Eusoffe Abdoolcader SCJ:

This appeal from the judgment of Zakaria Yatim J made on 5 March 1987 revolves around the sole and primal issue of the constitutional validity of s. 418A of the Criminal Procedure Code (FMS Cap. 6) (`the Code') in relation to the provisions of Article 121(1) of the Federal Constitution. To circumscribe reiteration and obviate prolixity, all references in this judgment to sections and articles, unless otherwise specifically indicated, relate to the Code and the Federal Constitution respectively.

The respondent was charged on 19 December 1986 in the Sessions Court at Kuala Lumpur on two charges of criminal breach of trust to which he claimed trial. When his case was mentioned again in the Sessions Court on 29 December 1986 the Deputy Public Prosecutor tendered a certificate issued by the Public Prosecutor under s. 418A requiring the case to be removed to the High Court and this was promptly complied with in view of the peremptory requirement of subsection (3) thereof. The respondent was then formally arraigned in the High Court at Kuala Lumpur on 6 January 1987 when objection was taken on his behalf to the transfer of the case from the Sessions-Court on a challenge mounted against the constitutional validity of s. 418A on the basis that it infringes Article 121(1) and 5(1). Zakaria Yatim J in a reserved decision held s. 418A to be unconstitutional and void in that it is inconsistent with Article 121(1) and that the certificate issued by the Public Prosecutor thereunder was accordingly invalid and of no effect and ordered the case to be remitted to the Sessions Court for trial, and indicated that it was therefore unnecessary to consider the question of the validity of s. 418A in relation to Article 5(1).

As this matter turns substantively on the provisions of s. 418A, it would perhaps be appropriate at this stage to set out its specifications. Subsection (1) of that section stipulates that notwithstanding the provisions of s. 417, the Public Prosecutor may in any particular case triable by a criminal Court subordinate to the High Court issue a certificate requiring the Court before which the case is pending to remove it to the High Court at such place as may be specified in the certificate and to cause the accused person to appear or be produced before the said High Court Subsection (2) declares that the power of the Public Prosecutor under subsection (1) shall be exercised by him personally, and subsection (3) enacts that upon receipt of the certificate, the Court before which the case is triable shall without holding a preliminary inquiry under Chapter XVII transmit the case to the High Court mentioned in the certificate and cause the accused person to appear or be brought before such High Court as soon as may be practicable, and thereafter the provisions of subsection (3)(b) and subsection(4) of s. 417 shall apply to such case mutatis mutandis. This provision was added to the Code by an amendment effected as from 10 January 1976.

The constitutional validity of s. 418A but only in relation to Article 8(1) was raised before me in Public Prosecutor v. Datuk Harun bin Haji Idris & Ors. [1976] 2 MLJ 116 (the Bank Rakyat case) when I declared that it was unconstitutional and void by virtue of the provisions of Article 4(1) in that it infringed Article 8(1). The Federal Court however in an appeal from a decision in an entirely different case, Public Prosecutor [1977] 2 MLJ 155 (the Hongkong Bank case), in a judgment delivered by a Court of two Judges, the third member of the Court having died after the hearing but before judgment was delivered without formally expressing any view in the matter, held that s. 418A did not violate the provisions of Article 8(1) and was accordingly valid.

I should perhaps mention that the Federal Court in its judgment in the Hongkong Bank case did not refer to or even mention the Bank Rakyat case, and, quite apart from this, perhaps the two can be distinguished in that