the High Court may, whether there be an appeal or not, set aside any conviction had on evidence not wholly recorded by the Magistrate before whom the conviction was had, if that Court is of opinion that the accused has been materially prejudiced thereby, and may order a new trial.” [12] Dalam kes Mohamed Idris bin Haji Mohamed Said v Rex [1949] 15 MLJ 31 Murray-Aynsley menjelaskan dengan meneliti peruntukan seksyen 254 Kanun Prosedur Jenayah Negeri-negeri Selat ketika itu pari materia dengan seksyen 261 KPJ menyatakan seperti berikut: “The power given under the section is of value, particularly when it is used for evidence of a more or less formal character, or where the witness cannot be produced. In the present case the witness whose evidence was so acted on was a crucial one, and I cannot think that a decision can be regarded as satisfactory where it is based on evidence given before another Magistrate, particularly when there is nothing to prevent the witness from giving evidence on the further hearing.” [13] Adalah menjadi prinsip undang-undang yang mantap bahawa Majistret yang bertindak di bawah seksyen 261 KPJ mempunyai budi bicara sama ada membicarakan kes tersebut secara de novo atau sebaliknya. Ini dinyatakan oleh Mahkamah Rayuan di dalam kes Yap You Jee v PP & Other Appeals [2015] 7 CLJ 897 seperti berikut: “[40] We agree that pursuant to s. 261 of the CPC, the succeeding Sessions Judge has a complete discretion to either hear the case de novo or to continue from the point where it has been left by the previous Sessions Judge. However we do not agree that the "directive" given to the succeeding Sessions Judge amounts to a breach of the provisions of s. 261. It has been a practice for the Chief Judge or the Chief Registrar to decide on whether the part-heard cases would be completed either by the previous presiding Magistrate or Sessions Judge or by his successor and this decision or 'directive' was purely administrative, given with the primary purpose to speed up the disposal of the part heard cases. The "directive" which was given administratively could not and did not in any way fetter the discretion of the succeeding Magistrate or Sessions Judge provided for under s. 261 of the CPC. The duty remains on the Magistrate or the Sessions Judge to act under the provisions of s. 261 of the CPC. In particular, if the succeeding Magistrate or Sessions Judge acts on the evidence which has been recorded by his predecessor, the right to recall witnesses must be observed. In this appeal, we find no issue on the right of the appellants to recall witnesses. In the circumstances, the 'directive' given to the succeeding Sessions Judge has not prejudiced the appellants and has not breached s. 261 of the CPC.” [14] Mahkamah ini juga dipandu oleh Mahkamah Rayuan di dalam kes Yap You Jee (supra) apakah yang perlu dilakukan oleh Mahkamah Sesyen di dalam kes di akhir pembelaan yang memberikan pemakaian seksyen 261 KPJ seperti berikut: “[43] We have perused the grounds of judgment of the succeeding Sessions Judge and we noted that at pp. 445-452 of the appeal record vol. 2, the succeeding Sessions Judge had tabulated "Ringkasan Pendakwaan" at the end of the case for the prosecution. Further, reading the grounds of judgment, we find that the succeeding Sessions Judge had not considered the defence in isolation but had tested the defence in the light of the case for the prosecution (see for example pp. 461-462, 477-479, and 488 of the appeal record vol. 2). In our view, there was sufficient compliance by the succeeding Sessions Judge of s. 173(m)(i) of the CPC which provides that: At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt. [44] Even if the grounds of the succeeding Sessions Judge is lacking or there was an error on her part for stating that she will only consider the defence, the High Court Judge had meticulously examined the evidence of the prosecution for each instance of the cheating. There were three instances of cheating in this case. The first relates to the cashier's order in the value of S$3.45 million, the second and the third instances were in relation to the sum of RM2 million cash and RM1.3 million cash respectively.” [15] Pada masa yang sama Mahkamah ini juga merujuk seksyen 173