Abdul Hamid Mohamad JCA:

The appellants were charged at the Balik Pulau Magistrate's Court for fishing in the Malaysian waters without an international agreement allowing the same nor a valid permit issued under s. 19 of the Fisheries Act 1985, thereby committing an offence under s. 25(a) of the Act.

At the end of the prosecution's case, the appellants were called upon to enter upon their defences. At that stage, learned counsel for the appellants applied to the court (the Magistrate's Court) that the trial be stayed and that the records of the proceedings be referred to the High Court for the determination of a question law on the validity of the prosecution which was conducted by an officer of the Fisheries Department, which was alleged to be void and unconstitutional. The learned magistrate refused the application.

The appellants then filed a notice of motion in the High Court at Penang (Permohonan Jenayah No. 44-4-98). The appellants prayed for the following orders:

a) that the prosecution of a charge under the Fisheries Act can only be conducted by the Public Prosecutor;

b) that the prosecution conducted by an officer of the Fisheries Department is void and ultra vire