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[1984] Part 6 Case 14 [HCM] |
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www.ipsofactoJ.com/archive/index.htm
[1984] Part 6 Case 14 [HCM] |
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HIGH COURT OF MALAYA |
Public Prosecutor
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Hun
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Coram EDGAR JOSEPH JR J |
4 JUNE 1984 |
Judgment
Edgar Joseph Jr
This Revision, which I heard five days ago, at the behest of the defence, is a direct result of two separate Orders for Transmission of the above mentioned cases from the Sessions Court to the High Court made by the learned President pursuant to s 41A(1) of the Dangerous Drugs Act, 1952 (Act 234) (Revised 1980) (“the Principal Act”) which were pending trial before him and are now comprised and registered in this court as Criminal Trial Nos 17/84, 14/84 and 18/84, respectively.
The dominant question of law of general public importance, arising and common to all three cases, is a broad one, and may be stated thus: “Whether ss 15 and 16 of the Dangerous Drugs (Amendment) Act, 1983 (“the Amending Act”) which confer exclusive jurisdiction on the High Court to try offences in contravention of s 39B(1) of the Principal Act has the effect of taking away the jurisdiction of the Sessions Court even with regard to cases pending trial before the latter prior to the coming into force of the Amending Act?”
Before its amendment, s 39B(2) of the Principal Act which prescribed the penalty for trafficking in a dangerous drug and its kindred offences in contravention of s 39B(1), read as follows:
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Any person who contravenes any of the provisions of sub-s (1) shall be guilty of an offence against this Ordinance and shall be punished on conviction with death or imprisonment for life and shall if he is not sentenced to death, also be liable to whipping. |
After its amendment, by s 14 of the Amending Act, the words “or imprisonment for life and shall if he is not sentenced to death, also be liable to whipping” were deleted thus providing for the mandatory death sentence upon conviction for all offences in contravention of s 39B(1) of the Principal Act so that it now reads as follows:
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Any person who contravenes any of the provisions of sub-s (1) shall be guilty of an offence against this Ordinance and shall be punished on conviction with death. |
Before its amendment, sub-s (1) of s 41 of the Principal Act read as follows:
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A Sessions Court shall have jurisdiction to try all offences under this Act and to impose the full punishment or penalty provided for any such offence by this Act or by any regulations made thereunder, except the penalty of death. |
After its amendment, by s 15 of the Amending Act, there was substituted the following subsection:
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A Sessions Court or a Magistrate’s Court presided over by a Magistrate of the First Class shall have jurisdiction to try any offence under this Act, except an offence under s 39B, and power to impose in any offence so tried the full punishment or penalty provided for that offence by this Act or by any regulations made thereunder, other then, in the case of a Magistrate’s Court, imprisonment exceeding five years. |
After its amendment, by s 16 of the Amending Act, the words “is triable exclusively by the High Court or “were inserted immediately after the words “under this Act,” so that sub-s (1) of s 41 now reads as follows:
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Where any case in respect of an offence under this Act is triable exclusively by the High Court or is required by the Public Prosecutor to be tried by the High Court, the accused person shall be produced before the appropriate subordinate court which shall after the charge has been explained to him transmit the case to the High Court without holding a preliminary enquiry under Chapter XVII of the Criminal Procedure Code and cause the accused person to appear or be brought before such court as soon as may be practicable. |
The very first issue which arises for the determination of this court is whether the amendments effected by ss 15 and 16 of the Amending Act have retrospective effect.
It is true that it is not unknown for Parliament to legislate with retrospective effect so that the law of tomorrow becomes the law of yesterday. It is equally true that no one has a vested right in procedure. (Public Prosecutor v Dato Harun Idris [1977] 1 MLJ 14. However, this rule of construction is subject to the important qualification that where rights are vested in or accrued to a party they are not affected by a repeal or amendment to statute even if it relates to procedure.
The question which arises on this part of the case is whether the accused persons in Criminal Trial Nos 13, 14 and 18 of 1984 had a vested or accrued right to be tried by the Sessions Court prior to the date of the coming into force of the Amending Act.
This is a matter of the utmost gravity because if the question is answered in favour of the accused persons, then, if convicted, they could only be sentenced to life imprisonment and, in addition, be liable to whipping, whereas, in a High Court trial ending in a conviction, they would be liable to a sentence of death or life imprisonment with or without whipping. In practice, in the absence of very extenuating circumstances, such a conviction following a High Court trial would attract the death sentence: see Chang Liang Sang v Public Prosecutor [1982] 2 MLJ 231.
It may also be said, though I do not place undue stress on this, that in the case of a trial originating in the Sessions Court, the accused has two rights of appeal, one to the High Court and a limited right of appeal by way of a reference to the Federal Court under s 66(1) of the Courts of Judicature Act, 1964, whereas, in a trial originating in the High Court there is only one right of appeal to the Federal Court.
This brings me to a consideration of a history of the proceedings in all three cases.
In the case of Criminal Trial No 13/84, all three accused persons were first produced on 3 July 1978 before the President, Sessions Court, when they were charged, no plea being taken, and the case fixed for further mention on 24 July 1978.
Thereafter, they were produced at intervals of not more than one week on numerous occasions until 24 November 1978 when the first and second accused claimed to be tried and the Prosecuting Officer applied for, and was granted, an order of discharge not amounting to an acquittal insofar as the third accused was concerned. The record provided does not show why he did so but, be that as it may, he then applied, successfully, for the case to be transmitted to the High Court under s 41A(1) of the Act.
The next entry in the record is dated 19 April 1982! This leaves a yawning gap of nearly three-and-a-half years and I am left to guess what happened during that interval. Be that as it may, on that day, pursuant to Consents to Prosecute signed by the learned Deputy Public Prosecutor under s 39B(3) dated 22 March 1982, the first and second accused were again charged in the Sessions Court and the case fixed for hearing on 11 October 1982.
Thereafter, they were produced at not more than weekly intervals, on numerous occasions, until 11 October 1982 when they were joined in the dock, once again, by the third accused and when a final postponement to 23 & 24 March 1983 for the hearing, was granted upon application by the defence. However, the trial did not proceed on that day as, again, one of the defence counsel was engaged in the High Court and another was in England.
At long last, on 20 October 1983 a joint trial of all three accused persons commenced after they had each claimed trial and, one witness, Sgt Maj Mokhtar, gave evidence. The case was then again postponed to 21 October 1983. On that day, upon the request of the prosecution, the court granted yet another postponement to 21, 22, 23 November 1983 for continued hearing, “as the investigating officer is on a field job and cannot be traced for the moment.” Again, the case did not proceed for hearing on the appointed continuation dates, as the court was engaged in a corruption case and one of the defence counsel was engaged in the High Court. This time the case was adjourned for continued hearing on 3–4 April 1984.
Thereafter, the accused were produced at not more than weekly intervals until 3 April 1984 when, on the request of the court, the prosecution and the defence were invited by the President, Sessions Court, to make submissions as to whether the court had jurisdiction to try the cases. The case was then adjourned to 12 April 1984 for this purpose. On that day, however, the case was again postponed to two days later for reasons which do not appear in the record. On 14 April 1984 after hearing submissions by both the prosecution and the defence, the prosecution having taken the stand that the unreported judgment of Shaikh Daud, J in Kuantan Criminal Trials Nos 1 & 4 of 1984 “being on all fours with the case before this court, the prosecution feels bound by that decision,” the learned President transmitted the case to the High Court for trial, even though there was no requisition for this by the Public Prosecutor.
From the above history, it is patently clear that the cases comprised in Criminal Trial No 13/84 could easily have been disposed of long before the Amending Act came into force had all concerned displayed a more responsible attitude.
I cannot leave this part of the case without recording my grave displeasure at the intolerable delay in the disposal of these cases. They have not only occasioned grave injustice to the accused persons by keeping them in suspense whilst in custody for nearly five years but are also a public scandal. I can only express the pious hope that nothing of the sort will happen again.
So far as the cases comprised in Criminal Trials Nos 14 & 18/84 were concerned, all three accused persons first appeared before the President, Sessions Court, on 16 December 1982 when they were charged, the cases postponed to 17 February 1983 for further mention and a further remand order made.
Thereafter, they were produced on numerous occasions, at intervals not exceeding one week, until 15 March 1983 when the case was again mentioned, the charge amended, and pursuant to a Consent to Prosecute marked P1, dated 10 March 1983 the case set down for hearing on 17 January 1984 and a further remand order made. They were then produced at intervals of not more than one week, on numerous occasions, each time with the necessary remand orders. However, on 10 January 1984 upon being further remanded, the date of hearing was altered to 2–4 March 1984. The record does not show why. Again, there were the usual productions at intervals of not more than one week for the necessary remand orders.
However, on 2 April 1984 the case was not heard but merely stood down. Later that day, at about 10.41am, the President noted that he had perused his minutes in Arrest Case No 135/82 and, having done so, he adjourned the case to 12 April 1984 but, it was not until 14 April 1984 that the accused were next produced. They were all represented by counsel and the court made a similar order of transmission to the High Court as in the case of Criminal Trial No 13/84 even though there was no requisition for this by the Public Prosecutor.
I must now examine the legal position to determine whether s 30(1) of the Interpretation Act, 1967, applies so as to render invalid the orders of transmission. The sub-section reads as follows:
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The repeal of a written law in whole or in part shall not —
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It should be noted at the outset that unlike the UK Interpretation Act of 1889 ours does not provide that a repeal is to have certain savings only if a contrary intention does not appear in the repealing Act. The importance of this is exemplified by cases such as Lewis v Hughes [1916] 1 KB 831; Henshall v Porter (1923) 39 TLR 409 and Kay v Goodwin (1830) 6 Bing 576; 130 ER 1403.
The next preliminary matter which deserves notice is s 2(1) of Act 40/68 which provides that the Interpretation Act
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(1) |
... shall apply for the interpretation of and otherwise in relation to —
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(2) |
This Act shall not apply for the interpretation of or otherwise in relation to any written law not enumerated in sub-s (1). |
The Principal Act and the Amending Act must both therefore fall to be construed in accordance with the Interpretation Act.
I now turn to consider ss 15 and 16 of the Amending Act which, as has been seen, transfer the forum of trial of all offences under s 39B(2). of the Principal Act from the Sessions Court to the High Court.
Nearly eighty years ago the Judicial Committee of the Privy Council in Colonial Sugar Co v Irving [1905] AC 369 had to consider the question whether a statute which took away a right of appeal was to be regarded as a matter of procedure. Their Lordships held that it could not be so regarded. The timetable of events was this: the action in which the appeal was brought was commenced on 25 October 1902 the Judiciary Act, 1903, which took away the power of the court below to give leave to appeal was only enacted on 4 September 1903.
Lord Macnaghten delivering the advice of the Board said this:
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As regards the general principles applicable to the case there was no controversy. On the one hand it was not disputed that if the matter in question be a matter of procedure only, the petition (to dismiss) is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the [Judiciary] Act, it was conceded that in accordance with a long line of authorities from the time of Lord Coke to the present day the appellants [the Sugar Co] would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. |
It is important to note that in their Lordships’ opinion a right of appeal vests in a suitor on the date of commencement of the action. The reason for this may be that when a litigant commences an action he acts on the expectation that a right of appeal under a law then in force will not be abrogated.
In more recent times, in India, Sir Shah Sulaiman had some interesting observations to make with regard to statutes which take away the jurisdiction of the courts. This is how His Lordship put it in the case of United Provinces v Atiqa, Begum [1940] FCR 110.
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The intention of the legislature has to be gathered from the language employed in the Act. For statutes which confer or take away legal rights, whether public or private, or alter the jurisdiction of courts of law, express and unambiguous words are necessary. No loopholes should be left for escape ... It is a well recognised rule that statutes should, as far as possible be so interpreted, as not to affect vested rights adversely, particularly when they are being litigated. When a statute deprives a person of his right to sue or affects the power of jurisdiction of a court in enforcing the law as it stands, its retrospective character must be clearly expressed. |
Then, not so long ago, in 1976, Mufti, J delivering the dissenting judgment in Ramzan v Azizi [1976] Cr LJ 897, after carefully analysing Colonial Sugar Refining Co v Irving (supra); Venugopala Reddiar v Krishnaswamy Reddiar AIR 1943 FC 24; Hazari Tewari v Mt Maktula AIR 1932 All 30; Bus Service Ltd v HB Sethna AIR 1965 Mad 149, concluded that the principle to be distilled from the cases was that where a change of forum touched a vested right statutory law providing for such alteration will not be construed retrospectively to affect that right and ended with the following telling observation:
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Merely because the amending Act provided that the power and jurisdiction of the executive magistrate shall be exclusive it does not follow that the amending Act was intended to affect the pending actions. It will perhaps be too much to hold so. |
I prefer the judgment of Mufti J to the majority judgment of Jaswant Singh CJ because the latter does not contain anything like the detailed reasoning and analysis of the cases appearing in the former. In any event, the majority judgment in the final paragraph concedes that the result would be different if the amending Act affects a fundamental right.
My conclusions as regards this part of the case are, therefore, as follows:
the provisions of the Amending Act are not retrospective by express enactment or by necessary implication;
once the accused persons in this case were charged and their cases fixed for hearing in the Sessions Court before the coming into force of the Amending Act, that gave them a vested right to trial in that court. Consequently, so far as cases such as these are concerned, ss 15 and 16 of the Amending Act can in no way deprive an accused person of this right.
I would therefore answer the question posed in paragraph two of this judgment in the negative.
I must now consider the as yet unreported judgment of Shaik Daud, J in Public Prosecutor v Jusoh Samah Nos 1 & 4 of 1984 in Kuantan Criminal Trials 1 & 4/84.
It would appear that His Lordship who did not have the advantage of an argument as full as that which counsel addressed to this court and to whom none of the authorities referred to herein except the cases of Lim Shui Wang and Mohamed Ismail (only in passing, as regards sentence) was referred ruled against the accused persons on the same question which arises on this Revision. That judgment must therefore be regarded as having been given per incuriam.
Next, his Lordship thought that s 30 of the Interpretation Act, 1967, did not apply because the Amending Act merely effected amendments and not repeals. To test this proposition it is necessary to reproduce the following provisions in s 3 of the Interpretation Act:
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The following words and expressions have the meanings hereby respectively assigned to them, that is to say — “amend” includes repeal, add to and vary; “repeal” includes rescind, revoke, cancel and replace. |
Three considerations must be kept in mind before ss 15 and 16 are examined to determine whether they effect repeals.
First, an Amending Act may effect a repeal since the word “amends” includes repeals though it is true this is not necessarily so as the word “includes” is a word of extension and not of definition: Dilworth v Stamps Commr; Dilworth v Income Tax Commr [1899] AC 99, 105–106.
Second, a repeal of a written law may be in whole or in part. This is clear from the opening words of s 30(1) of the Interpretation Act which reads:
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The repeal of a written law in whole or in part shall not — ... |
and from s 35(2) of the Interpretation Act which provides:
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Where any written law or any provision of a written law is repealed... |
Third, a repeal need not be express and can even be implied. This would be so where, for example, the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one that the two cannot stand together (per Smith, LJ in Kutner v Phillips [1891] 2 QB 267, 272).
Clearly, s 14 of the Amending Act, which it will be recalled provides for the deletion of the option of life imprisonment with liability to whipping, is an express repeal within s 3 of the Interpretation Act as I take it that the word “delete” means “cancel”. Similarly, the “ substitution” of a new s 41(1) by s 15 of the Amending Act operated to “replace” the old s 41 (1) in the Principal Act.
Again, the effect of s 16 of the Amending Act which it will be recalled provided for insertion of the words “is triable exclusively by the High Court or” operated to take away or “revoke” or “cancel” the jurisdiction previously enjoyed by the Sessions Court and to vest it in the High Court. It is therefore in every sense a repeal within the meaning of s 3 of the Interpretation Act.
A further reason given by Shaik Daud, J for holding in favour of ouster of the jurisdiction of the Sessions Court was that whereas s 7(1) of the Dangerous Drugs (Amendment) Act, 1978, (Act 426) made transitional provisions for preliminary enquiries pending in the Magistrates’ Courts and trials pending in the High Courts, the Amending Act was silent as to such matters.
Section 7(1) of Act A426 reads as follows:
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Where, immediately before the commencement of this Act, —
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With respect, I am of the opposite opinion. The Act A426 whilst making transitional provisions for pending preliminary enquiries and trials in the High Court studiously refrained from touching on trials pending in the Sessions Courts. The irresistible inference is that trials pending for hearing in the Sessions Courts were to proceed without interruption.
Bearing this in mind, it is also an irresistible inference that Sessions Court jurisdiction in respect of trials pending for hearing was to continue unabated upon the coming into force of the Amending Act since it, too, studiously refrained from making any mention of them.
The modern trend of judicial construction of statutes shows that generally, courts lean in favour of a beneficial rather than a strict construction and I find support for this in the following passage in Maxwell on Interpretation of Statutes, 11th Ed pp 274 & 275:
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The tendency of modern decisions, upon the whole, is to narrow materially the difference between what is called a strict and a beneficial construction. All statutes are now construed with a more attentive regard to the language, and criminal statutes with a more rational regard to the aim and intention of the legislature, than formerly. It is unquestionably right that the distinction should not be altogether erased from the judicial mind, for it is required by the spirit of our free institutions that the interpretation of all statutes should be favourable to personal liberty, and this tendency is still evinced in a certain reluctance to supply the defects of language, or to eke out the meaning of an obscure passage by strained or doubtful influences. The effect of the rule of strict construction might also be summed up in the remark that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. But it yields to the paramount rule that every statute is to be expounded according to its expressed or manifest intention and that all cases within the mischief aimed at are, if the language permits, to be held to fall within its remedial influence. |
A most helpful illustration of the application of the rule of beneficial construction is to be found in the following passage of the judgment of Ungoed-Thomas J in Re Maryon-Wilson’s Will Trusts [1968] Ch 268, 282:
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If the court is to avoid a statutory result that flouts common sense and justice it must do so not by disregarding the statutes or overriding it but by interpreting in accordance with the judicially presumed parliamentary concern for common sense and justice. |
Before I leave this part of the case, mention must be made of a parallel right conferred on the Attorney General to elect in which court, whether the High Court or the Sessions Court, to prosecute persons charged under s 39B(1) of the Act. That he had such a right under Article 145(3) prior to the Amending Act has been well-settled: see Public Prosecutor v Lim Shui Wang [1979] 1 MLJ 65, 67. That he had such a right independently of Article 145(3) is clear from a reading of s 41(1) and (2) of the Act prior to its amendment. That he continues to enjoy this right, independently of Article 145(3), by reason of the effect of s 30(1) of the Interpretation Act on ss 15 and 16 of the Amending Act, I have no doubt. Consequently, the Orders for Transmission to the High Court herein-before referred to, having been made in the absence of a requisition by the Public Prosecutor under s 41(2) of the Act, were made in derogation of this right and are, on this ground, too, invalidated.
On a further ground, also, the dominant question of law posed at the outset of this judgment must be answered in favour of the accused persons.
Assuming ss 15 and 16 of the Amending Act have retrospective operation and the saving provisions of s 30(1) Interpretation Act do not apply to confer upon these accused persons the right to trial in the Sessions Court, then, I consider it necessary to state my views regarding the relevance of Article 7(1) of the Constitution. I do so despite the fact that when I invited Mr. Karpal Singh, who argued the case for the accused persons, to address me on this question he thought it did not assist him. With respect, it does.
A careful reading of the statutory provisions of the Principal Act and the Amending Act, reproduced above, will show that the primary purpose of the Amending Act was to substitute the mandatory death sentence for the offence of trafficking in a dangerous drug and its kindred offences in lieu of the previous punishment provided which was death or imprisonment for life and liability to whipping. The other amendments relating to the ouster of the jurisdiction of the Sessions Court to try such offences being merely consequential to such primary purpose.
In arriving at this conclusion I have merely taken into account the history of the legislation without giving any consideration to cl 12 of the Explanatory Statement although it confirms this view since it reads:
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Clause 14 seeks to alter the existing punishment of death or imprisonment for life for the offences of trafficking in a dangerous drug, offering to traffic in a dangerous drug or doing or offering to do an act preparatory to or for the purpose of trafficking in a dangerous drug, to a punishment of death only, and cll 15 and 16 seek to amend ss 41 and 41A to effect consequential changes. |
This brings me to the case of Public Prosecutor v Mohamed Ismail [1984] 1 MLJ 134, a prosecution for trafficking in a dangerous drug in contravention of s 39B(1) of the Principal Act, in which I had to consider the question of law, “what is the material date for determining sentence for offences under s 39B(1), is it the date of offence or date of conviction?” and I concluded, on the authority of the Privy Council case of Baker v The Queen [1975] 3 All ER 55, 57–58, that it is the date of conviction. The effect of this was that prima facie, there being no saving clause in the Amending Act to the effect that this amendment shall not apply to offences committed prior to the date of its coming into force, I held that s 39B(2) is retrospective.
However, so far as such offences were concerned, I was of opinion, fortified by another passage in the judgment of Lord Diplock in Baker, at p 61 b to f, that it violates Article 7(1) of our Constitution as it subjected such accused persons to greater punishment than was prescribed by law at the time the offence was committed.
On reflection, I see no reason to depart from anything I said in Mohamed Ismail (supra) and, indeed, I am further fortified in that view by the decision of the Indian Supreme Court in Re Special Courts Bill, 1978 AIR 1979 SC 478, 482, which lays down, inter alia, the proposition that a law may be valid in respect of offences alleged to have been committed during a particular period and yet invalid as being unconstitutional insofar as it covered offences committed before that period.
Now, how is all this relevant to the question arising on this Revision? It is relevant in this way: if the primary amendment introducing the mandatory death sentence, so far as pre-amendment offences are concerned, violates Article 7(1), then, surely the consequential amendments as to jurisdiction effected by ss 15 and 16 of the Amending Act, must, even if they are retrospective, be likewise fatally vitiated. They are, after all, fruits of the poisoned tree.
In my search for authorities I have uncovered certain cases which I consider germane to this issue.
In Attorney General for British Columbia v Attorney General for Canada [1937] AC 377, 388–389, the Judicial Committee of the Privy Council held that the Natural Products Marketing Act, 1934, of the Parliament of Canada, invaded the separate legislative preserve of the Provinces and could not be saved. A peculiar feature was that some of the Provinces supported marketing schemes such as could be established under the Act and had set up their own Provincial schemes, but since the Act affected intra-Provincial opportunity as well as intercourse between Provinces and since the ultra vires part could not be exercised the whole Act had to be struck down. In that context, Lord Atkin upholding the view that the sections said to be severable were in fact incidental and ancillary to the main legislation said:
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In the first place, it appears to their Lordships that the whole texture of the Act is inextricably interwoven, and that neither s 9 nor Pt II, can be contemplated as existing independently of the provisions as to the creation of a Board and the regulation of products. ... In the second place, both the Dominion and British Columbia, in their Cases filed on this appeal assert that the sections now said to be severable are incidental and ancillary to the main legislation. Their Lordships are of opinion that this is true: and that as the main legislation is invalid as being in pith and substance an encroachment upon the Provincial rights the sections referred to must fall with it as being in part merely ancillary to it. |
And, this is what Viscount Haldane said in Re The Initiative and Referendum Act [1919] AC 935, 944:
| These considerations are sufficient to establish the ultra vires character of the Act. The offending provisions are in their Lordships’ view so interwoven into the scheme that they are not severable. The Colonial Laws Validity Act, 1865(1), therefore, which was invoked in the course of the argument, does not assist the appellants. |
And, this is what Mudholkar & Choudhuri JJ said in Ahilyabai Tiwari v RG Bapu AIR 1954 Nag 264, 266:
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It is, no doubt, a well-known principle of construction that when a law happens to be unconstitutional in part, the whole of the law does not necessarily fail. But when the valid part of a law is so clearly dependent and so inseparably connected with the invalid part that they cannot be separated without defeating the object of the statute, that part must also fall with the part which is invalid. |
As stated by Crawford at page 216 in his Statutory Construction:
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In determining separability, the test is whether the Legislature has manifested an intention to deal with a part of the subject-matter covered, irrespective of the rest of the subject-matter, if such an intention is manifest, the subject matter is separable. If the valid parts are complete in themselves and independent of the invalid parts and capable of being executed according to the intention of the Legislature, they must be sustained by the Court, notwithstanding partial invalidity. The invalid parts, however, may be dropped only where the part which is retained is fully operative as a law. And where the invalid and the valid parts are independent and essentially and inseparably connected in substance, there is a strong presumption that the Legislature would not have enacted one part without the other, and the entire statute will fall. A similar result will occur where all the provisions of an Act are connected as parts of a single scheme. In such a case, if the main object or purpose is invalid, those provisions which are incidental will also fail. But in any instance, there is a presumption that the Legislature intended for the statute or Act to be effective in its entirety, unless something in the Act indicates to the contrary. |
Finally, if contrary to my above conclusions:
Sections 15 and 16 of the Amending Act have retrospective operation;
the saving provisions of s 30(1) of the Interpretation Act do not apply, and
Article 7(1) cannot be prayed in aid of these accused persons,
then, it is my opinion, that the Attorney General having elected for trial in the Sessions Court, ss 15 and 16 come within the constitutional inhibitions of Article 145(3).
In the result, reason and justice combine to indicate that both the Orders of Transmission are illegal, void and of no effect; they are accordingly quashed, all the cases concerned restored to the Sessions Court, Penang, with a direction to hear and determine them according to law, as expeditiously as possible. The accused persons are, in the meanwhile, remanded in custody pending the final determination of their respective trials.
Cases
Public Prosecutor v Dato Harun Idris [1977] 1 MLJ 14; Chang Liang Sang v Public Prosecutor [1982] 2 MLJ 231; Lewis v Hughes [1916] 1 KB 831; Henshall v Porter [1923] 39 TLR 409; Kay v Goodwin [1830] 6 Bing 576; 130 ER 1403; Colonial Sugar Refining Co v Irving [1905] AC 369; United Provinces v Atiqa Begum [1940] FCR 110; Ramzan v Azizi [1976] Cr LJ 897; Venugopala Reddiar v Krishnaswami Reddiar [1943] AIR PC 24; Hazari Tewari v Mt Maktula (1932) AIR ALL ER 30; Bus Service Ltd v HB Sethna [1965] AIR Mad 149; Public Prosecutor v Jusoh Samah 1984; Stamps commissioner v Income Tax Commissioner [1899] AC 99; Kutner v Phillips [1891] 2 QB 267; Re Maryon v Wilson’s Will Trusts [1968] Ch 268; Public Prosecutor v Lim Shui Wang [1979] 1 MLJ 65; Public Prosecutor v Mohamed Ismail [1984] 1 MLJ 134; Baker v Queen [1975] 3 All ER 55; Attorney General for British Columbia v Attorney General for Canada [1937] AC 377; Re the Initiative and Referendum Act [1919] 935 AC 944; Ahiybai Tiwari v RG Bapu [1954] AIR Nag 264
Legislations
Dangerous Drugs Act 1952: s. 39B(1), s. 41(1)
Dangerous Drugs (Amendment) Act 1983: s. 15, s.16
Interpretation Act 1967: s.30(1)
Federal Constitution: Art. 7(1), Art.145(3)
Authors and other references
Maxwell on Interpretation of Statutes, 11th Ed
Representation
Nordin Sulaiman (DPP) for the Public Prosecutor.
D Navarednam and V Sithambaram for accused in Case S(A) 85/78.
Karpal Singh for accused in Case S(A) 167/78.
D Navarednam for accused in Cases S(A) 136/82 and Cases S(A) 135/82.
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