Yap Chin Hwa v Pendakwa Raya (WA-41(Ors)-5-05/2025)

Bahawa Mahkamah Yang Mulia ini mengambil maklum dan mengesahkan bahawa keputusan oleh Puan Majistret untuk menolak 5 permohonan rujukan ke Mahkamah Tinggi merupakan satu tindakan ultra vires, iaitu melangkaui bidang kuasa yang diperuntukkan kepada Mahkamah Majistret kerana persoalan mengenai kesahan undang-undang yang melibatkan isu-isu Perlembagaan hanya boleh diputuskan oleh Mahkamah Tinggi dan/atau Mahkamah Persekutuan 10 dan bukannya oleh Mahkamah Majistret.

Bahawa memandangkan tarikh perbicaraan telah ditetapkan pada 30 Julai 2025, adalah amat penting agar prosiding ini ditangguhkan demi mengelakkan prejudis serius terhadap Tertuduh, termasuk potensi 15 sabitan berdasarkan prosiding yang mungkin cacat dari segi perlembagaan, pelanggaran hak asasi Tertuduh sebagaimana dijamin di bawah Perkara 5(1) dan Perkara 8(1) Perlembagaan Persekutuan dan/atau situasi di mana isu-isu perlembagaan akan menjadi akademik dan nugatory (sia-sia) sekiranya perbicaraan 20 diteruskan lebih awal daripada keputusan Mahkamah Tinggi atau Mahkamah Persekutuan.

Lain-lain perintah atau relif selanjutnya yang difikirkan adil, wajar dan sesuai oleh Mahkamah yang Mulia ini.” 25 [4] After hearing the said application on 1.12.2025, the Court reserved judgment to 15.1.2026. Having considered the submissions and cause papers, I found no merits in the said application and at the same time I also dismissed the appeal. Dissatisfied with this Court’s 30 decisions, the Appellant filed a Notice of Appeal to the Court of Appeal on 26.1.2026. This Grounds of Judgment contains my reasons for dismissing the same. HEARING OF THE SAID APPLICATION 35 [5] The cause papers in the said application were as follows: i. Notis Permohonan dated 14.10.2025 - Encl. 1; ii. Afidavit Sokongan affirmed by the Appellant on 19.9.2025 – Encl. 2; iii. Afidavit Jawapan affirmed by DPP Mohd Shahrizzat Bin Amadan on 29.10.2025 – Encl. 7; and iv. Afidavit Jawapan affirmed by DPP Mohd Shahrizzat Bin 5 Amadan on 21.11.2025 – Encl. 15. [6] The said application was made pursuant to the relevant provisions of the CJA, alleging that there were breaches of Articles 5(1) and 8(1) of the Federal Constitution (FC) when the charge was preferred 10 against the Appellant. The Appellant’s concerns may be summarised as follows: i. as there are no explicit statutory provisions on the conversion of Breath Alcohol Level (BrAC) to Blood Alcohol Level (BAC), the practice of converting BrAC to BAC in prosecuting cases 15 under s.45A of Road Transport Act 1987 (“RTA”) is unconstitutional; ii. in light of the constitutional question posed in the said application, there is a special circumstance that warrants a stay of the criminal proceedings against the Appellant; and 20 iii. the learned magistrate had acted ultra vires when she refused to transmit the case to the High Court for the determination of the constitutional issues under s.30 of the CJA and instead went on to determine the constitutional question herself. [7] The Appellant’s counsel submitted on the issue of s.30 of CJA that: 25 i. the Magistrate Court, being a subordinate court did not have jurisdiction to determine the constitutional questions posed; ii. it was necessary for the Magistrate to stay the criminal proceeding and transmit the records of proceeding to the High Court under s.30(1) of CJA; iii. if the stay and transmission of records is granted as per s.30(1), the High Court would then would need to examine 5 such records and determine whether there are questions to be referred to the Federal Court by way of a special case stated in accordance with s.84 of CJA; iv. Under s.84 of CJA the High Court’s duty is to “state the question which in his opinion has arisen as to the effect of the 10 Constitution in the form of a special case which so far as may be possible shall state the said question in a form which shall permit of an answer being given in the affirmative or the negative” wherein the High Court was invited to do so during the hearing; and 15 v. The Appellant ought to be given the opportunity to ventilate the constitutional issues raised at the Federal Court for a final and authoritative decision. EVALUATION AND FINDINGS OF THE COURT 20 [8] For ease of reference, I have reproduced the provisions of ss.30 and 84 of the CJA as follows:

Reference of constitutional question by subordinate court

Where in any proceedings in any subordinate court any question arises as to the effect of any provision of the Constitution the presiding 25 officer of the court may stay the proceedings and may transmit the record thereof to the High Court.

Any record of proceedings transmitted to the High Court under this section shall be examined by a Judge of the Court and where the Judge considers that the decision of a question as to the effect of a provision of the Constitution is necessary for the determination of the proceedings he shall deal with the case in accordance with section 84 5 as if it were a case before him in the original jurisdiction of the High Court in which the question had arisen.

Subsections (1) and (2) shall be deemed to be rules of court for the purposes of Article 128(2) of the Constitution. … 10

Reference of constitutional question by High Court

Where in any proceedings in the High Court a question arises as to the effect of any provision of Constitution the Judge hearing the proceedings may stay the same on such terms as may be just to await the decision of the question by the Federal Court.

An order staying proceedings under this section may be made by the Judge of his own motion or on the application of any party and shall be made at such stage of the proceedings as the Judge may see fit having regard to the decision of such questions of fact as may be necessary to be settled to assist the Federal Court in deciding the 20 question which has arisen and to the speedy and economical final determination of the proceedings.

Where an order for stay of proceedings has been made under this section the Judge shall state the question which in his opinion has arisen as to the effect of the Constitution in the form of a special case 25 which so far as may be possible shall state the said question in a form which shall permit of an answer being given in the affirmative or the negative.

Where a Judge shall have stated a special case under this section the same shall be transmitted to the Federal Court in accordance with the 30 rules of court of the Federal Court. [9] The Appellant’s counsel heavily relied on the Federal Court decision in the case of Gan Boon Aun v Public Prosecutor [2016] 4 MLJ 265 in support of his argument that the Court ought to grant the 35 reliefs he sought wherein the apex court had stated: “[30] Based on the clear provision of art 128(2) of the Federal Constitution, we are of the view only the Federal Court has the jurisdiction to determine a question as to the effect of any provision of the Constitution for which the record of proceedings has been transmitted to the High Court by a subordinate court. It is noted that under art 128(2) of the Federal 5 Constitution itself it is mentioned that the Federal Court shall have jurisdiction ‘subject to any rules of court regulating the exercise of that jurisdiction’. The rules of court in this context are the relevant rules as provided for under the RFC 1995 as earlier referred to in our judgment. The High Court judge does not have the power or duty to determine 10 a question as to the effect of a provision of the constitution when the record of proceedings of the sessions court is transmitted to the High Court under s 30 of the CJA. [31] Learned DPP in his submission impressed upon us to consider the legislative history of s 84 of the CJA in its original form in s 48 of the CJA 15 before this s 48 was repealed. Learned DPP also referred to us the Parliamentary Hansards dated 16 October 1964 to consider the reasons for introducing the changes to the provision in s 84 of the CJA. The case of Gerald Fernandez v Attorney-General, Malaysia was cited to show that with the amendment the High Court has the jurisdiction and power 20 to pronounce on the constitutionality of federal and state laws. [32] With respect we are not persuaded by the argument put forward by the learned DPP that the High Court is competent to decide and rule on the constitutionality of any matter transmitted to it by a subordinate court. It is clear now reading the provisions of ss 30 and 84 of the CJA 25 together with the relevant provisions of the RFC 1995 that it is the intention of the Legislature that the jurisdiction and power is vested with the Federal Court to decide on the constitutionality of any matter that had arisen in the subordinate court and transmitted to the High Court. The High Court does not have the jurisdiction and 30 power to decide on such constitutional issue. It only has the power to decide on such issue if the issue arises for the first time before itself.” [Emphasis added] 35 [10] Nevertheless, I noted that in a later case of Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor [2020] 4 MLJ 133, in a majority decision, the Federal Court stated the following: “[255] To summarise, the following principles should be borne in mind when considering the referral jurisdiction of the Federal Court:

the referral jurisdiction in art 128(2) of the FC and s 84 of the CJA forms part of the constitutional framework, and must be construed in its light;

the Federal Court is the court of last resort in respect of constitutional issues, except those falling within its narrowly construed original jurisdiction;

s 84 does not fundamentally change the nature of the Federal Court into a constitutional court. It is not a carte blanche for all 10 constitutional questions to be referred to and determined by the Federal Court in every case. The High Court should normally determine constitutional questions themselves at first instance; and

where a special case is referred to the Federal Court under s 84, 15 the Federal Court is not obliged to answer it in the terms posed, but retains a wide range of powers to deal with it in the same way as an appeal.”. [Emphasis added] [11] It was perceived that there was a conflict between the two decisions 20 of the apex court as aforesaid, thus in the most recent case of Badan Peguam Malaysia v Yang Berhormat Perdana Menteri Malaysia, Tan Sri Dato’ Hj Mahiaddin bin Mohd Yasin & Anor [2024] 5 MLJ 56, the Federal Court held: “[15] We have examined Gan Boon Aun, Gin Poh, Khairul Azam and 25 Anwar Ibrahim, and we found there is no conflict, either latent or apparent. The Federal Court in Anwar Ibrahim had clarified the law on reference to Federal Court. Anwar Ibrahim did not hold that only the constitutional questions premised on the competency challenge point can be referred to the Federal Court. Nevertheless, Anwar Ibrahim went 30 on to explain that the HCT ‘should generally and ordinarily determine constitutional questions at first instance, barring those within the original jurisdiction of the Federal Court’ as there is no obligation on the part of the HCT, by virtue of the word ‘may’ in s 84 to refer any constitutional question arising before it to the Federal Court. Hence, the reference 35 jurisdiction is not to be exercised automatically or invariably in every case. This understanding is consistent with Gin Poh, Ah Thian and Khairul Azam. In fact, Justice Azahar Mohamed CJ (Malaya) who penned the grounds of judgment in Khairul Azam, was one of the panel members in Gan Boon Aun. In essence, where there is inconsistency challenge, such as the present case, the HCT 5 has the jurisdiction to decide on such constitutional challenge so premised.”. [Emphasis added] [12] Pursuant thereto, notwithstanding Gan Boon Aun (supra), the High Court still retains jurisdiction to decide whether a case should be 10 transmitted to the Federal Court when an application comes before it. It should also be noted that Gan Boon Aun (supra) may be distinguished on the facts because there, the Sessions Court did transmit the case to the High Court and the learned High Court judge had declined to refer the constitutional questions to the Federal 15 Court, instead the High Court had answered the question and acquitted the accused. The High Court answered the constitutional question in the affirmative instead of stating the question in the form of a special case to the Federal Court and acquitted and discharged the accused person. It was for this reason that the order was set 20 aside and remitted to the High Court for the application to be reconsidered whether it should be transmitted to the Federal Court in the form of a special case. [13] In the present case, the learned magistrate had dismissed the Appellant’s application and discussed the constitutional issue. The 25 Appellant contended the Magistrate in this case had gone beyond her jurisdiction by deciding not to transmit the questions posed. [14] This Court noted further that in Gan Boon Aun (supra), the Federal Court stated the following in regard to the duties of the presiding judge or officer when confronted with an alleged constitutional question: “[33] We would like to state here and advise all sessions court judges and magistrates when dealing with any application made by any party under s 30 of the CJA to properly ensure that there is merit in such application. 5 It may be just a frivolous application to delay the conduct of the hearing of the trial. If there is no merit in such application the case should proceed to a final conclusion of the trial. A trial should be conducted on a continuous basis without interruption and delay. A trial should not be by instalment. Likewise, High Court judges when 10 presiding to deal with matters brought before them under s 30 of the CJA should act and decide promptly and judiciously whether there is merit in such application. If the matter referred to it does not relate to constitutional issue to be determined by the Federal Court, it should be sent back to the transmitting court for speedy disposal of the 15 case. [Emphasis added] [15] Therefore, the duty of the presiding judge or officer when confronted with an application under s.30 of CJA, is to examine the alleged constitutional question in relation to the current proceedings before 20 him/her. The presiding judge or officer must be satisfied that there is merit in the constitutional question posed and if the constitutional question posed is bogus, presiding judge or officer shall proceed to continue the proceedings until the conclusion of it. Only if there is merit in the question posed that presiding judge or officer should 25 transmit the case to the High Court under s.30 of CJA. ISSUES TO BE DECIDED [16] The alleged constitutional issues raised to the High Court were as follows (as stated in the Alasan Ringkas in the said application): “6. Isu perlembagaan yang dibangkitkan adalah: 30 a. Sama ada amalan menukar kepekatan alkohol dalam nafas (BrAC) kepada kandungan alkohol dalam darah (BAC) untuk pendakwaan di bawah Seksyen 45A Akta Pengangkutan Jalan 1987 adalah tidak berperlembagaan, memandangkan had alkohol dalam nafas yang khusus dan tersendiri telah ditetapkan di bawah Seksyen 45G, yang seharusnya diguna pakai secara bebas tanpa penukaran. 5 b. Sama ada kebergantungan kepada anggaran BAC yang diperoleh daripada spesimen nafas (tanpa spesimen darah secara langsung) bagi menentukan liabiliti jenayah di bawah Akta Pengangkutan Jalan 1987 melanggar hak kebebasan diri dan proses sewajarnya seperti yang dijamin di bawah Perkara 5(1) 10 Perlembagaan Persekutuan. c. Sama ada penerapan standard keterangan yang berbeza dengan membenarkan penukaran bacaan nafas kepada BAC bagi sesetengah individu manakala yang lain tertakluk kepada spesimen darah secara langsung melanggar prinsip 15 kesamarataan di sisi undang-undang dan perlindungan yang sama di bawah Perkara 8(1) Perlembagaan Persekutuan. d. Sama ada, dalam ketiadaan kuasa statutori yang jelas di bawah Akta Pengangkutan Jalan 1987, penukaran keputusan ujian nafas kepada BAC bercanggah dengan prinsip kepastian 20 undang-undang dan kedaulatan undang-undang, sekali gus menyebabkan keterangan sedemikian tidak boleh diterima atau tidak sah secara perlembagaan dalam prosiding jenayah. e. Sama ada had alkohol dalam nafas yang ditetapkan di bawah Seksyen 45G Akta Pengangkutan Jalan 1987 harus dianggap 25 sebagai satu-satunya piawaian bagi keterangan spesimen nafas, dengan itu melarang sebarang inferens atau pengiraan BAC daripada keputusan ujian nafas dalam pendakwaan di bawah Seksyen 45A. f. Sama ada, dalam pertuduhan di bawah Seksyen 45 Akta 30 Pengangkutan Jalan 1987 kerana memandu kenderaan bermotor dengan kandungan alkohol dalam badan yang menyebabkan kadar alkohol dalam darah melebihi had yang ditetapkan, keterangan yang dikemukakan menurut Seksyen 45F, di mana kadar alkohol dalam spesimen nafas ditukar kepada kadar 35 alkohol dalam darah tanpa sebarang spesimen darah diambil, melanggar Perkara 5 dan Perkara 8 Perlembagaan Persekutuan. g. Sama ada Perkara 5 dan Perkara 8 Perlembagaan Persekutuan melarang amalan mengemukakan keterangan menurut Seksyen 45F Akta Pengangkutan Jalan 1987, di mana kadar alkohol 40 dalam spesimen nafas digunakan untuk membuktikan pertuduhan memandu kenderaan bermotor dengan kandungan alkohol dalam badan yang menyebabkan kadar alkohol dalam darah melebihi had yang ditetapkan. h. Sama ada, menurut Perkara 5 dan Perkara 8 Perlembagaan 5 Persekutuan, keterangan mengenai kadar alkohol dalam darah yang diperoleh di bawah Seksyen 45F bagi menyokong pertuduhan di bawah Seksyen 45A Akta Pengangkutan Jalan 1987 kerana memandu kenderaan bermotor dengan kandungan alkohol dalam badan yang menyebabkan kadar alkohol dalam 10 darah melebihi had yang ditetapkan, hanya boleh dikemukakan melalui spesimen darah yang diambil daripada tertuduh dan bukan melalui spesimen nafas.”. [17] From the above, the issues that this Court were to decide can be 15 summarised as follows: i. whether the learned magistrate had acted ultra vires when she refused to transmit the case to the High Court for the determination of the constitutional issues under s.30 of the CJA; ii. as there are no explicit statutory provisions on the conversion of 20 Breath Alcohol Level (BrAC) to Blood Alcohol Level (BAC), whether the practice of converting BrAC to BAC in prosecuting cases under s.45A of Road Transport Act 1987 (“RTA”) is unconstitutional; and iii. in light of the constitutional question posed in the said application, 25 whether there is a special circumstance that warrants a stay of the criminal proceedings against the Appellant. i. Whether the learned magistrate had acted ultra vires [18] The Appellant (as stated in the written submissions of his counsel) 30 was first charged for the offence on 24.1.2022. It was alleged that the case was withdrawn due to incomplete investigation and a DNAA order given. Later he was re-charged for the same offence on 10.7.2023 based on the same facts and evidence, namely, an alleged breathalyser reading of 99mg/100ml blood (converted from BrAC). No blood specimen was taken or tested but the entire charge 5 rested on the breathalyser result converted into BAC via a formula in a SIRIM verification certificate dated 11.1.2021. Therefore, it is submitted that the crux of the said application is that serious constitutional questions have arisen from the prosecution’s reliance on breathalyser (EBA II) results and a mathematical conversion of 10 BrAC to BAC for a charge under s.45A(1) of the RTA. [19] This Court referred to the Court of Appeal case in Teo Chee Kong v Public Prosecutor [2021] MLJU 1054 which stated that: “[24] Lastly, even if the questions come within the ambit of section 15 84, the High Court is not obliged in all instances to transmit the questions in the form of a special case to the Federal Court if such a course would delay the trial. The permissive “may” is employed in section 84 as pointed out in Gan Boon Aun v PP (supra). In the instant case, High Court did not refer the questions to the Federal Court for 20 another reason. The learned High Court Judge found that the application was frivolous and would delay the expeditious conduct of the trial. This finding is quite clear from her judgment. In paragraph [14] of her judgment, she quoted a passage from the judgment of Gan Boon Aun v PP (supra) where the Federal Court cautioned that an application under 25 section 30 could be a frivolous application that is intended to delay the conduct of the trial. A careful reading of section 84 would support the view an application under it need not be referred to the Federal Court if it will hamper the expeditious conduct of the trial. “Determination of the proceeding” in section 30 and 84 means final resolution of the proceedings. 30 We say so for the following reasons. Section 84(2) says that the High Court in referring the questions to the Federal Court must consider the stage of the hearing where questions of fact can be settled to assist the Federal Court in deciding the question. In addition, the same provision says that the purpose of the decision is for the speedy and economical “final” determination of the proceedings.”. [Emphasis added] [20] Alternatively, the presiding judge or officer may decide on the 5 constitutional issue because it is within his jurisdiction to do so. In Tan Hoo Eng v Public Prosecutor [2024] MLJU 2849, the Court of Appeal stated, without any reference to Gan Boon Aun (supra), the following: “[44] Contrary to the submission by Mr. Gurbachan Singh, we have no 10 hesitation to decide that a Sessions Court and First Class Magistrate’s Court (referred to collectively in this judgment as the “Subordinate Courts”) have both the “jurisdiction” and “power” to decide constitutional law questions. Our reasons are as follows:

a Sessions Court has the “jurisdiction” under s 63 SCA to “try all 15 offences other than offences punishable with death”. [Trial Jurisdiction (Sessions Court)]. There is no exception in s 63 SCA or any other provision in the SCA which states that the Trial Jurisdiction (Sessions Court) shall exclude the jurisdiction to decide constitutional law issues;

by virtue of s 85 SCA, a First Class Magistrate’s Court has the “jurisdiction” to try certain offences [Trial Jurisdiction (First Class Magistrate’s Court)]. The SCA has imposed certain limitations on the Trial Jurisdiction (First Class Magistrate’s Court) but such limitations do not preclude the First Class Magistrate’s Court from 25 hearing constitutional law questions;

reading together s 99A SCA and Paragraph 27, the Subordinate Courts have the following “powers” under written law, namely s 173(f)(i), (ii) and (m)(i) to (iii) CPC -

power pursuant to s 173(f)(i) and (ii) CPC to decide whether 30 the prosecution has proven a prima facie case of the charge against an accused person [Subordinate Court’s Power (End of Prosecution Case)]; and

power to decide whether the prosecution has proven a charge against an accused person beyond all reasonable doubt at the 35 end of the entire case [Subordinate Court’s Power (End of Entire Case)] - please refer to s 173(m)(i) to (iii) CPC.

the CPC does not state that the Subordinate Court’s Power (End of Prosecution Case) and Subordinate Court’s Power (End of Entire Case) do not include the power to decide on constitutional law 5 issues;

the jurisdiction and power of the Subordinate Courts to decide on constitutional law questions is fortified by s 30(1) CJA which provides that a Subordinate Court has a discretionary power to refer to the High Court any constitutional law issue 10 which arises in the proceedings in the Subordinate Court. Such a discretion is clear from the employment of the permissive term “may” by the legislature in s 30(1) CJA. It is thus clear that if a constitutional law question arises in a case in a Subordinate Court, the Subordinate Court has a discretion 15 to decide on the constitutional law issue or may refer such an issue to the High Court pursuant to s 30(1) CJA.

if we have accepted Mr. Gurbachan Singh’s contention that the Sessions Court has no jurisdiction to decide on constitutional law questions, this will render nugatory the discretionary 20 power conferred by Parliament on the Sessions Court under s 30(1) CJA to refer constitutional law issues to the High Court; and

the interpretation of the above statutory provisions is supported by the following judgment of Azmi LP (sitting alone 25 in an application to the Federal Court) in Yeoh Tat Thong, at p. “Apart from all that, it is my view that the High Court and indeed even subordinate courts have jurisdiction to determine any question affecting the provisions of the 30 [FC], except where the matter comes under Article 4 [FC].” [Emphasis added] [21] I have perused the grounds of judgment of the learned Magistrate in paragraphs 13 – 30 (88 – 93 of RRJ1), particularly she had 35 considered the arguments put forth by the counsel of the Appellant and explained in paragraphs 26 to 29 why she decided that there was no merit in the application for stay of proceedings and whether the questions posed should be transmitted to the Federal Court. The Magistrate had complied with the requirements of her duties as a presiding officer in that case and found that it was not a constitutional issue because the Appellant could challenge the 5 method used in determining the alcohol reading as stated in the charge through his own expert’s evidence. The Magistrate also found that the provisions of s.45C of the RTA are clear and a complete guideline on how a specimen is to be obtained. 10 [22] In a pending case no question as to the correctness or propriety of a finding can arise; consequently, the High Court can examine the proceedings of subordinate court only to satisfy itself as to their regularity: Sia Cheng Soon & Anor v Tengku Ismail Tengku Ibrahim [2008] 5 CLJ 201 (FC). From the records of appeal, I found 15 that there was no error by the Magistrate in coming to the conclusion that she had made. I did not find that the learned magistrate had acted ultra vires the FC as she only ruled that the questions posed were without merit as stated above. The Magistrate clearly understood that she possessed the jurisdiction to hear the 20 constitutional issue but she did not decide on the constitutional issue as alleged by the Appellant’s counsel. This was because at the stage of hearing the evidence from the Appellant, it was too early for her to make a ruling on the constitutionality of the conversion practice. The time for making such ruling or decision would be at the 25 end of the trial, after the defence has closed its case and the court is adjourned to deliberate on the evidence led. It was obvious to me that the Appellant had “jumped the gun” by making the said application since the trial had not been completed. Therefore, I would answer the first issue in the negative. ii. Whether the practice of converting BrAC to BAC in prosecuting cases under s.45A of Road Transport Act 1987 (“RTA”) is 5 unconstitutional [23] The Appellant’s grievance which he claimed to be breaches of Arts. 5(1) and/or 8(1) by the prosecution, stemmed from the fact that there is no explicit provision to convert BrAC to BAC and the prosecution 10 had based the charge on using BAC levels obtained from a breathalyser to prosecute the accused, notwithstanding that BrAC and BAC levels that exceed prescribed limits are respectively provided under s.45G of RTA. His counsel argued that this method of prosecution infringes the appellant right under art.5(1), especially 15 right to a fair trial, procedural fairness and arbitrary prosecution. [24] In regard to the question that since there is no explicit statutory provisions on the conversion of Breath Alcohol Level (BrAC) to Blood Alcohol Level (BAC), whether the practice of converting BrAC 20 to BAC in prosecution of cases under s.45A of Road Transport Act 1987 (“RTA”) is unconstitutional, again, I would answer that it is for the Magistrate to determine the issue upon considering all the evidence led at the trial (which is yet to be completed at this stage). Coming back to the case of Tan Hoo Eng (supra), by virtue of s.85 25 of the Subordinate Courts Act 1948, a First Class Magistrate’s Court has the “jurisdiction” to try certain offences [Trial Jurisdiction (First Class Magistrate’s Court)]. The Act has imposed certain limitations on the Trial Jurisdiction (First Class Magistrate’s Court) but such limitations do not preclude the First Class Magistrate’s Court from hearing constitutional law questions. [25] In respect of the Appellant’s grievance on the perceived breaches of Arts. 5(1) and / or 8(1) by the prosecution in using BAC levels 5 obtained from a breathalyser to prosecute the accused, notwithstanding that BrAC and BAC levels that exceeds prescribed limits are respectively provided under s.45G of RTA, it was argued that this method of prosecution infringed the appellant right under art.5(1), particularly the right to a fair trial, procedural fairness and 10 arbitrary prosecution. [26] It is trite that an accused has a constitutionally guaranteed right to receive a fair trial by an impartial tribunal and to have a just decision on the facts. Any violations of these rights would entitle him to an 15 acquittal. This Court opined that the grievance of the Appellant is undeniably a technical one that ought to be resolved by the learned Magistrate sitting at first instance. The learned Magistrate ought to make a finding of whether the practice of using BAC that is obtained from converting BrAC (without a blood sample) to prosecute a case 20 under s.45A of the RTA is allowed under the RTA in the first place. As the case is still at the defence stage, the Appellant is entitled to raise a reasonable doubt on such practice under the RTA. [27] In the event that the Magistrate decides against the Appellant after 25 trial has ended, his remedy is by way of an appeal against the Magistrate’s findings. It should not be in the form of a constitutional challenge on such prosecution method at this stage. In other words, this issue is not a constitutional issue in the first place but a technical issue under the RTA which ought to be resolved by the learned Magistrate at first instance or through an appeal. The Appellant argued that he would not be able to bring his case to the Federal Court as it would end at the Court of Appeal level if that were the 5 case. Therefore, he needed to commence the proceedings before the High Court for onward transmission to the Federal Court. [28] However, with respect, the counsel’s argument is misconceived as his client is not the only potential appellant since the Public 10 Prosecutor being the protector of public interest is also a potential litigant in the apex court. In Datuk Seri Anwar Ibrahim (supra), Nallini Pathmanathan FCJ (majority) re-iterated that: “[13] The general scheme of the FC is to empower all courts to interpret the constitution (Gin Poh Holdings Sdn Bhd v. The Government of the State of 15 Penang & Ors [2018] 4 CLJ 1; [2018] 3 MLJ 417 at [35]-[36]). The power to interpret constitutional provisions is not exclusive to the Federal Court. “The Federal Court is not a constitutional court, but as the final court of appeal on all questions of law, is the final arbiter on the meaning of constitutional provisions” (A Harding, Law, Government and the 20 Constitution in Malaysia (Kuala Lumpur: Malayan Law Journal, 1996) at p 138).”. … [15] The limits of the exclusive original jurisdiction of the Federal Court are strictly construed. This is to preserve the role of the Federal Court as 25 a final court of appeal on constitutional issues; “to extend the exclusive original jurisdiction of the Federal Court to matters which are not expressly provided by the Constitution would apart from anything else, deprive aggrieved litigants of their right of appeal to the highest court in the land”. (Rethana M Rajasigamoney v. The Government of Malaysia [1984] 30 CLJ 352; [1984] 1 CLJ (Rep) 323; [1984] 2 MLJ 52 at 54). [Emphasis added] [29] Recently, the Federal Court in the case of The Government of Malaysia v Heidy Quah Gaik Li [2026] 2 MLJ 397 held, inter alia, that: “[11] The proper forum for the respondent to raise the constitutional challenge against the impugned words was the sessions court, 5 where it would have been a relevant question in the context of the charge against her and the judge could have proceeded to either determine the question or refer it to the High Court. By filing an originating summons in the High Court instead, the respondent circumvented the proper forum in an attempt to have the question 10 determined by the Federal Court by way of a constitutional reference. This backdoor attempt to bypass the hierarchy of courts amounted to an abuse of process and a collateral attack against the ongoing sessions court proceedings. …”. [Emphasis added] 15 [30] Applying the principle above to the present case, the Court opined that the challenge by the Appellant was rightly brought at the Magistrate’s Court, which the Magistrate could have proceeded to either determine the question or refer it to the High Court. The 20 learned Magistrate had considered the issues raised before her and proceeded to determine that there was no constitutional such issue. The learned Magistrate did not refer the matter to the High Court because she could decide on the issues herself, having been given the powers under s.173(f)(i), (ii) and (m)(i) to (iii) of the CPC: Tan 25 Hoo Eng’s Case (supra). The constitutional questions posed to this Court and the Magistrate’s Court were without merit and ought to be dismissed. They are technical questions “disguised” as constitutional questions and they amounted to an abuse of process and a collateral attack against the ongoing Magistrate’s Court 30 proceedings: Heidy Quah’s Case (supra). Pursuant thereto, I would also answer the second issue in the negative. iii. Whether there is a special circumstance that warrants a stay of the criminal proceedings [31] Among the more recent case laws on stay of proceedings is the case of Datin Seri Rosmah bt Mansor v Public Prosecutor [2022] 3 MLJ 952 wherein the Court of Appeal stated the following: 5 “[5] The test of exceptional and unusual circumstances was succinctly explained by the Federal Court in the case of Public Prosecutor v Dato’ Sri Mohd Najib bin Hj Abd Razak [2019] 4 MLJ 421. [6] Briefly, in that case, the respondent was charged before the High Court with seven charges under the Malaysian Anti-Corruption Commission 10 Act 2009, the Penal Code and Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001. Three appeals were filed by the respondent when the High Court judge dismissed the respondent’s interlocutory applications which are as follows:

to secure a ‘gag order’ restraining publication of the respondent’s 15 trial;

to obtain documents other than those provided under s 51A of the

to challenge the withdrawal by the public prosecutor of a transfer certificate to transfer the case to the High Court. 20 [7] The respondent then applied for the respondent’s proceedings at the High Court to be stayed pending the disposal of the three appeals but was dismissed by the High Court judge. On appeal, the Court of Appeal granted the stay of proceedings but was overturned by the Federal Court which held that the respondent had failed to establish exceptional or 25 unusual circumstances for stay of proceedings to be granted. [8] The Federal Court has also laid down several important determinative principles in considering an application for stay of criminal proceedings. Richard Malanjum CJ (as he then was) in delivering the judgment of the court said this: 30 [32] In summary, in considering an application for stay of criminal proceedings when commencement of the trial is imminent or continuing in the court of first instance, the determinative principles to be derived from the above cases are as follows:

there is a strong public interest in the prosecution of crime and in ensuring that those charged with serious criminal offences are tried (R v Crawley and others [2014] EWCA Crim 1028 at para 18);

it is undesirable that the criminal process be interrupted or 5 fragmented by interlocutory proceedings. The considerations of public interest are of great weight leaning in favour of expeditious resolution of accusations of crime;

the undesirability of fragmenting the criminal process is not confined to any particular part of the criminal process, 10 but rather to the process as a whole. Any interference with any part of the process is antithetical to the proper and just disposition of criminal cases. The caution about the undesirability of fragmentation of criminal process would be more pronounced where a hearing of proceedings has 15 actually commenced;

a stay of proceedings application will require especially compelling justification in a case qualifying for urgent judicial decision. For instance, it is important that anyone charged with serious criminal offences be brought to 20 trial expeditiously. Public interest would not be served by allowing the defence to request for a delay. An accused of serious criminal offences who is not guilty should have the opportunity of clearing his name without excessive delay (Attorney General’s Reference (No 2 of 2001) [2003] UKHL 68 25 at para 16);

a stay of proceedings will not normally be granted pending an interlocutory appeal in a criminal trial. It is only in very exceptional or unusual circumstances that a stay order is granted. This is so even if the issuing of the interlocutory appeal is not 30 opposed by the prosecution or in fact supported by both the prosecution and the defence;

the accused’s rights over preliminary or interlocutory rulings made by the trial judge are best vindicated by appeal after conviction, if any. It is generally more desirable to consider 35 preliminary or interlocutory rulings made by the trial judge in appeal after conviction upon full trial with the benefit of a concrete factual setting than considering them in the abstract during interlocutory appeal;

the fact that an accused will be put to the expense of a trial is irrelevant and would not qualify as ‘exceptional circumstances’ to justify a stay of a criminal trial pending resolution of an appeal; and

the courts should exercise great caution in allowing other 5 forms of collateral challenge, in parallel proceedings such as an application for a declaration or other form of judicial review with similar relief in the nature of certiorari, be it commenced in the same court or another civil or criminal court, which have the net effect of staying the criminal proceedings or would interfere with 10 or impinge directly upon the normal course of proceedings in a criminal trial. (Emphasis added.) [9] In the same case, it was held that the fact a proceeding may be rendered a nullity is not a special circumstance and it is also irrelevant that the accused is put to the expense of a trial and 15 eventually acquitted. The Federal Court had this to say: [33] Now, the accused is a public figure who stands charged with offences which cannot by any means be described as trivial, allegedly committed while he was holding office as Prime Minister. Public interest, and indeed his personal interest, dictate 20 that the trials against him should be commenced expeditiously without any unreasonable delay as it is at the denouement of the trial that the court is best-equipped to determine his guilt or otherwise based on factual evidence instead of speculative arguments. Furthermore, he has not established to our 25 satisfaction that his application is so unusual or exceptional that it falls within that class of cases which would justify the grant of a stay. As stated above, a stay of criminal proceedings will only be granted in the rarest of cases and the fact that the proceedings may be rendered a nullity is not a special circumstance. In the 30 context of an application for a stay of proceedings, it is also immaterial that the accused is put to the expense of a trial even if he is subsequently vindicated on appeal. (Emphasis added.) [10] We noted that there is no exhaustive definition of special or exceptional circumstances but guidance can be made to the statement by Raja Azlan 35 Shah (as His Majesty then was) in Leong Poh Shee v Ng Kat Chong [1966] 1 MLJ 86: Special circumstances, as the phrase implies, must be special under the circumstances as distinguished from ordinary circumstances. It must be something exceptional in character, 40 something that exceeds or excels in some way that which is usual or common. (Emphasis added.)”. [Emphasis added] [32] I have considered the law on stay of proceedings application, 5 provisions of ss. 30 and 84 of the CJA and found that there was no reason to give a further stay of proceedings (there was already an interim stay pending the disposal of the appeal and said application in the High Court) as requested by the Appellant. I agreed with the DPP’s submissions that the alleged constitutional issues raised by 10 the Appellant was purely a technical matter which could be dealt with at trial by the calling of expert witness(s). The court would then be able to decide based on the evidence before it whether it should accept the method used in arriving at the alcohol reading as per the charge. Therefore, there was no merit in the application to refer the 15 alleged constitutional questions and I ordered that the trial to be continued at the Magistrate’s court and to be disposed expeditiously bearing in mind the length of time already spent in this process. [33] If the questions were transmitted to the Federal Court by this Court 20 by way of special case stated, it would only delay the trial further which had already reached the defence stage. And as I stated above, the issue(s) raised ultimately pointed to whether the method used in determining the alcohol reading could be relied upon to convict the Appellant. This involved technical evidence that may 25 need some explanation by witnesses, and can be dealt with by the Magistrate at the trial. It was not a complicated legal matter that needed to be finally resolved by the apex court. [34] As the law is settled on this issue, I see no reason to depart from established judicial precedents to which this Court is bound. Accordingly, the appeal was also dismissed. The arguments relating to the stay application were intrinsically intertwined with the appeal before me during the hearing. Hence, the said application and 5 appeal ought to be dismissed in limine. CONCLUSION [35] Premised upon the above considerations, the Court found the said application and the appeal were without merit, and accordingly 10 dismissed them. Dated on 18 March 2026 Sgd. 15 NOOR RUWENA BINTI MD. NURDIN Judge High Court of Malaya, Kuala Lumpur (Criminal Division) 20 Representations: 25 For the Applicant: Mr Bavanash Sharma with Ms. Gheetal Kaur Messrs. Bavanash Sharma, Kuala Lumpur. 30 For the Respondent: DPP Mohd. Shahrizzat Bin Amadan Pejabat Timbalan Pendakwa Raya, Kuala Lumpur.