Ong Hock Sim FJ:

The accused, Mr. T N Nathan, was charged in the sessions Court, Georgetown on a charge under s. 4(a) of the Prevention of Corruption Act (No 42) of 1961) and, after a somewhat lengthy trial, was acquitted and discharged on 10 January 1972 without his defence being called at the close of the prosecution.

Despite his acquittal, the accused was dissatisfied with the judgment or order of the learned president because of his remark to the effect that the acquittal was "on purely technical grounds" and with other observations made in the grounds of decision. A cross-appeal was also filed by the learned deputy but as no petition was lodged within the time prescribed by s. 302 was deemed to have been withdrawn pursuant to sub-section (8).

On 8 April the accused appeared in person to apply for a postponement of the hearing of the appeal to a date some six weeks later to enable him to engage a Counsel in view of the lengthy record of 137 pages.

I drew the attention of the accused to s. 302 Criminal Procedure Code (SS Cap. 21) which provides for an appeal by any person dissatisfied with any judgment, sentence or order pronounced in a criminal case and to s. 300 which expressly enacts that in the event of an acquittal there shall be no appeal except by the Public Prosecutor. The accused said that he was not "appealing from the acquittal" but sought only by these proceedings headed "Petition for Appeal or Petition for Revision" to expunge the offending remarks from the record. I accordingly ruled that the accused had no "locus standi" to "appeal" in connection with the judgment of the learned president.

I intimated however to the accused that, having the record before me, it is open to me to exercise the inherent power of the Court to review the decision of the learned president pursuant to s. 322. I therefore adjourned hearing to 15 April 1972 to consider whether I should do so. I informed the accused that I would be prepared to entertain any arguments by him or Counsel on his behalf before making any order. On that day Mr. Edgar Joseph Jr. appeared on behalf of the accused and urged that a retrial ought not to be ordered except in very exceptional circumstances. He said that it should not be ordered where the nature of the prosecution evidence was unsatisfactory, also that to order a retrial would be giving the prosecution a second chance to prove its case. Other considerations, he said, would be unfairness to the accused, staleness of the proceedings, expense to accused and unnecessary prolongation of the outcome of the trial.

Under sub-section (1) of this section the Court may exercise all the powers as it may, on appeal. These powers include, inter alia, the power in an appeal from an order of acquittal to reverse such order and direct that further inquiry shall be made or that the accused shall be retried. [section 310 (a)]. It was contended on behalf of the appellants in the case of Sheo Swarup & Ors. v. The King Emperor 10 at p. 11; Lr 61 IA 398; AIR 1934 PC 227 that-

On an appeal from an order of acquittal on a matter of fact it is not open to the appellate Court to interfere with the findings of fact of the trial Judge, unless it can be said that those findings could not have been reached by him had it not been for some perversity or incompetence on his part. The High Court declined to accept this view. They held that no condition was imposed on the High Court in such an appeal.... There is, in their opinion, no foundation for the view, apparently supported by the judgements of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has 'obstinately blundered,' or has 'through incompetence, stupidity, or perversity' reached such 'distorted conclusions as to produce a positive miscarriage of justice,' or has in some other way so conducted or misconducted itself as to produce a glaring miscar