Augustine Paul J:

In this case the accused was charged in the Sessions Court at Kuala Lumpur for an offence under s. 474 of the Penal Codefor being in possession of a Visa Credit Card knowing it to be forged with intent to use it as genuine. He claimed trial to the charge. At the conclusion of the trial he was found guilty and convicted. He was sentenced to imprisonment for a term of one year and eight months. This appeal is by the accused against the conviction and sentence.

The evidence in the Sessions Court reveals that PW1 was a cashier attached to the Jaya Jusco at Mid Valley. On 3 November 2001, the accused came to her counter to make payments for purchases made by him through a Visa card (exh. P1). As she said:

Apabila saya terima kad itu daripada tertuduh saya periksa kad itu dan didapati hologram burung itu bila pusing, tidak bergerak dan saya dapati juga label Visa di bawah hologram itu tidak ada angka. Saya swipe untuk dapat pengesahan daripada bank. Bila saya swipe ada approval code.

She said her examination of the card showed that it was false. She then telephoned the credit card company and her examination was confirmed. PW1 then reported the matter to her security division. The accused was arrested. The learned Deputy Public Prosecutor conceded that the evidence of PW1 is insufficient on its own to establish that exh. P1 is a forged card presumably on the ground that it is a fact that must be established by expert opinion evidence. The prosecution therefore relied on the evidence of PW3, an expert in this field, to establish this element. He gave evidence to show that exh. P3 is a forged card. While giving evidence he had referred to his record book as evidenced by the following entry made by the learned Sessions Court Judge at the end of his examination-in-chief:

Saksi dibenarkan merujuk kepada buku catitannya.

His cross-examination was rather short. It runs as follows:

Selepas dipanggil oleh Sjn Jamari, saya pergi ke IPK. Siasatan dijalankan di IPK. Saya tidak bawa balik kad. Saya buat catatan untuk menolong saya. Saya tidak membawa catatan itu hari ini. Saya ada buat catitan harian mengenai kes ini. Ini adalah buku saya simpan untuk mencatit semua siasatan dijalankan.

P/bela: Sila beritahu Mahkamah apa yang ada dicatit dalam buku catatan itu.

Saksi: Telah membaca catitan itu.

Catitan dalam buku ini adalah catitan saya sendiri. Saya gunakan catitan ini untuk Mahkamah hari ini.

Mahkamah: Soalan-soalan mengenai catitan tidak relevan atas alasan bahawa saksi dibenar merujuk kepada catitannya.

The thrust of the submission of the defence was that the evidence of PW3 should not be accepted as he had been allowed to refresh his memory while giving evidence without complying with s. 159 of the Evidence Act 1950(";s. 159";) and that the defence was not allowed to view the document referred to by PW3. The learned Deputy Public Prosecutor said that even if the cross-examination of PW3 was found to be defective his examination-in-chief must be accepted. The submission advanced raises two matters for consideration. They are:

(a) The circumstances in which a witness may refresh his memory by referring to a document.

(b) The right of the defence to view the document.

I shall now consider both the issues.

(a) The Circumstances In Which A Witness May Refresh His Memory By Referring To A Document

This is governed by s. 159 which reads as follows:

(1) A witness may while under examination refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory.

(2) The witness may also refer to any such writing made by any other person and read by the witness within the time aforesaid, if, when he read it, he knew it to be correct.

(3) Whenever the witness may refresh his memory by reference to any document, he may, with the permission of the court, re