Tan Chiaw Thong J:

By this notice of motion the applicant applies under s. 66(1) and (6)(a) of the Courts of Judicature Act, 1964 to have reserved for the decision of the Federal Court what purports to be certain questions of law of public interest which had arisen in the course of the appeal of the applicant against his conviction for an offence punishable under s. 6 of the Dangerous Drugs Ordinance, which has been disposed of by this Court by ordering a retrial of the applicant. The purported questions of law set out in the notice of motion are five in number, but in the course of the hearing of the application, learned Counsel for the applicant abandoned the application in respect of the first three questions and the hearing of the application proceeded on the basis of it being confined to two questions, namely, questions 2(a) and 2(b) as set out in the notice of motion. The two questions read as follows:

2 (a) Can an appellate Court order a retrial under s. 316 of the Criminal Procedure Code in respect of charge under s. 6 of the Dangerous Drugs Ordinance when the only evidence produced by the

Government chemist witness for the prosecution did not sufficiently prove that the articles found on the accused was Indian hemp within the meaning of the Dangerous Drugs Ordinance?

(b) In this present case, was the discretion to order a retrial by the Court rightly exercised?

I shall deal with this application on the assumption that the two questions posed fulfil the requirements of s. 66(1) of the Courts of Judicature Act, 1964 to the extent that they had arisen in the course of the appeal and the determination by the appellate Judge had affected the event of the appeal. I shall come to the question as to whether the questions posed are questions of law of public interest later in this judgment.

Section 66(1) and (6)(a) of the 1964 Act respectively read:-

66.(1) When an appeal from a decision of a subordinate Court in a criminal matter, other than a decision of a President of a Sessions Court conferred with special jurisdiction under sub-section (3) of s. 63 of the Subordinate Courts Act, 1948, has been determined by the High Court the Judge may on the application of any party and shall on the application of the Public Prosecutor reserve for the decision of the Federal Court any question of law of public interest which has arisen in the course of the appeal and the determination of which by the Judge has affected the event of the appeal.

(6) For the purposes of this section but without prejudice to the generality of its provisions -

(a) any question of law regarding which there is a conflict of judicial authority shall be deemed to be a question of public interest.

In support of the application learned Counsel for the applicant submits that since the only evidence relating to the alleged Indian hemp in respect of which the applicant was charged in the lower Court with having possession was that of the Government chemist and such evidence in the lower Court did not sufficiently prove that the substance was Indian hemp as defined in s. 2 of the Dangerous Drugs Ordinance, the order of retrial of this Court is in conflict with two authorities, namely, the cases of Teoh Soo Tok v. Public Prosecutor and Ho Kiat Swee V. Rex. That is the sole ground on which the application is based. It is therefore relevant to consider whether in ordering a retrial, this Court has made an order which conflicts with the decisions in the Teoh Soo Tok V. Public Prosecutor and Ho Kiat Swee V. Rex cases or either of them. Before dealing with this question, I would point out that s. 316(b) of the Criminal Procedure Code gives an appellate Court a discretionary power in suitable cases to order a retrial. That the power is discretionary is not disputed and indeed beyond argument.

In the appeal of the applicant I had dealt, in my judgment, with the question of the evidence of the expert witness Chan Woon Peng (PW2) in the lower Court. His evide