Taylor J:

This is a revision of the proceedings before a Magistrate on a private summons for voluntarily causing hurt under s. 323 of the Penal Code.

Both parties are married women living in the same Kampong. The complainant is aged about 25 years and the accused still in her teens. There has been jealousy between them over family affairs.

The complainant's story, which was supported with consistent detail by two witnesses, was that while she was bathing at the well near her house, the accused came and assaulted her; all three testified that the accused was alone.

The accused admitted a scuffle but stated that it took place on the public road and that the complainant provoked the incident by throwing water on her. This was supported by one witness, her niece, aged about 13, who did not see the two witnesses for complainant.

At the close of the case the learned Magistrate wrote:

According to the evidence both accused and complainant guilty of affray. Cautioned and discharged.

The complainant was dissatisfied and sent what is in substance a petition of appeal to the Public Prosecutor who submitted the case to the High Court with a view to revision.

In his Grounds of Judgment the Magistrate says that among the local Malays especially women, whenever one hits another with the hand, the other will automatically challenge and thus commit an affray; he has seen such occurrences many times. From the evidence he found it difficult to conclude which side was telling the truth but by putting the evidence of both sides together he found that they had committed an affray and, therefore, convicted them both, the complainant as well as the accused. But taking into consideration that the fight was not serious and neither of the women suffered any injury they were cautioned and discharged.

The Magistrate has recorded the evidence for both sides, including the cross examination, very clearly and, I have no doubt, accurately but his determination of the case is not in accordance either with the principles of justice or with legal procedure. It is quite clear that, feeling some doubt about the case, he substituted his own opinion of what was probable for the evidence. This was certainly improper. It is, of course, right and necessary that Magistrates should apply their own knowledge and experience to the weighing and interpretation of evidence, but that is quite a different thing. The judgment must be found on the actual evidence.

The prosecution must prove every fact necessary to establish the truth of the charge and this applies equally to private summons cases and official prosecution. If, at the close of the evidence, the Magistrate was not convinced that the complainant had established her case he should have given the accused the benefit of the doubt and acquitted her. Actually he convicted them both, but of a different offence.

It is vital to justice that every person accused of any offence, however trivial, should be definitely charged and should have an opportunity to defend himself. I will deal first with the case of the complainant. No prosecution was ever instituted against her; no information was laid; she was not summoned; she was not charged. She was never called upon to plead. It is true that she had cross-examined the witnesses for the other side, but not from the point of view of a case against herself. She had no opportunity of defence or extenuation. The decision was not founded on a real weighing of the evidence Judgment was not clearly pronounced.

Quite apart, therefore, from any question of the merits, her conviction infringed the basic principles on which justice is administered. There is also a practical objection. It was useless.

The complainant was dissatisfied with the result because she thought the accused had been acquitted and she tried to appeal on that ground. But in her petition she said nothing about her own conviction, because she did not know of it. She does not know even now. During the hearing of the