This is an appeal by the Public Prosecutor against the order of discharge amounting to an acquittal made by the Magistrate at Klang on November 10, 1981 in respect of an offence of dangerous driving under section 34A(1) of the Road Traffic Ordinance 1958.

The facts leading to the acquittal of the Respondent as contained in the appeal records and the submission of Mr. Manjeet Singh who appeared as amicus curiae for the Respondent, are not in dispute. They are as follows. The Respondent was originally charged in the same court before the same Magistrate and for the same offence of dangerous driving alleged to have been committed on September 1, 1978, vide case MA477/1979. He was arrested on the date of the alleged offence and released on bail on the same day. He pleaded not guilty to the charge ever since he first appeared in court on June 5, 1979. After a number of postponements, the trial finally commenced on October 2, 1979. After six witnesses had given evidence for the Prosecution, they could not proceed further as two material witnesses — Khor Khai Hong and Ng Yoke Thiam — could not be traced. The part-heard case was adjourned from time to time until a final postponement was allowed for continuation of hearing on February 18, 1981. On that date, the two material witnesses were still not available. As the charge had been pending over Respondent's head since June 1979, and the part-heard case had been fixed on that date for final disposal, the Magistrate discharged the Respondent not amounting to an acquittal. Before ascertaining the availability of the two material witnesses, the Prosecution recharged the Accused for the same offence on April 29, 1981 vide the present case MA 625/1981. Thus, hardly 2½ months had passed from the date of discharge, the Prosecution again put the Respondent in jeopardy without even caring to ascertain whether they were able to proceed with their case. As it turned out, it is clear that the Prosecution knew at all material times, that their two material witnesses could not be traced. When the second prosecution came up for hearing on September 10, 1981, the Prosecuting Officer informed the court that they could not proceed as the same two witnesses were not available. In the event, a final postponement was granted to November 10, 1981. On that final date, Prosecution's application for further postponement was refused, and Miss John who appeared for the Respondent since June 1979 applied for a discharge amounting to an acquittal. The learned Magistrate agreed and made the acquittal order. In her grounds of decision, the learned Magistrate has this to say:

"... I order that the accused be discharged amounting to an acquittal. The accused was never absent when the case was called up in court. There are no other good reasons to postpone the case, if the prosecution was unable to trace their own material witnesses. It is unfair to postpone the case again because he suffered inconvenience to come to court since 1978 when the accident took place."

Before me, the learned Deputy Public Prosecutor contends that the Magistrate must have acted under section 173(g) Criminal Procedure Code and erred in law in ordering the discharge amounting to an acquittal without hearing the case for the Prosecution. Citing the case of Public Prosecutor v Hettiarachigae LS Perera [1977] 1 MLJ 12, Public Prosecutor v Mahmud [1974] 1 MLJ 85 and Chu Chee Peng v Public Prosecutor [1973] 2 MLJ 35 as authorities, it seems to be suggested that the law is now settled that on the facts of the present case, the court is helpless and impotent to do anything except to repeat the order of discharge not amounting to an acquittal and thereby enable the Prosecution to charge the Respondent for the same offence for the third time and, indeed, for any number of times in the future notwithstanding the delay of more than three years, and the Prosecution's clear inability to proceed with their case, apart from the six witnesses w