JUDGMENTBY: ABDUL HAMID FJ, RAJA AZLAN SHAH CJ (MALAYA)

ABDUL HAMID FJ The Public Prosecutor is dissatisfied with the decision of the President Sessions Court Penang who acquitted and discharged the respondent, Francis Philip Nunis, on the following charge--

"That you on 12.7.74 at the Lembaga Pengurus Kerajaan Tempatan Pulau

Pinang at Jalan Padang Kota Lama, in the District of Georgetown,

in the State of Pulau Pinang, being a public officer

namely the Pengarah Perkhidmatan Bomba, Lembaga Pengurus Kerajaan

Tempatan Pulau Pinang, whilst being such officer committed corrupt

practice by using your public office for your advantage, in that you,

being actively interested in the business of Simon Enterprise,

recommended to the Chairman of the Lembaga Pengurus Kerajaan Tempatan

Pulau Pinang on that date, to approve the purchase from Simon

Enterprise of two (2) complete sets of N/Ideal Automatic Resuscitator

-- Model S/50 and two (2) spare cylinders of oxygen at a price of $ 3,

800/- and as a result of which recommendation, the said Lembaga

purchased the said equipment when to your knowledge, at the material

time, the said equipment could have been purchased by the Lembaga

directly from Far East Oxygen Sdn. Bhd. for $ 2,600/- and as a result

of which, Simon Enterprise made a profit of$ 1,200 and that you

thereby committed an offence punishable under section 2(1) of the

Emergency (Essential Powers) Ordinance No. 22 of 1970."

The facts briefly are that sometime in March 1974 the respondent, then Penang State Fire Chief, was approached by one Tan Loy Boon (PW3), Sales Executive, Far East Oxygen together with Leong Tong Chow (PW4), a Sales Executive North, Far East Oxygen (erroneously referred to as Yong (PW7) in the Presidents grounds of judgment) to introduce and demonstrate a new brand of resuscitators. The cost of each set including an oxygen cylinder was$ 1,300. Leong was to follow up. He telephoned the respondent who told him that he was considering. A few weeks later Leong called on the respondent who again told him that he was considering.

In June 1974 the respondent sent out letters to 14 firms one of them Simon Enterprise, a company belonging to the respondents brother-in-law, inviting quotations for the supply of two sets of resuscitators and two oxygen cylinders. The Far East Oxygen was left out. Five firms submitted their quotations. The price quoted by Simon Enterprise was lowest.

In his capacity as Head of Department, the respondent recommended to the Chairman of Lembaga Pengurus Kerajaan Tempatan (LPKT) that the two sets be purchased for $ 3,600/- from Simon Enterprise. This is contrary to section 23 of the Municipal Ordinance which requires that purchases exceeding $ 2,000/- be made by way of tender. The respondent thus acted in contravention of that section.

Evidence reveals that PW3 was the one who spoke to the respondent during the first visit and PW4 did not pay much attention to what had transpired between them. PW4 did not know whether PW3 mentioned the price. PW3 however quite clearly stated that he told the respondent the price of the resuscitator, and showed the equipment to the respondent in the latters office. In the grounds of judgment the learned President said that PW4 did not hear that aspect of PW3s conversation with the respondent regarding the price. My view is that if it is the intention of the learned President to convey the impression that PW3 did not mention the price he was clearly in error and any such finding would be against the weight of evidence. PW3 approached the respondent with a view to selling the resuscitator and it was therefore inconceivable that he had omitted to disclose the price to the respondent. PW3s evidence on this point was not seriously challenged except for the denial by the respondent. In any event the learned President has not said that he disbelieved PW3. Evi

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