The decision underscores the discretion of courts not to amend charges without clear evidence and highlights the importance of credibility in witness testimony.

This is an appeal against the decision of the learned Magistrate, Kota Tinggi, Johor who had acquitted and discharged an accused, one Kenneth Francisco who was charged under section 506 Penal Code , without his defence being called.

The learned Deputy Public Prosecutor, Puan Haslinda Abu Bakar appeared for the appellant and the learned Mr. Marimuthu appeared for the respondent who was also present. [2]

The petition of appeal appeared at pages 2 and 3 of the Appeal Record, enclosure 7. At the commencement of the hearing before this Court, the learned DPP conceded that the evidence found in this instant case points to an offence being committed under section 324 Penal Code rather than the offence of criminal intimidation under section 506 . It was therefore her submission that the prosecution has succeeded in proving beyond any reasonable doubt that the respondent has committed an offence under section 324 of the .

It was the submission of the learned DPP that in the book "Law of Crimes" by V.V. Raghavan, 2nd edition that three facts need to be established in the offence of voluntarily causing hurt by dangerous weapons or means under section 324 Penal Code and these are as follows: -

(a) ;that the accused caused bodily pain, disease or infirmity;

(b) ;that it was caused intentionally or with the knowledge, that it is likely to cause death etc.;

(c) ;that it was caused by means of an instrument for shooting, stabbing etc.

The learned DPP went on to say that from the police report it was the respondent who stabbed the complainant with a sharp object and this resulted in the injury of the right thigh of the complainant. The complainant alleged that he saw the sharp end of the knife and also [3] saw the same in the pocket of the respondent. The stabbing of the complainant was never challenged by the respondent during cross-examination of the witness. It was submitted therefore that the failure to do so would mean that he believed the testimony given, see Re Pitchi Muthu (1970) 2 MLJ 143 and the decision of the learned Tan Chiaw Thong J in PP v Abang Abdul Rahman (1982) 1 MLJ 346 .

It is interesting to note here that in both of the cases of Re Pitchi Muthu and PP v Abang Abdul Rahman (supra) the respective learned President, Session Court and Magistrate have heard both cases in full. Further both cases relate to an offence under the Prevention of Corruption Act. These are where they differ from this instant case.

Learned counsel for the respondent told this Court that PW4 was infact challenged by suggesting to him that he was making false allegation against the respondent (page 19 Appeal Record).

The learned Sharma J (as he then was) in Re Pitchi Muthu said at page 143 that: "I agree that it is only in serious cases that such a power should be exercised by the High Court. The offence in this case was an offence under the Prevention of Corruption Act, a very serious offence which goes to deface the very image of any good administration and is a disgrace to the society which attempts to corrupt its own law enforcement officers. In the circumstances I set aside of the learned president and order a retrial." This Court is of the [4] view that this is a self explanatory paragraph and would tend to show that it is only in "serious cases" would the Court exercise its power of revision and order a retrial.

It was argued by the learned DPP that the above-mentioned two cases emphasized the need for witnesses to be cross-examined on matters in dispute. However it must also be stressed that in both cases provided as authority by the learned DPP, the accused / respondents were ordered to be retried on the same charge before another court. In this instant case the prosecution has already conceded that there are insufficient evidence for the respondent to be charged under section 506 Penal Code and the learned DPP submitted that it has been proven beyond any reasonable doubt than an offence under section 324 had been committed. I