2 MLJ 173, *; [1987] 2 MLJ 173

© 2003 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd)

The Malayan Law Journal

SAVRIMUTHU V PUBLIC PROSECUTOR

[1987] 2 MLJ 173

SUPREME COURT CRIMINAL REFERENCE NO 2 OF 1986

SC KUALA LUMPUR

DECIDED-DATE-1: 25 AUGUST 1986, 1 DECEMBER 1986

SALLEH ABAS LP, ABDUL HAMID CJ (MALAYA) & HASHIM YEOP A SANI SCJ

CATCHWORDS:
Criminal Law and Procedure - Transfer of case to High Court - Charge of trafficking in
dangerous drugs - Accused charged in the Sessions Court - Consent for prosecution
given by Public Prosecutor - Date of hearing fixed - Requisition of Public Prosecutor
to have case tried in High Court - Refusal of President, Sessions Court to transmit
case to High Court - Appeal to High Court - Reference to Supreme Court - Dangerous
Drugs Act, 1952, ss 39B & 41(2) - Courts of Judicature Act, 1964 s 48(1) - Federal
Constitution, art 7(1)

Constitutional Law - Transmission of pending cases to High Court - Federal

Constitution art 7

HEADNOTES:
In this case the applicant had been charged in October 7, 1982 in the Sessions Court
at George Town, Penang with an offence under section 39B of the Dangerous Drugs
Act, 1952. On April 25, 1983 the Public Prosecutor's sanction was tendered and the
Court proceeded to fix the date of hearing. Subsequently the prosecution tendered
the Public Prosecutor's requisition under section 41(2) of the Act with a view to have
the case tried by the High Court. However, the learned President of the Sessions
Court refused to transmit the case to the High Court, being of the view that the
applicant had acquired a vested right to be tried in the Sessions Court once the
Public Prosecutor had indicated his election to have the trial held in that court by
tendering his consent to prosecute. The Public Prosecutor appealed to the High
Court.

The learned trial judge stayed the proceedings and referred the following question to
the Supreme Court: "Whether for the purpose of Article 7(1) of the Federal
Constitution an accused person derives a vested right when (1) he is charged or (2)
after his trial has commenced."

Held:
(1) pending cases could still be tried in the Sessions Court unless the
Public Prosecutor chooses to have them tried in the High Court by the issue
of a requisition under section 41 (2);
(2) the Public Prosecutor's requisition is valid only in respect of cases
of which trials have not yet begun. If trials have already commenced in the
Sessions Court, his requisition is invalid and the court therefore should
continue to try them. The trial is said to have commenced when evidence has
begun to be adduced;
(3) if pending cases have been transmitted to the High Court pursuant to
Public Prosecutor's requisition, it is not open to High Court to remit them
to the courts below by invoking section 417 Criminal Procedure Code, or any
other written law. Subsection (3) of section 41 of the Dangerous Drugs Act
which gives effect to the Public Prosecutor's requisition should prevail,
this being a special law;
(4) the transmission of pending cases to the High Court is not in
violation of Article 7(1) of the Constitution, as the punishment for which
the accused is liable remains the same as it was before the amendments. Death
penalty is not mandatory for such cases, but only discretionary.

Cases referred to
Public Prosecutor v Hun Peng Khai & Ors [1984] 2 MLJ 318
Public Prosecutor v Cheah Cheng Eng [1986] 2 MLJ 39
Public Prosecutor v Jusoh bin Samah Kuantan Criminal Trials Nos 4 & 9 of 1984

SUPREME COURT

Karpal Singh ( V Sithambaram and San Markan Ganapathy with him) for the
applicant.

Mohamed Noor bin Haji Ahmad (Deputy Public Prosecutor) for the respondent.

ACTION:

SUPREME COURT

LAWYERS: Karpal Singh ( V Sithambaram and San Markan Ganapathy with him) for
the applicant.

Mohamed Noor bin Haji Ahmad (Deputy Public Prosecutor) for the respondent.

JUDGMENTBY: SALLEH ABAS LP

(delivering the Judgment of the Court): This is a reference under section 48(1) of the
Courts of Judicature Act made by Dzaiddin J. at the instance of Mr. Karpal Singh's
application on behalf of the applicant.

The facts are as follows:

The applicant was charged in the Sessions [*174] Court at George Town, Penang
on October 7, 1982, with an offence under section 39B of the Dangerous Drugs Act
1952, which, it was alleged, was committed by him the previous day. On April 25,
1983, the Public Prosecutor's consent under subsection (3) of section 39B was
tendered and the court proceeded to fix the date of hearing. Subsequently, on June
21, 1984, the prosecution tendered the Public Prosecutor's requisition under section
41 subsection (2) with a view to have the case tried by the High Court. However, the
learned President of Sessions Court refused to transmit the case to the High Court,
being of the view that the applicant had acquired a vested right to be tried in the
Sessions Court once the Public Prosecutor had indicated his election to have the trial
held in that court by tendering his consent to prosecute. From this decision the Public
Prosecutor appealed to the High Court.

During the course of the hearing of the appeal Mr. Karpal Singh urged Mohamed
Dzaiddin J. to refer the matter to the Supreme Court under section 48(1) of the
Courts of Judicature Act on two grounds: First, the decision of the Federal Court in
Public Prosecutor v Hun Peng Khai [1984] 2 MLJ 318 is in conflict with that of the
Supreme Court in Public Prosecutor v Cheah Cheng Eng [1986] 2 MLJ 39; secondly,
the transmission of the case to the High Court is contrary to the provision of Article
7(1) of the Constitution which ensures protection to the applicant against any greater
punishment than that which is prescribed by law at the time the alleged offence was
committed.

Hence, the learned judge stayed the proceedings and referred the matter to us with
the following question:
"Whether for the purpose of Article 7(1) of the Federal Constitution an
accused person derives a vested right when (1) he is charged, or (2)
after his trial has commenced."

Before dealing with this question, we should first deal with the question whether the
Federal Court's decision and that of the Supreme Court in the two cases referred to
above are in any way in conflict with each other.

These two cases deal with the jurisdiction of the Sessions Court to try cases involving
offences under section 39B which have been pending for trial before that Court prior
to the coming into force of the Dangerous Drugs (Amendment) Act 1983 -- in this
judgment for the sake of brevity such pending cases to be referred to as "pending
cases" and the Dangerous Drugs (Amendment) Act 1983 as "the amendments."

Before the amendments offences under section 39B were punishable with either
death or life imprisonment plus strokes of rattan and the Sessions Court had
jurisdiction to try all offences under the Act including offences under section 39B and
could impose full punishment prescribed for such offences except death sentence
(section 41(1)). The High Court, however, could also try these offences if the Public
Prosecutor so requires by issuing a requisition, which according to subsections (2)
and (3) shall have effect, notwithstanding anything to the contrary in any written
law. Besides enabling the High Court to try these offences as the court of first
instance, another effect of the Public Prosecutor's requisition is to do away with the
preliminary enquiry which is normally required under the Criminal Procedure Code for
all High Court criminal trials. Thus, section 41A makes a provision to the effect that
once a Public Prosecutor's requisition is tendered before an appropriate court before
which the case is pending, no preliminary enquiry is to be held and the case has to
be transmitted straightaway to the High Court which will then make the necessary
arrangement for trial of the case.

As a result of the amendments offences under section 39B are now made punishable
with death only, the alternative sentence of life imprisonment and strokes being
abolished. Whilst it is clear that all cases of offences under section 39B are to be
tried in High Court, the amendments make no transitional provision regarding
pending cases before the Sessions Courts throughout the country. Since the
punishment for offences under section 39B is now death, a question arose whether
pending cases in the Sessions Court before the amendments could no longer be tried
by this court, but by the High Court.

This question was first answered by Shaik Daud J. in Public Prosecutor v Jusoh bin
Samah Nos 4 & 9 of 1984 (Kuantan Criminal Trial Nos. 4 & 9 of 1984). In his
judgment (unreported) the learned judge held that the Sessions Court could no
longer have jurisdiction to try such cases. In his view since the amendments made
no provision for transitional matters the legislature must have intended the law to be
retrospective. Hence he brushed aside the argument of the Public Prosecutor that
these pending cases fell to be governed under the old law by virtue of section 30 of
the Interpretation Act.

Relying upon this judgment, the President of the Sessions Court, Penang on his own
motion transmitted three cases of offences under 39B to the High Court for trial by
that Court, but upon a revision Edgar Joseph Jr. J. held that the transmission
[*175] sion to the High Court was invalid. In the course of his written judgment he
expressed a contrary view to that of Shaik Daud J. and gave three grounds for
sending down the three transmitted cases back to the Sessions Court.

These were--
(1) the amendments are not retrospective. Therefore such cases still have
to be disposed of under the law prior to the amendments.
(2) Since the accused has been charged and the date of hearing in the
Sessions Court fixed, he acquires a "vested right" to be tried by that court;
(3) in any case the transmission to the High Court was invalid because
this was not made upon the Public Prosecutor's requisition.

The learned judge went on further and said that even assuming that his view on the
three grounds stated above is erroneous and that the amendments have
retrospective effect, the transmission to the High Court would still be invalid because
it will be contrary to Article 7(1) of the Federal Constitution as the accused will be
liable to a greater punishment than that prescribed by law at the time of the
commission of the offence.

This judgment came by way of a reference before the Federal Court (see Public
Prosecutor v Hun Peng Khai & Ors Nos 4 & 9 of 1984). The Federal Court consisting
of Abdul Hamid C.J. (Malaya), Hashim Yeop A. Sani and Abdoolcader F. JJ. agreed
with the conclusion reached by Edgar Joseph Jr. J., but gave no written judgment.
However, according to the editorial note appearing in the report the Federal Court
ruled that the amendments (making death sentence mandatory for drug trafficking)
do not apply to pending cases in the Sessions Courts before the amendments came
into force on April 14, 1983. Consequently, the opinion of Shaik Daud J. in Public
Prosecutor v. Jusoh bin Samah was overruled.

One would expect that the Federal Court's decision should have settled the matter.
However, the issue was raised again before Mustapha J. in Alor Setar High Court and
finally came before the Supreme Court consisting Abdul Hamid C.J. (Malaya),
Mohamed Azmi and Syed Agil Barakbah S.C. JJ. (see Public Prosecutor v. Cheah
Cheng Eng).
What happened in that case is this:

Following a requisition by the Public Prosecutor under section 41(2), the President of
the Sessions Court, Alor Setar transmitted a pending case before his Court to the
High Court for trial. Subsequently, after hearing oral arguments of counsel, Mustapha
J. re-transmitted the case down to the Sessions Court purporting to do under section
417 of the Criminal Procedure Code. On appeal by the Public Prosecutor, the
Supreme Court held that the re-transmission down was ineffective as section 417 of
the Criminal Procedure Code was not properly invoked upon a proper motion which
should be supported by affidavits and that in any case the transmission to the High
Court unlike in Public Prosecutor v. Hun Peng Khai (supra) was valid because it was
done as a result of the Public Prosecutor's requisition and because the trial in the
Sessions Court had not yet begun.

The Supreme Court also confirmed the view of the Federal Court in Public Prosecutor
v. Hun Peng Khai (supra) that the Sessions Courts could still continue to try offences
under section 39B pending prior to the amendments unless the Public Prosecutor
should choose to issue his requisition under section 41(2) of the Act, a power he has
been having even before the amendments. As to "vested right," the Supreme Court
said that only when the trial had already commenced with at least one witness or
more having been called would the accused be protected against having the case
requisitioned and transmitted to the High Court. Thus cases which have only their
dates of hearing fixed are still subject to transmission upon the issue of the Public
Prosecutor's requisition.

Where is therefore a conflict between these two decisions? We see none at all.

In Public Prosecutor v. Hun Peng Khai (supra), it is obvious that in confirming the
conclusion reached by Edgar Joseph Jr. J. on the question of the jurisdiction of the
Sessions Court in respect of pending cases the Federal Court agreed with the view of
the learned judge that the amendments have no retrospective effect and that these
cases should therefore be disposed of as if no amendments were made. The purpose
of the reference to the Federal Court was only to resolve a conflict of opinion
between Shaik Daud J. and Edgar Joseph Jr. J. The other two ratio decidendi given by
Edgar Joseph Jr. J. for saying that transmission to the High Court is invalid, namely
"vested right" of the accused and the lack of the requisition by the Public Prosecutor,
were left open by the Federal Court.

However, this gap was filled up by the Supreme [*176] Court in Public Prosecutor
v. Cheah Cheng Eng (supra) in that whilst the Court confirmed the jurisdiction of the
Sessions Court with regards to these pending cases the Supreme Court also said that
these cases could be transmitted for trial by the High Court upon the issue of Public
Prosecutor's requisition except only those cases in which trial has already
commenced. Thus only in respect of the latter category of cases could one speak of
"vested right." In other words despite the fact that originally any pending case was
intended to be tried by the Sessions Court it does not follow that it must continue to
be tried by that court. To interpret the law to be otherwise would indeed render
nugatory the power of the Public Prosecutor to issue requisition under section 41(2).
We find nothing in the Act which prevents the Public Prosecutor from changing his
mind if in his opinion public interest demands that any particular pending case be
tried in the High Court rather than in the Sessions Court. No valid objection could
really be sustained against the trial of these pending cases by the High Court merely
because this Court has the power to impose death sentence. One must remember
that with regard to these pending cases death sentence is not mandatory, but only
discretionary. The court may or may not impose such sentence, depending upon the
circumstances of the case disclosed at the trial. This possibility of the High Court
passing a death sentence cannot constitute a valid legal objection because this
possibility has been there even before the amendments. It is not something new nor
introduced by the amendments.

One must be wary of importing into the public law, such as criminal law, the concept
of "vested right" which essentially belongs to the domain of private law. The use of
terminology of "vested right" to refer to the extent of a subject's liability without
appreciating the corresponding power of a public authority or the limitation upon it
will lead to confusion. The point at issue is simply this: How far does the power of
the Public Prosecutor to issue a requisition extend? Is it limitless or limited in some
way? The Supreme Court has held previously that this power is not unlimited. It
becomes inexercisable if the trial in the Session Court has commenced. Why is that
so is not because the accused has a "vested right" but because public interest,
reason and sense of justice demand that any statutory power must be exercised
reasonably and with due consideration. Thus we think that although the Public
Prosecutor can still issue a requisition to have those pending cases before the
amendments tried by the High Court his requisition is invalid if it is issued in respect
of cases of which the trial has already commenced. Thus the invalidity of the
transmission is not due to the "vested right" of the accused but because the power of
the Public Prosecutor has become inexercisable.

In Public Prosecutor v. Hun Peng Khai (supra), Edgar Joseph Jr. J. has attempted to
deal with the applicability of Article 7(1) of the Constitution on the matter of
transmission of pending cases to the High Court. But the learned judge clearly
referred to this Article only as an alternative ratio on the assumption that his view on
the non-retrospective effect of the amendments would be erroneous.

However since the amendments by virtue of section 30 of the Interpretation Act have
no retrospective effect they have no effect upon pending cases and as such there is
no necessity to resort to Article 7(1) at all. Punishment for offences in these cases
remain the same as they were before the amendments and the power of the Public
Prosecutor to issue requisition to transmit these cases to the High Court has existed
even before the amendments. For the trial of these pending cases the law applicable
is still the old law, i.e. the law before the amendments. The punishments prescribed
for section 39B offences in respect of pending cases are still death or life
imprisonment as they were before. Thus, we cannot see how Article 7(1) of the
Federal Constitution could apply under such circumstances. Perhaps the only
relevancy of Article 7(1) is that the Article prevents the amendments from having a
retrospective effect, i.e. from having effect upon pending cases and goes no further.

In view of our opinion that the Public Prosecutor can no longer issue a requisition
once the trial has begun it becomes necessary for us to determine when or at what
stage of the proceedings the trial can be said to have commenced. Mr. Karpal Singh,
counsel for the appellants, submitted that the commencement of the trial is at the
stage when the accused, after the charge has been read and explained to him,
claims to be tried. In other words, after the plea is taken. The fixing of the date of
the trial, he submitted is only an administrative arrangement. In our opinion, the
question must be answered with reference to the practice that is now prevailing in
the courts throughout the country. Whilst we accept that the trial always begins with
the reading of the charge and asking the accused to plead, it does not follow that the
trial has commenced once the charge is [*177] read and the accused says he
claims to be tried or even pleads guilty. It all depends upon the intention and
understanding of the court and the parties. The reading of the charge can be a mere
matter of formality which is done as a matter of course without any intention to
proceed to the trial yet. This happens on the mention date when the court has to fix
dates for the trial. But when On the trial date the charge is read, the plea is taken
and the prosecution begins to lead evidence, the trial has certainly commenced, and
it is commenced naturally with the reading of the charge and the taking of plea. The
reading of the charge is not really the crux of the matter, because even at the
continued hearing of part-heard cases the reading of the charge is as a matter of
course automatically done. Thus in this context the commencement of trial must
mean the commencement of the examination, cross-examination and re-examination
of one or more witnesses.

In support of Mr. Karpal Singh's submission as to the limit of the power of the Public
Prosecutor to issue a requisition, Mr. Sithambaram submitted that by virtue of
section 41A the Public Prosecutor could only issue the requisition after the accused is
charged. With respect we find some difficulty in understanding the submission,
because many other matters are dealt with after the accused is charged. Even the
trial itself takes place after the charging. In any case we do not think that this
section fixes the time when the Public Prosecutor should exercise his power. It is only
a section which provides for a procedural requirement following the issue of the
requisition, namely the bringing of the accused before the appropriate subordinate
court and sending up the case to the High Court for trial without holding any
preliminary inquiry and this requirement applies when any case is "required by the
Public Prosecutor to be tried by the High Court." And his power to make such
requisition is not given to him by this section, but by section 41, subsection (2).

Another point raised by Mr. Karpal Singh is that once the Public Prosecutor has
elected to have the case tried in the Sessions Court by the issue of consent to
prosecute and the court has proceeded to fix the date of the trial, he can no longer
exercise his power to issue the requisition. With respect we do not agree. The
production of the accused and the charging of him before the Sessions Court,
followed by the production of a Public Prosecutor's consent to prosecute and the
filing of the date of hearing, all these do not mean that the Public Prosecutor has
exercised his duties for the case to be tried in that court so that he loses the power
to have it tried by the High Court. All these are in fact done in order to conform to
the provision of subsection (1) because the Sessions Court is primarily the trial court.
In our opinion the submission is not justified by the wording of section 41,
subsection (2) which is:
"(2) Notwithstanding the provisions of subsection (1), the High Court
shall have jurisdiction to try any case in respect of any offence
under this Act if the Public Prosecutor requires any such case
to be tried by the High Court."

(emphasis supplied)

There is nothing in this subsection which restricts the exercise of power by the Public
Prosecutor in the manner submitted by counsel. All that the subsection provides is
that despite the fact that a Sessions Court or a Magistrate Court is to be the trial
court, the High Court could also be the trial court if the Public Prosecutor so chooses.
In fact the wording of the subsection is so wide as to suggest that there is no
limitation at all upon the Public Prosecutor's power. But as we have said earlier no
statutory power is without a limit and in this connection we are of the opinion that
his power to issue a requisition ends after the trial has begun, for it will no longer be
reasonable for him to continue to exercise this power.

Mr. Ganapathy, the third counsel for the applicant, submitted that since the Public
Prosecutor had given his consent to prosecute on March 17, 1983, it is not fair for
him to transmit the case to the High Court. Here we are not in the position to assess
and review the manner in which the Public Prosecutor exercises his discretion, as the
law clearly leaves matters concerning the conduct of the prosecution to him as the
guardian of public interest. Any complaint on this matter should be addressed to
Parliament or to the appropriate Minister under whom he serves or to him personally
and not to the court unless it involves a constitutional issue.

Before concluding this judgment, we would like to make an observation regarding the
relevancy of section 417 of the Criminal Procedure Code to the pending case. In our
view this section is irrelevant. It is not open to the High Court to whom a pending
case has been validly transmitted on the Public Prosecutor's requisition to re-transmit
it down even if an application under section 417 is properly made by motion, in view
of the clear wording of subsection (3) of section 41, which enacts:
[*178] "The provision of subjections (1) and (2) shall have affect
nothwithstanding any other written law to the contrary"

Since the power of the Public Prosecutor to issue a requisition is governed by

subsection (2) we cannot think how it is open to the High Court to invoke any other
law to remit down those cases to the courts below.

In view of our opinion, we think that Article 7(1) of the Constitution does not arise at
all and the question posed could best be answered in the negative.

For the guidence of courts below, we would restate the matter as follows:
1. Pending cases could still be tried in the Sessions Court unless the
Public Prosecutor chooses to have them tried in the High Court by the issue
of a requisition under section 41(2).
2. The Public Prosecutor's requisition is valid only in respect of cases
of which trials have not yet begun. If trials have already commenced in the
Sessions Court, his requisition is invalid and the court therefore should
continue to try them. The trial is said to have commenced when evidence has
begun to be adduced.
3. If pending cases have been transmitted to the High Court pursuant to
Public Prosecutor's requisition, it is not open to High Court to remit them
to the courts below by invoking section 417 Criminal Procedure Code, or any
other written law. Subsection (3) of section 41 which gives effect to the
Public Prosecutor's requisition should prevail, this being a special law.
4. The transmission of pending cases to the High Court is not in violation
of Article 7(1) of the Constitution, as the punishment for which the accused
is liable remains the same as it was before the amendments. Death penalty is
not mandatory for such cases, but only discretionary.

Order accordingly.
SOLICITORS:
Solicitors: Karpal Singh & Co; Farid Ariffin & Associates Kumar & Co.
 2 MLJ 318, *; [1984] 2 MLJ 318

© 2003 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd)

The Malayan Law Journal

PUBLIC PROSECUTOR V HUN PENG KHAI & ORS

[1984] 2 MLJ 318

CRIMINAL REVISION NO 3 OF 1984

RCRJ PENANG

DECIDED-DATE-1: 4 JUNE 1984

EDGAR JOSEPH JR J

CATCHWORDS:
Dangerous Drugs - Offence under s.39B of Dangerous Drugs Act, 1952 - Effect of
amendment - Whether amendment has retrospective effect - Dangerous Drugs Act,
1952, ss. 39B(1) & 41(1) - Dangerous Drugs (Amendment) Act, 1983, ss. 15 & 16

[*319] Criminal Law and Procedure - Pending cases under Dangerous Drugs Act -
Whether cases triable in High Court or in Sessions Court - Dangerous Drugs Act,
1952, s.39B(1), 41(1) - Dangerous Drugs (Amendment) Act, 1983; ss. 15 & 16

Interpretation - Statute - Effect of repeal or amendment - Whether amendment has

retrospective effect - Interpretation Act, 1967, s. 30(1)

Constitutional Law - Retrospective legislation - Powers of Attorney-General - Federal

Constitution, arts. 7(1) & 145(3)

HEADNOTES:
In these cases the accused had been charged before the Sessions Court for offences
under section 39B(1) of the Dangerous Drugs Act, 1952. The Dangerous Drugs
(Amendment) Act, 1983 amended the Dangerous Drugs Act, 1952, so that offences
under section 39B(1) were made punishable by death and became triable only in the
High Court. Prior to the amendment the cases were punishable with imprisonment
for life or death and could be tried in appropriate cases in the Sessions Court. All the
cases were transmitted to the High Court for trial. The question that arose in these
cases was "Whether sections 15 and 16 of the Dangerous Drugs (Amendment) Act,
1983 which confer exclusive jurisdiction on the High Court to try offences in
contravention of section 39B(1) of the Dangerous Drugs Act, 1952 has the effect of
taking away the jurisdiction of the Sessions Court even with regard to cases pending
trial before the latter prior to the coming into force of the amending act?"

Held:
(1) the provisions of the Dangerous Drugs (Amendment) Act, 1983 are not
retrospective by express enactment or by necessary implication;
(2) once the accused persons in this case were charged and their cases
fixed for hearing in the Sessions Court before the coming into force of the
amending Act that gave them a vested right to trial in that court.
Consequently sections 15 and 16 of the amending Act can in no way deprive an
accused person of this right;
(3) assuming that sections 15 and 16 of the amending Act have
retrospective operation and the saving provisions of section 30 of the
Interpretation Act, do not apply, they violate Article 7(1) of the Federal
Constitution and are therefore vitiated;
(4) the Attorney-General having elected for trial in the Sessions Court
and as the orders for transmission were made in the absence of a requisition
by the Attorney-General sections 15 and 16 of the amending Act come within
the constitutional inhibitions of Article 145(3) of the Federal Constitution. n1

n1

Editorial Note

Following an application by the Attorney-General for a ruling on whether a Sessions

Court has the jurisdiction to try any case under section 39(b) of the Dangerous
Drugs Act 1952 after the amendment to section 41(1) of the said Act, the Federal
Court (Abdul Hamid C.J. (Malaya), Hashim Yeop A. Sani & Abdoolcader F.JJ.) sitting
at Ipoh on July 23, 1984 ruled that the amendment to the Dangerous Drugs Act
(making death sentence mandatory for trafficking) does not apply to cases pending
hearing in the Sessions Courts before the amendment came into force on April 14,
1983 ( Public Prosecutor v Jusoh b Samah Kuantan Criminal Trials 1 Nos 1 & 4 of
1984 overruled).

Cases referred to
Public Prosecutor v Dato Harun Idris [1977] 1 MLJ 14
Chang Liang Sang & Ors v Public Prosecutor [1982] 2 MLJ 231
Lewis v Hughes [1916] 1 KB 831
Henshall v Porter (1923) 39 TLR 409
Kay v Goodwin (1830) 6 Bing 576, 130 ER 1403
Colonial Sugar Refining Co v Irving [1905] AC 369
United Provinces v Atiqa Begum [1940] FCR 110
Ramzan v Azizi [1976] Cr LJ 897
Venugopala Reddiar v Krishnaswami Reddiar AIR 1943 FC 24
Hazari Tewari v Mt Maktula AIR 1932 All 30
Bus Service Ltd v HB Sethna AIR 1965 Mad 149
Public Prosecutor v Jusoh b Samah Kuantan Criminal Trials 1 Nos 1 & 4 of 1984
Dilworth v Stamps Commissioner; Dilworth v Income Tax Commissioner [1899] AC
99, 105 - 106
Kutner v Phillips [1891] 2 QB 267, 272
Re Maryon -- Wilson's Will Trusts [1968] Ch 268, 282
Public Prosecutor v Lim Shui Wang & Ors [1979] 1 MLJ 65, 67
Public Prosecutor v Mohamed Ismail [1984] 1 MLJ 134
Baker & Anor v Queen [1975] 3 All ER 55, 57 - 58
In re Special Courts Bill AIR 1979 SC 478, 482
Attorney-General for British Columbia v Attorney-General for Canada [1937] AC 377,
388 - 389
In re the Initiative and Referendum Act [1919] AC 935, 944
Ahiybai Tiwari v RG Bapu & Ors AIR 1954 Nag 264, 266
CRIMINAL REVISION

Nordin bin Haji Sulaiman (Deputy Public Prosecutor) for the Public Prosecutor.

D Navarednam and V Sithambaram for accused in Case S(A) 85/78.

Karpal Singh for accused in Case S(A) 167/78.

D Navarednam for accused in Cases S(A) 136/82 and S(A) 135/82.

ACTION:

CRIMINAL REVISION

LAWYERS: Nordin bin Haji Sulaiman (Deputy Public Prosecutor) for the Public
Prosecutor.

D Navarednam and V Sithambaram for accused in Case S(A) 85/78.

Karpal Singh for accused in Case S(A) 167/78.

D Navarednam for accused in Cases S(A) 136/82 and S(A) 135/82. [*320]

JUDGMENTBY: EDGAR JOSEPH JRJ

(delivering his ruling): This Revision, which I heard five days ago, at the behest of
the defence, is a direct result of two separate Orders for Transmission of the above
mentioned cases from the Sessions Court to the High Court made by the learned
President pursuant to section 41A(1) of the Dangerous Drugs Act, 1952 (Act 234)
(Revised 1980) ("the Principal Act") which were pending trial before him and are now
comprised and registered in this court as Criminal Trial Nos. 17/84, 14/84 and 18/84,
respectively.

The dominant question of law of general public importance, arising and common to
all three cases, is a broad one, and may be stated thus: "Whether sections 15 and 16
of the Dangerous Drugs (Amendment) Act, 1983 ("the Amending Act") which confer
exclusive jurisdiction on the High Court to try offences in contravention of section
39B(1) of the Principal Act has the effect of taking away the jurisdiction of the
Sessions Court even with regard to cases pending trial before the latter prior to the
coming into force of the Amending Act?"

Before its amendment, section 39B(2) of the Principal Act which prescribed the
penalty for trafficking in a dangerous drug and its kindred offences in contravention
of section 39B(1), read as follows:
"Any person who contravenes any of the provisions of subsection (1)
shall be guilty of an offence against this Ordinance and shall be
punished on conviction with death or imprisonment for life and shall if
he is not sentenced to death, also be liable to whipping."
After its amendment, by section 14 of the Amending Act, the words "or
imprisonment for life and shall if he is not sentenced to death, also be liable to
whipping" were deleted thus providing for the mandatory death sentence upon
conviction for all offences in contravention of section 39B(1) of the Principal Act so
that it now reads as follows:
"Any person who contravenes any of the provisions of subsection (1)
shall be guilty of an offence against this Ordinance and shall be
punished on conviction with death."

Before its amendment, subsection (1) of section 41 of the Principal Act read as
follows:
"A Sessions Court shall have jurisdiction to try all offences
under this Act and to impose the full punishment or penalty provided
for any such offence by this Act or by any regulations made thereunder,
except the penalty of death."
(italics supplied)

After its amendment, by section 15 of the Amending Act, there was substituted the
following subsection:
"(1) A Sessions Court or a Magistrate's Court presided over by a
Magistrate of the First Class shall have jurisdiction to try any
offence under this Act, except an offence under section 39B,
and power to impose in any offence so tried the full punishment
or penalty provided for that offence by this Act or by any
regulations made thereunder, other then, in the case of a
Magistrate's Court, imprisonment exceeding five years."
(italics supplied)

After its amendment, by section 16 of the Amending Act, the words "is triable
exclusively by the High Court or "were inserted immediately after the words "under
this Act," so that subsection (1) of section 41 now reads as follows:
"Where any case in respect of an offence under this Act is triable
exclusively by the High Court or is required by the Public Prosecutor
to be tried by the High Court, the accused person shall be produced
before the appropriate subordinate court which shall after the charge
has been explained to him transmit the case to the High Court without
holding a preliminary enquiry under Chapter XVII of the Criminal
Procedure Code and cause the accused person to appear or be brought
before such court as soon as may be practicable."
(italics supplied)

The very first issue which arises for the determination of this court is whether the
amendments effected by sections 15 & 16 of the Amending Act have retrospective
effect.

It is true that it is not unknown for Parliament to legislate with retrospective effect so
that the law of tomorrow becomes the law of yesterday. It is equally true that no one
has a vested right in procedure. ( Public Prosecutor v Dato Harun Idris [1977] 1 MLJ
14). However, this rule of construction is subject to the important qualification that
where rights are vested in or accrued to a party they are not affected by a repeal or
amendment to statute even if it relates to procedure.
The question which arises on this part of the case is whether the accused persons in
Criminal Trial Nos. 13, 14 and 18 of 1984 had a vested or accrued right to be tried
by the Sessions Court prior to the date of the coming into force of the Amending Act.

This is a matter of the utmost gravity because if the question is answered in favour
of the accused [*321] persons, then, if convicted, they could only be sentenced to
life imprisonment and, in addition, be liable to whipping, whereas, in a High Court
trial ending in a conviction, they would be liable to a sentence of death or life
imprisonment with or without whipping. In practice, in the absence of very
extenuating circumstances, such a conviction following a High Court trial would
attract the death sentence: see Chang Liang Sang & Ors v Public Prosecutor [1982] 2
MLJ 231.

It may also be said, though I do not place undue stress on this, that in the case of a
trial originating in the Sessions Court, the accused has two rights of appeal, one to
the High Court and a limited right of appeal by way of a reference to the Federal
Court under section 66(1) of the Courts of Judicature Act, 1964, whereas, in a trial
originating in the High Court there is only one right of appeal to the Federal Court.

This brings me to a consideration of a history of the proceedings in all three cases.

In the case of Criminal Trial No. 13/84, all three accused persons were first produced
on 3/7/78 before the President, Sessions Court, when they were charged, no plea
being taken, and the case fixed for further mention on 24/7/78.

Thereafter, they were produced at intervals of not more than one week on numerous
occasions until 24/11/78, when the first and second accused claimed to be tried and
the Prosecuting Officer applied for, and was granted, an order of discharge not
amounting to an acquittal insofar as the third accused was concerned. The record
provided does not show why he did so but, be that as it may, he then applied,
successfully, for the case to be transmitted to the High Court under section 41A(1) of
the Act.

The next entry in the record is dated 19/4/82! This leaves a yawning gap of nearly
three-and-a-half years and I am left to guess what happened during that interval. Be
that as it may, on that day, pursuant to Consents to Prosecute signed by the learned
Deputy Public Prosecutor under section 39B(3) dated 22/3/82, the first and second
accused were again charged in the Sessions Court and the case fixed for hearing on
11/10/82.

Thereafter, they were produced at not more than weekly intervals, on numerous
occasions, until 11/10/82, when they were joined in the dock, once again, by the
third accused and when a final postponement to March 23 & 24, 1983, for the
hearing, was granted upon application by the defence. However, the trial did not
proceed on that day as, again, one of the defence counsel was engaged in the High
Court and another was in England.

At long last, on 20/10/83, a joint trial of all three accused persons commenced after
they had each claimed trial and, one witness, Sgt.-Maj. Mokhtar, gave evidence. The
case was then again postponed to 21/10/83. On that day, upon the request of the
prosecution, the court granted yet another postponement to November 21, 22, 23,
1983, for continued hearing, "as the investigating officer is on a field job and cannot
be traced for the moment." Again, the case did not proceed for hearing on the
appointed continuation dates, as the court was engaged in a corruption case and one
of the defence counsel was engaged in the High Court. This time the case was
adjourned for continued hearing on 3-4/4/84.

Thereafter, the accused were produced at not more than weekly intervals until
3/4/84 when, on the request of the court, the prosecution and the defence were
invited by the President, Sessions Court, to make submissions as to whether the
court had jurisdiction to try the cases. The case was then adjourned to 12/4/84 for
this purpose. On that day, however, the case was again postponed to two days later
for reasons which do not appear in the record. On 14/4/84, after hearing
submissions by both the prosecution and the defence, the prosecution having taken
the stand that the unreported judgment of Shaikh Daud, J. in Kuantan Criminal Trials
Nos. 1 & 4 of 1984 "being on all fours with the case before this court, the
prosecution feels bound by that decision," the learned President transmitted the case
to the High Court for trial, even though there was no requisition for this by the Public
Prosecutor.

From the above history, it is patently clear that the cases comprised in Criminal Trial
No. 13/84 could easily have been disposed of long before the Amending Act came
into force had all concerned displayed a more responsible attitude.

I cannot leave this part of the case without recording my grave displeasure at the
intolerable delay in the disposal of these cases. They have not [*322] only
occasioned grave injustice to the accused persons by keeping them in suspense
whilst in custody for nearly five years but are also a public scandal. I can only
express the pious hope that nothing of the sort will happen again.

So far as the cases comprised in Criminal Trials Nos. 14 & 18/84 were concerned, all
three accused persons first appeared before the President, Sessions Court, on
16/12/82, when they were charged, the cases postponed to 17/2/83 for further
mention and a further remand order made.

Thereafter, they were produced on numerous occasions, at intervals not exceeding

one week, until 15/3/83, when the case was again mentioned, the charge amended,
and pursuant to a Consent to Prosecute marked P1, dated 10/3/83, the case set
down for hearing on 17/1/84 and a further remand order made. They were then
produced at intervals of not more than one week, on numerous occasions, each time
with the necessary remand orders. However, on 10/1/84, upon being further
remanded, the date of hearing was altered to 2--4/4/84. The record does not show
why. Again, there were the usual productions at intervals of not more than one week
for the necessary remand orders.

However, on 2/4/84, the case was not heard but merely stood down. Later that day,
at about 10.41 a.m., the President noted that he had perused his minutes in Arrest
Case No. 135/82 and, having done so, he adjourned the case to 12/4/84 but, it was
not until 14/4/84, that the accused were next produced. They were all represented
by counsel and the court made a similar order of transmission to the High Court as in
the case of Criminal Trial No. 13/84 even though there was no requisition for this by
the Public Prosecutor.

I must now examine the legal position to determine whether section 30(1) of the
Interpretation Act, 1967, applies so as to render invalid the orders of transmission.
The sub-section reads as follows:
 "The repeal of a written law in whole or in part shall not --
(a) affect the previous operation of the repealed law or anything
duly done or suffered thereunder; or
(b) affect any right, privilege, obligation or liability acquired,
accrued or incurred under the repealed law; or
(c) affect any penalty, forfeiture or punishment incurred in respect
of any offence committed under the repealed law; or
(d) affect any investigation, legal proceeding or remedy in
respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment, and any such investigation,
legal proceeding or remedy may be instituted, continued or
enforced, and any such penalty forfeiture or punishment may be
imposed, as if the repealing law had not been made."
(italics supplied)

It should be noted at the outset that unlike the U.K. Interpretation Act of 1889 ours
does not provide that a repeal is to have certain savings only if a contrary intention
does not appear in the repealing Act. The importance of this is exemplified by cases
such as Lewis v Hughes [1916] 1 KB 831; Henshall v Porter (1923) 39 TLR 409 and
Kay v Goodwin (1830) 6 Bing 576, 130 ER 1403.

The next preliminary matter which deserves notice is section 2(1) of Act 40/68 which
provides that the Interpretation Act
"... shall apply for the interpretation of and otherwise in relation to
--
(a) this Act and all Acts of Parliament after the coming into force
of this Act;
(b) all laws, whether enacted before or after the commencement of
this Act, revised under the Revision of Laws Act, 1968;
(c) ...
(d) ...
(e) ...
(2) This Act shall not apply for the interpretation of or otherwise
in relation to any written law not enumerated in subsection (1)."

The Principal Act and the Amending Act must both therefore fall to be construed in
accordance with the Interpretation Act.

I now turn to consider sections 15 & 16 of the Amending Act which, as has been
seen, transfer the forum of trial of all offences under section 39B(2) of the Principal
Act from the Sessions Court to the High Court.

Nearly eighty years ago the Judicial Committee of the Privy Council in Colonial Sugar
Co v Irving [1905] AC 369 had to consider the question whether a statute which took
away a right of appeal was to be regarded as a matter of procedure. Their Lordships
held that it could not be so regarded. The timetable of events was this: the action in
which the appeal was brought was commenced on [*323] 25/10/1902, the
Judiciary Act, 1903, which took away the power of the court below to give leave to
appeal was only enacted on 4/9/03.

Lord Macnaghten delivering the advice of the Board said this:

"As regards the general principles applicable to the case there was no
controversy. On the one hand it was not disputed that if the matter in
 question be a matter of procedure only, the petition (to dismiss) is
well founded. On the other hand, if it be more than a matter of
procedure, if it touches a right in existence at the passing of the
[Judiciary] Act, it was conceded that in accordance with a long line
of authorities from the time of Lord Coke to the present day the
appellants [the Sugar Co.] would be entitled to succeed. The
Judiciary Act is not retrospective by express enactment or by necessary
intendment. And therefore the only question is, was the appeal to His
Majesty in Council a right vested in the appellants at the date of the
passing of the Act, or was it a mere matter of procedure? It seems to
their lordships that the question does not admit of doubt. To deprive a
suitor in a pending action of an appeal to a superior tribunal which
belonged to him as of right is a very different thing from regulating
procedure."

It is important to note that in their Lordships' opinion a right of appeal vests in a

suitor on the date of commencement of the action. The reason for this may be that
when a litigant commences an action he acts on the expectation that a right of
appeal under a law then in force will not be abrogated.

In more recent times, in India, Sir Shah Sulaiman had some interesting observations
to make with regard to statutes which take away the jurisdiction of the courts. This is
how His Lordship put it in the case of United Provinces v Atiqa Begum [1940] FCR
110:
"The intention of the legislature has to be gathered from the language
employed in the Act. For statutes which confer or take away legal
rights, whether public or private, or alter the jurisdiction of courts
of law, express and unambiguous words are necessary. No loopholes
should be left for escape ... It is a well recognised rule that
statutes should, as far as possible be so interpreted, as not to affect
vested rights adversely, particularly when they are being litigated.
When a statute deprives a person of his right to sue or affects the
power of jurisdiction of a court in enforcing the law as it stands, its
retrospective character must be clearly expressed.
(italics supplied)

Then, not so long ago, in 1976, Mufti, J. delivering the dissenting judgment in
Ramzan v Azizi [1976] Cr LJ 897, after carefully analysing Colonial Sugar Refining Co
v Irving (supra); Venugopala Reddiar v Krishnaswamy Reddiar AIR 1943 FC 24;
Hazari Tewari v Mt Maktula AIR 1932 All 30; Bus Service Ltd v HB Sethna AIR 1965
Mad 149, concluded that the principle to be distilled from the cases was that where a
change of forum touched a vested right statutory law providing for such alteration
will not be construed retrospectively to affect that right and ended with the following
telling observation:
"Merely because the amending Act provided that the power and
jurisdiction of the executive magistrate shall be exclusive it does not
follow that the amending Act was intended to affect the pending
actions. It will perhaps be too much to hold so."

I prefer the judgment of Mufti, J. to the majority judgment of Jaswant Singh, C.J.
because the latter does not contain anything like the detailed reasoning and analysis
of the cases appearing in the former. In any event, the majority judgment in the final
paragraph concedes that the result would be different if the amending Act affects a
fundamental right.

My conclusions as regards this part of the case are, therefore, as follows:

(1) the provisions of the Amending Act are not retrospective by express
enactment or by necessary implication;
(2) once the accused persons in this case were charged and their cases
fixed for hearing in the Sessions Court before the coming into force of the
Amending Act, that gave them a vested right to trial in that court.
Consequently, so far as cases such as these are concerned, sections 15 & 16
of the Amending Act can in no way deprive an accused person of this right.

I would therefore answer the question posed in paragraph two of this judgment in
the negative.

I must now consider the as yet unreported judgment of Shaik Daud, J. in Public
Prosecutor v Jusoh b Samah Kuantan Criminal Trials 1 Nos 1 & 4 of 1984 in Kuantan
Criminal Trials 1 & 4/84.

It would appear that His Lordship who did not have the advantage of an argument as
full as that which counsel addressed to this court and to whom none of the
authorities referred to herein except the cases of Lim Shui Wang and Mohamed
Ismail (only in passing, as regards sentence) was referred ruled against the accused
persons on the same question which arises on this Revision. That [*324] judgment
must therefore be regarded as having been given per incuriam.

Next, his Lordship thought that section 30 of the Interpretation Act, 1967, did not
apply because the Amending Act merely effected amendments and not repeals. To
test this proposition it is necessary to reproduce the following provisions in section 3
of the Interpretation Act:
"3. The following words and expressions have the meanings hereby
respectively assigned to them, that is to say --
"amend" includes repeal, add to and vary;
"repeal" includes rescind, revoke, cancel and replace."

Three considerations must be kept in mind before sections 15 & 16 are examined to
determine whether they effect repeals.

First, an Amending Act may effect a repeal since the word "amends" includes repeals
though it is true this is not necessarily so as the word "includes" is a word of
extension and not of definition: Dilworth v Stamps Commr; Dilworth v Income Tax
Commr [1899] AC 99, 105 - 106.

Second, a repeal of a written law may be in whole or in part. This is clear from the
opening words of section 30(1) of the Interpretation Act which reads:
"The repeal of a written law in whole or in part shall not -- ..."

and from section 35(2) of the Interpretation Act which provides:

"Where any written law or any provision of a written law is repealed
..."

Third, a repeal need not be express and can even be implied. This would be so
where, for example, the provisions of a later enactment are so inconsistent with or
repugnant to the provisions of an earlier one that the two cannot stand together (per
Smith, L.J. in Kutner v Phillips [1891] 2 QB 267, 272).

Clearly, section 14 of the Amending Act, which it will be recalled provides for the
deletion of the option of life imprisonment with liability to whipping, is an express
repeal within section 3 of the Interpretation Act as I take it that the word "delete"
means "cancel". Similarly, the "substitution" of a new section 41(1) by section 15 of
the Amending Act operated to "replace" the old section 41(1) in the Principal Act.

Again, the effect of section 16 of the Amending Act which it will be recalled provided
for insertion of the words "is triable exclusively by the High Court or" operated to
take away or "revoke" or "cancel" the jurisdiction previously enjoyed by the Sessions
Court and to vest it in the High Court. It is therefore in every sense a repeal within
the meaning of section 3 of the Interpretation Act.

A further reason given by Shaik Daud, J. for holding in favour of ouster of the
jurisdiction of the Sessions Court was that whereas section 7(1) of the Dangerous
Drugs (Amendment) Act, 1978, (Act 426) made transitional provisions for
preliminary enquiries pending in the Magistrates' Courts and trials pending in the
High Courts, the Amending Act was silent as to such matters.

Section 7(1) of Act A426 reads as follows:

"Where, immediately before the commencement of this Act, --
(a) there is pending before a subordinate court any preliminary
inquiry under Chapter XVII of the Criminal Procedure Code in
respect of an offence under the Ordinance, the case shall be
transmitted by such subordinate court to the High Court without
holding or completing, as the case may be, such preliminary
inquiry, and the subordinate court shall cause the accused person
to appear or be brought before the High Court as soon as
practicable, thereafter, the provisions of subsections (2), (3)
and (4) of section 41A of the Ordinance as substituted by section
5 of this Act shall apply to its trial before the High Court; or
(b) there is pending before the High Court any case in respect of an
offence under the Ordinance, then, --
(i) if the trial thereof has already commenced, the trial shall
proceed and be completed as if section 41A of the Ordinance
as substituted by section 5 of this Act did not apply to
that case; or
(ii) if the trial thereof has not yet commenced, the case shall
be deemed to have been transmitted to the High Court in
accordance with subsection (1) of section 41A of the
Ordinance as substituted by section 5 of this Act, and the
provisions of subsections (2), (3) and (4) of the said
section 41A shall apply to the trial in the High Court."

With respect, I am of the opposite opinion. The Act A426 whilst making transitional
provisions for pending preliminary enquiries and trials in the High Court studiously
refrained from touching on trials pending in the Sessions Courts. The irresistible
inference is that trials pending for hearing in the Sessions Courts were to proceed
without interruption.

[*325] Bearing this in mind, it is also an irresistible inference that Sessions Court
jurisdiction in respect of trials pending for hearing was to continue unabated upon
the coming into force of the Amending Act since it, too, studiously refrained from
making any mention of them.

The modern trend of judicial construction of statutes shows that generally, courts
lean in favour of a beneficial rather than a strict construction and I find support for
this in the following passage in Maxwell on Interpretation of Statutes, 11th Ed., pp.
274 & 275:
"The tendency of modern decisions, upon the whole, is to narrow
materially the difference between what is called a strict and a
beneficial construction. All statutes are now construed with a more
attentive regard to the language, and criminal statutes with a more
rational regard to the aim and intention of the legislature, than
formerly. It is unquestionably right that the distinction should not be
altogether erased from the judicial mind, for it is required by the
spirit of our free institutions that the interpretation of all statutes
should be favourable to personal liberty, and this tendency is still
evinced in a certain reluctance to supply the defects of language, or
to eke out the meaning of an obscure passage by strained or doubtful
influences. The effect of the rule of strict construction might also be
summed up in the remark that, where an equivocal word or ambiguous
sentence leaves a reasonable doubt of its meaning which the canons of
interpretation fail to solve, the benefit of the doubt should be given
to the subject and against the legislature which has failed to explain
itself. But it yields to the paramount rule that every statute is to be
expounded according to its expressed or manifest intention and that all
cases within the mischief aimed at are, if the language permits, to be
held to fall within its remedial influence."

A most helpful illustration of the application of the rule of beneficial construction is to

be found in the following passage of the judgment of Ungoed-Thomas J. in Maryon-
Wilson's Will Trusts [1968] Ch 268, 282:
"If the court is to avoid a statutory result that flouts common sense
and justice it must do so not by disregarding the statutes or
overriding it but by interpreting in accordance with the judicially
presumed parliamentary concern for common sense and justice."

Before I leave this part of the case, mention must be made of a parallel right
conferred on the Attorney-General to elect in which court, whether the High Court or
the Sessions Court, to prosecute persons charged under section 39B(1) of the Act.
That he had such a right under Article 145(3) prior to the Amending Act has been
well-settled: (see Public Prosecutor v Lim Shui Wang & Ors [1979] 1 MLJ 65, 67).
That he had such a right independently of Article 145(3) is clear from a reading of
section 41(1) & (2) of the Act prior to its amendment. That he continues to enjoy
this right, independently of Article 145(3), by reason of the effect of section 30(1) of
the Interpretation Act on sections 15 & 16 of the Amending Act, I have no doubt.
Consequently, the Orders for Transmission to the High Court herein-before referred
to, having been made in the absence of a requisition by the Public Prosecutor under
section 41(2) of the Act, were made in derogation of this right and are, on this
ground, too, invalidated.

On a further ground, also, the dominant question of law posed at the outset of this
judgment must be answered in favour of the accused persons.
Assuming sections 15 & 16 of the Amending Act have retrospective operation and the
saving provisions of section 30(1) Interpretation Act do not apply to confer upon
these accused persons the right to trial in the Sessions Court, then, I consider it
necessary to state my views regarding the relevance of Article 7(1) of the
Constitution. I do so despite the fact that when I invited Mr. Karpal Singh, who
argued the case for the accused persons, to address me on this question he thought
it did not assist him. With respect, it does.

A careful reading of the statutory provisions of the Principal Act and the Amending
Act, reproduced above, will show that the primary purpose of the Amending Act was
to substitute the mandatory death sentence for the offence of trafficking in a
dangerous drug and its kindred offences in lieu of the previous punishment provided
which was death or imprisonment for life and liability to whipping. The other
amendments relating to the ouster of the jurisdiction of the Sessions Court to try
such offences being merely consequential to such primary purpose.

In arriving at this conclusion I have merely taken into account the history of the
legislation without giving any consideration to clause 12 of the Explanatory
Statement although it confirms this view since it reads:
"12. Clause 14 seeks to alter the existing punishment of death or
imprisonment for life for the offences of trafficking in a
dangerous drug, offering to traffic in a dangerous drug or doing
or offering to do an act preparatory to or for the purpose of
trafficking in a dangerous drug, to a punishment of death only,
and Clause 15 and 16 seek to amend sections 41 and 41A to
effect consequential changes."

[*326] This brings me to the case of Public Prosecutor v Mohamed Ismail [1984]
1 MLJ 134, a prosecution for trafficking in a dangerous drug in contravention of
section 39B(1) of the Principal Act, in which I had to consider the question of law,
"what is the material date for determining sentence for offences under section
39B(1), is it the date of offence or date of conviction?" and I concluded, on the
authority of the Privy Council case of Baker & Anor v The Queen [1975] 3 All ER 55,
57 - 58, that it is the date of conviction. The effect of this was that prima facie, there
being no saving clause in the Amending Act to the effect that this amendment shall
not apply to offences committed prior to the date of its coming into force, I held that
section 39B(2) is retrospective.

However, so far as such offences were concerned, I was of opinion, fortified by

another passage in the judgment of Lord Diplock in Baker's case, at p.61 b to f, that
it violates Article 7(1) of our Constitution as it subjected such accused persons to
greater punishment than was prescribed by law at the time the offence was
committed.

On reflection, I see no reason to depart from anything I said in Mohamed Ismail's

case (supra) and, indeed, I am further fortified in that view by the decision of the
Indian Supreme Court in In re Special Courts Bill, 1978 AIR 1979 SC 478, 482, which
lays down, inter alia, the proposition that a law may be valid in respect of offences
alleged to have been committed during a particular period and yet invalid as being
unconstitutional insofar as it covered offences committed before that period.

Now, how is all this relevant to the question arising on this Revision? It is relevant in
this way: if the primary amendment introducing the mandatory death sentence, so
far as pre-amendment offences are concerned, violates Article 7(1), then, surely the
consequential amendments as to jurisdiction effected by sections 15 & 16 of the
Amending Act, must, even if they are retrospective, be likewise fatally vitiated. They
are, after all, fruits of the poisoned tree.

In my search for authorities I have uncovered certain cases which I consider

germane to this issue.

In Attorney-General for British Columbia v Attorney-General for Canada [1937] AC

377, 388 - 389, the Judicial Committee of the Privy Council held that the Natural
Products Marketing Act, 1934, of the Parliament of Canada, invaded the separate
legislative preserve of the Provinces and could not be saved. A peculiar feature was
that some of the Provinces supported marketing schemes such as could be
established under the Act and had set up their own Provincial schemes, but since the
Act affected intra-Provincial opportunity as well as intercourse between Provinces
and since the ultra vires part could not be exercised the whole Act had to be struck
down. In that context, Lord Atkin upholding the view that the sections said to be
severable were in fact incidental and ancillary to the main legislation said:
"In the first place, it appears to their Lordships that the whole
texture of the Act is inextricably interwoven, and that neither
section 9 nor Part II, can be contemplated as existing
independently of the provisions as to the creation of a Board and the
regulation of products. ... In the second place, both the Dominion and
British Columbia, in their Cases filed on this appeal assert that the
sections now said to be severable are incidental and ancillary to the
main legislation. Their Lordships are of opinion that this is true:
and that as the main legislation is invalid as being in pith and
substance an encroachment upon the Provincial rights the sections
referred to must fall with it as being in part merely ancillary to it.
(italics supplied)

And, this is what Viscount Haldane said in In re The Initiative and Referendum Act
[1919] AC 935, 944:
"These considerations are sufficient to establish the ultra vires
character of the Act. The offending provisions are in their Lordships'
view so interwoven into the scheme that they are not severable. The
Colonial Laws Validity Act, 1865(1), therefore, which was invoked in
the course of the argument, does not assist the appellants."

And, this is what Mudholkar & Choudhuri JJ. said in Ahilyabai Tiwari v RG Bapu & Ors
AIR 1954 Nag 264, 266:
"(8) It is, no doubt, a well-known principle of construction that when
a law happens to be unconstitutional in part, the whole of the
law does not necessarily fail. But when the valid part of a law
is so clearly dependent and so inseparably connected with the
invalid part that they cannot be separated without defeating the
object of the statute, that part must also fall with the part
which is invalid.

As stated by Crawford at page 216 in his Statutory Construction:

'In determining separability, the test is whether the Legislature has
manifested an intention to deal with a part of the subject-matter
covered, irrespective of the rest of the subject-matter, if such an
 intention is manifest, the subject-matter is separable. If the valid
parts are complete in themselves and independent of the invalid parts
and capable of being executed according to the intention of the
Legislature, [*327] they must be sustained by the Court,
notwithstanding partial invalidity. The invalid parts, however, may be
dropped only where the part which is retained is fully operative as a
law. And where the invalid and the valid parts are independent and
essentially and inseparably connected in substance, there is a strong
presumption that the Legislature would not have enacted one part
without the other, and the entire statute will fall.
A similar result will occur where all the provisions of an Act are
connected as parts of a single scheme. In such a case, if the main
object or purpose is invalid, those provisions which are incidental
will also fall. But in any instance, there is a presumption that the
Legislature intended for the statute or Act to be effective in its
entirety, unless something in the Act indicates to the contrary."

Finally, if contrary to my above conclusions:

1) sections 15 & 16 of the Amending Act have retrospective operation;
2) the saving provisions of section 30(1) of the Interpretation Act do
not apply, and
3) Article 7(1) cannot be prayed in aid of these accused persons,

then, it is my opinion, that the Attorney-General having elected for trial in the
Sessions Court, sections 15 & 16 come within the constitutional inhibitions of Article
145(3).

In the result, reason and justice combine to indicate that both the Orders of
Transmission are illegal, void and of no effect; they are accordingly quashed, all the
cases concerned restored to the Sessions Court, Penang, with a direction to hear and
determine them according to law, as expeditiously as possible. The accused persons
are, in the meanwhile, remanded in custody pending the final determination of their
respective trials.

Order accordingly.

SOLICITORS:
Solicitors: R Rajasingam & Co; Kumar & Co; Karpal Singh & Co;.

LOAD-DATE: June 3, 2003