Terrell A-G CJ:

The facts and grounds of appeal sufficiently appear from the judgment below.

The accused was charged as follows:

On or about 2 December 1936, atNo. 10 Church Street, Singapore, did fraudulently or dishonestly destroy a document, to wit an IOU chit for $200 which is or purports to be a valuable security, and thereby committed an offence punishable under s. 477 of the Penal Code, and was convicted after a trial before Horne J and a common jury of the attempt and sentenced to nine months rigorous imprisonment.

He was given leave to appeal by the Court of Criminal Appeal under s. 5(b) of the Court of Criminal Appeal Ordinance, and the appeal was heard on 18 June, when after argument the appeal was allowed and the conviction quashed.

The grounds of appeal may be summarised as follows:

1. That the charge was bad in law in that it was expressed in the alternative as alleging that the criminal act was done "fraudulently" or "dishonestly."

2. That there was misdirection.

As regards the allegation of 'duplicity,' the leading authority on the subject is the case of Charles Wilmot, 24 Cr App R p. 63, and in the course of his judgment the Lord Chief Justice quotes with approval the following dictum of Avory J in Surrey Js; Exp Witherick, [1932] 1 KB p. 450 at p. 452:

It is an elementary principle that an information must not charge offences in the alternative since the defendant cannot then know with precision with what he is charged and of what he is convicted, and may be prevented on a future occasion from pleading 'autrefois convict' " test therefore appears to be whether there

are in substance separate charges. Now s. 477 of the Penal Code, under which the accused was charged and convicted, commences "Whoever fraudulently or dishonestly, or with intent to cause damage etc." There is no comma between "fraudulently" and "dishonestly," and it is permissible to draw the conclusion that the two words are treated merely as different aspects of the mens rea which is essential to constitute the offence. In fact "fraudulently" is nowhere specially defined in the Code (see s. 25), and it seems to have been the intention of the Code that the prosecution should be permitted to prove the guilty intention by proving that the act was done either fraudulently or dishonestly without specifying which. For the purpose of the section the two expressions appear to be treated as different aspects of the same thing, and it is hardly possible to visualise a case of a person, convicted or acquitted of having destroyed a valuable security "dishonestly", being subsequently tried and convicted of having done the same act "fraudulently." At the same time the Court considers it desirable that the charge should be drawn so as to allege either fraud or dishonesty, and so avoid the slightest suggestion that the accused is not certain of the specific act with which he is charged. The first ground of appeal therefore fails.

As regards misdirection the Court accepts the principle that a judge's summing up should not be examined through a microscope, and the effect of the summing up as a whole should be considered; and it is not necessary to consider many of the criticisms which were directed against it.

There are however certain passages to which objection can be taken. In particular the learned Judge stated -

There is no doubt at the time there was some sort of struggle.

and later:

I do not come to the conclusion that these three women have colluded together.

Both these were controversial facts, the decision of which rested entirely with the jury, and although under s. 215(2) of the Criminal Procedure Code the Judge may, if he thinks proper in the course of his summing up, express to the jury his opinion on questions of fact, it is a salutary rule that he should warn the jury that the decision of the fact rests with them and not with him. The Court cannot find that the learned Judge gave any such warning either generally, or with