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 viresthe Federal Constitution and that such proceedings are unlawful;

c) that all orders made by the magistrate in the case be set aside;

d) that all the accused persons in the case (the appellants) be acquitted ("dibebaskan");

e) any other order(s) that the court deems fit and proper to make.

It is to be noted that the challenge is on the power of the Fisheries Officer to conduct the prosecution.

The learned judge dismissed the application. The appellants appealed to this court.

Judgment Of The Learned High Court Judge

The learned judge addressed his mind to two issues. First, whether the consent ("izin") to prosecute given by the deputy public prosecutor (P1) was a valid consent. Secondly, whether the Fisheries Officer was authorized to conduct the prosecution of the appellants for the offence for which they were charged.

The first issue became relevant because the learned counsel for the appellants had argued that the consent had no legal effect because there was no provision in the Fisheries Act 1985 for the public prosecutor to give the consent.

On this question, the learned judge was of the view that, reading together the provisions of ss. 6, 8 and 38 of the Exclusive Economic Zone Act 1984 and s. 15(1) of the Fisheries Act 1985, consent of the public prosecutor was required for the prosecution of the appellants. That consent was given. The learned judge was also of the view that s. 38(1) of the Exclusive Economic Zone Act 1984 exists side by side and in harmony with the provision of art. 145(3) of the Federal Constitution. The learned judge concluded that the consent (P1) was valid and not unconstitutional.

On the second issue, learned counsel for the appellants and the deputy public prosecutor agreed that if the offence was a non-seizable offence, the Fisheries Officer had the power to prosecute. On the issue whether the offence was a non-seizable offence or not, the learned judge decided that it was a non-seizable offence.

The Appeal

Learned counsel for the appellants submitted that the crux of the appeal is whether a prosecution conducted by an officer from the Fisheries Department, particularly for an offence under s. 15(1) read together with s. 24(1) and punishable under s. 25(a) of the Fisheries Act 1985 is valid. In other words, the question is whether the officer was properly authorized to conduct the prosecution.

The learned counsel submitted that as there was no provision in the Fisheries Act 1985 authorizing the officer to prosecute, the Fisheries Act 1985 should not be read together with the Exclusive Economic Zone Act 1984, the prosecution had to rely on the provisions of s. 380(ii)(b) of the Criminal Procedure Code(prior to the amendment by the Criminal Procedure (Amendment) Act 1998 which came into effect on 1 April 1998), that s. 3