Lee Swee Seng JCA:

[1] This appeal raises the question as to whether when a constitutional question of law is raised in the High Court and application is made for the referral of the question to the Federal Court, may the High Court refuse to refer the question and instead proceed with or continue with the criminal trial.

[2] The issue is no doubt a novel one on whether s 265A of the Criminal Procedure Code (" CPC ") with respect to allowing a witness to testify without his identity being disclosed and in the absence of the accused and his counsel is unconstitutional in violation of arts 5 and 8 of the Federal Constitution ("FC").

[3] The High Court Judge had ruled in favour of the prosecution's oral application to hear a witness by way of s 265A CPC in the murder trial of 5 accused persons.

[4] This appeal also brings to the fore the question of jurisdiction as to whether the decision of the High Court to proceed to hear a witness under s 265A CPC and his refusal to refer the question of law to the Federal Court is a "decision" within the meaning of the Courts of Judicature Act 1964 ("CJA") that is appealable to the Court of Appeal or is it merely a ruling that does not