Salleh Abas LP:

This is a criminal reference under s. 66 of the Courts of Judicature Act (Act 91) which arose from the decision of Magistrate, Seremban on 19 January 1984 ordering an acquittal and discharge of the respondents herein without hearing any evidence of the prosecution.

The learned Deputy Public Prosecutor applied to the High Court at Seremban for a revision of the decision but the application was turned down. Hence the order of the Magistrate stood.

Upon application by the learned Deputy Public Prosecutor, the Supreme Court granted him leave to have the following question of law of public interest determined:

In view of Article 145(3) of the Federal Constitution and s. 173(c) and (f) of the Criminal Procedure Code, whether it is right in law for a Magistrate in a summary trial to acquit and discharge an accused person without hearing any evidence for the prosecution.

At our sitting on 2 December 1985 we answered the question in the negative and promised to give our written reason therefor. Hence this Judgment.

The record of this case shows that the case has been postponed no less than twelve times since the respondents were first charged on 9 January 1976 to the date when the Magistrate ordered acquittal in their favour on 19 January 1984, i.e. about eight years later. Of these twelve postponements, five were granted at the prosecution's request, two postponements because of the Court's own inability to hold the trial, whilst the remaining five postponements were granted at the behest of the defence.

The question which we have to answer here was whether a Magistrate holding a summary trial could acquit and discharge the accused without hearing the evidence for the prosecution at all.

Until the decision of Mohamed Azmi J (as he then was) in PP v. Mohd. Said [1962] it was generally considered as settled law that the Magistrate had no such powers. Murray-Aynsley J in Kuppusamy v. PP [1988] 1 CLJ 229 (Rep) held that the earliest stage at which a Magistrate can acquit an accused person is after hearing all the evidence for the prosecution. This ruling was accepted and followed by Ong Hock Sim J in PP v. Goh Kee Chuan [1966] and P v. Mahmud [1973]. This view was also accepted by the Federal Court, whose judgment was delivered by Ong CJ in Chu Chee Peng v. PP [1973].

In Chu Chee Peng's case the Court was clearly of the view that a magistrate could not order an acquittal of the accused without hearing all the evidence which could be material to the prosecution case and that any discharge ordered by the magistrate without hearing such evidence could not amount to an acquittal and therefore could not be set up as a defence of autrefois acquit should the accused be subsequently recharged for the same offence. The Court in no uncertain terms said that there were two circumstances in which a magistrate could order an acquittal-

(1) when after all the evidence has been heard no case has been made out to support the charge, the acquittal is mandatory at the end of the prosecution (s. 173(f)).

(2) when because the main prop of the prosecution case has prematurely collapsed, and further proceeding would be an exercise in futility, the prosecution may in its discretion offer no further evidence (s. 254).

Any discharge of the accused other than in these two circumstances, such as a discharge because the charge is considered to be groundless, or because the application for postponement by the prosecution was turned down and the prosecution unable to proceed should only be a discharge not amounting to an acquittal.

However, this clear ruling was not followed by Mohamed Azmi J (as he then was) in PP v. Mohd Said[1962] (supra). The facts in that case were almost similar to those in the case under the present reference. In that case, because of the number of postponements and the inability of the prosecution to proceed due to the inavailability of two material witnesses, the accused was twice discharged by the Magistrate. The fir