Ong CJ (Malaya):

Under s. 66 of the Courts of Judicature Act 1966 the questions referred for the decision of this Court are as follows:-

(a) Whether a Magistrate in a summary trial is authorised by the provisions of s. 173(g) of the Criminal Procedure Code (FMS Cap. 6) to rule that a charge is groundless (for reasons to be recorded) at any stage after plea and in the course of hearing prosecution witnesses but before the conclusion of the prosecution case;

Alternatively:

What is the true construction of the words 'at any previous stage of the case' under s. 173(g) of the Criminal Procedure Code (FMS Cap. 6).

(b) If in the course of a summary trial under s. 173 of the Criminal Procedure Code (FMS Cap. 6) a Magistrate has discharged the accused under para. (g) of the same section without hearing all the evidence which the prosecution could have adduced and the prosecution has acquiesced in the procedure adopted, then is the order to discharge the accused properly and lawfully made and is the trial properly and lawfully conducted.

(c) Whether a discharge under the provisions of the said s. 173(g) of the Criminal Procedure Code (FMS Cap. 6) amounts to an acquittal, having regard to s. 302(v) of the said Criminal Procedure Code.

(d) whether (i) the principle of res judicata in criminal law and/or (ii) the doctrine of issue estoppel is applicable, in the case of a person discharged under the provisions of the said s. 173(g) of the Criminal Procedure Code (FMS Cap. 6)

when he is re-tried in a fresh trial on the same charge, in respect of basic averments of the charge on which evidence has been led and which have been adjudicated on by the Court at the first trial".

* As we go to press we learn that an appeal against this decision has been lodged to the Privy Council. Edn. MLJ

They arose in this manner. On 19 April 1971. the applicant, a registered medical practitioner, was tried in the Sessions Court at Johor Bahru on three charges of knowingly issuing bogus medical certificates recommending sick leave to three Government employees respectively, in contravention of s. 4(c) of the Prevention of Corruption Act, 1961.

After two prosecution witnesses had been heard in respect of the first charge, defence Counsel raised objection that the medical certificate tendered did not fall within the meaning of "receipt account or other document" appearing under s. 4(c) of the said Act and that this charge consequently disclosed no offence in law. Prosecuting Counsel raised no objection to the question of law being argued and decided at this stage. In the result, the learned President, influenced probably by a decision of the High Court in Kuala Lumpur [1971] 1 MLJ 125 - that asbestos cement pipes sold and delivered not in accordance with required specifications could not be regarded as documents within the meaning of s. 4(c) - upheld the objection and in respect of all three charges made an order of discharge under s. 173(g) of the Criminal Procedure Code, not amounting to an acquittal.

In August 1971 the applicant was again prosecuted de novo on the identical three charges and produced before a different President of the Sessions Court - the former President who had earlier tried the case having been transferred elsewhere. At the hearing of a preliminary objection on 10 November 1971 it was contended by Counsel for the defence that on the doctrine of res judicata and issue estoppel the second trial on the same charges was invalid. This objection was dismissed and the trial directed to proceed. The defence thereupon petitioned the High Court for a review of such decision, but the decision of the learned President was upheld - resulting in this reference.

We have closely listened to and considered the arguments put forward by learned Counsel for the applicant, but, with all respect, are of opinion that all four questions can be readily answered by referring only to the express provisions of s. 173(g) and sub-section (v) of s. 3