Suffian LP:(read by Gill CJ (Malaya) (delivering the judgement of the ourt):

The first and second respondents were jointly charged with trafficking in 672 grammes of heroin, contrary to s. 39B(i)(a) of the Dangerous Drugs Ordinance No 30 of 1952 an offence punishable under sub-section (2) of the same section with death or life and whipping. After a preliminary enquiry they were committed to stand trial in the High Court.

The third respondent was charged with trafficking in 2,545,95 grammes of heroin. After a preliminary enquiry, he too was committed for trial in the High Court.

On 27 June 1977 when the cases came up in the High Court, the learned judge made orders transferring them for trial in the Special Sessions Court. He made them of his own motion.

The Special Sessions Court of course has jurisdiction to try these charges but can only sentence the respondents, if convicted, to life and whipping, whereas the High Court can sentence them even to death, if the trial Judge thinks such an extreme sentence justified.

The Public Prosecutor was not satisfied with what the learned Judge did, so applied - successfully - for the trials in the Special Sessions Court to be stayed and for the learned Judge to refer to us under s. 48 of the Courts of Judicature Act, 1964 the following questions:

(1)Whether the transfer of [these two cases] on 27 June 1977 under [paragraph] 12 of the Schedule to the Courts of Judicature Act, 1964 to the Special Sessions Court, Penang, for trial thereat was proper in the circumstances?

(2)Whether the aforesaid [paragraph] of the aforesaid Schedule to the Courts of Judicature Act, 1964, is or is not subject to the power conferred on the Public Prosecutor under Article 145(3) of the Federal Constitution in respect of the conduct of the prosecutions including the choosing of the [forum], after having regard to the circumstances of the case; and whether such power conferred under the said Article 145(3) overrides the power of the High Court Judge to transfer cases [of] his own motion to the Special Sessions Court?

In brief, we are asked to give a ruling on whether the learned Judge had power to transfer these cases to the Subordinate Court, and if so whether he properly exercised that power.

For the Attorney General it is argued that the learned Judge did not have that power, while on behalf of the respondents it is argued on the contrary that the learned Judge had the power and rightly exercised it.

It is now convenient to reproduce the relevant legislation.

Article 145(3) of the Constitution reads as follows:

(3) The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Muslim court, a native court or a court-martial.

Section 25(2) of the Courts of Judicature Act and para. 12 of its Schedule read as follows:

25(2) Without prejudice to the generality of sub-section (1) the High Court shall have the additional powers set out in the Schedule:

Provided that all such powers shall be exercised in accordance with any written law or rules of court relating to the same.

12. Power to transfer any proceedings to any other court to or from any subordinate court, and in the case of transfer to or from a subordinate court to give any directions as to the further conduct thereof:

Provided that this power shall be exercised in such manner as may be prescribed by any rules of the court.

" Sections 376(i), 417, 418 and 418A of the Criminal Procedure Code read as follows:

376(i) The Attorney General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this Code.

417. (1) Whenever it is made to appear to the High Court-

(a) that a fair and impartial inquiry or trial cannot be had in any criminal court subordinate thereto; or

(b)that some question of law of unusual difficulty is likely to arise; or

(c)that a view of t