Abdul Hamid v PP  MLJ 231:
 1 MLJ 231
ABDUL HAMID v PUBLIC PROSECUTOR
CRIMINAL APPEAL NO 11 OF 1956
18 August 1956
Prevention of Corruption Ordinance, 1950, ss 3 & 12 — What amounts to an offence under s 3 of the Ordinance — Distinction between “consent” and “sanction” to prosecute — “Rights and powers” in s 376(iii) of the Criminal Procedure Code (Cap 6) — Scope of
Summary trial — Evidence of similar facts — Same transaction — Finding of ‘guilty’ whether to be formally recorded
In this case the learned Judge held that to establish an offence under section 3 of the Prevention of Corruption Ordinance, 1950, it is not necessary to show that the favour sought was within the power of the accused, but the favour shown must then have been within the power of the accused’s principal.
There is an essential difference between a sanction and a consent. A prosecution can be sanctioned without any deep consideration of the particular case: full consideration is required for consent since “consent” is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side. A sanction is therefore no evidence of consent.
The very general words “rights and powers” appearing in section 376(iii) of the Criminal Procedure Code are sufficient to permit a Deputy Public Prosecutor to consent to a prosecution under the Prevention of Corruption Ordinance.
Where there are other offences of the same kind which are all part of one and the same transaction evidence thereof is properly admissible.
There is no requirement in section 173(m)(2) of the Criminal Procedure Code that the finding of “Guilty” shall be formally recorded unless the accused pleads guilty. It is sufficient if the record shews clearly that the Court did find the accused guilty.
Cases referred to
R v Metz 11 Cr App R 164
Hiralal Badlo v R (1950) MLJ 96
Raju v R (1953) MLJ 21
R v Rearden 4 F & F 76; 176 ER 473
MAGISTRATE’S CRIMINAL APPEAL
Edgar Joseph (Jr) for the appellant.
LA Massie (Federal Counsel) for the respondent.
The essential facts of this case were as follows.
The complainant applied for a post in the Home Guard. Hearing nothing he asked the accused about his application, the accused being at the time an Assistant Home Guard Officer and in charge of the Home Guard in Kuala Pilah. The complainant asked the accused whether there was a vacancy for a Permanent Staff Instructor. The accused told the complainant to write out an application for the post which the complainant did. The complainant handed the application to the accused who said that the complainant must pay him $100 or he would not recommend him. The complainant, who at the time had only $40, gave the $40 to the accused who said that the complainant was not to worry and that he would get the post. This was on 15th February 1956. On 23rd February the accused sought out the complainant and asked if the complainant had the balance of $60. The complainant had only $20 which the accused took. On 28th February the complainant approached the accused asking if his appointment had been approved. The accused asked for the balance of $40. The complainant gave accused the balance of $40. The accused had no authority to recruit personnel into the Home Guard.
The accused was tried upon the following charge which relates to the final payment of $40:—
That you on the 28th day of February, 1956, at Kuala Pilah in the State of Negri Sembilan being an agent of the Government of the Federation of Malaya namely an Assistant State Home Guard Officer corruptly accepted the sum of $40 from Samsudin bin Haji Salam as a reward for doing an act in relation to your principal’s affairs, namely for the purpose of recruiting the said Samsudin into the Home Guard as a Sergeant in the Home Guard, and that you have thereby committed an offence contrary to and punishable under Section 3 of the Prevention of Corruption Ordinance, 1950.
It was submitted first that there had not been a consent to the prosecution as required by section 12 of the Prevention of Corruption Ordinance, 1950 (hereinafter called ‘the Ordinance’) which reads:—
“12. A prosecution under this Ordinance shall not be instituted except by or with the consent of the Public Prosecutor.”
It was objected that Exhibit P1 was not signed by the Public Prosecutor personally and was a sanction under the Criminal Procedure Code and therefore not a consent. Exhibit P1 reads as follows:—
1956 1 MLJ 231 at 232
SANCTION TO PROSECUTE UNDER SECTION 129
OF THE CRIMINAL PROCEDURE CODE (CAP. 6)
In exercise of the powers conferred upon me by section 129 and section 376(iii) of the Criminal Procedure Code, I, Leslie Alexander Massie, Deputy Public Prosecutor for the State of Negri Sembilan do hereby sanction the prosecution of Abdul Hamid bin Mohd. for an offence punishable under section 3(a) of the Prevention of Corruption Ordinance No. 5 of 1950 alleged to have been committed by him at Kuala Pilah on or about the 28th day of February 1956.
Dated this 26th day of April 1956.
|sd. L. A. Massie|
|Deputy Public Prosecutor,|
|Negri Sembilan & Malacca.”|
I do not consider that consent must be given personally by the Public Prosecutor. In my opinion the very general words “rights and powers” appearing in section 376(iii) of the Criminal Procedure Code (F.M.S. Cap. 6) are sufficient to permit a Deputy Public Prosecutor to consent to a prosecution under the Ordinance.
There was more substance in the argument that no consent had been given. The learned Deputy Public Prosecutor argued that section 12 of the Ordinance did not stipulate a particular form which the consent should take and that a sanction implied consent. I agree with the first argument but respect fully disagree with the second.
There is an essential difference to my mind between a sanction and a consent. A prosecution can be sanctioned without any deep consideration of the particular case: full consideration is required for consent since “‘Consent’ is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side” (Stroud 3rd Edition vol. I page 582). The sanction was therefore no evidence of consent. However I satisfied myself from evidence given by the learned Deputy Public Prosecutor that he had in fact fully applied his mind to the particular case and had consented before signing Ex. P1 (R v Metz 11 Cr App R 164, followed).
Secondly it was argued that since the accused had no power himself to recruit personnel for the Home Guard he had committed no offence under the Ordinance, applying the principles of Hiralal Badlo v R (1950) MLJ 96. In that case a soldier was offered an inducement to release a person who had been illegally arrested: it was held that no offence was disclosed since the favour sought was “not in relation to the affairs” of the principal since the arrest had been made outside the premises of the principal and in an area where the soldier had no power to make an arrest.
In this case it is clearly the affair of the Federal Government to recruit personnel for the Home Guard. Whether the accused had the power to recruit or not is immaterial: the question is for what purpose did the complainant give the money, was that purpose in relation to the affairs of the accused’s principal and did the accused receive the money knowing the intention with which it was given by the complainant. I respectfully agree with the learned President where he says:—
“The Ordinance does not say anything about the act being within the competence of the agent. If it did, no one, or at any event very few, could be prosecuted. It is quite obvious that a P.C. who releases a prisoner in return for a bribe is not competent to release that person. A Magistrate who takes a bribe and acquits a person would be competent, but it would be absurd to argue that the former could not be prosecuted, and the latter could.”
Thirdly it was strongly argued for the appellant that evidence of similar facts prejudicial to the accused had been admitted without reasonable cause and that no specific reason had been given for leading evidence thereon contrary to the principles enunciated in Raju’s (1953) MLJ 21 case.
I cannot agree that the evidence of the earlier instalments of the bribe were admitted without reasonable cause. As the learned President has noted in his Grounds of Judgment the three incidents really form one whole: the last incident, the subject of the charge, cannot be understood without reference to the earlier incidents. Where there are other offences of the same kind which are all part of one and the same transaction evidence thereof is properly admissible (see R v Rearden 4 F & F 76; 176 ER 473).
From the record it does not appear that before evidence of the earlier incidents was led the prosecution informed the Court for what purpose that evidence was being led. It is highly desirable that this should be done and, when not done, may put the accused, particularly when undefended, in great difficulties. In this particular case the accused was represented. The record reveals no objection to the evidence being led nor to any submission thereon at the close of the prosecution case. There is no statutory requirement that the purpose for which the evidence of this kind is led should be stated: it is a sound matter of practice. In this case I do not consider that the appellant was in any way prejudiced by the failure to state the purpose: it must have been self-evident. I am satisfied that here there was no omission in the proceedings
1956 1 MLJ 231 at 233
which has occasioned a failure of justice. (See section 422 Criminal Procedure Code).
The remaining points in this well-argued appeal may be disposed of shortly. It was submitted that the conviction was bad since the learned President had not recorded a formal finding of ‘Guilty’ but proceeded straightaway to conviction. Section 173(m)(2) reads as follows:—
“If the Court finds the accused guilty or if a plea of guilty has been recorded and accepted the Court shall pass sentence according to law.”
There is no requirement that the finding of ‘Guilty’ shall be formally recorded unless the accused pleads guilty. It is sufficient if the record shews clearly that the Court did find the accused guilty. In this case before convicting and sentencing the appellant the learned President delivered a long judgment in open Court which made that fact abundantly clear.
Several points were taken with reference to certain evidence which I consider the learned President admitted and weighed correctly.
I do not consider the sentence in any way excessive.
The appeal against conviction and sentence is dismissed.
Solicitors: Joseph & Son.