Abdul Hamid Mohamad JCA:

The respondents were separately charged but jointly tried in the Sessions Court. The first respondent was charged with two counts in case No. 61-15-97. The first charge was under s. 3(a)(ii) of the Anti-Corruption Act 1961 (Act No. 57) ("the Act") punishable under s. 3 of the Act. The second charge was under s. 4(a) and punishable under s. 4 of the Act.

For the first charge the first respondent was convicted by the Session's Court and sentenced to two weeks' imprisonment and a fine of RM3,000, in default three months' imprisonment. For the second charge, he was also sentenced to two weeks' imprisonment and a fine of RM3,000, in default three months' imprisonment. He was also ordered to pay a penalty of RM50 to the Government of Malaysia, in default one month's imprisonment. The Sessions Court also ordered that the sentences of imprisonment, other than the sentences of imprisonment in default, to run concurrently.

The second respondent was charged with three counts in case No. 61-16-97. The first two charges were under s. 3(a)(ii) and punishable under the same section of the Act. The third charge was under s. 4(a) and punishable under the same section of the said Act.

The second respondent was acquitted on the first charge but found guilty and convicted on the second and third charges. For the second charge he was sentenced to two weeks' imprisonment and a fine of RM3,000, in default, three months' imprisonment. On the third charge he was also sentenced to two weeks' imprisonment and a fine of RM4,000, in default four months' imprisonment. He was also ordered to pay a penalty of RM150 to the Government of Malaysia, in default two weeks' imprisonment. The sentences of imprisonment, other than the sentences of imprisonment in default were ordered to run concurrently.

The respondents appealed to the High Court. The High Court allowed the appeal, quashed the convictions and sentences and ordered a retrial before another Sessions Court judge.

The appellant (Public Prosecutor) appealed to this court. The appeal was heard before Lamin Mohd. Yunus PCA, Abdul Kadir Sulaiman JCA and myself. We reserved our judgment. However, in the meantime, Lamin Mohd. Yunus PCA has retired leaving the two of us to give our decision.

We now state briefly the reasons why the learned judge allowed the appeal, quashed the convictions and sentences and ordered a retrial.

Regarding the charges under s. 3(a)(ii) the learned Sessions Court judge, at the end of the prosecution case, said that he was satisfied that the prosecution had proved its case beyond reasonable doubt and called upon the respondents to enter their defence. However, regarding the charges under s. 4(a) the learned Sessions Court judge invoked the presumption under s. 14 of the Act to call the respondents to enter their defence. Then, in considering the respondents' defence, the learned Sessions Court judge said:

Bagaimanapun setelah mendengar keterangan pembela - saya tidak menerima dan tidak percaya dengan pembelaan OKT(1) dan OKT(2) dan pembelaan mereka tidak menimbulkan keraguan yang menasabah ke atas kes pihak pendakwa. Pembelaan kedua-dua OKT(1) dan OKT(2) adalah penafian semata-mata.

The comments of the learned High Court judge on this passage is as follows:

When the prosecution is minded in invoking the presumption then the particular burden of proof, as opposed to the general burden, shifts to the defence to rebut such presumption on a balance of probabilities. This from a defence point of view is heavier than the burden of casting a reasonable doubt, but is certainly lighter than the burden of the prosecution to prove beyond reasonable doubt. So much for the law.

Judging from the tenor of the grounds of the learned Sessions Court Judge, it would seem patently clear that he had invoked presumption of s. 14 of the said Act, when calling for the defence of both the accused for the charge under s. 4 of the said Act. Having done so, it behoves then on th