Hill J:

In this case the Appellant was tried on the following charge on 29 November 1949 in the session Court, Taiping:

That you Ng Chiat Hung on 21 September 1949 at about 10 a.m. at No. 118 Kota Road, Taiping not being the holder of a Food Control Licence, were in control of 100 bags of Brazilian rice which is a rationed foodstuff, with the intention of committing an offence of dealing in such rationed foodstuff, an offence under s. 15 of the Food Control Proclamation No. 10/45 and Government Notification 71 of 19 February 1948 and punishable under s. 17 (i) of Proclamation 10/45.

According to the judgment of the learned President the Appellant was convicted of the offence of being in control of a rationed foodstuff with the intention of dealing in such rationed foodstuff without being the holder of a Food Control Licence.

Both s. 15 of the Food Control ProclamationNo. 10/45 and Government Notification 71 of 19 February 1948 are concerned with "controlled articles" only.In s. 2 of the Proclamation are defined "controlled article" and "rationed foodstuff", two separate and distinct entities.

Whatever the intention of the Food Control Proclamation may be it does not create by s. I5 any offence in regard to "rationed foodstuff." Nor does Government Notification 71.

It was contended by Mr. Lim Cheng Ean on behalf of the Appellant that there was an irregularity in the trial which could not be cured because the charge was:

(i) misleading and confusing; (ii) neither a charge under s. 15 of the Food Control ProclamationNo. 10/ 45 or under Government Notification 71 of 19 February 1948 but a combined charge under both and

(iii) referred to rationed foodstuff instead of controlled article.

I agree with this submission and am of the opinion that the charge was bad and amounted to a nullity.

The appeal is allowed and the conviction, sentence and order of confiscation quashed.

If it is considered desirable there can be a fresh trial and I therefore refrain from expressing any opinion on the other points raised by Mr. Lim Cheng Ean, but I trust that full consideration will be given to the question of re-trial and whether the procedure adopted in this matter was correct and proper before further proceedings are instituted against the Appellant.

Appeal allowed.