Chang Min Tat J (delivering oral judgment):

My attention was drawn to this case by the prominence given to it by the newspapers. If it is felt that the prominence was undue it is only in proportion to the unusualness of the proceedings in which an accused person was allowed to plead guilty to the charge after the identifier had accepted his challenge to cut off a cockerel's head on the challenge issued by him.

In passing, I would remark that the prominence was partly due to the summary execution of a cockerel in the compound of a Court.

I called up this case therefore on revision and this morning after hearing the learned Legal Adviser who was good enough to attend Court I invited the accused to address me on whether I should not revise the order made by the learned president of the sessions Court. He said in answer to me that he did not commit the offence. This must therefore reinforce the suspicion that I had on reading the article in the newspapers that his plea of guilty subsequent to the cutting of the cockerel's head was made with the mental reservation that if the complainant was prepared to perjure, her soul or to suffer whatever torments in the next world she believed she would be subject to for perjury he would be prepared to go to jail. It is a cardinal principle that any plea of guilty must be completely unreserved, unqualified and unequivocal. The circumstances of this case must persuade me that there was no such plea and even though the record showed that subsequent to the execution of the cockerel the accused was re-charged and he pleaded guilty thereto, the plea was nevertheless not of that kind that should have been accepted by any Court which purports to administer justice in any proper sense of it.

Further I find nothing in the record to show that the witness who accepted the challenge was of that religious persuasion that makes the cutting of a cockerel's head a form of oath that she believes to be completely binding on her. In the absence of any such evidence her act cannot be said per se to have established beyond reasonable doubt the identity of a person who had robbed her.

What however is the fundamental objection of the whole proceedings is that while this unusual form of oath or any other usual form of oath is permissible in Court so long as it is not repugnant to justice or decency and does not affect any third party under eight of the Oaths and Affirmation Ordinance No. 51 of 1949, it is by s. 9 of the same Ordinance limited to judicial proceedings of a civil nature. There is therefore no justification whatsoever for permitting this form of oath or this challenge to be taken in criminal proceedings.

In my view the entire proceedings in the Court below are a complete nullity. The conviction must be quashed and the sentence set aside and a retrial ordered before another president. Order accordingly.