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DALAM MAHKAMAH PERSEKUTUAN MALAYSIA(BIDANGKUASA RAYUAN)RAYUAN JENAYAH NO. 05-44-2005 (W)LETCHUMANAN A/L SUPPIAH ... PERAYULAWANPENDAKWA RAYA ... RESPONDENRAYUAN JENAYAH NO. 05-45-2005 (W)PENDAKWA RAYA ... PERAYULAWANLETCHUMANAN A/L SUPPIAH ... RESPONDEN
[Dalam Mahkamah Rayuan Malaysia(Bidang Kuasa Rayuan)Rayuan Jenayah No. W-05-26-2000AntaraPendakwa Raya ... PerayuDanLetchumanan a/l Suppiah ... Responden]Koram: Alauddin Bin Dato’ Mohd Sheriff, PMRHashim Bin Dato’ Hj. Yusoff, HMPZulkifli Bin Ahmad Makinudin, HMP
 
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Judgment Of Hashim Bin Dato’ Hj. Yusoff, FCJ
Background
 1. The Respondent (Accused) in this appeal was originallycharged for drug trafficking under section 39B(1)(a) of theDangerous Drugs Act 1952 (‘the Act’). He was acquitted by theHigh Court at the close of the prosecution case without hisdefence being called. The Public Prosecutor then appealed tothe Court of Appeal against the High Court decision. The Courtof Appeal thereafter ordered the Respondent to enter hisdefence on a reduced charge of possession of the said drugsunder section 12(2), punishable under section 39A of the Act.Hence this appeal by the Public Prosecutor against the saidCourt of Appeal decision and a cross appeal by theRespondent against the decision of the Court of Appeal incalling for his defence on the reduced charge of possession.
Preliminary Objections
2. At the outset of the hearing of the Appeal and the cross appealbefore us, the learned DPP raised a preliminary objectionagainst the cross appeal by the Accused on the ground that he
 
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had no right of appeal as the decision of the Court of Appealhad not finally disposed off his rights yet. Similarly, the learnedcounsel for the Accused also raised objection against thePublic Prosecutor’s appeal against the Court of Appeal’sdecision of acquitting the Accused on the trafficking charge atthe end of the prosecution case and ordering the Accused toenter his defence on a charge of possession of the said drugs.3. Learned DPP’s reply to the preliminary objection by theRespondent is that the prosecution has a right of appealagainst the said decision of the Court of Appeal since by callingthe Respondent to answer on the reduced charge ofpossession, it would mean that he was acquitted from theoriginal charge of trafficking in the said drugs. In other words, itwas submitted that there was already a final disposal of thematter regarding the trafficking charge.4. On this point, learned counsel for the Respondent submittedthat while conceding that the Respondent’s appeal was notappealable because the trial of the Respondent has not beenfinally disposed of yet, the prosecution also should have noright to appeal at this stage of the trial otherwise it would mean
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