JUDGMENT

Abdul Hamid Omar LP:

This is a reference under s. 66 of the Courts of Judicature Act 1964 pursuant to leave granted to the applicants Mr. Karpal Singh and Mr. P. Patto to refer for our consideration a question of law as follows:

Whether the Court has a general inherent power to protect its process from abuse to safeguard an accused person from oppression or prejudice by striking out frivolous proceedings.

The applicants were charged before the Magistrate's Court, Kampar on 22 April 1987 with separate offences under s. 27(5)(a) punishable under s. 27(8) of the Police Act. No. 41 of 1967; Mr. Karpal Singh for having participated in an assembly in a public place without a licence from the officer-in-charge of police district, Kampar and Mr. Patto for convening an assembly in a public place without a licence from the officer-in-charge of police district, Kampar. The offences were alleged to have been committed on 30 August 1984.

At the hearing before the Magistrate on 18 July 1989, the applicants raised a preliminary objection contending that the proceedings against them amounted to oppression and in all circumstances of the case the prosecution was oppressive and repugnant to the good administration of justice and that the Court had a general and inherent power to protect its process from abuse and that power must include a power to safeguard an accused person from oppression or prejudice and that accordingly the Court had the power to strike out proceedings.

The Magistrate ruled that there was no provision in the Criminal Procedure Code which empowered the Court to make an order striking out proceedings on grounds submitted by them. She rejected the application and decided the trial should proceed. The applicants then asked that the matter be referred to the High Court for a revision. Peh Swee Chin J exercising his revisionary power found no merit in the submission made by the applicants. Accordingly, he ordered the case be remitted back to the Magistrate for it to be heard. The learned Judge nevertheless observed that the applicants were entitled to raise the question of oppression at the close of the prosecution case for the Court to decide.

At the hearing before this Court, Mr. Karpal Singh submitted with added force the same argument canvassed in the Court below. He cited three cases in support of his contention, first, PP v. Lee Tin Bau [1985] and second, Connelly v. DPP [1964] 2 AER (HL) 401 and third, DPP v. Humphrys [1976] 2 AER 497. He argued that it is within the Court's inherent jurisdiction to strike out the proceedings. Mr. Stanley Isaacs appeared for the public prosecutor. He submitted that the chronology of events has shown that there was no oppression or harassment on the part of the prosecution. The delay was partly due to two main factors, namely, first the issue relating to setting aside of the warrant of arrest which led to an appeal to the Supreme Court (P. Patto V. Chief Police Officer, Perak & Ors. [1986] CLJ 208 (SC) and second, the detention of the applicants under the Internal Security Act. He maintained that the prosecution was diligently prosecuted.

He also submitted that the Magistrate had no inherent power under the law to discharge in the sense of striking out proceedings. The nearest provision is s. 173(g) of the Criminal Procedure Code. Mr. Isaacs also drew this Court's attention to s. 5 and s. 376 of the Criminal Procedure Code as well as art. 145(3) of the Federal Constitution.

He then invited this Court to consider PP v. Zainuddin [1986] CLJ (Rep) 232 (SC), a Supreme Court decision on the procedure in summary trials before the Subordinate Courts. And finally it was Mr. Isaacs' contention that the Court is not entitled to deny the right of the Public Prosecutor to prosecute as the discretion of the Public Prosecutor is absolute.

Basically the sole issue before this Court revolves on a primary question of law and not of facts. The sole question that calls for determination (although cou