Terrell A-G CJ FMS:

The facts and arguments sufficiently appear from the judgments.

This is in effect an appeal from a Magistrate which, under the provisions of s. 53 of the Courts Enactment (as amended in 1938) the Public Prosecutor can by a request addressed to the Registrar require the Court of Criminal Appeal to hear. It is noticeable that the Public Prosecutor is not required to certify that the decision involves a point of exceptional public importance, or that it is desirable in the public interest that the Court of Criminal Appeal should determine an appeal from a Magistrate. On the contrary, the section is so worded that the Public Prosecutor has been empowered by the legislature entirely at his own discretion to give directions to the highest Court in the Federated Malay States. So far as I am aware, such legislation is without precedent in the British Empire and its Dependencies, where the dignity and independence of the judiciary have always been considered matters of the most paramount importance. I would refer by comparison to the provisions of s. i(6) of the Criminal Appeal Act of 1907 where the Attorney General can give a certificate permitting the Public Prosecutor to prefer an appeal from the Court of Criminal Appeal to the House of Lords. No power is given to the Attorney

General to direct or require the House of Lords to hear it, second it is to my mind extraordinary that such a provision should be considered desirable in the Federated Malay States.

Under s. 44 of the Courts Enactment relating to the judgment of the Court of Appeal in its criminal jurisdiction, the Court is required to give a single judgment, unless the Court directs to the contrary. In view of the fact that the other members of the Court are not agreed, I certify that the Court is of opinion that the question involved in this appeal is a question of law upon it would be convenient that separate judgments should be pronounced.

Before dealing with the substance of this reference, there is still a further matter upon which I feel it my duty to comment. It is clear that the very point upon which the Court of Appeal is now required by the Public Prosecutor to give its decision was in effect decided by Mr. Cussen J in PP v. Sin Lee Yok [1940] MLJ 40 [1939] FMSLR 112. There is no other reported judgment of the Supreme Court conflicting with this decision, and the Court was informed by Mr. Draper, who represented the Public Prosecutor before us, that the real object of the reference to us was to reverse the decision of Mr. Cussen J. Mr. Draper was thereupon asked why no appeal had been lodged against Mr. Cussens J's decision, under the provisions of s. 45A. (This provision was also introduced in 1938 and gives the Public Prosecutor the right to lodge a second appeal to the Court of Appeal from a Judge who has determined a Magistrate's Appeal). In reply to the Court, Mr. Draper with engaging frankness stated that it was the intention of the Public Prosecutor's department that it should not be reported. By some accident, however, it had found its way into the Law Reports, and accordingly the Public Prosecutor had thought of the present reference as a means of getting rid of a decision which was not in accordance with the predelictions of his department.

It appears, however, that the Public Prosecutor's department was more successful in the case of another decision of the Supreme Court, referred to in a judgment of the learned First Magistrate, Kuala Lumpur (in KL Traffic Summons No. 919/40), which was also before us in the course of the present Court of Appeal (Sel: Cr: Reference 1/41). This was a decision of Mr. Raja J Musa in a NS Mag: Appeal, involving the construction of r. 56 made under the Road Traffic Enactment. The learned Judge, contrary to the submissions of the prosecution, decided that the word 'permits' implies some knowledge. This decision was never reported. Mr. Draper, who also appeared for the Public Prosecutor upon th