(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 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 a