Hashim Yeop Sani Acting CJ (Malaya):

The background of the appeal may be summarised as follows. The respondent was first arrested on 27 November 1983. Subsequently, along with four others the respondent was charged in the Kuala Lumpur Magistrate's Court on 9 December 1983 and the case was registered as ACDO 1107 of 1983. The charge against them was that they jointly on 27 November 1983 at Jalan Ampang, Kuala Lumpur in furtherance of the common intention of them all did traffic in dangerous drugs to wit 3,600 grams of heroin in contravention of s. 39B(1)(a) of the Dangerous Drugs Act 1952 ("the Act") an offence punishable under s. 39B(2) of the Act read with s. 34 of the Penal Code.

On 9 March 1984 all the accused were produced in the same Magistrate's Court. The prosecuting officer withdrew the charge against all except one Lim Kim Thiar against whom an amended charge was preferred also under s. 39B of the Act. On that day the prosecuting officer also tendered a written consent of the Public Prosecutor under s. 39B(3) of the Act. The Magistrate committed the said Lim Kim Thiar for trial in the High Court and acquitted and discharged the rest including the respondent.

In July 1984 the respondent was arrested again and on 16 July 1984 the Public Prosecutor issued a written consent under s. 39B(3) of the Act for his prosecution for an offence of doing an act for the purpose of trafficking in dangerous drugs to wit 871.63 grams of heroin by Lim Kim Thiar by negotiating a deal for the disposal of the said drugs by the said Lim Kim Thiar.

On 11 February 1988 the respondent was produced before Shankar J in the High Court, Kuala Lumpur to face the said charge. Before his plea was taken, his Counsel, Mr. Manjeet Singh made a preliminary submission that autrefois acquit applied to his client and that it was not open to the prosecution to proceed with the matter. As stated in his grounds of judgment the learned Judge agreed with this submission and upheld the plea of autrefois acquit.

The Public Prosecutor's appeal evolved around the question whether the order of acquittal by the Magistrate was valid. The Public Prosecutor was also dissatisfied with the learned Judge's application of s. 254 of the Criminal Procedure Code to the respondent, and secondly against the learned Judge's ruling that the plea of autrefois acquit was available to the respondent.

In our view the answer to this appeal lies simply in the proper interpretation of s. 39B and s. 41A of the Act. Section 41A reads:

41A. (1) 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 inquiry 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.

(2) When the accused person appears or is brought before the High Court in accordance with sub-section (1), the High Court shall fix a date for his trial which shall be held in accordance with the procedure under Chapter XX of the Criminal Procedure Code.

(3) The trial of a case transmitted to the High Court under sub-section (1) shall be by a Judge of the High Court sitting alone, and the provisions of Chapters XXI and XXII of the Criminal Procedure Code shall not apply to such trial.

(4) The provisions of sub-sections (1), (2) and (3) shall have effect notwithstanding any other written law to the contrary.

(Emphasis provided)

In simple language what that section directs is that notwithstanding any other written law to the contrary, an accused person who is charged with an offence which is triable exclusively by the High Court or is required by the Public Prosecutor to be tried by the High Court shall be produced before the