JUDGMENT

Ong Hock Sim J:

The learned Magistrate at Butterworth has stated this case for the consideration of the High Court in accordance with s. 317 of the Criminal Procedure Code (SS Cap. 21) on the question of law, namely (1) whether the terms and the circumstances of the case permitted his making an order of acquittal and discharge of the defendants under s. 30(4) of the Merchandise Marks Ordinance, 1950, and (2) whether such acquittal and discharge was correct in law and what should be done in the premises.

The defendants had been charged at the Magistrate's Court, Butterworth as follows:

You are jointly charged that you on 12 November 1964 at about 3.00 p.m. at No. 3885 Main Road, Permatang Pauh, Butterworth, Province Wellesley in the State of Penang did have in your possession for the purpose of trade 1,452 packets of Violet Talcum Powder with a counterfeit trade mark, to wit, the words 'Sang Moy Talcum Powder' in Chinese characters and the 'Two Sisters' mark affixed to the said goods and that you have thereby committed an offences punishable under s. 12 of the Merchandise Marks Ordinance 10 of 1950".

At the outset of the hearing, Counsel for the defendants informed the Court that the three defendants were agreeable to compounding the charge under s. 30 of the Merchandise Marks Ordinance No. 10 of 1950, subject to the consent of the Court, on certain terms which had been settled by the parties concerned. He then set out the said terms, which were:

(1) All three defendants plead guilty;

(2) Prosecution not to press for deterrent sentence;

(3) Defendants undertake not to misbehave again;

(4) Forfeiture of goods to police for destruction;

and which terms having been confirmed by the prosecuting officer, the Court consented to the compounding.

I was not a little surprised to find on the record words to the effect that the three defendants were agreeable to compounding the charge on certain terms as the person competent to compound the charge is not the offending party but the paity injured. One of the terms was that the prosecution was not to press for a deterrent sentence. This seems to me beyond the competence of the prosecution and is an affront to the Court and further displays a most unhealthy trend, if this bargaining process is being employed to determine the course of proceedings. In this case, there was also a misunderstanding as to who the actual complainant is in this case. The prosecution was instituted by the police and they appear on the charge sheet as the complainant but it is clear that the person who lodged the report was the person who negotiated the terms of the settlement with the defendants. The deputy Public Prosecutor's agreement to this compounding was not obtained before this was done.

The charge was read and explained to the three defendants who pleaded guilty. The facts were given and the defendants, admitting them, were acquitted and discharged, this order purported to be made under s. 30 (4) of the Merchandise Marks ordinance. Section 30 deals with compounding and while sub-section (4) states that compounding shall have the effect of an acquittal and discharge, it does not afford a legal foundation for the order made by the learned Magistrate. The procedure adopted in this case is not that which is done where it is intended to compound a case. The practice has been for the prosecutor to apply to the Court where the permission of the Court is required or in other cases to inform the Court that the parties have come to a settlement. No plea is recorded and the case is struck out. Where a plea is taken and the facts admitted the Magistrate is bound under s. 182(m)(ii) of the Criminal Procedure Code to pass sentence according to law. He may where there are extenuating and mitigating factors not record a conviction but he cannot acquit. With respect to the learned Magistrate, I do not agree that there can ever be such a thing as "a qualified and not an unequivocal plea of guilt". I think t