Gopal Sri Ram FCJ:

[2] The gist of the prosecution's case is this. On 4 April 2000 at about 4pm, PW4 (Inspector Hilimi bin Ahmad), acting on information received laid an ambush at the scene of the incident, namely, Jalan Selasar 10, Taman Ipoh Jaya, Ipoh. PW4 was accompanied by several police personnel, including PW8 (Detective Lance Corporal Magendran). At about that time, the appellant arrived at the scene. He was driving motor car ABA 6363 which was established in evidence to belong to his brother PW5. He parked the car adjacent to house No. 52. He emerged from the car, carrying a white plastic bag exh P13. He was almost immediately accosted by PW4 and PW8. PW4 identified himself as a police officer. The appellant then attempted to flee. He was overpowered and placed under arrest. PW4 found exh P13 to contain a substance which on subsequent chemical examination was found to be 420 grams of cannabis. The appellant was then charged for trafficking that drug.

[3] In the course of the prosecution case it was established that on 4 April 2000, the appellant and his family had gone to the gravesites of their relatives at Jalan Tambun, Ipoh and then at Tanjong Tualang as it was Cheng Beng or All Souls Day. Later, the family returned home. PW5 and the appellant then cleared PW5's car of the paraphernalia that had been taken to the gravesites. The appellant asked for PW5's permission to use the latter's car to visit friends. PW5 agreed but asked that he be dropped off at his place of work. The appellant drove the car with PW5 in it. There is evidence on record to show that during the journey PW5 did not see P13 in his car. After having dropped off PW5, the appellant proceeded to the scene.

[4] At the close of the prosecution case, the learned trial judge ruled that he did not wish to hear submissions as he was satisfied that the prosecution had made out a prima facie case as required by s 180(1) of the Criminal Procedure Code. This ruling formed the first ground of complaint before us. The second complaint is that the learned trial judge failed to judicially appreciate the evidence thereby misdirecting himself which misdirection has occasioned a miscarriage of justice.

[5] Taking the first ground, the issue here is whether a Court acting under s 180(1) is entitled - to quote from the subsection - "consider whether the prosecution has made out a prima facie case against the accused" without affording the accused an opportunity to make a submission of no case. No doubt the subsection does not expressly confer such a right upon an accused. However, counsel submitted that his client has a constitutionally guaranteed right to a fair procedure by virtue of art 5(1) of the Federal Constitution. He argued that this right had been violated by reason of the learned judge's ruling. This is an important submission and calls for careful consideration.

[6] The first step in the inquiry is to ascertain whether there is such a constitutionally guaranteed right as asserted by the appellant. As Laws J said in R v. Lord Chancellor, ex p Witham [1997] 2 All ER 779:

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Where a written constitution guarantees a right, there is no conceptual difficulty. The state authorities must give way to it, save to the extent that the constitution allows them to deny it. There may of course be other difficulties, such as whether on the constitution's true interpretation the right claimed exists at all.

Whether the right claimed in the instant case exists at all turns on the interpre