Smith J:

This is an appeal by the Public Prosecutor against the discharge of the respondent. The respondent was charged with the following offence: -

That you on 25 May 1958 at about 12.45 p.m. did maintain and use a fishing stake to wit a Blat Pok in tidal waters off Bagan Nakhoda Omar without a license from the Officer-in-Charge contrary to r. 2(i) of the Fisheries Rules, 1938, and punishable under s. 11 of Fisheries Enactment No. 20 of 1937.

The facts are that a Deputy Fisheries Officer was making a survey of fishing stakes at sea off Bagan Nakhoda and Sungei Pulai. He found an unlicensed fishing stake in the sea more than three miles from the nearest low water mark. From the map it appears the offence was not committed within an arm of the sea.

The respondent pleaded guilty to the charge but the learned Magistrate refused to convict on the ground that he had no jurisdiction. In his grounds he states:

As far as the Court is aware the territory of the State of Selangor off the coast is that part of the sea adjacent to the coast thereof which by international law constitutes the territorial waters of the State and that is the three miles limit. The Court cannot trace any law whereby jurisdiction may be exercised beyond territorial limits in respect of an offence under the Fisheries Enactment 1937. The Court therefore discharged the defendant.

The Enactment under which conviction is sought is one of the State of Selangor. The Fisheries Enactment, 1937, includes the following rule-making power:

14.

(i) The Ruler in Council of each State may in respect of the State of which he is Ruler make rules for the purposes of this Enactment and not inconsistent with any of the provisions of this Enactment.

(ii) In particular and without prejudice to the generality of the foregoing power such rules may -

(a) ) regulate or prohibit except under or in accordance with the conditions of a license the erection maintenance working repair and lighting of fishing stakes;

(b) ) regulate or prohibit except under or in accordance with the conditions of a license any method of fishing or the use of fish traps or fishing nets;

..................................

(f) ) prescribe the areas within or without territorial waters or within tidal waters or within inland waters and the periods of time within which any particular method of fishing is prohibited or restricted.

In exercise of those powers the Rules of the State of Selangor made the Fisheries Rules, 1938, which include the following r. 2(i):

No person shall in tidal or inland waters erect, maintain, use or have in his possession any kind of .... fishing stake.......... except under and in accordance with the terms of a fishing license from the Officer-in-Charge.

The expression "inland waters" is defined in s. 2 of the Enactment in the following terms:

'inland waters' includes all rivers creeks and streams for that portion of their water-course which is beyond the influence of tides and also fresh water lakes lagoons and ponds whether pte or otherwise.

The expression "tidal waters" is defined in s. 2 of the Enactment in the following terms:

'tidal waters' includes the sea and all rivers creeks streams lagoons ponds and other waters whether pte or otherwise as far as the tide flows and reflows.

The expression "territorial waters" is not defined in the Enactment at all and must therefore be taken to have the normal meaning assigned to it in English Common Law by virtue of s. 3 of the Civil Law Ordinance, 1956. According to Halsbury, 3 Edn., vol. 17, p. 299, para. 511 note (f) "Great Britain, like most nations, claims an extent of one marine league (3 miles) measured from low water mark as being the limits of territorial waters." It was conceded by the Public Prosecutor that since the Federation has not yet acceded to the new international convention on jurisdiction over the territorial sea, the contiguous zone and the continental shelf, this particular fishing stake was situate wi