Lamin Mohd Yunus PCA:

This is a joint application by the two applicants for leave to appeal to the Court of Appeal under s. 50(2) of the Courts of Judicature Act 1964 ('Act 91). On 11 January 1995 each of the applicants was preferred with a charge for an offence of using criminal force on a female adult under s. 354 of the Penal Code. They were jointly tried and the learned magistrate on 1 September 1996 acquitted and discharged both the applicants at the end of the case for the prosecution. The learned Deputy Public Prosecutor appealed. On 2 April 1997 the appeal was heard and the learned judge of the High Court, Alor Setar allowed the appeal with the order that both the applicants were to enter their defence before the learned magistrate. They were not satisfied with the decision of the learned judge and so they are now before us praying that they be granted leave to appeal to this court.

Section 50(2) of the Courts of Judicature Act 1964 reads:

(2) An appeal shall lie to the Court of Appeal, with the leave of the Court of Appeal, against any decision of the High Court in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by a Magistrate's Court but such appeal shall be confined to only questions of law which have arisen in the course of the appeal or revision and the determination of which by the High Court has affected the event of the appeal or revision.

Mr. Karpal submitted that the words "decision of the High Court" appearing in sub-s. (2) must mean that the decision is final and therefore appealable. Puan Zauyah Bee bt. Loth Khan, the learned Deputy Public Prosecutor contended otherwise in that when a judge of the High Court made the order for the defence to be called after hearing an appeal by the prosecution, that order must be complied with and the proceedings before the learned magistrate must therefore continue in order to hear the defence. A similar situation arose in the case ofLee Pin Seng V. Public Prosecutor [1985] CLJ 185. Briefly the facts of the case were that the applicant (the accused in the Sessions Court below) and four others were charged in the Sessions Court at Kuala Lumpur with an offence under s. 420 of the Penal Code. At the close of the case for the prosecution, the applicant and two others were acquitted. The Public Prosecutor appealed and the High Court ordered the applicant and the two others to enter their defence on the said charge. The applicant thereupon applied to the Federal Court for an order pursuant to s. 66 of the Courts of Judicature Act regarding the provision of s. 173(f) of the Criminal Procedure Code. The provision of s. 173(f) as it was then reads:

If, upon taking all the evidence hereinbefore referred to, the Court finds that no case against the accused has been made out which if unrebutted would warrant his conviction the Court shall record an order of acquittal.

The Federal Court had this to say:

We agree with the respondent that although our section 173(f) may not be word for word the same as the Singapore section 188 nevertheless the effect is the same. The application is premature. There is nothing to prevent the applicant from taking up the matter at a later stage. There is no necessity for us to make a ruling now.

Section 66(1) of the Courts of Judicature Act provides:

When an appeal from a decision of a subordinate court in a criminal matter has been determined by the High Court, the Federal Court may on the application of any party and shall on the application of the Public Prosecutor grant leave for the determination by itself of any question of law of public interest which has arisen in the course of the appeal and the determination of which by the High Court has affected the event of the appeal.

In Cecil Rajah v. Public Prosecutor where the facts are quite similar in that the applicant was acquitted by the Sessions Court at the end of the prosecution case and on appeal by the respondent the High Co