JUDGMENTBY: SUFFIAN LP

(delivering the judgment of the Court): Mr. Cecil W.A. Rajah was the State Game Warden of Pahang stationed in Temerloh. He was charged in the Sessions Court, Kuantan, under section 4(c) of the Prevention of Corruption Act, 1961, with making false travelling claims in respect of four days in April, 1974, with intent to deceive the Government. The case for the prosecution was that these claims had been made in respect of journeys which in fact he had not made. On July 27, 1978, the learned President acquitted and discharged him at the end of the prosecution case, holding that no prima facie case had been made out against him which, if unrebutted, would warrant a conviction.

The learned Public Prosecutor appealed, and the learned appeal judge on May 16, 1980, allowed the appeal, set aside the order of acquittal and discharge, and ordered that the defence be called.

The defence has not yet been called and the trial concluded, for on June 9, 1980, the accused applied under section 66(1) of the Courts of Judicature Act, 1964, to the learned judge for an order that certain questions of law of public interest raised in the appeal be reserved for the determination of the Federal Court.

Apparently during the trial the learned President visited one of the scenes, accompanied by all concerned, and then returned to court. The accuseds complaint relates to what the learned President did and did not do in reference to this visit, as can be seen from the questions posed on his behalf, which are as follows:

(a) In a Criminal Trial what are the powers, principles, functions and

procedures that govern the holding of a view of the locus in quo? and/or,

(b) Whether a view coupled with demonstrations is part of the evidence so

much so that it may of itself outweigh all the other evidence in the case so

that the trial court can found its decision upon it without more? and/or,

(c) Whether or not Alverstone C.J. was correct in stating the law on the

view of the locus in quo in London General Omnibus Company Ltd v

Lavell [1901] 1 Ch 135, 138 as follows:--

"It is quite true that by rule 4 of Order L. it is provided that the

judge may inspect any property or thing concerning which any question

may arise in the action; but I have never heard it said, and, speaking

for myself, I should be very sorry to endorse the idea, that the judge

is entitled to put a view in the place of evidence. A view, as I have

always understood, is for the purpose of enabling the tribunal to

understand the questions that are being raised, to follow the evidence,

and to apply the evidence?"

(c) and/or,

(d) In a criminal appeal to the High Court against an order of acquittal

entered by a Subordinate Court, what are the principles and powers which

govern the jurisdiction of the High Court to reverse the Trial Court where

the acquittal is founded on the credibility of witnesses?

On August 11, 1980, the learned judge dismissed the application on the ground that no points of law of public interest are involved in the questions posed which needed a reference under section 66(1) of the Act. He said:

"If there was any point of law raised therein, they were clearly in

reference to the already known, accepted and established principles or

one following the principles which had been laid down by the cases

cited by the applicant himself. To allow such applications would

merely, therefore, be opening the flood gates to having matters

referred to the Federal Court which ordinarily the accused person would

be prevented from doing in an appeal."

It should be observed that at this stage we are not concerned with the merit of the questions. All we are concerned with is whether or not we should allow the application that the questions be referred to us; and we should determine them only if we so allow, but the trial should continue before the learned President as o

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