Low Hop Bing J:

Appeal

[1] This is an appeal by the prosecution against the decision of the learned sessions court judge ("the trial judge") who had on 5 June 2003 acquitted and discharged the accused of all the seven amended charges preferred under s. 165 of the Penal Code ("the charges") against the respondent-accused ("the accused") without calling for his defence.

[2] For brevity and convenience, a reference hereinafter to a section is a reference to that section in the Penal Code, unless otherwise stated or the context otherwise requires.

Charges

[3] The accused is a public servant, to wit, a technical assistant, of the Government of Malaysia and is attached to the Public Works Department (PWD) Quarry Centre, Gemencheh, Tampin, Negeri Sembilan. In the charges, he was alleged to have accepted, without consideration from one Salehuddin bin Jaapar the Managing Director of Syarikat Masa Damai Sdn Bhd ("Salehuddin"), valuable things which had connection with the accused's official functions. The other particulars contained in the charges are enumerated and tabulated as follows:

Date and Place Valuable Thing

1. In the month of March 1997 Bank Bumiputra Malaysia

between 8.00am and 5.00pm cheque No. 010258 for RM

in Federal Auto Cars Sdn Bhd 24,000 being advance toward

at No. 15 Jalan Malim, in payment for the car bearing

the district of Melaka Tengah registration No. MW 9504

in the state of Melaka

2. On 27 March 1997 between Malayan Banking Bhd cheque

9.00am and 4.30pm in Affin No. 907837 for RM884

Finance Bhd at No. 118, being instalment payment for

Taman Melaka Raya, in the the month of May 1997 for

district of Melaka Tengah in the said car

the state of Melaka

3. On 16 July 1997 between Malayan Banking Bhd cheque

9.00am and 4.30pm in the No. 910642 for RM884

said company and at the said being instalment payment for

address the month of June 1997 for

the said car

4. On 21 July 1997 between Malayan Banking Bhd cheque

9.00am and 4.30pm in the No. 931779 for RM884

said company and at the said being instalment payment for

address the month of July 1997 for

the said car

5. On 30 August 1997 between Malayan Banking Bhd cheque

9.00am and 12.30pm in the No. 936626 for RM884

said company and at the said being instalment payment for

address the month of August 1997

for the said car

6. On 20 October 1997 between Malayan Banking Bhd cheque

9.00am and 4.30pm in the No. 976470 for RM1768

said company and at the said being instalment payments

address for the months of September

and October 1997 for the

said car

7. On 8 January 1998 between Malayan Banking Bhd cheque

9.00am and 4.30pm in the No. 978181 for RM1768

said company and at the said being instalment payments for

address months of November and

December 1997 for the said

car

Essential Ingredients

[4] In order to establish a prima facie case for each of the charges, the prosecution must prove the following essential ingredients:

(1) that the accused is a public servant; and

(2) that he has accepted a valuable thing without consideration.

[5] Once the above two essential ingredients have been established by the prosecution, under s. 165 which is a prescribed offence under s. 2 of the Anti Corruption Act 1997, the presumption under s. 42(3) of the 1997 Act would arise. Section 42(3) reads:

Where in any proceedings against any person for an offence under s. 165 of the Penal Code, it is proved that such person has accepted ... any valuable thing without consideration ... such person shall be presumed to have done so with such knowledge as to the circumstances set out in the particulars of the offence, unless the contrary is proved.

[6] In other words, the presumption is that the valuable thing has been accepted by the accused from Salehuddin whom the accused knows to have connection with the official functions of the accused.

Public Servant

[7] There is no dispute that the accused was at the material time a public servant in the capacity as stated in the charges.

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