This is an appeal by the Public Prosecutor against the order of the learned Magistrate discharging and acquitting the respondent at the close of the prosecution case on a charge under section 3(a)(ii) of the Prevention of Corruption Act 42/61.

In his ruling on January 15, 1982 the learned Magistrate found "the prosecution has failed to establish a prima facie case against the accused if unrebutted would warrant his conviction of the offence as per charge." He gave the grounds for his decision on a later date. It would appear from the grounds of decision the learned Magistrate has carefully considered the evidence adduced by the prosecution, in particular the testimony of the main prosecution witness, Chung Chi Han, and he came to this conclusion:

"In sum, my finding is that the accused did ask for the $112,800 and that he (accused) did tell PW2 that the $112,800 was for the paying the real property gains tax and for the income tax officers. But I find no circumstances, from which I can safely infer that the $112,800 was received on account of the income tax officers. That the prosecution must prove this, has been stated in the case of Mohd Kassim v Public Prosecutor [1981] 1 MLJ 91 at p 92, where the court said "For a charge under section 3(a) (ii) of the (Prevention) of Corruption) Act, it is incumbent on the prosecution to prove that the corrupt money was received as gratification on account of officers of a public body."

In my mind, the facts appear more consistent with the offence of cheating by the accused, rather than corruptly receiving money on account of the income tax officers. It is for the above reasons that I did not call the accused to enter upon his defence."

The learned Deputy Public Prosecutor has no quarrel with the conclusion reached by the learned Magistrate that the prosecution failed to establish a prima facie case against the accused on a charge under section 3(a)(ii) of the Prevention of Corruption Act. He is, however, of the view that in the light of the learned Magistrate's finding he ought to have exercised the powers conferred upon him by section 158 and section 173(h) of the Criminal Procedure Code to amend the charge. He says he relies mainly on the provisions of section 173(h) which reads:

"(h) If, when such evidence has been taken, the court is of the opinion that there are grounds for presuming that the accused has committed the offence charged or some other offence which such court is competent to try and which in its opinion it ought to try, it shall consider the charge recorded against the accused and decide whether it is sufficient and, if necessary, shall amend the same."

The provisions of section 173(h) were considered by the court in a number of cases. In Mohamed Yusof v PUblic Prosecutor [1962] MLJ 311, 312 Adams J. said:

"If he found that the evidence did not support the charge as drawn he should as he is in duty bound to do under section 173(h) of the Criminal Procedure Code have amended it so that the accused stood charged with knowingly ommitting to take such order with a fire as is sufficient to guard against any probable danger to human life."

In Public Prosecutor v Tan Kim Kang & Ors [1962] MLJ 388 Hashim J said:

"I think a safer and better course would be to follow the provisions of section 173(h), (i) and (j) of Criminal Procedure Code. It is quite clear from these 3 subsections that a President or a Magistrate should make any alteration or amendment to the charge only at the close of the case for the prosecution."

In Public Prosecutor v Heng You Nang [1949] MLJ 285, 287 Spenser Wilkinson J., said:

"Under section 173(h) Subordinate Courts have a duty to consider the charge and amend it if necessary. Nevertheless I do not think that this section makes it incumbent on the court to search the law for offences which an accused person may have committed. It is for the prosecution to decide what their real complaint against the accused is and to frame their charges or to