JUDGMENT

Gopal Sri Ram JCA:

The appellant was convicted by the Sessions Court at Ipoh of an offence under s. 193 of the Penal Code and sentenced to a term of imprisonment of one month and a fine of RM2,000, or in default a term of imprisonment of two weeks. His appeal to the High Court against conviction and sentence was dismissed. He then appealed to this court. At the conclusion of arguments we allowed the appeal.

The reasons for our decision now follow.

The prosecution's case against the appellant is that he fabricated false evidence, the sting of the charge being that he affirmed an affidavit that contained false statements which was filed in a suit he instituted in the Ipoh High Court.

The portions complained of read as follows:

During the period the defendant by the use of a hidden video camera secretly videotaped me in embarrassing situations without my knowledge and has spliced in video images from pornographic tapes to create a composite image.

By the said publication I have been made out to as a person who has acted in pornographic tapes.

It may, for completeness be mentioned here that an alternative charge under s. 199 of the Penal Code was also preferred against the appellant. At the close of the whole case, the Sessions Court found both the principal and alternative charges proved.

It then convicted the appellant upon the principal charge.

In support of its case against the appellant the prosecution produced in

evidence a video tape (Exhibit P12) which depicted the appellant

committing acts of sexual intercourse with a female partner.

Evidence, including that of an expert, was led by the prosecution to show that the

images of the male appearing in Exhibit P12 were indeed that of the

appellant.

The Sessions Court found as a fact that the male actor in Exhibit

P12 was the appellant. That conclusion was arrived at after a careful analysis of the material placed before it. Being clearly a finding of fact based upon irrefragable evidence, it was affirmed by the High Court on appeal. It is the settled practice of this court not to interfere with concurrent findings of fact save in very rare cases. If, for instance, it could be shown that the course of events affirmed by the trial judge could not have occurred, that would be a good reason for reversing his view. See, The 'Eurymedon' [1942] 73 Lloyd LR 217; Tara Singh V. Public Prosecutor [1954] Tengku Mahmood V. Public Prosecutor [1974].

So too may appellate interference be warranted where the trial judge has failed to critically assess and analyse the prosecution's evidence.

See, Syed Abu Bakar bin Ahmad v. Public Prosecutor [1984] 1 CLJ 80; [1984] 2 MLJ 19.

However, the present instance is not one which falls into any of the recognised categories of cases where this court may interfere with concurrent findings of fact.

We are therefore not disposed to accede to so much of the appeal as is directed against the finding by the Sessions Court

that the appellant is the actor in Exhibit P12. Indeed we are satisfied that

the particular finding of fact by the Sessions Court was amply justified by the evidence.

Although a number of other grounds were advanced before the High Court and re-ventilated before us, we find it sufficient to dispose of this appeal upon a point that forms the fulcrum of the case against the appellant but which does not appear to have been sufficiently appreciated by the courts below.

Although we choose not to deal with the other arguments, we are not to be taken as affirming the views expressed upon these by the courts below.

It is true that the appellant stated on oath that he had "been made out to as a person who has acted in pornographic tapes". It is equally true that the prosecution had established beyond a reasonable doubt that the male

actor appearing in Exhibit P12 is indeed the appellant.

But what appears

to have been missed is the absence of any cogent link between the

declaration made by the appellant and Exhibit P12. In o