JUDGMENT OF ABDUL MALEK AHMAD. PCA

I have read the judgment in draft of my learned brother Gopal Sri Ram JCA and am in full agreement with the reasoning and conclusion therein as regards the conviction and sentence in line with the majority judgment of the Court of Appeal.

2. However, as regards the retrospective effect of Muhammed bin Hassan(1998) 2 MLJ 273,I hold a different view.

3. In Abdillah bin Lobo Khan v PP [2002] 3 CLJ 521; [2002] 3 MLJ 298, the Court of Appeal held as follows:-

"The Federal Court could, therefore, if it had so wished, have declared its decision in Muhammed bin Hassan to be of prospective effect only. Had it done so, then cases decided under the former misconception about the way in which ss 37(d) and (da) of the Act were to be applied would not have been available for correction on appeal. But that is not what happened. The decision in Muhammed bin Hassan consequently falls under the general doctrine of retrospectivity and it therefore applies to the present case. We therefore are bound to apply it."

4. This issue had actually been made clear by the Supreme Court in Public Prosecutor v Dato Yap Peng [1987] 2 MLJ 311 when it said:-

"The general principle