JUDGMENTBY: CHONG SIEW FAI CJ (SABAH & SARAWAK) CJ

CHONG SIEW FAI CJ (SABAH & SARAWAK) CJ (delivering the judgment of the court): This case came before us by way of a reference under s 66 of the Courts of Judicature Act 1964. The said s 66 was repealed on 24 June 1994. However, leave was granted prior to that. The question permitted to be brought up for determination is:

Whether it is open to a second appellate court to analyse, comment and

take into account the evidence adduced on a charge of which an accused

person had been acquitted to support his conviction on a second

remaining charge.

Previous proceedings

At the material time, the applicant was a magistrate serving in the Magistrates Court at Jalan Duta, Kuala Lumpur. Initially, he was tried on the following two charges before the Sessions Court in Kuala Lumpur:

(a) under s 3(a)(i) of the Prevention of Corruption Act 1961 for corruptly soliciting for himself a sum of RM15,000 from one Wong Sow Ying through one Por Choo Aik @ William as an inducement to acquit and discharge the said Wong Sow Ying of an offence in a criminal case (the charge of soliciting); and

(b) under s 4(a) of the Prevention of Corruption Act 1961 for corruptly accepting for himself a sum of RM15,000 from one Por Choo Aik though one Ong Leong Chuan as an inducement to acquit and discharge one Wong Sow Ying of an offence in a criminal case (the charge of accepting).

On 8 March 1993, the learned sessions court judge discharged and acquitted the applicant of both charges without calling for the defence, ruling that no prima facie case against the applicant had been made out.

On appeal by the prosecution, the High Court affirmed the acquittal and discharge respecting the first charge under s 3(a)(i) of the Prevention of Corruption Act 1961 but allowed the appeal on the second charge under s 4(a) of the said Act and ordered the applicant to enter upon his defence in respect thereof. The case was thus sent back before the same learned sessions court judge who, after hearing the defence, again acquitted and discharged the applicant of the second charge. Once more, the prosecution appealed to the High Court against the acquittal and discharge. On 25 April 1994, the learned appellate judge (other than the judge hearing the first appeal), after hearing arguments, allowed the appeal by the prosecution, set aside the acquittal, convicted the applicant and sentenced him to three years imprisonment and a fine of RM5,000 in default 12 months imprisonment (see [1994] 2 MLJ 436 ).

The question referred

Now coming back to the question referred and set out above.

The question is of a general nature without alluding to any part of the evidence, allegedly having been analyse, comment and taken into account. However, in the course of his submission, learned counsel for the applicant referred to certain parts of the evidence respecting which he argued that the learned judge should not have relied on. The learned deputy public prosecutor, on the other hand, contended otherwise. We shall refer to these later.

On the general question as posed, ie without reference to any particular evidence, the answer, in our view, may be found in ss 6, 7, 8 and 9 of the Evidence Act 1950. The sections are set out below:

(6) Facts which, though not in issue, are so connected with a fact in

issue as to form part of the same transaction are relevant,

whether they occurred at the same time and place or at different

times and places.

(7) Facts which are the occasion, cause or effect, immediate or

otherwise, of relevant facts or facts in issue, or which

constitute the state of things under which they happened or which

afforded an opportunity for their occurrence or transaction, are

relevant.

8 (1) Any fact is relevant which shows or constitutes a motive or

preparation for any fact in issue or relevant fa