Haji Abdul Malik bin Haji Ishak JC:

In this case, the respondent was charged in the Magistrate's Court, Grik, Perak as follows:

Bahawa kamu pada 16 November 1990 jam lebih kurang pukul 1.45 p.m., dihadapan rumah No. 226, Kg. Baru, Batu Dua Gerik, di dalam Daerah Hulu Perak, di dalam Negeri Perak, telah didapati tolong menjalankan loteri umum 1000 hingga 10,000 angka loteri haram, oleh yang demikian kamu telah melakukan satukesalahan yangboleh dihukum di bawah s. 4A(a) Akta Rumah Perjudian Terbuka 1953 (Pindaan Tahun 1990).

The respondent pleaded guilty to the charge on 25 April 1991 in the Court below and he was sentenced to 1 year's imprisonment and fined a sum of RM5,000 in default 500 days' imprisonment. The respondent served his imprisonment sentence in full. The fine was not paid by the respondent. The learned Deputy Public Prosecutor has now appealed against inadequacy of sentence.

The case came up for hearing on six occasions before it was finally disposed of. Each time the case came up for hearing, it had to be postponed as the notices for the appeal could not be served. The case came up for hearing on the following dates, viz 1 December 1992, 11 February 1993, 8 April 1993, 12 April 1993, 20 April 1993 and finally on 7 May 1993.

On 7 May 93 when the case came up for hearing, the learned Deputy Public Prosecutor informed the Court that the notice could not be served on the respondent and that the respondent had served his imprisonment sentence and was released by the Prisons Department on 3 February 1992. The learned Deputy Public Prosecutor rightly informed the Court that the case had been fixed for hearing on five previous occasions (inclusive of the present date of appeal, it would be the sixth occasion). The learned Deputy Public Prosecutor boldly made a concession and left the matter entirely to the Court. The Court proceeded to hear the appeal by virtue of s. 314 of the Criminal Procedure Code ("CPC") which reads as follows.

314 (i) If, at the hearing of the appeal, the respondent is not present and the Court is not satisfied that the notice of appeal was duly served upon him, then the Court shall not make any order in the matter of the appeal adverse to or to the prejudice of the respondent, but shall adjourn the hearing of the appeal to a future day for his appearance, and shall issue the requisite notice to him for service through the Registrar.

(ii) If the service of such last-mentioned notice cannot be effected on the respondent, the Court shall proceed to hear the appeal in his absence.

Clearly, s. 314 of the Criminal Procedure Code gives the appellate Court two options. Firstly, if the respondent is absent and it is clear to the appellate Court that the notice of appeal was not duly served upon him, the appellate Court shall not make any order in the matter of the appeal adverse to or to the prejudice of the respondent, but shall adjourn the hearing of the appeal to a later day, and the Registrar shall issue the requisite notice of service to him. Secondly, if the service of the notice cannot be effected on the respondent, the appellate Court shall proceed to hear the appeal in his absence.

Taylor J. in PP. v. Goh Thor Kiah [1952] 1 MLRH 287; [1952] MLJ 91 had occasion to consider the second option, that is, under s. 314(ii) of the Criminal Procedure Code and he took the view that: "the incongruity of sentencing a man without his having had the opportunity to be heard" was worthless as there would not be a fair prospect of the sentence being enforced. The prosecution had in that case sought to have s. 314(ii) of the Criminal Procedure Code to be applied, by urging the Court to hear the appeal in the absence of the respondent. Taylor J. disagreed with the prosecution and this is what he had to say:

... (this) construction is surprising in that it involves the provision that a person who has been acquitted in one of the lower Courts might have his acquittal reversed and a conviction substitu