JUDGMENT

Edgar Joseph Jr SCJ:

[1] The respondent to this appeal was prosecuted in the High Court in Penang upon a charge that he did on 11 August 1987 at about 5.30 am. at Jambatan Permatang Tok Labu, Kepala Batas, Seberang Perai, in the District of Butterworth, in the State of Penang, traffick in a dangerous drug, to wit, 70,952.1 gm of cannabis, in contravention of 39B(1)(a) of the Dangerous Drugs Act, 1952, ("the Act"), and was acquitted thereof at the close of the case for the prosecution (See [1992] 3 MLRH 130, [1993] 1 MLJ 140).

[2] Against that order of acquittal and discharge the Public Prosecutor has now appealed.

[3] In the Court below, at the close of the case for the prosecution, learned Counsel for the respondent Encik Karpal Singh (who also appeared before us) had submitted that there was no case to answer on the ground that the prosecution had failed to prove a fundamental ingredient of the charge; namely, that the plant material recovered from the boot of a motor car bearing registration No WBE 2789 which the respondent was driving, at the material time, was cannabis within the meaning of s 2 of the Act.

[4] It was pointed out that at the material time, "cannabis" was defined by s 2 of the Act to mean "any part of any plant of the genus cannabis from which the resin had not been extracted by whatever name it may be designated" ("the old definition"). But, subsequently, with effect from 4 September 1992, cannabis had been redefined by Act A334, that is to say, the Dangerous Drugs (Amendment) Act, 1992, to mean "any part of any plant of the genus Cannabis from which there is found to be present resin irrespective of its quantity and by whatever name the plant may be designated." ("the new definition"). However, the "new definition" was neither expressed to be retrospective nor was it procedural.

[5] It was further argued that the phrase "resin has not been extracted" in the old definition of "cannabis", must mean "not been completely extracted", nor should one read into the definition the word "substantially" and, to that extent, the Supreme Court case of Loo Keck Leong v. Public Prosecutor, [1992] 2 MLJ 177 was wrongly decided. To emphasise this point, Counsel argued, that the very fact that "cannabis" had been re-defined reinforced that conclusion.

[6] In any event, it was argued that the result of the Government Chemist's analysis of the plant material concerned did not establish that resin had not been completely or substantially extracted from the plant material concerned. It was said that this was so because the Chemist had not been able to certify what was the original content of resin in the plant material as the amount of resin then would depend on unknown factors such as the country of origin of the plant material and its heredity.

[7] In reply, the learned Deputy Public Prosecutor had submitted that the new definition of cannabis was a "catch all provision" and had no bearing in construing the old definition of cannabis.

[8] He drew attention to the fact that unlike the testimony of the Chemist in Loo's case, the Chemist in the present case had categorically stated that the resin had not been either completely or substantially extracted. In this context, he argued, that the word "extract" must imply a deliberate extraction and not include accidental extraction, as for example, resin falling or dropping off in the course of handling.

[9] The trial Judge (Mr Judicial Commissioner Vincent Ng Kim Khoay) held that there was no case to meet because, at the close of the case for the prosecution, an essential ingredient of the charge, to wit, that the plant material seized was cannabis within the old definition had not been established by the prosecution.

[10] In arriving at that conclusion, the Judge made the preliminary observation that the Chemist had admitted that before entering the witness box, his attention had been drawn to the decision in Loo wherein the Supreme Court (at p 179) had explained the significance