Suffian LP:

This is an appeal from a decision of the High Court sitting with a jury in Kuantan acquitting and discharging the accused as directed by the learned Judge pursuant to s. 214(i) of the Criminal Procedure Code.

The respondent (whom I shall refer to as the accused) was a Lance-Corporal in the Army. He was charged with murdering his Sergeant.

In July 1978, the 13th Royal Malay Regiment was on operations against communist terrorists in the district of Raub, Pahang. Twelve platoons were deployed in different places. Platoon No. 12 under the command of Sergeant Mokhtar bin Haji Salim, of which the accused was a member, was deployed in a rubber estate in Lembah Klau. They slept in hammocks. The hammocks of the privates were arranged in a circle covering an area twice the size of a tennis court. In the middle of this circle were the hammocks of the Sergeant and four Corporals including the accused.

During the night of 14 July, at about 11 p.m. gun fire was heard. It was pitch dark and raining and there was thunder and lightning. In the morning the Sergeant was found dead in his hammock; he had been shot. A bullet P7 was recovered from his left upper arm. Mr. Lum Kon Woon PW 36, a Chemist with the Government Chemistry Department in Petaling Jaya, examined the bullet. He test-fired the weapons of all the members of the platoon and examined their bullets; and gave evidence that P7 must have been fired from the rifle P36 which had been issued to the accused prior to the night of 14 July. He came to that conclusion from a study of the markings on the bullets examined. That was the only evidence connecting the accused with the killing and without that evidence there would be no case against him. Nobody saw who had shot the Sergeant.

The learned Judge at the end of the prosecution case after considering the submission of Mr. Au (assigned Counsel for the defence) and the reply by the learned DPP, was of the opinion that there was no case for the accused to answer. He ruled that Mr. Lum's evidence was not admissible because (1) there was inadequate evidence of his competency as an expert in firearms and in the identification of the rifle from which the bullet P7 had been fired and (2) Mr. Lum had not produced the data, photos, etc., on which he based his conclusion. Accordingly, the learned Judge directed the Jury under s. 214(i) of the Criminal Procedure Codeto return a verdict of not guilty, which they did.

Sheikh Daud on behalf of the PP, appellant, argues that the learned Judge was wrong in (i) not treating Mr. Lum as a person "specially skilled" in determining whether the bullet P7 had been fired with the accused's rifle; (ii) in thinking that Mr. Lum's failure to produce the data that he had or should have collected to enable him to determine that the bullet had so been fired, was fatal for the purpose of determining whether or not Mr. Lum was an expert, and (iii) in rejecting Mr. Lum's evidence, considering that it had not been destroyed in cross-examination. Sheikh Daud submits that the learned Judge should have left it to the jury to decide whether or not Mr. Lum was an expert and if so what weight to give to his evidence. Finally he submits that in the circumstances we should order a retrial.

It is now convenient for us to reproduce s. 45 of the Evidence Act. It reads as follows:

(1) When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon the point of persons specially skilled in such foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts.

(2) Such persons are called experts.

As to the question whether or not Mr. Lum is an expert, it is true that this is a preliminary question to be determined, but it is a question upon which, in practice, considerable laxity prevails. This is because while the expert must be "skilled",