Buttrose J:

The three appellants were convicted of robbery by the criminal district Court and sentenced to one year's imprisonment.

The first appellant was also convicted of personating a public servant by the same Court and sentenced to six months' imprisonment to run concurrently with the sentence of one year on the robbery charge.

This latter offence was committed at the same time and during the commission of the first offence of robbery.

The case was devoid of all merit on the facts but it so happened that the charge of personating a public servant against the first appellant was made the subject of an entirely independent and separate charge on a separate charge sheet or as would be said in England of another indictment.

The case of robbery against the three appellants was joined with the case of personating a public servant against the first appellant and the two cases were then jointly tried together. There was thus under the phraseology used under English law two indictments, one against the three appellants for robbery and one against the first appellant for personation of a public servant.

No one seems to have been aware of this and the case proceeded as if there had been two counts in the one charge and there was a joint trial of both cases.

Section 161 of the Criminal Procedure Code (Cap. 132) provides that there shall be separate charges for distinct offences and every such charge shall be tried separately except as provided in ss. 162, 163, 165 and 169.

Sections 162, 163 and 165 make provisions for the joinder of charges and s. 169 gives power to join persons. There appears to be no power to join cases or indictments.

By virtue of the provisions of s. 5 of the Criminal Procedure Code recourse must therefore be had to the law in force in England the application of which is mandatory.

The English authorities make it clear that that a simultaneous trial of two indictments or as here two cases is a nullity. See R v. Crane [1921] 2 AC 299 at p. 321; [1921] 15 Cr App R 183 at pp 188 and 198, R v. McDonnell [1928] 20 Cr. App. R 163, R v. Dennis; R v. Parker [1924] 27 Cox CC 632; [1924] 1 KB 867. Where an accused person has pleaded 'not guilty' to the offences charged against him in an indictment or charge and another accused person has pleaded 'not guilty' to the offence or offences charged against him in another separate and independent indictment or charge it is elementary criminal law that the issues raised by these two pleas cannot be tried together. See per Lord Atkinson in Crane's case.

It was conceded as I understood it by the deputy public prosecutor that the trial was bad but it was argued that it was but a mere irregularity which could be cured by the application of the provisions of s. 440 of the Criminal Procedure Code.

It was not disputed that the procedure adopted here did not result in any miscarriage of justice but in the view I take it struck at the root of the jurisdiction of the Court to try the appellants.

The district Court in the circumstances had no jurisdiction to try the appellants jointly on these two charges or indictments and the trial was a nullity ab initio. It only remains for me to say how much I regret coming to this decision as the point is a pure technicality and as I have said there is no merit in this appeal on the facts.

In arriving at this conclusion I am aware that I have the misfortune to find myself in disagreement with the decision of Raja Azlan Shah J in Syed Ismail v. PP [1967] 2 MLJ 123 to which my attention was drawn.

The appeal must accordingly be allowed and the convictions and sentences quashed and I direct that there shall be a new trial.

Appeal allowed; new trial ordered.