DALAM MAHKAMAH PERSEKUTUAN MALAYSIA

(BIDANGKUASA RAYUAN)

RAYUAN JENAYAH NO. 05-40-2002(W)

ANTARA

PENDAKWA RAYA                                           …      PERAYU

                                                        DAN

TAN TATT EEK                                                  …      RESPONDEN

 

DALAM MAHKAMAH PERSEKUTUAN MALAYSIA

(BIDANGKUASA RAYUAN)

RAYUAN JENAYAH NO.05-41-2002(W)

ANTARA

TAN TATT EEK                                                  …      PERAYU

                                                       DAN

PENDAKWA RAYA                                           …      RESPONDEN

 

DALAM MAHKAMAH PERSEKUTUAN MALAYSIA

(BIDANGKUASA RAYUAN)

RAYUAN JENAYAH NO.05-68-2002(P)

ANTARA

ABDUL RAHIM BIN KALANDARI MUSTAN    …      PERAYU

                  

                                                       DAN

PENDAKWA RAYA                                           …      RESPONDEN

 

DALAM MAHKAMAH PERSEKUTUAN MALAYSIA

(BIDANGKUASA RAYUAN)

RAYUAN JENAYAH NO. 05-70-2002(P)

ANTARA

PENDAKWA RAYA                                           …      PERAYU

                                                        DAN

ABDUL RAHIM BIN KALANDARI MUSTAN    …      RESPONDEN

 

CORAM:   AHMAD FAIRUZ SHEIKH ABDUL HALIM, CJ

                             ABDUL MALEK AHMAD, PCA

                             HAIDAR MOHD NOOR, CJM

                             STEVE SHIM LIP KIONG, CJSS

                             SITI NORMA YAAKOB, FCJ

                             PAJAN SINGH GILL, FCJ

                             AUGUSTINE PAUL, JCA

 

 

 

 

 

JUDGMENT OF ABDUL MALEK AHMAD, PCA

 

                   In appeal 05-40-2002(W) and cross-appeal 05-41-2002(W) (hereinafter “the first appeal”), the respondent was charged for trafficking in dangerous drugs weighing 74.9 grammes of heroin and monoacetylmorphines under section 39B(1)(a) of the Dangerous Drugs Act 1952 (hereinafter “the Act”) punishable under section 39B(2) of the Act.

2.                On 11^th August 1997, a police party acting on information had taken position in the parking area of Campagna Condominium at Meadow Park 2, Happy Garden, Kuala Lumpur at about 8.30 pm when about half an hour later, they saw a Kancil car with registration number WFC 4906 driven by the respondent enter the car park with a woman passenger.  The respondent had got out of the car and carrying an orange bag in his right hand, he had entered the lift but had reemerged five minutes later to go back to the car carrying the orange bag when he was arrested by the police party.

3.                In the orange bag was found two packages wrapped in newspaper each having a clear plastic wrapping containing a granular and powdery substance.  This was later analysed by the chemist as a mixture of 18.4 grammes of heroin and 56.5 grammes of monoacetylmorphines.  His female companion was also detained but subsequently released.

4.                In the relevant parts of his judgment, the learned trial judge said:

 

“The bag was held in the accused’s own hands.  It is clear then that he had physical custody and control of the bag.  He cannot not know he was holding the bag.  Therefore has knowledge of the orange plastic bag.  The issue is whether he knew that in the plastic bag he was holding were packages containing the dangerous drugs …

 

The accused in this case was carrying the bag containing the dangerous drugs.  On the one hand, it cannot be denied when a person is carrying a bag, he is in fact also carrying the things contained in the bag.  On the other hand, when a person has custody and control of a bag, it does not necessarily mean he has knowledge of the contents of the bag.  In such a case he may have possession of the bag but not necessarily the contents…..

 

The dangerous drugs heroin and monoacetylmorphines were in a sealed clear plastic bag wrapped simply in newspaper and placed in the bag.  The bag was neither sealed nor tied up.  The bag is a thin plastic bag.  One cannot not know there were paper wrapped packages in the bag.  The paper wrapped packages themselves are not sealed.  Inside each paper wrapper is a sealed clear plastic bag containing the pink granular and powdery substance.  The bag was not tied and sealed in such manner that a carrier cannot know what is really inside.  Clearly the bag is not packaged in such a manner as to be carried by a person who is being denied knowledge of its contents, and would be in the case of an innocent carrier.  In the absence of any evidence to the contrary, the manner of packaging in this case would in the common course of human conduct mean that the carrier knows of the contents.  The Court concludes he knew of the thing or substance he was carrying in the bag.”.

 

 

5.                The respondent was accordingly found guilty as charged and was sentenced to death.

6.                At the Court of Appeal, the charge was amended to possession under section 12(2) of the Act punishable under section 39A(1)(d) of the Act and the sentence was reduced to 15 years’ imprisonment from the respondent’s date of arrest on 11^th August 1997 and with whipping of ten strokes.

7.                The Court of Appeal stated:

 

“Here there was no factual matrix on which the trial Judge could have inferred that the Accused had   knowledge of the nature of the dangerous drugs.  All that was proved was that the he had control and custody of the bag and the packages of the impure drugs and under s 37(d) the presumption could have been invoked for knowledge of the nature of the drugs.  And bearing in mind the Federal Court case of Muhammed bin Hassan v PP  [1998] 2 MLJ 273 the prosecution cannot and in this case the trial Judge could not have relied on the presumption under 37(d) to presume that the Accused was trafficking in the dangerous drugs under s 37(da)(iiia).

 

          At the close of the prosecution case the learned trial Judge had relied on actual custody and control of the drugs in the Accused and his knowledge of the nature of the dangerous drugs without resort to the presumption of s 37(d) for possession of the drugs in the Accused.  And we have said there was no factual matrix for him to make the inference of such knowledge.  He then invoked the presumption under s 37(da) on the basis of proved possession and we say that no knowledge in the drugs having been proved there was no possession proved and the invoking of the presumption under s 37(da) was misconceived.”.

 

8.                Both the Public Prosecutor and the appellant filed their appeal and cross appeal respectively but before us, learned counsel for the latter withdrew the cross appeal just before arguments began.

9.                As for the second appeal (05-68-2002(P) and 05-70-2002(P)), the appellant was charged for trafficking in cannabis weighing 39,105 grammes under section 39B(1)(a) of the Act punishable under section 39B(2) of the Act.

10.              The facts here were that a police party had positioned themselves at both the front and back portion of the house under surveillance and when the leader of the police party knocked on the front door, it was opened by the appellant clad in a towel and at the same time, he also saw a woman running towards the bathroom.

11.              A search was conducted and found in the kitchen on the ground floor was a weighing scale, a plastic package containing two rolls of adhesive tape and a package containing empty plastics of different sizes.

12.              When questioned where the drugs were, the appellant replied that they were on the first floor.  He then led the police party to the front room upstairs where the door was ajar and the key was in the keyhole.  The appellant pointed to the dressing cupboard and the wall cupboard.  In the wall cupboard, the police recovered two plastic bags containing the cannabis as stated in the charge.

13.              The High Court found the appellant guilty of the charge and accordingly sentenced him to death.

14.              In following the Muhammed bin Hassan case (supra), the Court of Appeal reduced the charge to possession under section 6 of the Act punishable under section 39A(2) of the Act.  The appellant was accordingly sentenced to 18 years imprisonment from the date of arrest on 4^th July 1996 and to ten strokes of whipping.

 

 

15.              In Muhammed bin Hassan, this court made a finding that:

 

 

“to come to the presumptions of possession and knowledge under section 37(d) of the Act, one need only to arrive at a finding of having had “in custody or under … control anything whatsoever containing” the drug whereas to arrive at the presumption of ‘trafficking’ under section 37(da), a finding of being “in possession” of the drug is necessary.  It would therefore be unduly harsh and oppressive to construe the automatic application of presumption upon presumption.  Such a construction ought to be adopted only if, upon the wordings of the two subsections, such an intention of the Parliament is clear, which here is not.  Therefore, to constitute “possession” under section 37(da) of the Act, so as to be capable of forming one of the ingredients thereunder giving rise to the presumption of trafficking, there must be an express affirmative finding, not only a legal presumption, of possession as understood in criminal law, based on evidence.  The word ‘found’ in section 37(d) of the Act must bear the same meaning as the word ‘found’ in section 37(da) of the Act.  Both require evidential materials in attaining proof thereof and are different from the word “deemed” employed in section 37(d) of the Act.  Moreover, to read the presumption of possession provided in section 37(d) into section 37(da) so as to invoke against an accused a further presumption of trafficking would not only be ascribing to the phrase “found in possession” in section 37(da) a meaning wider than it ordinarily bears but would also be against the established principles of construction of penal statutes and unduly harsh and oppressive against the accused.  Any ambiguity in section 37(da) should be resolved in favour of the accused by placing the burden of proving possession of the substances involved on the prosecution.  The trial judge had therefore erred in law by using the presumption of possession under section 37(d) of the Act to invoke the presumption of trafficking under section 37(da) thereof.”.

 

 

16.              At the outset, learned counsel for the second appeal objected to the seven member panel reviewing the decision in Muhammed bin Hassan as it had already been done by a five man Bench in Tunde Apatira & Ors v Public Prosecutor (2001) 1 MLJ 259.

17.              There, the main argument of the appellants rested on the complaint that the approach adopted by the trial court and the Court of Appeal ran contrary to the decision of the court in Muhammed bin Hassan.  The appellants there had complained that both courts below had resorted to the presumption under section 37(da) of the Act after invoking the presumption under section 37(d) thereof.  However, the learned deputy public prosecutor argued that even if the direction in Muhammed bin Hassan was not applied in that case, it makes no difference to the final result of the case.

18.              In that case, this court said:

 

“The learned deputy provided two responses to the appellants’ submissions.  He first submits that Muhammed bin Hassan was wrongly decided and ought no longer to be followed.  His second submission is that even if this court correctly interpreted s 37(da) of the Act in Muhammed bin Hassan, the failure of the courts below in the present case to adhere to that interpretation occasioned no miscarriage of justice to the appellants before us.

 

          With respect, we are unable to accept the learned deputy’s invitation to depart from Muhammed bin Hassan for three reasons.  In the first place, Muhammed bin Hassan is a very recent decision of this court.  It is bad policy for us as the apex court to leave the law in a state of uncertainty by departing from our recent decisions.  Members of the public must be allowed to arrange their affairs so that they keep well within the framework of the law.  They can hardly do this if the judiciary keeps changing its stance upon the same issue between brief intervals.  The point assumes greater importance in the field of criminal law where a breach may result in the deprivation of life or liberty or in the imposition of other serious penalties.  Of course, if a decision were plainly wrong, it would cause as much injustice if we were to leave it unreversed merely on the ground that it was recently decided.  In a case as the present this court will normally follow the approach adopted by the apex courts of other Commonwealth jurisdictions as exemplified by such decisions as R v Shivpuri [1986] 2 All ER 334.

 

          The second reason is closely connected to the first.  It also has to do with certainty in the law.  The decision in Muhammed bin Hassan has been affirmed by our courts (see, PP v Ong Cheng Heong [1998] 6 MLJ 678) and convictions have been quashed by this court acting on its strength.  See, for example Haryadi Dadeh v PP [2000] 4 MLJ 71.  If we accept the learned deputy’s invitation to depart from Muhammed bin Hassan, it will throw the law into a state of uncertainty and cast doubt on the accuracy of the pronouncements made in those cases that have so recently applied the interpretation formulated in that case.  It is bad policy for us to keep the law in such a state of flux especially upon a question of interpretation of a statutory provision that comes up so often for consideration before the court.

 

          Lastly – and this is the most important reason – we agree with the interpretation placed by the learned Chief Judge of Sabah and Sarawak on s 37(da) of the Act.  The logic and reasoning for interpreting that subsection in the way in which it was done in Muhammed bin Hassan appear sufficiently from the judgment in that case.  It requires no repetition.  All we need say is that para (da) of s 37 is differently constructed from para (d) of that section and must therefore carry an (sic) different meaning.  As the Act is a penal statute, any ambiguity in language should be resolved in an accused’s favour: Sweet v Parsley [1970] AC 132.

 

          For the foregoing reasons, we reject the argument of the respondent to the effect that Muhammed bin Hassan was wrongly decided and ought no longer to be applied.

 

          The alternative submission of the learned deputy is that even if the direction in Muhammed bin Hassan was not applied in the present case, it makes no difference to the final result.  This is a far more formidable argument.”.

 

 

 

 

19.              Learned counsel also referred to Dalip Bhagwan Singh v Public Prosecutor (1998) 1 MLJ 1 where this court, in dealing with the issue of whether an earlier or later decision of this court should be followed, said:

 

          “In our local context, the Federal Court is to be substituted for the House of Lords with regard to the matter under discussion.

 

          In this connection, it is interesting to refer to Cassell & Co v Broome [1972] AC 1027 at p 1054.  It was held that courts in the lower tiers below the Court of Appeal could not rely on the per incuriam rule applied by the Court of Appeal for itself, but could choose between two conflicting decisions.  We may add that they may so choose, whatever the dates of the conflicting decisions, as such dates do not matter to the Court of Appeal itself.

 

          The rule of judicial precedent in relation to the House of Lords was stated in London Tramways v London County (1898) AC 375 that it was bound by its own previous decision in the interests of finality and certainty of the law, but a previous decision could be questioned by the House when it conflicted with another decision of the House or when it was made per incuriam, and that the correction of error was normally dependent on the legislative process.

 

          However, in 1966, Lord Gardiner LC made the following statement on behalf of himself and all the Lords of Appeal in Ordinary commonly known as the Practice Statement (Judicial Precedent) 1966 which is set out below:

 

 

Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases.  It provides at least some degree of certainty upon which individual can rely in the conduct of their affairs, as well as a basis for orderly development or legal rules.

 

          Their Lordship nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law.  They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.

 

          In this connection, they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especially need for certainty as to the criminal law.

 

          This announcement is not intended to affect the use of precedent elsewhere than in this House.

 

Experience in the United Kingdom has shown that the power ‘to depart from a previous decision when it appears right to do so’ has been used very sparingly.

 

          In Malaysia, the Federal Court and its forerunner, ie the Supreme Court, after all appeals to the Privy Council were abolished, has never refused to depart from its own decision when it appeared right to do so: see the above-mentioned Federal Court’s cases on the question of burden of proof at the close the prosecution’s case.

 

          Though the Practice Statement (Judicial Precedent) 1966, of the House of Lords is not binding at all on us, it has indeed and in practice been followed, though such power to depart from its own previous decision has been exercised sparingly also.  It is right that we in the Federal Court should have this power to do so but it is suggested that it should be used very sparingly on the important reason of the consequences of such overruling involved for it cannot be lost on the mind of anybody that a lot of people have regulated their affairs in reliance on a ratio decidendi before it is overruled.  In certain circumstances, it would be far more prudent to call for legislative intervention.  On the other hand, the power to do so depart is indicated (subject to a concurrent consideration of the question of the consequences), when a former decision which is sought to be overruled is wrong, uncertain, unjust or outmoded or obsolete in the modern conditions.

 

          In this connection, the question of a ‘full court’ or a panel of Federal Court comprising more than three members as compared with the ordinarily constituted coram of three members of the same court, arises for consideration.  In view of the reasons about departing from its previous decisions advanced above, the effect or weight of a decision of a ‘full court’ and that of an ordinary coram is the same by necessary implication.  A full court or a panel larger than the ordinary coram is usually indicated such as when an unusually difficult or controversial question of law is involved, or a question arises as to whether a previous decision of the Federal Court ought to be overruled.

 

          If the House of Lords, and by anology, the Federal Court, departs from its previous decision when it is right to do so in the circumstances set out above, then also by necessary implication, its decision represents the present state of the law.  When two decisions of the Federal Court conflict on a point of law, the later decision therefore, for the same reasons, prevails over the earlier decision.”.

 

 

20.              The contention of the learned deputy was that they were not asking for a review nor the bigger coram but was in fact coming in with new arguments not raised before.

21.              On that basis, we decided to proceed with the two appeals and reexamine the decision in Muhammed bin Hassan.

22.              Let us revert to the finding in Muhammed bin Hassan where the judgment states at pages 287 to 289 as follows:

 

“In deciding this issue, it is necessary, first and foremost, to bear in mind that both sub-ss. (d) and (da) of s.37 of the Act, being penal provisions, must be strictly construed, and must not be extended beyond their clear meaning.  Liew Sai Wah v. PP [1968] 2 MLJ 1 PC; PP v Leong Kuai Hong [1981] 1 MLJ 246.  See also Stenhenson v. Higginson [1851] 3 HL Cas 638 where Lord Truro observed (at p 686):

 

… but in a penal enactment, where you depart from the ordinary meaning of the words used, the intention of the Legislature that those words should be understood in a more large or popular sense, must plainly appear.

 

And, in R v. Cuthbertson [1980] 2 All ER 401 where a forfeiture provisions in the Misuse of Drugs Act 1971 (English) was called for construction, Lord Diplock observed (at p 404)

 

The fact that the section is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broader than that they would ordinarily bear.

 

The wordings of sub-ss. (d) and (da) of s. 37 are clear and unequivocal.  That being so, their meanings must be determined from the language employed and the two subsections must be taken to mean exactly what they respectively say.  Also, generally speaking, if the words in a statute admit of two interpretations, then they are not clear, and if one interpretation is more favourable to an accused than the other, the court will adopt the one more favourable to the accused.

 

Since the literal meanings of the two subsections are intelligible, they must not be extended on the ground that there has been a slip or a matter not provided for which should have been provided for.  Any ambiguity or slip would be a matter for the Legislature.  In Magor And St. Mellons Rural District Council v. Newport Corp [1952] AC 189 Lord Simonds observed (at p 191):

 

The duty of the court is to interpret the words that the legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited …  If a gap is disclosed, the remedy lies in an amending Act.

 

In our view, there is a clear undeniable distinction between the word “deemed” used in s. 37(d) and the word “found” employed in s. 37(da) of the Act.  The ‘deemed’ state of affairs in s. 37(d) (ie deemed possession and deemed knowledge) is by operation of law and there is no necessity to prove how that particular state of affairs is arrived at.  There need only to be established the basic or primary facts necessary to give rise to that state of affairs, ie the finding of custody or control.  Such presumptions as under s. 37(d) (and, for that matter, the one under s. 37(da)) are sometimes described as “compelling presumptions” in that upon proof of certain facts by a party (in our present case, proof of custody or control in s. 37(d) by the prosecution), the court must in law draw a presumption in its favour (ie presumptions of possession and knowledge) unless the other party proves the contrary.  Such a presumption has the compelling force of law.  It is a deduction which the law requires the trial court to make.  On the other hand, the word “found” in the opening phrase of s. 37(da) connotes a finding after a trial by the court.

Furthermore, the basic` or primary facts needed to raise “deemed” possession and “deemed” knowledge under s. 37(d) of the Act and those required to raise “presumed … trafficking” under s. 37(da) are different.  To come to the presumptions of possession and knowledge under s. 37(d), one need only to arrive at a finding of having had “in custody or under … control anything whatsoever containing” the drug (as opposed to the drug itself) whereas to arrive at the presumption of “trafficking” under s. 37(da), a finding of being “in possession” of the drug is necessary (in addition, of course, to proof of the relevant minimum quantity specified).  In view of the above differences, it would be unduly harsh and oppressive to construe the automatic application of presumption upon presumption as contended by the learned deputy public prosecutor – a construction that ought to be adopted only if, upon the wordings of the two subsections, such an intention of the Parliament is clear, which, in our opinion is not. ”. 

 

 

23.              It was the view of the learned Deputy in the second appeal that since section 37(da) of the Act was added in only in 1977, it should have been numbered as section 37(k) of the Act instead of being placed immediately after section 37(d) of the Act if the intention was for them not to be read in tandem.  To my mind, it was more because of the contents of section 37(d) and section 37(da) of the Act themselves that it became more appropriate to place them one after the other.  As for the need to read in tandem, it is my view that all the paragraphs in section 37 of the Act have to be read in tandem irrespective of their placing.

24.              Now, what does section 37(d) of the Act say?  Any person who is found to have had in custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of that drug and shall, until the contrary is proved, be deemed to have known the nature of such drug.  If he has custody or control, he is deemed to be in possession and deemed to know the nature of the drug.

25.              As for section 37(da) of the Act, it does not start with “any person who is deemed in possession” shall be presumed to be trafficking, in which case it will be considered a consequence of section 37(d) of the Act.  Instead, the word “found” is inserted and so there must be a finding of possession first before the presumption of trafficking comes about.  It is, therefore, my considered opinion that the decision in Muhammed bin Hassan is correct.

26.              The next question to consider is whether the decision in Muhammed bin Hassan is retrospective.  In Abdillah bin Lobo Khan v PP (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.”.

 

 

 

 

 

 

 

27.              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 unconstitutional and void as being an infringement of the provisions of article 121(1) and applied the doctrine of prospective overruling so as not to give retrospective effect to the declaration made with the result that all proceedings of convictions or acquittals which had taken place under that section prior to the date of our judgment in this matter would remain undisturbed and not be affected, and the appeal was dismissed on this basis.”.

 

 

 

 

 

28.              The principle enunciated in Public Prosecutor v Dato Yap Peng (supra) seems to indicate that, unless there is a prospective ruling, any decision will also affect all cases disposed of before that decision.  To my mind, the correct proposition would be that any decision made, without the necessity of a prospective ruling, can apply only to pending cases irrespective of whether at first instance or at the appellate stage.  It certainly does not apply to cases already disposed of at the highest appellate level.

Dated 3^rd February 2005

 

 

                                                                 (ABDUL MALEK AHMAD)

                                                                          PRESIDENT

                                                              OF THE COURT OF APPEAL

                                                                           MALAYSIA

 

 

 

 

Dates of Hearing:         30^th August and 1^st September 2004

 

Date of Decision:                   3^rd February 2005

 

 

 

 

 

 

 

 

 

 

Counsel:

 

05-40-2002(W) and 05-41-2002(W):

 

Timbalan Kanan Pendakwa Raya Dato’ Mohd Yusof bin Zainal Abiden for the appellant and cross respondent

(Attorney General’s Chambers)

 

Gurbachan Singh s/o Bagawan Singh (Kartar Singh and Amrit Pal Singh with him) for the respondent and cross appellant

(Solicitors:  M/s Bachan & Kartar)

05-70-2002(P) and 05-68-2002(P)

 

Karpal Singh (Jagdeep Singh Deo with him) for the appellant and cross respondent

(Solicitors:  M/s Karpal Singh & Co)

 

Timbalan Pendakwa Raya Shamsul Sulaiman for the respondent and cross appellant

(Attorney General’s Chambers)