Abdul Hamid Omar CJ (Malaya):

The appeal is by the Public Prosecutor against the decision of Mustapha J ordering the accused Cheah Cheng Eng (the respondent in this appeal), who is charged under s. 39B of the Dangerous Drugs Act 1952 (hereafter called "the said Act") in PP v. Cheah Cheng Eng Kedah Criminal Trial No. 37 of 1984 be sent down to the Alor Setar Sessions Court for trial.

The charge is for trafficking in 506.4 grammes of cannabis on 22 December 1982 at about 9.30 p.m. at the back of Restaurant Sentosa, Jalan Limbong Kapal, Alor Setar. The accused was arrested on 22 December 1982 and produced before the Magistrate's Court on 4 January 1983. The Prosecuting Officer asked for a postponement pending instructions from the Public Prosecutor. The case was called for mention once a month until 22 November 1983 when the Prosecuting Officer tendered the consent of the Public Prosecutor and asked that the case be transferred to the Sessions Court for trial.

The respondent was produced before the Sessions Court on 30 November 1983. The amended charge was read and explained to him. He claimed trial. The case was fixed for hearing on 29, 30 and 31 December, 1984.

In the meantime s. 39B(2) of the said Act was amended (Act A553) by the deletion of the words "or imprisonment for life and shall, if he is not sentenced to death, also be liable to whipping" effective from 14 April 1983. By reason of the amendment a question arose whether the Sessions Court had jurisdiction to hear cases falling under s. 39B committed prior to the coming into force of the amendment. A ruling was given on 3 April 1984 by the High Court at Kuantan to the effect that s. 39B cases pending the amendment could not be tried at the Sessions Court.>

Consequently, this case was transferred to Alor Setar High Court. For the purpose of the transmission to the High Court the Public Prosecutor issued a new consent on 29 May 1984. The Public Prosecutor also issued a requisition under s. 41A of the Act for the case to be tried in the High Court. The accused was produced before the High Court on 17 June 1984.

Meanwhile a decision was made in PP v. Hun Peng Khai[1984] 2 CLJ 391 (Rep) (Penang High Court Criminal Revision No. 3/85) to the effect as follows

once the accused persons in this case were charged and their cases fixed for hearing in the Sessions Court before the coming into force of the amending Act that gave them a vested right to trial in that Court.

The decision was upheld by the Federal Court. Our view on the effect of this decision will be discussed shortly.

We now turn to the present case. The learned Judge purportedly acted under s. 417(1)(e) and (aa) of the Criminal Procedure Code when he ordered the case to be sent down for hearing in the Sessions Court. Section 417(1)(e) and (aa), for convenience, are reproduced hereunder and they read-

417. (1) Whenever it is made to appear to the High Court-

...

(e) that such an order is expedient for the ends of justice, or is required by any provision of this code, it may order-

(aa) that any offence be inquired into or tried by any Court not empowered under ss. 121 to 126 but in other respects competent to inquire into or try such offence.

It is to be noted that s. 418(i) Criminal Procedure Code requires every application for the exercise of the power conferred by s. 417 Criminal Procedure Code to be made by motion which shall,except when the applicant is the Public Prosecutor, be supported by affidavit. But in the case of the application made before the learned Judge, it was not proceeded by way of motion and it was also not supported by any affidavit.

Notwithstanding s. 418(i), it appears that subsection (2) of s. 417 Criminal Procedure Code allows the High Court to make an order under sub-section (1) of s. 417 Criminal Procedure Code "either on the report of the lower Court, ... or on its own initiative." (Emphasis is Mine). But such is not the case here. The Court did not make an order on its own init