Thomson CJ:

This reference under s. 34 of the Courts Ordinance raises a question as to the commencement of proceedings in Subordinate Courts.

On 8 December 1957 a taxi driver named Hashim made a statement to a Police Officer relating to a collision between his vehicle and another vehicle.

On 28 January 1958 the Police applied to the Magistrate at Sungei Patani for a summons against one George Russell Leonard on a charge of dangerous driving in contravention of s. 4(1) of the Motor Vehicles (Driving Offences) Proclamation. This application was made on a form known as Police 52. The front of the form was headed "Application for Summons". It referred to the statement of the taxi driver, it alleged that Mr. Leonard had committed the offence of dangerous driving and it asked that a summons be issued against him for that offence. It concluded with the words "Application approved" initialled in ink by a Police Officer. On the reverse of the form was set out what was entitled "the information and complaint" of the taxi driver. This consisted of the statement which he had made to the Police on 8 December 1957 and at the bottom were typed words to the effect that the original had been signed by him and by the Police Officer who recorded the statement. Presumably, though this is not stated on the record, the application was accompanied by a charge sheet and a form of summons for signature by the Magistrate.

The Magistrate thereupon signed and issued a summons in accordance with the application. This was served on Mr. Leonard and the trial commenced the same day as it was desired to have the evidence of a Police witness who was about to leave the country.

Mr. Leonard appeared and took no objection to this course. When charged he claimed trial and when the Police witness gave evidence he cross-examined him. The trial was then adjourned to 27 February.

When the trial was resumed on 27 February Mr. Leonard was represented by Counsel who announced that he proposed to take the point that the complaint on the basis of which the summons had been issued was not signed and that the proceedings were accordingly a nullity. The trial was then again adjourned, with the consent of both parties, to 26 May 1958 to allow the Police to be represented by Counsel.

On 26 May the matter was argued at length and in the event the Magistrate decided that the summons had been wrongly issued and that accordingly he had no jurisdiction to try the case. He therefore discharged the accused.

Against that decision the Public Prosecutor appealed. At the hearing of the appeal the attention of Hill J was invited to the judgment of Buhagiar J in the case of PP v. Chia Chin Koon, Criminal Appeal No. 8 of 1956 - Unreported to the judgment of Neal J in the case of PP v. Tonkyn Criminal Appeal No. 1 of 1958 - Unreported and to the judgment of Smith J in the case of PP v. Brain Criminal Appeal No. 25 of 1958 - Unreported.

In Chia Chin Koon's case the facts were the same as in the present case except that Counsel for the defendant had taken the point that the summons was wrongly issued before the defendant pleaded to the summons. In the application for summons the front of form Police 52 was signed but the statement on the reverse of the form which in that case was by a Police Officer was not signed. Buhagiar J said that:

If the complaint is reduced to writing it should be apparent from the writing who is the person making it and such person should assume responsibility for making it and this, in my opinion, can be achieved by the signature of the officer concerned. In default of this formality there is not, in my opinion, a complaint of which the Magistrate can take cognizance. . . . . in default of a complaint there was no jurisdiction to take cognizance of the offence.

In Tonkyn's case the point was taken after the defendant had pleaded to the summons and claimed trial. Neal J said that he had grave doubts as to the correctness of Buhagiar J's decision in Ch