JUDGMENT

Suffian LP:

This criminal trial has given us a great deal of trouble, and consequently we are taking the unusual step of delivering three separate judgments. Both my learned brethren are not here, and in their absence I shall read first the judgment of the learned Chief Justice and then that of my brother Ali, followed finally by mine. Lee Hun Hoe CJ (Borneo) (read by Suffian LP): This is an appeal against conviction and sentence. The appeal raises important questions concerning the right to appeal against conviction after a plea of guilty and the rules relating to the plea of autrefois acquit.

On 14 July 1972 appellant and Tan Soo Har were jointly charged before the late Sharma J in the High Court at Ipoh for an offence under s. 3 of the Firearms (Increased Penalties) Act, No. 37 of 1971. The trial was before a jury. At the conclusion of the trial appellant was acquitted but Tan Soo Har was convicted. The latter appealed to this Court against his conviction. On 4 December 1972 this Court allowed his appeal declaring that his trial was a nullity. No reason was given in the record before us and the order simply reads -

This Court both declare that the trial of the appellant (Tan Soo Har) is a nullity and it is ordered that the conviction and the sentence imposed upon the appellant be and are hereby set aside.

Subsequently, on 26 September 1974 appellant and Tan Soo Har were separately tried and on different charges. At the retrial before Arulanandom J the charge against Tan was amended from s. 3 to s. 4 of the Firearms (Increased Penalties) Act, No. 3.7 of 1971. To this charge he pleaded guilty and was convicted and sentenced to 18 years' imprisonment to run on the expiry of the sentence he was then serving. We are not here concerned with his sentence. As regards appellant three charges were preferred against him. The first charge was under s. 307 of the Penal Code for the act of firing at a police party with a revolver. The second and third charges were both under s. 3(1) of the Arms Act, No. 21 of 1960 and punishable under s. 9(a) of the said Act. He was represented by the same Counsel at both the trial and the retrial. He also pleaded guilty to the charges. Consequently, he was sentenced to 10 years' imprisonment on the first charge, 4 years on the second charge and 4 years on the third charge. The sentences to run consecutively. Hence, the appeal.

It was argued that as appellant was acquitted on 14 July 1972 he could not be subsequently charged on 26 September 1974 for offences arising out of the same facts and circumstances. Further, he was not a party to the appeal when this Court declared the trial of Tan to be a nullity. The order is said to be effective against Tan only. The order of acquittal has never been quashed so that it still remains in force. Counsel for appellant could have raised the plea of autrefois acquit at the retrial pursuant to s. 303 of the Criminal Procedure Code but never did. If it had been raised, perhaps the learned Judge would not have accepted the plea of guilty.

In this appeal, Dato Seenivasagam submitted that was merely an irregularity which could be cured. Since the point had been raised this Court could deal with it. He stressed that points of law could be raised at any time. In support he referred to a passage in Mallal's Criminal Procedure, 3rd Edn., p. 378 dealing with s. 322 of the Criminal Procedure Code (which could also be, found in the 4th Edn. at p. 481) which reads:

A question of pure law which may be decided on the materials already on the record may be taken for the first time before the High Court although it has not been taken in any of the Courts below. No question of fairness to the trial magistrate arises and the application should be heard. Shailabala Devi v. R [1933] 34 Cr LJ 1115 @ pp. 1122 and 1124 (FB).

On the powers and functions of the appellate Court he quoted another passage from the same edition at p. 355 which reads as follows:

On an appeal from