Lamin Mohd Yunus PCA:

The hearing of this appeal commenced on the morning of 9 October 2000 and submissions were continued in the afternoon and the following day when it was postponed to a date to be fixed for decision. When we sat on 23 November 2000 and before we could deliver our judgment, which was ready, Encik Shahul Hameed Amirudin, learned counsel for the respondent asked the court that he be allowed to make a further submission on the interpretation of sub-ss. (2) and (3) of s. 50 of the Courts of Judicature Act 1964(CJA 1964) that took the form of an objection as to the manner the appeal was lodged and argued by the learned Deputy Public Prosecutor. The learned Deputy Public Prosecutor Encik Muniandy Kannyapan informed the court that Encik Shahul intimated to him of his proposed objection only that morning. However he was prepared to make a submission in reply if the court decided to hear the objection.

Encik Shahul's main complaint was that there was not a single question of law formulated by the prosecution when filing the petition of appeal as envisaged by sub-s. (2) of s. 50 of the CJA 1964and the appeal must therefore be dismissed. For ease of reference we reproduce below sub-ss. (2) & (3) of the CJA 1964:

(2) An appeal shall lie to the Court of Appeal, with the leave of the Court of Appeal, against any decision of the High Court in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by a Magistrates' Court but such appeal shall be confined to only questions of law which have arisen in the course of the appeal or revision and the determination of which by the High Court has affected the event of the appeal or revision.

(3) Notice of any appeal by the Public Prosecutor shall be given by, or with the consent in writing of, that officer only; and notwithstanding subsection (2) no leave of the Court of Appeal is required.

In support of his contention that the question of law must be formulated he referred to the judgment of this court in the case of Saad Abas & Anor v. PP[1998] 4 CLJ 575where we said (at p. 587):

Now one final and vital point to be shown in an application made under s. 50(2) is one without which the application may be dismissed. It is this. The affidavit in support must formulate the "question of law" which have arisen in the course of the appeal "and the determination of which by the High Court has affected the event of the appeal." Not one such "question of law" was formulated. If we had so minded we could have summarily dismissed the application on this ground.

In that case, Saad Abas & another were jointly tried before a magistrate for a criminal offence and they were acquitted and discharged at the end of the prosecution case. On appeal by the learned Public Prosecutor, the High Court allowed it in the terms that they were to enter their defence. They were not satisfied with the said order and they then filed an application for leave to appeal against it under s. 50(2) of the CJA 1964. The application for leave to appeal was dismissed. The court had to decide whether in the circumstances of this case the word "decision" found in sub-s. (2) fell within the meaning of the word "decision" as defined in s. 3 of the CJA 1964. Further the court found that not one question of law was formulated in the affidavit in support. It was a straightforward case in the sense that the court had only to deal with the application of sub-s. (2). Subsection (2), in my view, was drafted especially for the benefit of an aggrieved accused person. As for the Public Prosecutor, he may avail himself of the provision of sub-s. (3). Subsection (2) stands on its own while sub-s. (3) has to be read with sub-s. (2) because of the phrase "notwithstanding sub-s. (2)" found in sub-s. (3). When an accused person desires to appeal, the full force of sub-s. (2) comes into play. He has to apply for "leave" and that his appeal must be "confined to only questions of lawwhich have