Mahadev Shankar JCA

We dismissed this appeal against the order of the High Court at Penang refusing the appellant's application for certiorarito quash the decision of the court martial held in Penang on 25 May 1990 whereby the appellant was dismissed with disgrace from His Majesty's service.

The appellant ('the accused') had claimed trial to the following charges to which full particulars were annexed before he pleaded to them. Briefly, the charges were:

— firstly, that on 11 September 1987 he had committed a civil offence and thereby committed an offence against s 88 of the Armed Forces Act 1972 ('the Act') in that he had committed a corrupt practice against s 2(1) of the Emergency (Essential Powers) Ordinance No 22 of 1970. Alternatively, that at the same time and place he had behaved in a scandalous manner unbecoming of the character of an officer and a gentleman in contravention of s 85 of the Act;

— secondly, that on 15 February 1988 he had committed an act to the prejudice of good order and service discipline contrary to s 87 of the Act; and

— thirdly, that he had committed a similar offence on 26 September 1987.

Seven witnesses gave evidence in support of the prosecution's case and were cross-examined by defence counsel.

At the close of the prosecution's case on 6 January 1990, the accused's counsel made a lengthy submission of no case to answer, a substantial portion of which dealt with the burden of proof on the prosecution. The prosecuting officer ('the PO') then made a full response. As to the law, the accused's counsel cited Haw Tua Tau v PP [1981] 2 MLJ 49 on the burden of proof and PP v Datuk Tan Cheng Swee & Ors [1979] 1 MLJ 166 and [1980] 1 MLJ 117 on whether the appellant was a public servant, and whether what was done was to his advantage. The PO cited Miller v Minister of Pensions [1947] 2 All ER 372 and commented on Haw Tua Tau at some length. On the question of whether the accused was a public servant and whether what he had done was to his advantage, the PO also referred to Nunis v PP [1982] 2 MLJ 114 . The rest of the submissions on both sides was an in-depth analysis of the evidence and the proper inferences to be drawn from them.

The court martial then retired to consider the matter with the judge advocate. When it reconvened, the president announced that the prosecution had successfully proved that there was a prima facie case in the following words:

YDP mengumumkan bahawa mahkamah mendapati pihak pendakwa berjaya membuktikan adanya kes prima facie terhadap tuduhan-tuduhan berikut. (Emphasis added.)

The charges in question were the first charge, the alternative charge and the second charge. The charges were read out in full to the accused and the president announced:

Oleh itu tertuduh dikehendaki membuat pembelaan di atas pertuduhan-pertuduhan tersebut. Mahkamah mendapat pertuduhan ketiga tiada kes untuk dijawab.

('Therefore the accused is required to make his defence on the charges aforesaid. The court finds that no defence is required to the third charge').

The accused gave evidence and called ten witnesses. Very lengthy closing submissions were made first by the PO in accordance with r 78 of the Armed Forces (Court Martial) Rules of Procedure 1976 ('the Rules') followed by the defence counsel, after which the judge advocate summed up. The court then retired to consider its verdict; and having done so, reconvened on 25 May 1990 to announce that it had found the accused not guilty of the first charge but guilty of the alternative charge and of the second charge. The accused's counsel declared he had nothing he wished to say in mitigation. The court then — and as required by r 89 — pronounced one sentence in respect of both offences, viz that the accused be dismissed with disgrace from His Majesty's service.

As required by r 99, this sentence was confirmed by the confirming officer on 31 July 1990 and promulgated to the accused by his commanding officer on 27 August 1990. The next step was to proceed