JUDGMENT

Hill AGCJ:

We dismissed this appeal on 11 July 1960, and indicated that we would state our reasoning for doing so at a later date.

The appellant was convicted and sentenced to death for the murder on 25 August 1959, of Ku Bedah binti Ku Hassan at Kampong Kodiang Lama in the State of Kedah. The dead woman was the appellant's ex-wife.

Except for certain evidence with regard to motive the case for the prosecution consisted entirely of circumstantial evidence and the gravamen of the appeal is that the verdict of the jury was perverse in that no reasonable jury if properly directed would have found the appellant guilty.

At the conclusion of the case for the prosecution appellant's Counsel submitted that no prima facie case had been made out against the appellant which if unrebutted would warrant his conviction. At this stage of the trial the record shows that defence Counsel addressed the jury "under s. 214(iii) of the Criminal Procedure Code" (sic), that the Deputy Public Prosecutor replied and that the learned trial Judge gave a direction to the jury which was in the nature of a summing-up.

Section 214 of the Criminal Procedure Code is as follows:

214.(i)When the case for the prosecution is concluded the Court, if it considers that there is no evidence that the accused committed the offence shall direct the jury to return a verdict of not guilty.

(ii) If the Court considers that there is evidence that the accused committed the offence the Court shall call on the accused to enter on his defence.

(iii)The jury may return a verdict of not guilty either unanimously or by a majority at any time after the conclusion of the evidence for the prosecution if they consider the case to be one in which they could not safely convict.

It is clear that the procedure adopted of addresses and summing-up to the jury was quite inappropriate and incorrect. In the case of R v. Koh Soon Poh [1935] MLJ 120 the Court of Criminal Appeal dealt with the procedure in submitting no case to meet at the close of the case of the prosecution. Terrell J in giving the judgment of the Court, said, after referring to this section:

It is, of course, proper for Counsel for the defence in any criminal trial before the Supreme Court to submit, at the close of the case for the prosecution, that there is no case to go to the jury. Such a submission is made to the Judge alone, Counsel for the defence is entitled to address the Judge on the submission, and Counsel for the Crown is entitled to be heard. The trial Judge will use his discretion as to whether he could request the jury to retire while the matter is being argued. If the trial Judge accepts the submission of Counsel for the defence he will direct the jury to return a verdict of "not guilty" under sub-section (1) above, otherwise he will call on the accused to enter on his defence as required by sub-section (2). It will be observed that the language of sub-section (2) is peremptory.

Now as to sub-section (3): Even though a submission under sub-section (1) has been made and rejected it is still open to Counsel for the defence to submit that the Judge should inform the jury, of their powers under sub-section (a). In the opinion of this Court such a submission should be limited to a request to the Judge that he should draw the attention - of the Jury to the provisions of subs. (3) In our view Counsel has no right at this stage to address the jury direct as to whether or not they should exercise their powers under that subsection.

As to what course the trial Judge should, pursue when this submission is made to him, it is difficult if not impossible to lay down any hard and fast rules, as much will depend on the circumstances of each particular case. It must be borne in mind that the Judge will already, have come to the conclusion that there is a case to meet and will have called on the defence. It Is possible, therefore, that he may decline to read the sub-section in question to the jury, and clearly