilson J, after referring to s. 311 of the FMS Criminal Procedure said:

Obviously the Court or the Judge has a discretion. In my view a stay of execution should not be granted and will not be granted by me unless there are special reasons for so doing, and the mere fact that a notice of appeal has been given is no sufficient reason. The only other reason given in this case is that the applicant who has been advised verily believes he has good grounds for appeal. That, also in my view does not constitute grounds for releasing an applicant pending appeal.

I have no means of knowing whether the above cited decisions of Fisher J were brought to the attention of the Court in this later case.

With the greatest respect to the views expressed by Fisher J. I think the relevant section of the Criminal Procedure Codes (s. 305 of the Strait Code) must be construed as giving the Courts a discretion. The operative words of that section so far as a sentence of imprisonment is concerned are as follows:

No appeal shall operate as a stay of execution but the Courts below and the High Court may stay execution on any.........................conviction or sentence pending appeal on such terms as to ......... the suffering of any punishment ordered..................as to the Court seem reasonable.

Had the Legislature intended that a stay of execution should always be granted it would no doubt have so provided as it has in the case of whippin