JUDGMENT

Azmi LP (delivering the judgment of the majority):

The appellant was convicted together with three others of having committed an offence under s. 4(i)(c) of the Sedition Act 1948 (Revised - 1969) punishable under s. 4(1) of the said Act. He has appealed to this Court against both his conviction and sentence.

He was originally charged before the president of the sessions Court but on 16 March 1971 he applied to a Judge under s. 417 of the Criminal Procedure Code for the transfer of his trial to the High Court. Abdul Hamid J made the order prayed for Pursuant to that order of transfer the appellant was brought before the High Court on 3 May 1971 and tried, not by Abdul Hamid J himself, but by another Judge, Raja Azlan Shah J, by whom he was duly convicted and sentenced.

The appeal raises a number of grounds, in the forefront of which is the appellant's contention that the trial was a nullity. With the agreement of Counsel on both sides we decided to hear full argument first on this preliminary point, since the question of jurisdiction goes to the root of the whole appeal. The appellant's submission is that-

(1) his trial was a nullity, rendering his conviction null and void, because the trial was conducted in contravention of the express prohibition contained in s. 138 of the Criminal Procedure Code, which provides that no person shall be tried before the Court of a Judge unless he shall have been committed for trial after a preliminary inquiry;

(2) his trial was held before a Judge other than the Judge who made the order for transfer, contrary to the provision in s. 417 of the Criminal Procedure Code that the Judge making the order try the case himself;

(3) the failure to hold a preliminary inquiry was not only in contravention of the express provisions of s. 138 but also an incurable defect which prejudiced the appellant in his defence.

We shall deal first with the objection raised under s. 417 the relevant portion of which reads:-

Whenever it is made to appear to a Judge ....

(b) that some question of law of unusual difficulty is likely to arise .... he may order .... that any particular criminal case be transferred to and tried before himself...."

It was contended that, since Abdul Hamid J made the order of transfer, he himself should have tried the case, in compliance with the express provisions of s. 417, although there is no suggestion that the change affected the outcome in any way. The learned Solicitor-General, in answer, directed our attention to the corresponding section in the Criminal Procedure Code of Singapore where "High Court" is substituted for "Judge" and "itself" for "himself". The rules of syntax, he explains, requires the pronoun "himself" to be used when the antecedent subject is "Judge", just as "itself" should be the correct reflective when the antecedent is "the High Court". In our opinion the logic is inescapable. There is neither rhyme nor reason in holding that the same Judge must try the case once he has made the order of transfer. All Judges of the High Court exercise similar powers and the personality of the Judge can in no way affect the conduct or result of the trial. After all, what the accused is only concerned about in making an application for transfer from the subordinate Court is that a difficult question of law should be determined by a higher tribunal, more competent to deal with it. We accordingly hold that there are no merits in this particular ground of appeal.

The next objection, under s. 133, however, poses a problem of unusual difficulty. We are unable to trace any Malayan case in which s. 138 fell to be construed in similar circumstances. Neither Indian authorities nor the two Singapore cases cited to us by learned Counsel for the appellant, namely, TT Rajah v. R [1963] MLJ 281 and Fung Yin Chung v. Public Prosecutor, [1965] 1 MLJ 46 FC are of much relevance because the corresponding provisions in the Criminal

Procedure Codes of India and Singapore are not who