Tee Ah Sing J:

In this appeal the respondents were charged with three charges namely:

(1) For an offence punishable under s. 58 of the Local Authority Ordinance.

(2) For an offence punishable under By-Law 9 of the Sarikei District Council (Hawking) By-Laws.

(3) For an offence punishable under By-Law 3(1)(d) of the Sarikei District Council (Anti-Litter) By-Laws 1983.

On 1 October 1996 when this appeal came up for hearing, Mr. Awang Armadajaya, DPP informed the court that the Public Prosecutor is not a party and therefore will not be making any submissions.The learned DPP also told the court that there is no written permission for Dr. Chew Peng Hui to appear on behalf of the Public Prosecutor.

Dr. Chew Peng Hui, learned counsel for the appellant submitted that there are actually three matters before the court.First, there is the appeal proper.Secondly there is the preliminary objection by the respondents to the appeal.Thirdly there is the application by the appellant made under s. 310 of the Criminal Procedure Code ('the CPC') .

The application under s. 310 of the CPC is only relevant if the preliminary objection is held against him and his application under s. 310 is unsuccessful then he is applying for criminal revision.

The learned counsel for the respondents in his written submission contended that the appellant's notice of motion ought to be dismissed on the following grounds:

(a) The notice of appeal is bad in law.It fails to express in the said notice, the intention to appeal.

(b) The petition of appeal is also bad under s. 307(vi) of the CPC . By the word "shall" in s. 307(vi) , it is mandatory to state shortly the substance of the judgment, non-compliance of which, renders the appeal incompetent.In support the case of Yek Tieng Sing & Ors v. PP[1971] 1 MLRA 495, [1971] 2 MLJ 94 was cited.

(c) The affidavit of Kho Pek Choo in support of the motion is inadequate on the strength of the decision in Masnelan Pakpahon v. PP [1989] 1 MLRH 513, [1989] 2 MLJ 362.

(d) The appeal is also improperly brought because s. 306 of the CPC has not been complied with as the appeal was not lodged by the Public Prosecutor nor with the sanction in writing of the Public Prosecutor.

In support the following cases were cited (a) Re Radha Krisna Naidu [1962] MLJ 131; (b) PP v. Joehari bin Abdullah [1995] 3 MLRH 346, [1996] 1 CLJ 100 ; (c) Hardial Singh v. Faridah bte Haron & Ors [1988] 2 MLJ 469.

(e) The learned counsel for the appellant submitted that in respect of the notice of appeal there was substantial compliance with s. 307 of the CPC . He also submitted that the heading of the notice of appeal says 'Notice of Appeal' and anyone reading that notice would be quite clear that it is a document intending to appeal against the decision of the lower court.In respect of the petition of appeal it is submitted there was substantial compliance.He also submitted that there was no prejudice to the respondents as it is not a case where the respondents did not know what was before the court in this appeal.He also submitted that the Public Prosecutor has not indicated that they have any objections to the appeal or that they are minded to take over the appeal.

The learned counsel for the appellant urged the court to invoke s. 310 of the CPC so that substantial justice may be done as in Veerasingam v. PP [1958] 24 MLJ 76.

In this case there has been merely a dismissal of the charges.This is not an appeal against an acquittal, so s. 306 of the CPC has no operation.It was submitted that the learned Magistrate was wrong in holding that the offences were seizable offences.

It was further submitted that in respect of non-seizable offences the proceedings can be instituted in the name of the Sarikei District Council instead of in the name of the Public Prosecutor.In support the case of Hardial Singh v. Faridah bt Harun & Ors [1988] 2 MLJ 465 and Municipal Commissioner, Malacca V. Teh Chwee Swi [1971] 1 MLRH 509, [1971] 2 MLJ 274 were cited.

It