Gopal Sri Ram FCJ (delivering judgment of the court):

The appellant was convicted by the High Court at Ipoh for trafficking 420g of cannabis, an offence under s 39B(1)(a)Dangerous Drugs Act 1952

The gist of the prosecution’s case is this. On 4 April 2000 at about 4pm, PW4 (‘Inspector Hilimi bin Ahmad’), acting on information received laid an ambush at the scene of the incident, namely, Jalan Selasar 10, Taman Ipoh Jaya, Ipoh. PW4 was accompanied by several police personnel, including PW8 (‘Detective Lance Corporal Magendran’). At about that time, the appellant arrived at the scene. He was driving motorcar ABA 6363 which was established in evidence to belong to his brother PW5. He parked the car adjacent to house No 52. He emerged from the car, carrying a white plastic bag exh P13. He was almost immediately accosted by PW4 and PW8. PW4 identified himself as a police officer. The appellant then attempted to flee. He was overpowered and placed under arrest. PW4 found exh P13 to contain a substance which on subsequent chemical examination was found to be 420g of cannabis. The appellant was then charged for trafficking drugs.

In the course of the prosecution case it was established that on 4 April 2000, the appellant and his family had gone to the grave sites of their relatives at Jalan Tambun, Ipoh and then at Tanjong Tualang as it was Cheng Beng or All Souls Day. Later, the family returned home. PW5 and the appellant then cleared PW5’s car of the paraphernalia that had been taken to the grave sites. The appellant asked for PW5’s permission to use the latter’s car to visit friends. PW5 agreed but asked that he be dropped off at his place of work. The appellant drove the car with PW5 in it. There is evidence on record to show that during the journey PW5 did not see P13 in his car. After having dropped off PW5, the appellant proceeded to the scene.

At the close of the prosecution case, the learned trial judge ruled that he did not wish to hear submissions as he was satisfied that the prosecution had made out a prima facie case as required by Criminal Procedure Code. This ruling formed the first ground of complaint before us. The second complaint is that the learned trial judge failed to judicially appreciate the evidence thereby misdirecting himself which misdirection has occasioned a miscarriage of justice.

Taking the first ground, the issue here is whether a court acting under s 180(1) is entitled to quote from the subsection: ‘consider whether the prosecution has made out a prima facie case against the accused’ without affording the accused an opportunity to make a submission of no case. No doubt the subsection does not expressly confer such a right upon an accused. However, counsel submitted that his client has a constitutionally guaranteed right to a fair procedure by virtue of Federal Constitution. He argued that this right had been violated by reason of the learned judge’s ruling. This is an important submission and calls for careful consideration.

The first step in the inquiry is to ascertain whether there is such a constitutionally guaranteed right as asserted by the appellant. As Laws J said in R v Lord Chancellor ex p Witham

Where a written constitution guarantees a right, there is no conceptual difficulty. The state authorities must give way to it, save to the extent that the constitution allows them to deny it. There may of course be other difficulties, such as whether on the constitution’s true interpretation the right claimed exists at all.

Whether the right claimed in the instant case exists at all turns on the interpretation of art 5(1) which provides that: ‘No person shall be deprived of his life or personal liberty, save in accordance with law.’ Before we embark upon that interpretive exercise, it is important to bear in mind the principles that govern the interpretation of the Federal Constitution.

In the first place, the Federal Constitution is the supreme law of the Federation. Though by definition it is a written law