JUDGMENT

Hashim Yeop Sani FJ:

Applicant was at the material time a news editor of TV Malaysia earning a salary of RM1,250 per mensem. On 25 August 1982 he was charged in the Sessions Court, Kuala Lumpur on two counts under s. 4(c) of the Prevention of Corruption Act 1961. In essence the charges were that he did knowingly use with intent to deceive the Malaysian Government two documents claiming subsistence allowances for two days in December 1975 and January 1976 and the total amount for each claim was RM36.

At the close of the prosecution case the learned President called for the defence in respect of both charges. The applicant gave evidence. In his evidence the applicant did not dispute that the dates mentioned in the charges were incorrect but stated that it was an honest mistake firstly because when he prepared the claims he merely relied on the dates on the new hotel receipts since he had lost the old receipts and secondly he was very busy with his work at that time. His superior who was a prosecution witness (PW3) admitted that applicant was busy during the material period because of shortage of staff.

After hearing the defence learned President acquitted the applicant of both charges. In his judgment the learned President stated that after considering the evidence and after observing the demeanour of the applicant, he found that the applicant had succeeded in giving an explanation consistent with his innocence. He accepted the explanation of the applicant that it was an honest mistake. He also found the applicant had raised a reasonable doubt on the prosecution's case.

On appeal to the High Court the learned Judge in appellate capacity found that there could not be any question of genuine mistake. In his judgment the learned Judge said there could not be any genuine mistake because the applicant was given sufficient time to prepare the claims. He accepted the evidence of pressure of work but held that the pressure of work could not by any stretch of imagination be an excuse to support the defence of genuine mistake. He also rejected the learned President's assessment of the demeanour of the applicant since no particulars was set out as basis of the assessment. Then purporting to rely on Rex v. Low Toh Cheng [1941] 10 MLJ 1 at 2 reviewed all the evidence in the appeal record and held that the learned President had misdirected himself on the explanation of the applicant. The appellate Judge then substituted a conviction for the acquittal in respect of both charges.

Mr. Balasingam on behalf of the applicant submitted to us four questions for leave under s. 66 of the Courts of Judicature Act, 1964. All four questions clearly overlapped but central to all these questions was the decision of the appellate Judge to substitute his own finding on the question of honest mistake for that of the learned President, the finding of the learned President being one substantially of fact. We accordingly allowed leave for one question reframed by us. The question reframed reads as follows:

In an appeal against acquittal from the decision of a Subordinate Court to the High Court raising only questions of fact, where there is evidence to support the defence and there has been no misdirection by the Subordinate Court can the High Court substitute its own finding for that of the Subordinate Court?

This is an elementary question of law but we gave leave because firstly we felt that there was no proper appraisal of Sheo Swarup v. King-Emperor [1934] AIR PC 227 and secondly purporting to follow Terrel, Ag. CJ in Rex v. Low Toh Cheng the appellate Judge went into conflict with the trend of authorities in similar jurisdictions.

With respect, what Lord Russell of Killowen said in Sheo Swarup was that although no limitations should be placed on the power of the appellate Court, in exercising the power conferred "the High Court should and will always give proper weight and consideration to such matters" as -

(1) the views of the trial Judge on the credibility