JUDGMENT OF ABDUL MALEK AHMAD. PCA

I have read the judgment in draft of my learned brother Gopal Sri Ram JCA and am in full agreement with the reasoning and conclusion therein as regards the conviction and sentence in line with the majority judgment of the Court of Appeal.

2. However, as regards the retrospective effect of Muhammed bin Hassan(1998) 2 MLJ 273,I hold a different view.

3. In Abdillah bin Lobo Khan v PP [2002] 3 CLJ 521; [2002] 3 MLJ 298, the Court of Appeal held as follows:-

"The Federal Court could, therefore, if it had so wished, have declared its decision in Muhammed bin Hassan to be of prospective effect only. Had it done so, then cases decided under the former misconception about the way in which ss 37(d) and (da) of the Act were to be applied would not have been available for correction on appeal. But that is not what happened. The decision in Muhammed bin Hassan consequently falls under the general doctrine of retrospectivity and it therefore applies to the present case. We therefore are bound to apply it."

4. This issue had actually been made clear by the Supreme Court in Public Prosecutor v Dato Yap Peng [1987] 2 MLJ 311 when it said:-

"The general principle of retroactivity of a judicial declaration of invalidity of a law was overturned by the Supreme Court of the United States of America in Linkletter v Walker (1965) 381 US 618 (at page 628) when it devised the doctrine of prospective overruling in the constitutional sphere in 1965 as a practical solution for alleviating the inconveniences which would result from its decision declaring a law to be unconstitutional, after overruling its previous decision upholding its constitutionality. This doctrine was applied by the Supreme Court of India in LC Golak Nath v State of Punjab & Another AIR 1967 SC 1643 (at pages 1666 - 1669). The doctrine - to the effect that when a statute is held to be unconstitutional, after overruling a long-standing current of decisions to the contrary, the Court will not give retrospective effect to the declaration of unconstitutionality so as to set aside proceedings of convictions or acquittals which had taken place under that statute prior to the date of the judgment which declared it to be unconstitutional, and convictions or acquittals secured as a result of the application of the impugned statute previously will accordingly not be disturbed - can be applied by the Supreme Court as the highest court of the country in a matter arising under the Constitution to give such retroactive effect to its decision as it thinks fit to be moulded in accordance with the justice of the cause or matter before it - to be adhibited however with circumspection and as an exceptional measure in the light of the circumstances under consideration.

In England this doctrine has been recognised by the House of Lords by necessary implication in the Practice Statement (Judicial Precedent) (1966) 1 WLR 1234 issued by Lord Gardiner L.C. on behalf of himself and the Lords of Appeal in Ordinary on July 26, 1996. More recently, in Jones v Secretary of State for Social Services [1972] AC 944, two judges of the House of Lords, Lord Diplock (at page 1015) and Lord Simon of Glaisdale (at page 1026) were prepared to consider the application of the American doctrine of prospective overruling to England. In Choice Investments Ltd v Jeromnimon [1981] 2 WLR 80 Lord Denning M.R. in his judgment in the English Court of Appeal (at page 84) accepted the subsistence and application of the doctrine. In Defrenne v Sabena [1981] 1 All ER 122, the Court of Justice of the European Communities applied the doctrine of prospective overruling predicated on conditions of legal certainty which required the court, as an exceptional measure, to declare the law for the future only.

At the conclusion of argument on March 19, 1987, the Court accordingly by a majority (Tun Mohamed Salleh Abas L.P., and Tan Sri Hashim Yeop A. Sani S.C.J. dissenting) declared section 418A to be unconstituti