Rigby J:

The accused was convicted in the Magistrate's Court, Penang, of an offence contrary to s. 182 of the Penal Code, of giving false information to a public servant with intent to cause that person to use his, lawful power to the injury or annoyance of another person. The actual particulars of the charge were that the accused, on 20 June 1960, at George Town, gave to Enche Mohd Eusoff bin Chin, a public servant, certain information, to wit, that he had been carrying on a character lottery, with the help of bettors who were members of the Police Force and ranged from named Police Inspectors to Police Constables, that such information was, to his knowledge, false and that it was given with the intention of causing the public servant to use his lawful power to the annoyance of the said Police personnel.

The accused claimed trial to the charge. He was duly convicted and fined $25.

I am entirely satisfied that the charge was wholly misconceived, that it should never have been brought, that the conviction must be quashed, and the fine repaid to the accused.

The charge itself arose directly from a statement made by the accused to the Magistrate, Enche' Mohd Eusoff bin Chin, in the course of criminal proceedings brought against him on a charge of assisting in carrying on a public lottery. The accused pleaded guilty to that charge. When asked if he had anything to say before sentence was passed upon him, be made the statement alleging that the lottery had been carried on with the assistance of, and primarily support by, Police personnel, the names of some of whom he specifically mentioned. He was then fined $100 or one month's imprisonment. The Prosecuting Officer himself then asked for a copy of the statement made by the accused so that it might be referred to the Police Authorities presumably for further investigation. Presumably such statement was investigated and, in the opinion of the Investigating Authorities, found to be untrue. Hence the charge against the accused.

It is of fundamental importance to observe the offending statement made by the accused was made by him upon allocutus and before sentence, that is to say, it was made by him after he had pleaded guilty to the charge of assisting in carrying on a public lottery and in the exercise of his undoubted right to be heard in mitigation of sentence before punishment was imposed upon him. His plea, that Police personnel in general, and certain specified ones in particular, formed part of his clientele was no doubt put forward as a matter which, at any rate in his mind, was intended to provide some sort of a defence or excuse to show the circumstances in which he had been carrying on the lottery. Once it is accepted that what was said by him was said in an attempt to influence the mind of the Magistrate and to persuade him to inflict a punishment lighter than he would otherwise have done, it is wholly irrelevant that his statement also implicated, whether truthfully or otherwise, Police personnel. An unsworn statement made in such circumstances is privileged and the statement itself cannot be the subject matter of a further charge. The position would undoubtedly have been different if, after the fine had been imposed, the accused had asked to see the Magistrate and, of his own volition, made a statement implicating named Police personnel as assisting him in the carrying on of the lottery. But that was not what happened. The conviction must accordingly be quashed, the fine set aside, and such part of it as may have been paid refunded to the accused.

Order accordingly.