Suffian LP (delivering the JUDGMENT of the Court) (read by Gill CJ Malaya):

The two respondents were jointly charged as follows:

That you at about 6.45 p.m., on 22 May 1975 at Kheng Chew Temple, Muntri Street, Penang, in the District of Georgetown, in the State of Penang together with another person still at large in furtherance of the common intention of you all, did, on your own behalf traffic in a dangerous drug, to wit, heroin weighing 2,863.127 grammes and you thereby committed an offence punishable under sub-section (2) of s. 39B of the Dangerous Drugs Ordinance No 30 of 1952 read with s. 34 of the Penal code .

The jury unanimously returned a verdict of not guilty and in accordance with s. 229 of the Criminal Procedure Code the learned trial Judge had no alternative but to acquit and discharge the two accused. That section reads:

lt the verdict is not guilty either unanimously or by a majority the Judge shall record judgment of acquittal.

The Pp appealed against the acquittal.

Formerly no appeal lay from acquittal by the High Court, for s. 50(1) of the Courts of Judicature Act 1964 then provided:-

The Federal Court shall have jurisdiction to hear and determine any appeal by a person convicted by an High Court in the exercise of original criminal jurisdiction,...

The italicized word clearly showed that it was not possible for the PP to appeal from an acquittal by the High Court in the exercise of its original criminal jurisdiction.

Then in 1976 Parliament by Act A328 amended with effect from 23 January 1976 the above section.[4] to enable the PP to appeal against an acquittal by the High Court. The section now reads:

(1)The Federal Court shall have jurisdiction to hear and determine any appeal against any decision made by the High Court in the exercise of -

(a) its original criminal jurisdiction;

(b) ....

subject to this or any other written law regulating the terms and conditions upon which criminal appeals may be brought. ....

(2A)An appeal by the Public Prosecutor shall be either against acquittal or sentence...

There are two issues here. First, do we have jurisdiction to entertain this appeal? Second, if we do, should we allow it?

The PP maintains that this Court has jurisdiction to entertain this appeal under the amended section, while the respondents contend that this Court has no jurisdiction, citing in support a recent decision of ours, PP v. Tai Chai Geok [1976] 1 MLRA 67, [1978] 1 MLJ 166.

Having carefully reconsidered this matter, we have come to the conclusion that we were in error in PP v. Tai Chai Geok [1976] 1 MLRA 67, [1978] 1 MLJ 166 when we held that this Court had no jurisdiction to quash an acquittal following the verdict of not guilty by a jury.

A person may be acquitted by the High Court:

(a) after a trial before a Judge sitting alone; or

(b) after a trial before a Judge sitting with assessors (in Sabah and Sarawak); or

(c) after a trial before a Judge sitting with a jury (in Peninsular Malaysia only).

In the case of (a) if the Court finds the accused not guilty it must acquit, s. 183(i) of the Criminal Procedure Code .

In the case of (b), the Court may acquit in accordance with or contrary to the opinion of the assessors, s. 198 of the Criminal Procedure Code .

In the case of (c), as already noted, the Court has no alternative but to acquit should the jury find the accused not guilty.

It is plain that the PP can appeal against the acquittal in (a), by virtue of the amended s. 50 of the Courts of Judicature Act .

In our judgment, it is equally quite plain that the PP can do the same in the case of an acquittal after trial with the aid of assessors or with a jury. The new sub-section (2A) of s. 50 cannot have been clearer: it says quite flatly that the PP can appeal against an acquittal, which, in our view, must mean any acquittal, not only an acquittal before a Judge sitting alone.

It is conceivable that in the case of (b) the acquittal if in accordance with the opinion of the assessors, was as a result of t