PUBLIC_PROSECUTOR_v_ONG_KEE_SEONG_-_[1960]_1.DOC - 1 2...

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2Malayan Law Journal Reports/1960/Volume 1/PUBLIC PROSECUTOR v ONG KEE SEONG - [1960] 1 MLJ 156 - 15 February 19602 pages[1960] 1 MLJ 156PUBLIC PROSECUTOR v ONG KEE SEONGACRJ SEREMBANISMAIL KHAN JCRIMINAL APPEAL NO 16 OF 195915 February 1960Criminal Law and Procedure -- Appeal against acquittal on two charges -- Withdrawal of appeal against one -- Effect ofSearch -- No search warrant -- Raid on premises "on the instruction of the OCPD" -- Resistance to arrest by show of force -- Penal Code, ss 352 and 353In this case the respondent was charged on two counts: (1) gaming, punishable under section 6(1) of the Common Gaming Houses Ordinance, 1953 and (2) using criminal force on two police officers, punishable under section 353 of the Penal Code. The charges were separately tried and in both cases the respondent was acquitted without being called on to enter his defence. The prosecution appealed against the acquittal in both cases, but withdrew the appeal on the first charge.19601 MLJ 156 at 157According to the prosecution, a gazetted senior police officer with a party of police officers conducted a raid on the premises in question "on the instruction of the O.C.P.D." There was no search warrant, nor was the search made in compliance with section 18(1)(d) of the Common Gaming Houses Ordinance. During the course of the raid the respondent resisted arrest by a show of force, to wit he kicked in the abdomen of one officer and bit the leg of another.Held:1) the effect of the acquittal of the respondent on the first charge, in view of the withdrawal of the appeal against it, was that the innocence of the respondent on the charge of gaming in a common gaming house was completely established;1) irrespective of whether the entry and search is legal or illegal, the powers of a police officer to arrest a person are limited and the exercise of such powers can only be justified on statutory grounds. In this case the offence in the first charge was a non-seizable offence and the purported arrest of the respondent could, on the facts of the case, neither be justified under section 24 of the Criminal Procedure Code nor under section 23(i)(e), and therefore the arrest itself was illegal and the resistance thereto was not unlawful. Consequently the respondent wasnot guilty of the offence under section 353 of the Penal Code;1) As in this case there was a prima faciecase under section 352 of the Penal Code, the case must be remitted to the Magistrate for him to amend the charge accordingly and call on the respondent for his defence.

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