whether a statement (‘exh P97’) made by one Raizul incriminating the second and third appellants was properly admitted under s. 32 of the Evidence Act 1950 notwithstanding failure by the police to use ss. 47, 49, 118 and 396 of the CPC; (vi) the subject matter of the charges; and (vii) the credibility of a witness (‘SP17’) whose evidence was not in favour of the prosecution. [39] The Court of Appeal held that, [40] We agree that pursuant to s. 261 of the CPC, the succeeding Sessions Judge has a complete discretion to either hear the case October 14, 2021 19 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. [40] I take note in the learned judgment of the Court of Appeal, her Ladyship Justice Tengku Maimun (now Chief Justice) was of the view that “We agree that pursuant to s. 261 of the CPC, the succeeding Sessions Judge has A COMPLETE DISCRETION (emphasis mine) to either hear the case de novo or to continue from the point where it has been left by the previous Sessions Judge…” [41] The key word is “discretion”. October 14, 2021 20 [42] “Discretion” is defined in the Words and Phrases Legally Defined, 2nd Edn., Vol. 2, at p. 82 as “that when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion”. [43] The Cambridge Dictionary (Cambridge University Press 2021) defines “discretion” as “the right or ability to decide something:” or “choice, or the right to make a choice, based on judgment:” [44] While the right or ability may be exercised, when it comes to authority conferred by law, it has to be exercise “judiciously”, i.e. the exercise of the choice be done with a proper reason. There must be justification(s) for the exercise of that choice since it is not personal in nature and not for personal matters too but a choice made in judicial capacity that calls for accountability and reason(s). [45] Hence in LEE V. BUDE &TORRINGTON JUNCTION RY. CO. [1871] LR 6 CP 576, per Justice Willes at pp. 580, 581 it was ruled that “Even though an act done is ostensibly in execution of a statutory power and within its letter, it will nevertheless be held not to come within the power if done otherwise than honestly and within the spirit of the enactment. A discretion is to be ‘regulated according to known rules of law.’ A discretion is not the mere whim or caprice of the person to whom it is entrusted on the assumption that he is discreet...” [46] ‘It is true’, said Lord Greene M.R. in ASSOCIATED PROVINCIAL PICTURE HOUSES LTD. V. WEDNESBURY CORPORATION October 14, 2021 21 [1948] 1 KB 223 at p. 229), ‘the discretion must be exercised reasonably’. [47] In EMPEROR v BAR COUNCIL OF GUJARAT AIR 1981 SC 477, the Advocates Act 1961 provides that if on a receipt of a complaint against an advocate, the State Bar Council has “reason to believe” that the advocate has been guilty of misconduct, it shall forward the case to the disciplinary committee. It was held by the Supreme Court that in forwarding a case to the disciplinary committee the council cannot act mechanically. It must apply its mind to find out whether there is any reason to believe that any advocate has been guilty of misconduct only when the Bar Council has a reasonable belief that there is a prima facie case of misconduct, a disciplinary committee, is to be entrusted with inquiry against the concerned advocate. [48] In R v METROPOLITAN POLICE COMMISSIONER [1968] 2 QB 118, the Court held that the transport authority was bound to renew the licence of taxi-drivers if certain conditions had been satisfied. [49] In BALASINGHAM v. PUBLIC PROSECUTOR [1959] 1 LNS 8, his Lordship Justice Ismail Khan (later Chief Justice of Borneo) said “The trial Court is under a statutory obligation under s. 308 of the Criminal Procedure Code to transmit to the Appellate Court the grounds of decision which convey to my mind a reasoned judgment on the facts and the law not merely the conclusion arrived at. The advantage of a “speaking” judgment needs no emphasis.” October 14, 2021 22 [50] A speaking judgment is a judgment with reasons. Hence when the Court exercises its discretion, it cannot be done wantonly or callously but with good reasons or foundation for that decision is arrived at. Likewise if it is an Order or a Ruling. It must be with reasons and those reasons must be judicious. [51] In fact in MURUGIAH V. PP [1941] MLJ 17 and PP V. LOW TOH SENG [1941] MLJ 1 both their Lordships, Justice Home and Acting Chief Justice Terrell felt that the absence of reasons indicates the possibility that such vital consideration as the weight of evidence and the possibilities of the case may not have influenced the mental process of the trial Judge in arriving at the ultimate finding. [52] In ADZHAAR BIN AHMAD & ANOR v PUBLIC PROSECUTOR [1996] 1 LNS 68 his Lordship Justice Abdul Wahab Patail spelt out what it takes to be a reasoned decision and his Lordship said this, With the greatest of respect to the learned sessions judge, I am compelled to say that his judgment is most inadequate and far from being a speaking judgment. He had failed to discuss the evidence and the probabilities arising from the circumstances of the case. He had failed to state the reasons for his findings. At times, he made no finding of facts in respect of the evidence of witnesses. In his judgment, he had failed to indicate that he had in fact applied his mind to the evidence produced. [53] I am unable to find the reason(s) of the Learned Sessions Court Judge for the exercise of his discretion. There are legal ramifications which are among others: October 14, 2021 23 i. the Prosecutrix will be forced to be examined again ii. the evaluation of evidence after the previous Sessions Court Judge ruled that the prosecution succeeded in proving a prima facie case. iii. The defence has closed its case after calling its witnesses although no decision has been made. [54] There are other ramifications apart from being legal, in that a re-calling and re-examining the Prosecutrix may throw the marriage of the Prosecutrix to the rocks. [55] It must be remembered that when a decision has been made in respect of evidence such as a prima facie case has been made out by the prosecution. [56] I am guided by the Court of Appeal in SAAD ABAS & ANOR v. PP [1998] 4 CLJ 575 where it was ruled that, A complete criminal trial involves both the case for the prosecution and the case for the defence. This is implied from the very charge itself. A charge accuses a person of having committed an offence. That suggests that he has to put up his defence. The moment the prosecution has proved its case meaning that the court has decided that there is a case for the accused to answer and the accused must therefore forthwith enter his defence. So it would be premature to question whether the decision calling for the accused to enter his defence was right or wrong. The proceedings must continue until the end of the case for the defence and only then would the court be able to finally decide the fate of the accused. On the other hand if he is acquitted at the end of the case for October 14, 2021 24 the prosecution that means that the court has decided the fate of the accused and that as far as that court is concerned the accused is a free man. Similarly when a High Court judge rules at the end of an appeal by the prosecutor in a case where the accused has been acquitted at the end of the prosecution case that the accused must enter his defence, it is as good as saying that the Sessions Court Judge himself has decided to call for the defence assuming that he has analysed the case in the way that the High Court Judge has done. Only after he has heard the defence and only then can he finally decide the fate of the accused. [57] In our instant case, since the earlier Sessions Court Judge ruled that there has been a prima facie case against the accused, it must be taken to the end. It is not for the succeeding Sessions Court Judge to rule otherwise, no matter what his personal thoughts are. He may choose to do so at the end of the defence case but certainly on setting aside ab initio of his sitting before hearing the Defence witnesses. He must, in the words borrowed from SAAD ABAS (supra) that “it is as good as saying that the Sessions Court Judge himself has decided to call for the defence assuming that he has analysed the case in the way that the preceding Sessions Court Judge has done.” [58] Having said that I must say, for the sake of completion, lest I be said to overlook an important point. I can quite agree that a recall of the defence witnesses so they can be presented to the new presiding Sessions Court Judge and this may be done without expunging the records. [59] Hence the witnesses so recalled is subject to scrutiny and they may be subject to impeachment if they gave a different version than what is on record. October 14, 2021 25 [60] His Lordship Justice Abdul Malik Ishak had this to say in MOHD JALANI SALIMAN & ANOR v. PUBLIC PROSECUTOR [1998] 1 CLJ 123 , inter alia, My attention was drawn to the case of MURUGAIAH V. PUBLIC PROSECUTOR [1941] 10 MLJ (FMSR) 17 where Horne J in a short judgment said: It does not appear to me that a Magistrate complies with s. 307 (iii) of the Criminal Procedure Code which requires him to give the 'Grounds of Decision’ by stating 'I believe the evidence of the prosecution’... 'I believe the evidence of the accused.' I think the Magistrate should state, except in the simplest of cases and they usually are not the subject of appeal, the reasons why he believed or disbelieved the evidence in question. and flowing from that case it was argued that the trial court admitted that the case was protracted with massive documents to peruse and not as simple as one would imagine. Therefore, it was submitted that it was incumbent on the trial court to dissect and itemise the evidence for the prosecution on the same lines as that adopted by Salleh Abas LP in KJ BARLOW V. PUBLIC PROSECUTOR 1987 CLJ 139[1986] 2 MLJ 104 SC. I have read the judgment of the trial court from pp. 283 to 290 of the appeal record. It was a compact judgment that went straight into the subject matter of the charges levied against the appellants. The trial court referred to the relevant exhibits and linked those exhibits with the three charges. The trial court too highlighted certain aspects of the evidence to link it with the charge of cheating. The judgment of the trial court was not like what was done by the Magistrate in MURUGAIAH's case. The judgment of the trial court can never be compared to what the Magistrate did in October 14, 2021 26 MURUGAIAH which received the adverse comments of Horne J. It would be most unfair and wrong to equate the remarks of Horne J in MURUGAIAH to the judgment of the trial court. Magistrates need not write lengthy judgments in the course of their duties. Suffice if Magistrates put the facts and the law on paper as concisely as possible. In my judgment, there was nothing wrong with the way the trial court wrote the judgment. Although the trial court did not give an explanation as to the law involved yet the findings were in accordance with the law which showed that the appellants had committed the offences with which they were charged (TEE THIAN SEE V. PUBLIC PROSECUTOR [1997] 5 CLJ 654). What amounts to a “speaking judgment” varies from case to case and from Magistrate to Magistrate. Even judges too are apt to differ and hold onto different notions on what can be considered to be a “speaking judgment”. It is a correct statement of the law to say and I so say that there is no statutory provision that requires the trial Magistrate to expressly record the reasons for calling the defence. The Supreme Court in the case of ABDULLAH V. PUBLIC PROSECUTOR [1984] 1 LNS 3 had occasion to consider the acid issue of whether it was mandatory for the trial judge to record the reasons for calling an accused to enter the defence. In answering the question posed in the negative, Mohamed Azmi SCJ (now FCJ) had this to say: In our opinion, there is also no statutory provision requiring a judge sitting alone to expressly record his reason before calling the accused to enter his defence or to state his findings on the credibility of main prosecution witnesses. But, as a matter of practice, where there is a particular reason for doing so, such as where a submission to answer has been made in a complex case, or where the accused is called to enter a defence on a lesser or alternative charge, judges do sometimes give their reasons. In uncomplicated cases, such as the instant appeal, it is not obligatory or October 14, 2021 27 even necessary to do so. By calling an accused to enter his defence, it should be assumed that the trial judge must on evaluation of the evidence, have been satisfied that the prosecution had, at that stage of the trial; established a prima facie case which, if unrebutted, would warrant a conviction of the accused. To arrive at such a conclusion, it is inherent that the judge must consider all the evidence adduced by the prosecution as tested in cross-examination, on a prima facie basis. In this appeal, the establishment of a prima facie case of unlawful possession of a firearm under s. 57 of the Act was so obvious, even to the defence counsel, that it became academic and unnecessary for the court to consider an order of acquittal under s. 180 of the Code. Thus, when the learned judge called for the defence in the present case, he must have been satisfied that there was a prima facie case to answer which, if unrebutted, would warrant a conviction, and it was not mandatory for him to record the reasons for his satisfaction, even if there had been no concession made by the defence counsel. However, whether the judge was actually correct in law in calling for the defence was of course open for review on appeal to this court. [61] In my view, the Learned Sessions Court Judge did not indicate the reason for his decision notwithstanding the legal ramifications of his decision. [62] Hence, it does not fulfil the meaning of “exercise of discretion” which cannot be exercise wantonly or callously but with reasons that could withstood the test of scrutiny. ii. Whether a change of judge entails an order that a trial be heard de novo October 14, 2021 28 iii. Whether the justice of the case demands that the case be heard de novo I shall deal with both issues together. [63] This point was discussed by his Lordship Justice Abdul Wahab Patail in ABDUL HAMID UDIN v. PP [2000] 1 LNS 198, At the outset of the hearing of the appeal, it was argued for the appellant, on the basis of s. 261 of the Criminal Procedure Code (‘the Code’), that the appellant was materially prejudiced because the prosecution case was heard before Puan Suraya Bt Othman, and the defence case was heard before another judge, Tn Abd Karim bin Jalil. It is always very highly desirable that judgment in any case should be given by the judge who has heard and recorded all the evidence himself and has heard and seen the witnesses (see CHONG KWEE HIAN V. PP [1948] 1 LNS 10; [1948-49] MLJ Supp 191). Would that it be that all that is desirable will come to pass. However, judges may move on or be transferred, and no longer exercise jurisdiction in a case. Provision in the event of changes of trial magistrates and judges in the sessions and magistrates' courts (see PP V. MOHD JON [1993] 1 MLJ 133) is therefore made in s. 261 of the Code:- Change of Magistrate during hearing Whenever any Magistrate after having heard and recorded the whole or any part of the evidence in a trial ceases to exercise jurisdiction therein and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself, or he may re-October 14, 2021 29 summon the witnesses and recommence the inquiry or trial:- Provided as follows:-