The petitioners applied to the Federal Court for a declaration that the City Council of George Town (Transfer of Functions) Order 1966 and the Municipal (Amendment) (Penang) Enactment 1966 were void by virtue of art 75 of the Constitution of Malaysia on the ground that they were inconsistent with the Local Government Elections Act 1960 (Act 11/1960) of the Federation. An application was made on behalf of the respondents for an order to dismiss the petition on the ground that the Federal Court has no jurisdiction in the matter.

Held: (1) art 128(1)(a) of the Federal Constitution gives the Federal Court exclusive jurisdiction to determine 'any question whether a law made by Parliament or the Legislature of a state is invalid on the ground that it makes provision with respect to a matter with respect to which Parliament or, as the case may be, the Legislature of a state has no power to make laws'; (2) since a state law is invalidated to the extent of any inconsistency therein with a Federal law by art 75, notwithstanding even that the state law may be within the competency of the state Legislature, an order will be made to invalidate the inconsistent state enactments.

City Council of George Town & Anor v Government of the State of Penang & Anor [1967] 1 MLJ 169 Federal Court, Kuala Lumpur (Barakbah LP, Azmi CJ (Malaysia).

This was an application by the administrator of an estate ('the administrator') for the money of the estate, which had been held in trust for three minor beneficiaries, to be reinvested. Counsel for the administrator proposed that a sum of RM200,000 be invested in MBF First Fund or such other unit trust fund as the administrator deemed fit with power to sell and reinvest from time to time and the balance to be put in the financial institution which offered the highest interest rate to earn interest to meet the living and education expenses of the beneficiaries. In deciding the application, it was necessary for the court to determine what an administrator could do with the assets of an estate with infant beneficiaries.

Held, finding that the administrator could act in accordance with the provisions of the Trustees Act 1949 ('the Act'): (1) where the beneficiaries of an estate are minors, s 102 of the Probate and Administration Ordinance (Sabah Cap 109) ('the Ordinance') appears to defer the handing over of the residue of the estate to the beneficiaries. However, the Ordinance does not appear to have provisions governing the minor beneficiaries of an intestate; (2) s 15 of the Guardianship of Infants Ordinance (Sabah Cap 54) ('the Guardianship Ordinance') disallowed the sale, mortgage, exchange or parting with possession of the movable or immovable property of the infant without the leave of the court. By placing the money with a bank, the property in the money would pass to the bank and become a debt owing by the bank. Thus, the placing of money in a bank to earn interest amounted to a parting with possession of movable property which, unless permitted by the court, was prohibited by s 15; (3) a guardian holding the property of an infant was a trustee holding property under an implied trust for the infant. The Act applied to the implied trust which arose as soon as the guardian came into possession of the property of the infant; (4) (5) the court, however, declined to exercise its discretion under s 59 of the Act to permit the administrator to invest in the MBF First Fund as it did not qualify as an approved investment under s 5(3) of the Act which required the company, Inter alia, to have been paying dividends for the past five years; (6) by virtue of art 75 read with art 162(1) and (6) of the Federal Constitution, the Act, being a Federal law, prevailed over the Guardianship Ordinance. It followed that a guardian who was regarded as a trustee under the Act need not, notwithstanding s 5(1) of the Guardianship Ordinance, obtain leave of court before investing the money or property of the infant in any investment allowed by the Act;(per curiam) traditionally, the thinking of the court had been that the best and safest investment was to place the moneys of an estate with financial institutions to earn interest. However, as the financial system had progressed so much that opportunities abound for money to be earned, including opportunities for investment, placing money in a bank may be unsuitable.

Re Estate of Yong Wai Man, ex p Yong Khai Min [1994] 3 MLJ 514 High Court, Tawau (Ian HC Chin J).

Article 111(2) of the Federal Constitution provides that a state shall not borrow except under the authority of state law, and state law shall not authorize a state to borrow except from the Federation or, for a period not exceeding 12 months, from a bank approved for that purpose by the federal government. Article 97(2) provides that all moneys and revenues howsoever raised or received by a state shall, subject to cl (3) and any law, be paid into the Consolidated Fund of that state. Article LVII of the Kelantan State Constitution provides that no moneys shall be withdrawn from the State Consolidated Fund unless they are (a) charged on such fund or (b) authorized by a State Supply Enactment. By an agreement made on 20 February 1964 between the Kelantan state government and the Timbermine Industrial Corp Ltd, it was provided by cl 2 and cl 8 that the company should make prepayments of royalty for its mining and forest concessions which should be refunded by the state in the manner set out in detail therein. The view of the federal government which was disputed by the state government was that (a) the prepayment of royalties constituted a borrowing in violation of art 111(2) of the Federal Constitution and (b) that the refunding thereof would violate art 97(2) of the Federal Constitution and art LVII of the Kelantan State Constitution. Upon the questions in dispute being referred by His Majesty the Yang di-Pertuan Agong to the Federal Court for its opinion,

Held: (1) upon considering the agreement as a whole, rather than the impugned clauses in isolation, there was no legal relationship of lender and borrower as between the company and the state government, since 'borrowing necessarily implies repayment at some time under some circumstances' and there was no liability to repay upon forfeiture for breach of conditions imposed on the company. Per Ong Hock Thye FJ: 'Since repayment of the moneys advanced is not an essential feature of the transaction the conclusion becomes inevitable that the hallmark of a true borrowing is lacking. Indeed, such prepayments have been a common feature of mining agreements in Malaya, together with the forfeiture clause.' Per MacIntyre J: 'As far as I can ascertain, there is nothing in the State Enactment to prevent the executive authority of the state to prescribe, as a condition in a special licence, that a specified sum should be prepaid to account of royalty. Nor could such a condition be regarded as unbusinesslike or repugnant to public policy'; (2) the prepayment of $1,000,000 having been credited to the State Consolidated Fund, there was no breach of art 97(2) of the Federal Constitution, and there was no ground for supposing that further payments, if any, would not go similarly into that fund. Per MacIntyre J: 'The retention of the 50% by the company is not a refund out of the sum prepaid and therefore the authority of a Supply Enactment is not required to retain money never paid into the Consolidated Fund.'

Government of Malaysia v Government of the State of Kelantan [1968] 1 MLJ 129 Federal Court, Kuala Lumpur (Barakbah LP, Azmi CJ (Malaysia).

On 23 March 1993 the applicant was served with two separate summons sent by the Chief Kadi of Kelantan, charging him pursuant to s 73 of the Kelantan Council of Religion and Malay Custom Enactment 1966 ('the Enactment') with insulting a mosque official because he had lodged two separate police reports against the mosque official. The applicant applied to commence proceedings, pursuant to art 4(4) of the Federal Constitution ('the Constitution'), for declarations that s 73 of the Enactment was invalid. The first ground upon which the applicant relied was that s 73 of the Enactment made provisions with respect to matters which the legislature of the State of Kelantan had no power to make. As such, the leave of a Supreme Court judge was required as provided under art 4(4) of the Constitution. It was argued that he should be allowed to canvass his case before the full court on the constitutionality or validity of that section. Secondly, it was submitted that the offence created by s 73 of the Enactment was neither against the precepts of Islam nor was it a matter relating to the precepts of Islam, and that it was a matter in respect of which Parliament had the exclusive power to legislate. Thirdly, it was contended that s 73 was inconsistent with art 10(1)(a) of the Constitution. It was submitted that the lodging of a police report was the citizen's exercise of his right to free speech. As the Syariah Courts only had jurisdiction to try offences against Islamic precepts, the offence of contempt against the 'pegawai masjid' under s 73 of the Enactment did not constitute an offence against Islam, and accordingly, the legislature of the State of Kelantan did not have the power to enact s 59 of the Enactment which purports to give jurisdiction to a Syariah Court in relation to an offence which has not been conferred by Federal law.

Held, allowing the application: (1) as the third ground was to seek a declaration that s 73 was void on the grounds that it was inconsistent with the provisions of art 10(1)(a) of the Constitution and not on the grounds that it dealt with a matter with respect to which the Kelantan legislature had no power to make, the High Court had jurisdiction in the matter and the leave of the Supreme Court judge was not required; (2) as for the other two grounds, the court was satisfied that the applicant had an arguable case in that the application was not frivolous; (3) the Enactment was a post-Merdeka legislation and the intended challenge was on the competency of the state legislature to enact the legislation. As such, leave of a Supreme Court judge was required under art 4(4) and the applicant should be allowed to canvass his case before the full court on the constitutionality and validity of s 73.

Nordin bin Salleh v Kerajaan Negeri Kelantan & Anor [1993] 3 MLJ 344 Supreme Court, Malaysia (Gunn Chit Tuan CJ (Malaya).

In this case, each of the petitioners was charged for an offence under s 298A of the Penal Code (Cap 45) for doing an act which is likely to prejudice unity among persons professing the Islamic religion. They were alleged to have acted as an unauthorized Bilal, Khatib and Imam at a Friday prayer in Kuala Trengganu without being so appointed under the Trengganu Administration of Islamic Law Enactment 1955. The issue before the court is whether the said section which was enacted by Parliament by an amending Act in 1983 is ultra vires art 74(1) of the Federal Constitution, since the subject matter of the legislation is reserved for the State Legislatures and therefore beyond the legislative competency of Parliament. Leave was obtained for the petitioners to file a suit for declaratory orders to the effect that the new s 298A of the Penal Code is invalid on the ground that it makes provision with respect to a matter with respect to which Parliament has no power to make laws Ð see [1986] 2 MLJ 192. It was contended by the petitioners that the law is invalid as being ultra vires the Constitution because, having regard to the pith and substance of the section, it is a law which ought to be passed not by Parliament but by State Legislative Assemblies, it being a legislation on Islamic religion, according to art 11 cl (4) and item 1 of List II, Ninth Schedule of the Federal Constitution. The respondent on the other hand contended that the section is valid because it is a law passed by Parliament on the basis of public order, internal security and also criminal law according to art 11 cl (5) and items (3) and (4) of List I of the Ninth Schedule of the Federal Constitution.

Held, by a majority (Hashim Yeop A Sani and Abdoolcader SCJJ dissenting): (1) having considered and examined the provisions of s 298A of the Penal Code as a whole, it is a colourable legislation in that it pretends to be a legislation on public order, when in pith and substance it is a law on the subject of religion with respect to which only the states have power to legislate under arts 74 and 77 of the Federal Constitution; (2) there must be a declaration that s 298A of the Penal Code is a law with respect to which Parliament has now power to make law and a declaration that s 298A of the Penal Code is invalid and therefore null and void and of no effect; (3) the ruling shall not apply to the Federal Territories of Kuala Lumpur and Labuan and is to take effect from the date of the order, ie 13 October 1987.

Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119 Supreme Court, Kuala Lumpur (Salleh Abas LP, Seah, Mohamed Azmi, Hashim Yeop A Sani and Abdoolcader SCJJ).

On 9 July 1963, the governments of the Federation of Malaya, United Kingdom, North Borneo, Sarawak and Singapore signed the Malaysia Agreement whereby Singapore, Sarawak and North Borneo would federate with the existing states of the Federation of Malaya (including Kelantan) and thereafter the Federation would be called 'Malaysia'. The Federal Parliament then passed the Malaysia Act (the bill form of which had been annexed to the Malaysia Agreement) to amend the Federation of Malaya Constitution 1957, art 1(1) and (2) to provide, inter alia, for the admission of the three new states and for the alteration of the name of the Federation to that of 'Malaysia'. The Act received the royal assent on 26 August, and was to come into operation on 16 September. On 10 September, the government of the State of Kelantan commenced proceedings for declarations that the Malaysia Agreement and the Malaysia Act were null and void or alternatively were not binding on the state. It was argued for the State of Kelantan that the Malaysia Act would abolish the 'Federation of Malaya' thereby violating the Federation of Malaya Agreement 1957; that the proposed changes needed the consent of each of the constituent states, including Kelantan, and this had not been obtained; that the ruler of Kelantan should have been a party to the Malaysia Agreement; that constitutional convention called for consultation with rulers of individual states as to substantial changes to be made to the Constitution; and that the Federal Parliament had no power to legislate for Kelantan in respect of any matter regarding which that state had its own legislation. On 11 September, the plaintiff government gave notice of motion that pending the ultimate disposal of their suit, the court should by order restrain the defendants from carrying into effect any of the provisions of the Malaysia Act. The question then for decision was whether on the facts before the court there was a probability that the plaintiff government was entitled to the relief they sought.

Held: (1) Parliament in enacting the Malaysia Act so as to amend, inter alia, arts 1(1) and (2) acted within the powers granted to it by art 159 of the Constitution. The Constitution which formed an integral part of the Federation of Malaya Agreement 1957 (to which Kelantan was a party), did not require consultation with any state as a condition to be fulfilled; (2) the Malaysia Agreement was signed for the 'Federation of Malaya' by the Prime Minister, Deputy Prime Minister and four members of the Cabinet. This was in compliance with arts 39 and 80(1) of the Constitution and there is nothing whatsoever in the Constitution requiring consultation with any state government or the ruler of any state. Quaere: whether in proceedings against the government, the court has jurisdiction to make an interim injunction or an interim declaration or any other interim order.

Government of the State of Kelantan v Government of the Federation of Malaya & Anor [1963] MLJ 355 High Court, Kuala Lumpur (Thomson CJ).

The applicant sought a writ of habeas corpus whereby he challenged both the validity of the detention order made by the Deputy Minister of Home Affairs under and by virtue of the provisions of s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985, ('the Act') and his detention thereunder. It appeared that the applicant had been arrested on 9 July 1987 by a police officer who affirmed that he had reason to believe, and did in fact believe, that there were grounds which would justify the detention of the applicant under s 6(1) of the Act as the applicant had been and was associated with activities relating to or involving the trafficking of dangerous drugs. The officer made a police report later wherein he stated that there were grounds which would justify the detention of the applicant under 's 6(1) or s 6(3)' of the Act. The applicant was detained in a police station pending investigations. Following investigations by the police and the submission of reports from the police and the inquiry officer pursuant to the Act, the deputy minister made a two-year detention order against the applicant on 4 September 1987. The order was served on the applicant the next day and a day later he was taken into a detention centre. It was contended for the applicant that the powers of arrest given to a police officer under s 3(1) of the Act had to be exercised with a view to detaining a person under s 6(1) and not under s 6(3) of the Act, and that since in the instant case the arresting officer had invoked his powers of arrest under s 6(1) or s 6(3) of the Act the detention of the applicant was unlawful. The second point taken on behalf of the applicant was that the maximum period of detention pending inquiries under s 3(2) of the Act was 60 days but that provisio (c) to the section had not been complied with in that the minister had not given his approval to the detention of the applicant for more than 14 days. Alternatively, it was argued that if there was no requirement that the approval be given within 14 days, the minister had to give his approval as soon as reasonably possible thereafter. It was said that, as there was no evidence showing compliance with these requirements, the ap-plicant's continued detention was unlawful. The third point argued for the applicant was that, although the applicant's wife had stated in her affidavit filed in support of the application that no investigations whatsoever had been carried out by the police or anyone during the applicant's detention at the police station, the police officer making the investigations for the purpose of submitting a complete report to the inquiry officer and the minister had not gone on affidavit to deny the allegation. The applicant's continued detention was therefore unlawful. The fourth point advanced for the applicant was that the affidavit of the inquiry officer revealed that he did not carry out his own independent inquiries with a view to verifying the results of the police investigations but, instead, had relied on the full face value of the complete report of investigations made by the police and that he had therefore failed to discharge his statutory duties under s 5(2) of the Act. The fifth point taken on behalf of the applicant was that the detention order was bad on its face in that there was no reference in the order to the minister being satisfied that it was necessary in the interest of public order that the applicant be detained for a period not exceeding two years. The sixth point raised on behalf of the applicant was that the affidavit of the arresting officer revealed that there had been a violation of the applicant's constitutional right to be informed, as soon as may be, of the reasons for his arrest, as enshrined in art 5(1) of the Constitution. It was contended that it was not enough for the arresting officer to inform the applicant that the latter had been involved in activities involving drugs; and that it was essential to add the words 'trafficking in drugs'. The final point taken on behalf of the applicant was that there had been a contravention of art 5(4) of the Constitution by reason of the fact that the applicant had not been produced before a magistrate within 24 hours after his arrest and detention at the police station.

Held, dismissing the application: (1) it is obvious that an arrest by a police officer pursuant to the provisions of s 3(1) of the Act has to be on the ground that he has reason to believe that there are grounds which could justify detention under s 6(1) of the Act and nothing else. Section 6(3) of the Act which is concerned with the circumstances under which the minister may make a restriction order is utterly irrelevant and the arresting officer was quite wrong in making any reference to it in his report. However, the conditions precedent for the exercise of the powers of arrest under s 3(1) of the Act were duly satisfied and the court did not consider that the irrelevant reference to s 6(3) of the Act was of any consequence; (2) the submission regarding the second point failed too as to accede to it would be to place a greater onus on the detaining authority than the Act provides and would involve the court making an unauthorized amendment to a statutory provision, which, of course, would be plainly wrong; (3) a scrutiny of the record showed that investigations were carried out within the period permitted under s 3(3) of the Act and upon completion, the police submitted a detailed report of the investigations to the inquiry officer and the Ministry of Home Affairs; (4) as regards the fourth point, this part of the case had been answered for the court against the ap-plicant in the decision of the Supreme Court in the case of Inspector-General of Police & Ors v Rajoo s/o Ramasamy [1989] 1 MLJ 416; (5) it is clear that a written detention order properly authenticated by the minister is essential before any lawful detention can be effected for the Act clearly contemplates the making of a document. It is essential that the detention order contains at least so much of the belief of the minister in regard to a detainee as will inform him, in general terms, of the reasons for his detention so as to enable him to exercise, as soon as reasonably possible, his right to make representations to an advisory board under s 9(1) of the Act. In the instant case, the detention order, notwithstanding the omission of the reference to the minister being satisfied that it was necessary in the interest of public order that the applicant be detained for a period not exceeding two years, complied with these requirements; (6) for the purposes of the first limb of art 5(1) of the Constitution, all that an arrested person is entitled to demand for is to be informed, at the earliest possible moment, not in detail and not necessarily in strict legal terminology, but only in general terms, by virtue of what power he is being arrested and of the grounds of his arrest. But enough must be made known to him to afford him the opportunity of giving an explanation of any misunderstanding or of calling attention to other persons for whom he may have been mistaken with the result that further inquiries may save him from the consequences of a false accusation; (7) in the instant case, the applicant should have been informed not merely that he was being arrested because he had been involved in activities involving drugs and that it was necessary that he be detained in the public interest. The arresting officer should have gone further and added that the activities involving drugs were drug trafficking activities. The omission, unfortunate though it was, did not invalidate the arrest or the subsequent detention. The applicant must have known that the activities alleged against him were drug trafficking activities and indeed he had not gone on affidavit to say otherwise. Certainly, no prejudice as a result of the omission was either proved or even alleged by the applicant or his counsel during the argument; (8) the Act was passed under art 149 of the Constitution. Legislation under art 149 against acts and crimes prejudicial to public order is not ipso facto inconsistent with the right conferred by art 5(4) of the Constitution upon an arrested person to be produced, without unreasonable delay and, in any case, within 24 hours, before a magistrate and he shall not be further detained in custody without the magistrate's authority but any such restriction must be clear in the legislation. The powers of preventive detention spelt out in Part II of the Act, in particular, s 3(2) appearing therein, do make such restrictions manifestly clear and it is therefore valid notwithstanding that it is inconsistent with art 5(4).

Chong Kim Loy v Timbalan Menteri Dalam Negeri, Malaysia & Anor [1989] 3 MLJ 121 High Court, Penang (Edgar Joseph Jr J).

This was an application for a writ of habeas corpus under s 375 of the Criminal Procedure Code. The applicant was arrested and detained under s 55 of the Criminal Law (Temporary Provisions) Ordinance 1955 by a detective corporal who was directed by a superior officer to arrest the applicant. The applicant contended (i) the arrest was illegal because the detective corporal when making the arrest under s 55(1) of the ordinance had no reason to believe there were grounds which would justify the detention under s 47; (ii) s 55(1) imposes an objective test and hence the court could examine whether there were in fact sufficient reasons to justify the detention.

Held: (1) the detective corporal who arrested the applicant was only the instrument of his superior officer and therefore the arrest was legal; (2) on the proper interpretation of s 55(1) read in conjunction with s 53 which precludes the disclosure of facts prejudicial to the public interest and in the context of the whole legislation, it lays down a subjective test; (3) in this case, as the superior officer honestly supposed that he had reason to believe the required thing, the court could not go behind his statement that he had such reason to believe.

Re Ong Yew Teck [1960] MLJ 67 High Court, Singapore (Chua J).

This was an appeal against the decision of the Federal Court ([1968] 2 MLJ 50) which awarded the respondents the sum of $2,500 each for false imprisonment. The respondents were arrested and detained by the police. The police suspected that one or other of the respondents was driving the lorry from whose trailer timber fell which hit the windscreen of a car and two men in the car causing the death of one of them. The lorry did not stop. The respondents who were interrogated after the arrest denied that they were at the place of the accident. In the Federal Court, Suffian FJ said that the information available to the police was insufficient to prove prima facie a case against the respondents under s 304A of the Penal Code or under s 34A of the Road Traffic Ordinance 1958.

Held: (1) it is unnecessary for the police to show that there was prima facie proof of such offence; (2) in this case, while the police had good reason at the time of the arrest to suspect that one or other of the respondents was driving the lorry from whose trailer the piece of timber fell, they had no reason to suspect that the driver was driving the lorry recklessly or dangerously and therefore the police were not entitled to arrest and detain the respondents; (3) after their interrogations of the respondents the police had reason to suspect that the respondents were concerned in the offence of reckless driving and therefore their detention was lawful; (4) the test adopted by the Federal Court was incorrect as the police are entitled to arrest if a reasonable suspicion existed of the respondents being concerned in the offence of reckless driving and dangerous driving causing death;in the circumstances, the case must be remitted to the Federal Court to determine whether it was open to it to review the amount of damage and if so to settle the appropriate figure.

Shaaban & Ors v Chong Fook Kam & Anor [1969] 2 MLJ 219 Privy Council Appeal from Malaysia (Lord Upjohn, Lord Devlin and Lord Wilberforce).

A British subject is not immune from the operation of the Banishment Enactment 1900. The provisions of this enactment are not ultra vires; although it is extra-territorial from the point of view of the acts necessary to carry it out, the state must have power to do those things which must be done in order effectively to exercise the right to expel. Although permission of Parliament or the authority of the King may be necessary before a colony can exercise extra-territorial action the position of the Federated Malay States is different, the Rulers have never surrendered legislative power. Quaere: whether the Supreme Court can declare an enactment ultra vires. In a case affecting the liberty of the subject, the plaintiff should have every opportunity of putting forward his case, but if he neglects to call the defendants to give evidence at the trial he cannot be allowed on appeal to start his evidence afresh.

Yap Hon Chin v Parry [1911] 2 FMSLR 70 Privy Council Appeal from the Federated Malay States (Lord Macnaghten, Lord Mersey and Lord Robson).

This was a motion for a writ of habeas corpus. The applicant was serving a sentence of two years' imprisonment for armed robbery as from 16 May 1957, and such sentence was to expire after due remission on 17 September 1958. A banishment order in respect of the applicant was signed by the Minister of the Interior and Justice on 11 September 1958, and the same was duly served on the applicant on 13 September 1958. On 16 September 1958, the applicant was transferred to Pudu Prison, Kuala Lumpur, and on 18 September 1958, he was deported. The motion for the applicant was moved by his counsel on 17 September 1958 and heard the next day. It was argued for the applicant that as the applicant was born in Penang he was a British subject and a federal citizen by virtue of art 124(1)(b) of the Federation of Malaya Agreement and consequently under art 9 of the Constitution of the Federation of Malaya and therefore could not be banished or excluded from the Federation.

Held: (1) the writ of habeas corpus is a high prerogative writ and it is a fundamental principle that it will not issue unless its provisions are capable of enforcement. Since the applicant was no longer within the jurisdiction of the court it follows that the application for the writ to issue must fail; (2) it was not open to the court in view of s 13 of the Banishment Ordinance to go behind the banishment order signed by the Minister of the Interior in order to ascertain the nationality of the applicant.

Ex parte Tan Kheng Long [1958] 3 MC 205 High Court, Penang (Rigby J).

Re Hoon Tye Wan [1965] 1 MLJ 90 High Court, Ipoh (Ong Hock Thye J).

In these two cases, the respondents had been arrested and detained under banishment orders. No warrants of execution had been issued, as the minister could not find a country willing to accept the respondents. It was held in the High Court that the continued detention of the respondents for more than three years in the one case and for more than six years in the other case was unlawful delay which converted their lawful detention to unlawful detention. The appellant appealed to the Federal Court.

Held, allowing the appeal: (1) the learned judge was in error when he found that the continued detention of the respondents was unlawful; (2) a valid detention order under the Banishment Order remains valid until revoked. The minister may suspend the order or may instead make an expulsion order so that the banishee may make his own arrangements to leave the country, but the making of those orders is a matter of discretion for the minister and his refusal to do so does not affect the validity of the orders of detention that are impugned.

Minister of Home Affairs v Chu Choon Yong & Anor [1977] 2 MLJ 20 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah and Wan Suleiman FJJ).

The applicant was the subject of a two-year restriction order made under s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969. Before the end of the two years, this order was cancelled by the minister, acting under s 4(A)(3), and a detention order was made under s 4(1) (dated the same date as that of the cancellation order) whereby the applicant was to be detained at the Pusat Pemulihan Akhlak, Pulau Jerejak for two years from 31 March 1990. The issue is whether the minister can revoke a restriction order and substitute for it a detention order without first complying with the requirement under s 3(1) that the suspected person should first be detained pending inquiries for not more than 60 days.

Held, allowing the application for habeas corpus: the minister had not detained the applicant pending inquiries as required under s 3(1). The requirements of s 3(1) are mandatory and not merely directory, so that the applicant was entitled to the safeguard of inquiries upon detention. The applicant was not afforded the opportunity of being heard, which he would have had if he had been detained pending inquiries. There has therefore been a breach of art 5(1) of the Constitution.

Haji Omar Din bin Mawaidin v Minister for Home Affairs, Malaysia & Anor [1990] 3 MLJ 435 High Court, Penang (Edgar Joseph Jr J).

The detainee had been detained by an order of the learned magistrate under s 6 of the Drugs Dependants (Treatment and Rehabilitation) Act 1983 (Act 283). The detainee had been arrested by the police on suspicion of being a drug dependant and had been taken to the General Hospital where he was examined by a medical officer. The learned magistrate subsequently ordered him to be detained under s 6(1)(a) of the Act. It was contended in this case that the learned magistrate had not complied with the mandatory provisions of the Act in that she had failed to make any record on whether she had complied with the various subsections of s 6, namely, sub-ss (1), (3), (4) and (5).

Held: in this case, in the absence of the record of proceedings kept by the learned magistrate, it was impossible to hold that the mandatory requirements of the law had been complied with and therefore the application must be granted and a writ of habeas corpus issued.

Re Roshidi bin Mohamed [1988] 2 MLJ 193 High Court, Kangar (Mohamed Arif J).

[Annotation: The appeal to the Supreme Court was heard by Lee Hun Hoe CJ (Borneo), Wan Suleiman and Wan Hamzah SCJJ and dismissed on 12 October 1987.]

The appellant had renounced his citizenship and had returned to India. Subsequently, he re-entered the Federation and he was detained under s 34(1) of the Immigration Ordinance 1959, so that arrangements could be made for his removal. The appellant refused to co-operate with the authorities to enable travel documents to be issued to him and therefore he could not be deported. He applied for an order of habeas corpus, claiming that his detention was illegal or improper. His application was dismissed in the High Court and he appealed to the Federal Court.

Held, dismissing the appeal: (1) as the Immigration Ordinance did not give a right to a hearing before an order of detention is issued, the appellant had no such right, implied or otherwise; (2) as the ordinance did not require the order of detention to be served on the appellant, it need not have been served as a matter of law. In this case, however, there was evidence that it was served on the appellant; (3) the appellant was lawfully detained in this case and the fact that the authorities were unable to remove the appellant from the Federation did not make the detention illegal or unlawful; (4) the court had no power under s 365 of the Criminal Procedure Code (FMS Cap 6) to give bail to the appellant.

Andrew s/o Thamboosamy v Superintendent of Pudu Prisons, Kuala Lumpur [1976] 2 MLJ 156 Federal Court, Kuala Lumpur (Suffian LP, Lee Hun Hoe CJ (Borneo).

This was an appeal from the decision of Abdul Hamid J (reported in [1975] 1 MLJ 176). The main grounds of appeal raised were: (1) that having regard to what happened earlier and in particular to the fact that no retrial was ordered when the earlier conviction of the appellant was quashed, the retrial of the appellant and his conviction were a nullity; (2) as no written consent of the Public Prosecutor was produced when the appellant's plea to the charge was recorded at the beginning of the retrial in the High Court, the retrial was a nullity; that the Yang di-Pertuan Agong had no power to issue ordinances under cl (2) of art 150, as there was no Parliament in being, and therefore the appellant's conviction under an amendment affected by Ordinance No 45 which was void was itself void; (3) the appellant was given insufficient particulars of the offence alleged against him and the charge was therefore bad in law; (4) it had not been proved that the appellant was the publisher of the offending article; (5) the learned judge was wrong in holding that it was immaterial whether the offending article was true or false; (6) the article complained of was not seditious; (7) the sentence imposed on the appellant was excessive.

Held, dismissing the appeal: (1) as the appellant's earlier trial had been declared a nullity, his purported conviction at that time was also a nullity and he was never in jeopardy, and he was therefore not a person who has been convicted of an offence within the meaning of cl (2) of art (7) of the Federal Constitution. The retrial and conviction were not in contravention of that clause and were perfectly valid; (2) as the consent of the Public Prosecutor had been obtained before the warrant of arrest against the appellant was applied for and as it was produced at the preliminary inquiry, it could not be said that the appellant was prosecuted for an offence under s 4 of the Sedition Act 1948 (Act 15), without the written consent of the Public Prosecutor; (3) the words 'when Parliament is not sitting' in art 150(2) mean not only 'when Parliament which is in being is not sitting', but also 'when Parliament has been dissolved and the general election to the new Parliament has not been completed'; (4) the charge was not defective, as in a prosecution under s 4(1)(c) of the Sedition Act, it is unnecessary for the Public Prosecutor to specify in the charge on which of the six tendencies set out in s 3(1) he relies and it is open to him during the course of the trial to pick and choose; (5) the appellant had in fact admitted that he was the publisher of the offending article and the evidence showed that the appellant had taken an active part in arranging for the publication of the article; (6) since the amendment to the Sedition Act by Ordinance No 45, sub-s (2) of s 3 of the Act is nugatory to all intents and purposes and the test to be applied is whether or not the article complained of has in fact a seditious tendency. It is immaterial whether the words complained of are true or not; (7) the speech which was reported in the article taken as a whole cannot escape being regarded as expressing sentiment expressive of a seditious tendency and the article was therefore seditious; (8) the amending ordinance, Ordinance No 45, was validly made by the Yang di-Pertuan Agong, as Parliament was not sitting at the relevant time;there was no reason in this case to disturb the sentence imposed by the learned judge.

Fan Yew Teng v Public Prosecutor [1975] 2 MLJ 235 Federal Court, Kuala Lumpur (Suffian LP, Lee Hun Hoe CJ (Borneo).

The Public Prosecutor purporting to exercise his power under s 418A of the Criminal Procedure Code (FMS Cap 6) issued a certificate on 16 March 1976 requiring the Sessions Court, Lumut to remove Warrant Case SC 21/76 and 16 other cases involving the same accused then pending before the said sessions court to the High Court, Ipoh. In all these cases, the accused was charged under s 4(c) of the Prevention of Corruption Act 1961 (Act 57). The accused challenged the validity of s 418A and the certificate purporting to be issued under it as infringing art 8(1) of the Federal Constitution.

Held: (1) the true meaning of the equality provision under art 8 is that no person shall be denied equality before the law or equal protection of the law, but this does not prevent Parliament from making law based on or involving some classification, provided that no real or actual discrimination occurs; (2) and (b) that the differentia must have a rational relation to the object sought to be achieved by the statute in question; (3) the question of discrimination does not arise on the face of s 418A since it is only a vehicle provided by Parliament for the Public Prosecutor to exercise his discretionary powers over criminal prosecutions under the Constitution and the Criminal Procedure Code. Section 418A does not deal with the exercise of a power of an authority delegated by Parliament but with the exercise of a power conferred by the Constitution itself; (4) section 418A of the Criminal Procedure Code is a provision procedural in character and the exercise by the Public Prosecutor of his power under that section was not inconsistent with his power conferred by art 145(3) of the Federal Constitution and s 376(i) of the Criminal Procedure Code. The provision of s 138 of the Criminal Procedure Code has removed any prejudicial or hostile effect on any person subject to s 418A; (5) to satisfy the test of permissible classification, it must be shown that: (a) the classification is founded on an intelligible deferentia which distinguishes persons or things that are grouped together from others left out of the group;s 418A of the Criminal Procedure Code was not invalid and the certificate issued by the Public Prosecutor under that section was likewise not invalid.

Public Prosecutor v Su Liang Yu [1987] SLR 30 High Court, Ipoh (Hashim Yeop A Sani J).

The appellant was convicted on two charges, namely, that he with two other persons (Beh and Chng) in furtherance of a common intention committed murder by causing the deaths of two persons. He was sentenced to death. He appealed. On appeal, it was contended that (a) the trial judges should have totally disregarded Beh's evidence as they had found that his evidence had been successfully impeached and that as the case against the appellant rested solely on the evidence of Beh, an accomplice, there was no evidence to support the convictions; (b) as Beh had been charged and convicted on a plea of guilty of the lesser offence of culpable homicide not amounting to murder, the appellant's conviction on the charge involving common intention was wrong in law; (c) as Beh had been charged on the same facts with the lesser offence, the appellant had been discriminated against contrary to art 12(1) of the Constitution of Singapore.

Held, dismissing the appeal: (1) the unchallenged and undisputed evidence was that both deceased were fatally stabbed with knives in circumstances which amounted to murder by one or more of them and that the stab wounds were inflicted in furtherance of their common intention to commit armed robbery and if necessary to use the knives they were armed with; (2) the contention that Beh's conviction on the lesser offence made the appellant's conviction wrong in law was without substance and contrary to long established authorities; (3) the third submission was also rejected because it is the Attorney General of Singapore who is given power by art 35(8) of the Constitution, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence. All that equality before the law requires is that the cases of all potential defendants to criminal charges shall be given unbiased consideration by the prosecuting authority and that decisions whether or not to prosecute in a particular case for a particular offence should not be dictated by some irrelevant consideration.

Sim Min Teck v Public Prosecutor [1987] 2 MLJ 269 Court of Appeal, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Rajah JJ).

This was an appeal from the decision of the High Court ([1973] 1 MLJ 123). The questions of law submitted before the High Court were formulated as follows: (1) that s 72 of the Income Tax Act 1967 (Act 53) (s 57 of the Income Tax Ordinance) which deals with Hindu joint families does not apply to Hindus whose domicile is Malaya and can only apply to Hindus who are domiciled in India; (2) if s 72 of the Income Tax Act is held to apply to the appellants it is in violation of art 8 of the Constitution of Malaysia and therefore void. The learned judge declined to consider the second question as he considered that this question was a matter exclusively within the jurisdiction of the Federal Court. He rejected the appellant's contention on the first question. The appellant appealed to the Federal Court.

Held, dismissing the appeal: (1) Hindu law is the personal law of the appellants and by reason of cl (5) thereof art 8 of the Federal Constitution does not invalidate the provision relating to Hindu joint families in s 72 of the Income Tax Act (or s 57 of the Income Tax Ordinance 1947); (2) the two Hindu families in this case have by personal choice regarded their property as that of a joint Hindu property. The basis of their liability to pay income tax was not solely based on the fact that they were of the Hindu religion but also on the fact that they have always regarded their joint property as belonging to one unit and the income of that property as the income of one person.

B v Comptroller of Inland Revenue [1974] 2 MLJ 110 Federal Court, Ipoh (Azmi LP, Gill and Ong Hock Sim FJJ).

The plaintiff was an Indian citizen and lived in India. He joined the Electrical Department on 16 June 1941 and retired on 1 February 1973. He received increases in his pension as and when pensions were revised by the government but when the Pensions Adjustment Act 1980 (Act 238) was passed giving more benefits to pensioners and to their dependants the plaintiff found himself precluded from receiving these additional benefits because the application of the Act was restricted to pensioners and their dependants who are resident in Malaysia. The plaintiff sought a declaration that the provision in s 1(2) of the Pensions Adjustment Act 1980 which restricts the application of the Act to pensioners and their dependants who are resident in Malaysia is ultra vires and consequently he sought orders to the effect that his pension be adjusted in accordance with the Act.

Held, allowing the plaintiff's application: (1) the restrictive provision in s 1(2) of the Pensions Adjustment Act 1980 which deprives non-resident pensioners and their dependants from the benefits under the Act is unconstitutional; (2) a reasonable classification does not offend art 8(1) of the Federal Constitution. But the classification must be founded on an intelligible differentia which distinguishes one class from another class of persons. And there must be a rational nexus between this differentia and the object sought to be achieved by the Act; (3) there is nothing in the Act or in the bill or anywhere in evidence to support the contention that the classification Ð the drawing of lines separating resident pensioners from non-resident pensioners Ð is reasonable. Pensioners are homogenous, a class by themselves, and they cannot be divided and treated differently for the purpose of their pensions merely because of their place of abode. There must be some real difference on which the classification can be founded but such difference is lacking in this classification; (4) the classification of residents and non-resident pensioners is not based on an intelligible differentia and that the differentia is wholly unrelated to the object of the Pensions Adjustment Act 1980. The classification offends art 8(1) of the Federal Constitution and has to be declared void; (5) the plaintiff's pension is to be adjusted in accordance with the provisions and arrears together with 8% interest per annum to be calculated on a yearly basis paid to him.

VR Menon v Government of Malaysia [1987] 2 MLJ 642 High Court, Kuala Lumpur (Ajaib Singh J).

A owned a house which was built in 1966. In 1970, there was a general revaluation of properties in the vicinity and the annual value was fixed at S$8,400. In 1975, A carried out extensive renovations to the house which substantially increased the floor area. In November 1976, the Chief Assessor increased the annual value to S$28,000. This was based on current rentals obtained for comparable houses in the vicinity. No similar increase in annual value was assessed for other houses in the vicinity which had not been renovated or let out. A challenged the increased assessment, inter alia, on the ground that he had been denied equal protection of the law contrary to art 12(1) of the Constitution. The High Court accepted A's argument, but on appeal, the decision of the judge was reversed. A appealed to the Privy Council.

Held , dismissing the appeal: (1) absolute equality in the field of valuation for property tax purposes is not attainable. Inequalities which result from the application of a reasonable administrative policy do not amount to deliberate or arbitrary discrimination that would justify judicial intervention; (2) it was impracticable for the Chief Assessor to make up a new valuation list by revaluing all properties every year. The most that the Chief Assessor could do was to carry out a general valuation as and when resources permitted. In the meantime, he revalued in each year properties which had undergone a specific change of circumstances; (3) the Property Tax Act aims at practical equality of valuations on an up-to-date basis. The extent to which practical equality was capable of being achieved, in an inflationary environment, depended on the resources available to the Chief Assessor's ability to revalue all properties simultaneously. It was these factors and not any intentional violation of the essential principle of practical uniformity that led to the disparities between the annual value of A's property and the other properties in the vicinity; (4) accordingly, there had been no violation of the principle of equal treatment by the law and the appeal was dismissed.

Howe Yoon Chong v Chief Assessor and Comptroller of Property Tax [1990] SLR 4 Privy Council Appeal from Singapore (Lords Keith, Templeman, Griffiths, Ackner and Lowry).

In this case, the appellant, Howe Yoon Chong ('the owner'), is the owner of the subject property, a two-storey detached bungalow known as No 9, Binjai Walk. It is the home of the owner and was built in 1966 on a site of 18,902 sq ft in a residential estate called Binjai Park. The property was ascribed an annual value of $2,400 on its completion in 1966. Following a general reassessment in 1970 of all properties in Binjai Park, the annual value of the property was raised to $8,400. Since the property was owner-occupied, the yearly property tax payable was $552, and the owner enjoyed the concessions granted by the Comptroller of Property Tax (the second respondent) to all owner-occupiers in Singapore. In 1970, the Chief Assessor (the first respondent) ascribed to the building in the property the 'reduced' area of 2,340 sq ft, thus producing a unit rate of annual value of $3.59 per sq ft. In December 1975, the owner carried out substantial alterations and additions to the property at the cost of $48,000. The bedrooms increased from two to five, and the floor area had increased to 5,554 sq ft. For the purpose of calculating the annual value, the reduced area was put at 4,526 sq ft. The owner gave notice of the renovation works to the Chief Assessor under s 17(4) of the Property Tax Act (Cap 144, 1970 Ed). After receipt of this notice, the Chief Assessor by a letter dated 23 August 1976 gave the owner notice that he proposed amending the 1976 valuation list by increasing the annual value of the property from $8,400 to $28,800 effective 1 January 1976. On the same day, the Comptroller gave notice under s 19(3) of the Act that property tax of $1,224 per year was payable with effect from 1 December 1975. The Chief Assessor and the Comptroller both disallowed the owner's objections, whereupon the owner appealed to the Valuation Review Board. The Board dismissed his appeals based on three main issues, holding that (a) the Chief Assessor did not err in law and was in fact increasing the annual value of the property in comparison with other similar properties in Singapore, (b) the proposed annual value of $28,800 was not manifestly excessive or wrong in law and should not remain at $8,400, and (c) the proposed valuation or increased valuation of the property did not violate the Constitution or the Act. Against that decision of the Board the owner appealed to the High Court. Unlike Howe Yoon Chong v The Chief Assessor [1981] 1 MLJ 51 where the owner was unsuccessful in seeking to invalidate the entire valuation list, in the present case he complained that by reason of an aspect of the administrative practice of the Chief Assessor he had not been accorded the equal protection of the law under art 12(1) of the Constitution, the supreme law of Singapore. The owner contended that he had retained his owner-occupier status at all material times. The property should not have been assessed on rental values current in 1976, which took him out of the owner-occupier class. He said that he was unfairly treated if he were to be foisted with the increase of a notional rental value. On his contention, the unit rate of $3.59 should have been multiplied by the new reduced area of 4,526 sq ft which would have produced the annual value of only $16,240, which should have been applied until the next general reassessment of annual values in 1979 or 1980 of all properties in Binjai Park.

Held, allowing the appeal: (1) the administrative practice carried in this case was inconsistent with the provisions of art 12(1) of the Constitution. The owner should have been accorded the privilege of the owner-occupiers until the next 'general assessment' in 1979 or 1980. Any increase in the annual value of the property should have been limited to the unit rate per sq ft current in 1970 which should be applied to what is technically called the new 'reduced' area. The owner, as an owner-occupier, was similarly situated in all material respects with other owner-occupiers whose properties were fortuitously not renovated, and he should not be treated differently; (2) and (b) the obiter dicta in that case, which were inapplicable in that other case, fairly and squarely govern the facts in this case. The Valuation Review Board failed to appreciate these crucial distinctions and were accordingly wrong in law; (3) the Privy Council in stressing the supremacy of the provisions of the Singapore Constitution pointed out that, in its view, an intentional and systematic undervaluation of the type and nature considered by the US Supreme Court in Sioux City Bridge Co v Dakota County [1922] 260 US Reports 441, would be contrary to the equal protection clause; (4) the decision of the Privy Council in the other case of the owner would show that (a) the ratio decidendi of that case, limited to the facts which the owner was able to prove in that case, does not apply to the present case;in the circumstances, the appeal is allowed with costs and, applying the principle of uniformity enunciated in the dicta of Lord Fraser of Tullybelton, the annual value of the property for the year 1976 should be $16,240.

Howe Yoon Chong v Chief Assessor, Singapore & Anor 1984 High Court, Singapore (Lai Kew Chai J).

These were appeals from the dismissal of applications for certiorari in respect of the order of the Federal Capital Commissioner made under s 18A of the Control of Rent Act 1966 (Act 56/1966). On appeal it was submitted, inter alia, (a) that as the two premises were separately owned by each of the landlords, they could not make a joint application under s 18A of the Control of Rent Act 1966 for the recovery of separate rent-controlled premises; (b) that the order of the Federal Capital Commissioner was invalid as it contravened art 8 of the Constitution of Malaysia, as it discriminated against certain tenants of controlled premises in the Federal Capital; (c) the order of the Commissioner was made in contravention of the rule of audi alteram partem and therefore wrong in law; (d) the Commissioner in adjourning the proceedings and retiring to his chambers with his advisers who sat with him in the proceedings, violated the rule which required him to act openly, impartially and fairly.

Held, dismissing the appeal: art 8 of the Federal Constitution must be read as a whole and there was no discrimination in s 18A of the Control of Rent Act 1966 against anyone on the ground of religion, race, descent or place of birth.

Tan Hee Lock v Commissioner for Federal Capital & Ors; Haris bin Idris v Commissioner for Federal Capital & Ors [1973] 1 MLJ 238 Federal Court, Kuala Lumpur (Ong CJ, Gill and Ong Hock Sim FJJ).

In this trial, the accused is charged with the commission of two offences under the Internal Security Act 1960 (Act 82), one under s 57(1)(a) for the possession of a .22 double barrel pistol and the other under s 57(1)(b) for the possession of five rounds of .22 ammunition. The accused raised two preliminary objections, contending: first, that art 8(1) of the Federal Constitution had been contravened because no reason has been given by the prosecution why the accused had been charged under the Internal Security Act 1960, when there are two other laws relating to possession of firearms, ie the Arms Act No 21/60 and the Firearms (Increased Penalties) Act No 371/71; and secondly, the proclamation of all areas in the Federation to be security areas for the purposes of Part II of the Internal Security Act ('the Act') made by the Yang di-Pertuan Agong under s 47 of the Act is no longer valid because the said s 47 and s 57 of the Act now come under Part III thereof.

Held: (1) art 8(1) of the Federal Constitution had not been contravened in view of the provisions of s 376(i) and (iii) of the Criminal Procedure Code and art 145(3) of the Constitution; (2) on the second preliminary objection, the proclamation is valid in view of the provisions of s 12 of the Revision of Laws Act 1968 (Act 1), and ss 28 and 35(2) of the Interpretation Act 1967 (Act 23/1967).

Public Prosecutor v Mustaffa bin Ahmad [1986] 1 MLJ 302 High Court, Johore Bahru (Ibrahim J).

[Annotation: The appeal by the Public Prosecutor was dismissed by the Federal Court (Suffian LP, Gill CJ (Malaya), Lee Hun Hoe CJ (Borneo), Raja Azlan Shah and Wan Suleiman FJJ) on 23 January 1978, vide FCCr A No 7/77. No written judgment was delivered.]

This was an appeal from the decision of Raja Azlan Shah J ([1977] 1 MLJ 15). The appellant had been convicted on three charges of corruption, in that he as Mentri Besar of Selangor (a) solicited the sum of $250,000 for UMNO as an inducement to obtain the approval of the Executive Council in respect of an application for a piece of state land; (b) a member of a public body accepted for UMNO the sum of $25,000 as inducement to obtain such approval and (c) accepted for UMNO the sum of $225,000 as an inducement to obtain such approval. The learned trial judge sentenced the appellant to one year's imprisonment in respect of the first charge and two years' imprisonment in respect of each of the second and third charges, all the sentences to run concurrently. He also ordered payment of the sum of $225,000 to UMNO Selangor. The appellant appealed. On appeal it was argued (a) that s 418A of the Criminal Procedure Code (FMS Cap 6) (under the provisions of which the case of the appellant had been transferred from the subordinate court to the High Court for trial) was inconsistent with art 8 and therefore unconstitutional and void by virtue of art 4; (b) that the verdict was not supported by such evidence as was admissible.

Held: (1) s 418A of the Criminal Procedure Code is not discriminatory, as although it uses the words 'any particular case' it does not apply specifically to the particular case against the accused. The section applies to all criminal cases triable in a subordinate court; (2) if the accused had been tried in the sessions court he would not have had the use of depositions before trial, and at the trial in the High Court he also enjoyed the chance of not being called upon for his defence at the close of the case for the prosecution. By being tried in the High Court he did not run the risk of greater penalty, for if he had been tried in the sessions court he would have been liable to the full penalty prescribed by law. In any event, the trial in the High Court followed the same rules of procedure and evidence as would have been followed in the sessions court and so there was no question of the accused being denied a fair and impartial trial. The accused also had a right of appeal and a provision for appeal, it has been held in the Indian cases, may cure any defect in the law; (3) (e) art 8 itself envisages that there may be lawful discrimination based on classification; (4) the first question we should ask is, is the law discriminatory, and if it is, then is it allowed under art 8. If it is not, then it violates art 8 and the law is void; (5) and (b) the differentia has a rational relation to the object sought to be achieved by the law in question; (6) even if (contrary to the view of the court) the law may be regarded as discriminatory, there was reasonable classification in it, there was a nexus between it and the object of the law and there was a principle or policy in it to guide the Attorney General in the exercise of his discretion under s 418A. The Attorney General when acting under s 418A will be expected to transfer to the High Court only cases of unusual difficulty or of unusual importance. Sections 417 and 418A of the Criminal Procedure Code are vehicles for the Attorney General to exercise his power under art 145(3) of the Federal Constitution and it is for him to judge which case is difficult or important enough to be given an early trial after a transfer to the High Court under s 418A; (7) it is obvious that the scheme of the amendments to ss 138, 417 and 418A is to expedite trials, and there is an obvious classification, a classification clearly connected with the underlying principle of administration of justice that an alleged criminal should be placed on trial as soon as possible after the commission of the crime as the circumstances of the case would permit and this classification cannot be regarded as unreasonable and not having a nexus with the object of the amendments, namely speedy trial; (8) the statement made by the appellant to the officer of the National Bureau of Investigation was admissible by virtue of s 15(1) of the Prevention of Corruption Act 1961 (Act 57), and also by virtue of s 29 of the Evidence Act 1950 (Act 56) which provides that if a confession is otherwise admissible, ie if the court is satisfied that it is made voluntarily, it does not become inadmissible simply because it was made in answer to questions which he need not have answered whatever may have been the form of those questions; (9) evidence relating to cheques paid by the appellant out of the UMNO Special Fund to his personal account was wrongly admitted and should not have been used to discredit the accused, but in this case there was, apart from that evidence, enough evidence to support the finding of guilt; (10) evidence of the receipt of other donations received by the appellant was rightly admitted in evidence to rebut the defence that a voluntary and honest donation had been given in this case; (11) there was enough evidence to support the conviction as the evidence showed that the appellant did solicit the $250,000 corruptly from the bank as an inducement for the Executive Council to approve the bank's application and that he did accept the two sums corruptly; (12) in the circumstances of the case, the appellant was an agent within the meaning of s 4(a) of the Prevention of Corruption Act and he was correctly charged on the alternative charges. However in the circumstances it would not be proper or expedient to order the appellant to be convicted under that section also; (13) a preliminary inquiry is not a fundamental right guaranteed by the Constitution;in determining whether a law is discriminatory, the following principles apply: (a) the equality provision is not absolute. It does not mean that all laws must apply uniformly to all persons in all circumstances everywhere; (b) the equality provision is qualified in that discrimination is permitted under arts 8(5) and 153; (c) the prohibition of unequal treatment applies not only to the Legislature but also to the Executive; (d) the prohibition applies to both substantive and procedural law;a discriminatory law is still good law if it is based on 'reasonable' or 'permissible' classification in that: (a) the classification is founded on an intelligible differentia;the penalty ordered by the learned trial judge should have been ordered to be paid to the federal government.

Datuk Haji Harun bin Haji Idris v Public Prosecutor [1977] 2 MLJ 155 Federal Court, Kuala Lumpur (Suffian LP, Ali Hassan and Wan Suleiman FJJ).

The plaintiff in this case sought declarations to the effect that ss 31 and 42 of the Employees' Social Security Act 1969 (Act 4) (Socso) were ultra vires the Federal Constitution. Counsel for the plaintiff contended that these two sections violate art 8(1) of the Federal Constitution which provides for equal protection of the law for all persons and for equality of all persons before the law. He contended that the two sections of Socso were discriminatory because employees in industries covered by Socso were precluded from suing their employers under the common law for damages arising from injuries sustained in the course of employment.

Held: (1) it is well established that a reasonable classification does not offend art 8(1) of the Federal Constitution if it satisfies two conditions: first, that the classification does not offend art 8(1) of the Federal Constitution which distinguishes those that are grouped together from others and, second, that the differentia must have a rational relation to the object sought to be achieved by the Act; (2) the classification by Socso was not arbitrary. It was fair and reasonable; (3) the plaintiff's claim for the declarations was dismissed with costs.

R Rethana v Government of Malaysia & Anor [1988] 1 MLJ 133 High Court, Kuala Lumpur (Ajaib Singh J).

Ahmad Tajudin bin Hj Ishak v Suruhanjaya Pelabuhan Pulau Pinang [1997] 1 MLJ 241 Court of Appeal, Pulau Pinang (Gopal Sri Ram, Siti Norma Yaakob and Abdul Malek Ahmad JJCA).

Datuk Yong Teck Lee v Public Prosecutor & Anor [1993] 1 MLJ 295 High Court, Kota Kinabalu (Syed Ahmad Idid J).

Ahmad Tajudin bin Hj Ishak v Suruhanjaya Pelabuhan Pulau Pinang [1997] 1 MLJ 241 Court of Appeal, Pulau Pinang (Gopal Sri Ram, Siti Norma Yaakob and Abdul Malek Ahmad JJCA).

In this originating summons, the plaintiffs sought the following declarations: (a) that s 46(1)(a) of the Legal Profession Act 1976 (Act 166) as introduced by the Legal Profession (Amendment) Act 1978, is ultra vires art 8(1) of the Federal Constitution guaranteeing equality before the law and equal protection of the law and therefore void under art 4(1) of the Federal Constitution; (b) that s 46A(1)(a) of the Legal Profession Act 1976 as introduced by the Legal Profession (Amendment) Act 1978 is ultra vires art 10(1)(c) of the Federal Constitution guaranteeing freedom of association and therefore void under art 4(1) of the Federal Constitution.

Held: (1) it is common ground that a law is bad if it is discriminating, unreasonable and if there is no nexus between the law and the objects of the amending act; (2) one of the objects of s 46A of the Legal Profession Act 1976 is clearly that the affairs of the Bar be managed by members of the legal profession who are not only professionally independent but appear to the outside world to be so. Hence the provision that lawyers who are members of Parliament or any of the state legislatures or local authorities or hold office in any trade union or political party or organizations of a political nature are disqualified from holding office in the Bar Council or committees. The provisions (s 46A(1)(b) and (c)) apply to all lawyers and are therefore not discriminatory; (3) it also seems to be the object of s 46A of the Legal Profession Act 1976 to ensure that the management of the Bar is in the hands of senior members of the profession. The powers and functions of the Bar Council and State Bar Committees as provided by the Act must clearly be exercised by senior members of the profession and the disqualification from membership of these bodies of junior members is not unreasonable; (4) in so far, however, as s 46A(1) applies to any committee of the Bar Council or a Bar Committee the provision has gone more than a little too far and is unreasonable. The words 'or of any committee of the Bar Council or a Bar Committee' appearing in the section in so far as it affects para (a) thereof is ultra vires art 8(1) and is therefore void under art 4(1) of the Federal Constitution but the remaining provisions are not ultra vires or void under the Federal Constitution; (5) nowhere in s 46A is there a provision to prevent a lawyer from being a member of the Bar. The question of freedom of association therefore does not arise. Section 46A(1)(a) of the Legal Profession Act 1976 is not ultra vires art 10(1)(c) and therefore not void under art 4(1) of the Federal Constitution.

Malaysian Bar & Anor v Government of Malaysia [1986] 2 MLJ 225 High Court, Kuala Lumpur (Harun J).

[Annotation: This case was appealed to the Supreme Court and the decision of Harun J was reversed. See [1987] 2 MLJ 165.]

The issue which was raised in this appeal was the constitutionality of sub-s (1)(a) of s 46A of the Legal Profession Act 1976 (Act 166), which restricts membership of the Bar Council, State Bar Committee and Committee of the Bar Council or Bar Committee to advocates and solicitors of not less than seven years' standing. The appellants contended that the requirement violates the equal protection clause of art 8 of the Federal Constitution because it denies the Council and the Committee the benefit of using the talents of those lawyers with less than seven years' standing and also it denies this group of lawyers representation in the governing bodies of the legal profession. They argued that such discrimination was discriminatory, invidious and destructive of the unity of the Malaysian Bar and therefore violates the equal protection clause of art 8(1) of the Constitution. Harun J in the High Court held that para (a) of s 46A(1) is not unconstitutional in so far as it disqualifies a lawyer with less than seven years' standing from being a member of the Bar Council and a State Bar Committee but unconstitutional as regards disqualifying him from being a member of a Committee of the Bar Council or a State Bar Committee, see [1986] 2 MLJ 225. Both parties were dissatisfied and there was an appeal and cross-appeal to the Supreme Court.

Held, by a majority (Salleh Abas LP, dissenting): (1) the classification in sub-s (1)(a) of s 46A of the Legal Profession Act 1976 is based on reasonable as well as permissible criteria. The very scheme of the Legal Profession Act and its predecessor, the Advocates and Solicitors Ordinance 1947, recognizes the need for professional experience. Unless members of the governing bodies of the Bar are sufficiently experienced in the legal profession, these bodies are unable to effectively uphold the course of justice uninfluenced by fear or favour, improve the standard of conduct and learning of the legal profession, facilitate the exposition of legal knowledge by members and express views on matters relating to legislation when called upon to do so. There is, therefore, clearly a nexus between the basis of classification and the legitimate object of the Legal Profession Act as amended and as such the classification is valid and constitutional. No fundamental rights guaranteed by the Federal Constitution have been violated by the impugned subsection and on the basis of suspect classification it has passed the intelligible differentia and nexus test. Indeed the impugned section would appear to have satisfied even the legitimate or compelling state or governmental test required in the United States. On those grounds the appeal must be dismissed; (2) for the same reasons the respondent's cross-appeal must be allowed as there can be no difference in classification based on experience between membership of the Bar Council, the Bar Committees and any committee formed by those two bodies.

Malaysian Bar & Anor v Government of Malaysia [1987] 2 MLJ 165 Supreme Court, Kuala Lumpur (Salleh Abas LP, Mohamed Azmi and Wan Hamzah SCJJ).

D, an Indian citizen who lives in India, sought a declaration that the provision in s 1(2) of the Pensions Adjustment Act 1980 which restricts the application of the Act to pensioners and their dependants who are resident in Malaysia is ultra vires the Federal Constitution and consequently D sought orders to the effect that his pension be adjusted in accordance with the Act. D had received increases in his pension along the way as and when pensions were revised by the government but when the Act was passed giving more benefits to pensioners and their dependants, D found himself precluded from receiving those additional benefits as the application of the Act was restricted to pensioners and their dependants who are resident in Malaysia. The learned judge found in favour of D and P appealed to the Supreme Court.

Held, allowing the appeal: (1) in the instant case, there can be no doubt that the Act is discriminatory against foreign-resident pensioners. However, the discrimination is permissible as the classification between foreign and local-resident pensioners is founded on an intelligible differentia. The only question is whether the differentia has a rational relation to the object sought to be obtained by the Act; (2) it is obvious that the object of the Act is not to give additional benefits, pure and simple, to pensioners. The object is to ameliorate the financial position of pensioners in Malaysia due to the depreciating value of the ringgit and the rise in cost of living in Malaysia. As the classification has a rational nexus with the object sought to be achieved by the Act, the residential qualification imposed by the Act constitutes a permissible discrimination and therefore does not violate art 8(1) of the Federal Constitution with the result that it is not null and void under art 4(1); (3) in the instant case, the Act in question is not a law concerned with fundamental rights. To attain constitutional validity, it is sufficient if the classification made by the Act has a governmental purpose. As P had satisfied the court that the classification in the Act has a reasonable governmental purpose, the restriction imposed thereunder was held to be constitutionally valid; (4) the provision in art 147(1) of the Federal Constitution had no application in the instant case. It guarantees the additional pension benefits to D only if the Act applies to him. Since it was not applicable to him, that would be the end of the matter.

Government of Malaysia v VR Menon [1990] 1 MLJ 277 Supreme Court, Malaysia (Abdul Hamid LP, Hashim Yeop A Sani CJ (Malaya).

This is an appeal against the decision of the High Court ([1985] 1 MLJ 182) allowing the appeal against the decision of the Valuation Review Board (see [1985] 1 MLJ 183). The respondent is the owner of a two-storey detached residential house (built in 1966), No 9 Binjai Walk, erected on a site containing an area of 18,902 sq ft ('the property'). At all material times, he was and still is in occupation of the property, which was first assessed at an annual value of $2,400. As it was owner-occupied, the respondent paid property tax at a concessionary rate of 23% of the annual value amounting to $552 per annum. Following a general assessment of annual value of properties in the Binjai Park area, the annual value of the property was increased from $2,400 to $8,400 as from 9 February 1970. In 1975, substantial alterations and additions were made to the house which were completed in December 1975 at a cost of $48,000 resulting in an increase of the net floor area of the house from 3,547 sq ft to 5,554 sq ft and an increase in the number of bedrooms from two to five. The Chief Assessor, upon notification, proceeded to amend the valuation list 1976 by increasing the annual value of the property to $28,800 with effect from 1 January 1976 and notified the respondent accordingly. The Comptroller refused to amend their proposals. The respondent appealed to the Valuation Review Board. The board dismissed his appeal, upon which he appealed to the High Court. The High Court allowed his appeal. The High Court concluded that the administrative practice of the Chief Assessor was inconsistent with the provisions of art 12(1) of the Constitution. The learned judge, applying the principle of uniformity, held that the annual value of the property for the year 1976 should be $16,240. The appellants now appeal against that decision. The sole issue before the Court of Appeal is whether the assessment of annual value was made in contravention of art 12(1) of the Constitution.

Held, allowing the appeal with costs: the action taken by the Chief Assessor in (i) proceeding under s 18(7) of the Property Tax Act (Cap 144, 1970 Ed) to amend the valuation list as regards the property; (ii) revising the annual value of the property to $28,800 in accordance with s 2 of the Act, thus updating the annual value of the property; and (iii) not revising the annual values of the other properties in the Binjai Park area in which there had been no change of circumstances of the kind laid down in s 18 had not in any way resulted in a situation which is 'inconsistent with the equal protection clause of the Constitution'.

Chief Assessor and the Comptroller of Property Tax, Singapore v Howe Yoon Chong [1987] SLR 164 Court of Appeal, Singapore (Wee Chong Jin CJ, Sinnathuray and Thean JJ).

[Annotation: Affirmed on appeal. See [1990] SLR 4; [1990] 1 MLJ 321.]

The present appeal arose out of the Chief Assessor's decision (see [1978] 2 MLJ 87) to revise upwards the annual value for the year 1973 of a vacant plot of land belonging to the respondent and another as tenants-in-common in equal shares. The annual value of this property had stood at $1,340 since 1953 as then assessed under the Municipal Ordinance. In April 1973, the respondent's father declared that he held the equal half-share in the property in trust for the respondent after reciting that his share was purchased out of monies provided by the respondent. On 29 June 1973, the respondent gave notice to the Chief Assessor of the transfer of his father's equal half-share in the property to him. Subsequently, the Chief Assessor, acting under the provisions of s 18 of the Property Tax Act (Cap 144, 1970 Ed), gave notice on 1 October 1973 to the respondent that he proposed to amend the 1973 valuation list by increasing the annual value of the property from $1,340 to $26,000. The respondent's objection to the proposed increase was rejected by the Chief Assessor. The respondent's appeal to the Valuation Review Board was dismissed. He appealed to the High Court which held that the Chief Assessor had acted outside the scope of s 18(7)(a)(iii) and therefore the notice of 1 October 1973 was invalid and of no effect and any proceedings stemming from it were null and void. The Chief Assessor appealed. In the appeal, the respondent also argued that if the 1973 valuation list was valid, the list would itself contravene art 8(1) of the Federal Constitution.

Held, allowing the appeal: (1) a property must be assessed independently and correctly, ie in accordance with its annual value under the Property Tax Act. Once this had been done, it was immaterial that, as a consequence, other comparable properties were in fact assessed incorrectly. The remedy then would be for the Chief Assessor to correct, in accordance with the provisions of the Property Tax Act, any incorrect assessments; (2) the Chief Assessor was empowered by s 18 of the Property Tax Act to amend the valuation list in respect of a property included in the valuation list where he was of the opinion that its annual value did not correctly represent the annual value evidenced by, inter alia, the consideration paid on the sale of 'similar property'; (3) s 18(7)(A)(iii) did not limit the discretion conferred on the Chief Assessor to amend the valuation list in respect of a property included therein only to cases where there had been a sale or transfer for consideration or for value of that property; (4) there is no evidence, either directly or by inference, to suggest an intentional and arbitrary discrimination by improper execution of his statutory duties on the part of the Chief Assessor against the respondent, nor can the evidence support a finding that there was intentional systematic undervaluation by the Chief Assessor of other taxable properties in the same class as the respondent's property.

Chief Assessor, Property Tax, Singapore v Howe Yoon Chong 1978 Court of Appeal, Singapore (Wee Chong Jin CJ, Choor Singh and D'Cotta JJ).

[Annotation: This case was appealed to the Privy Council, see [1980-1981] SLR 36; [1981] 1 MLJ 51, where the judgment of the Court of Appeal was affirmed.]

The applicant in Criminal Application No 44-17-90 ('the first applicant') was detained upon the order of the Deputy Minister of Home Affairs made on 16 May 1987 for two years in the Rehabilitation Centre in Muar, Johore, from 18 May 1987. On 29 April 1989, the deputy minister issued an extension of detention order which directed that the first applicant be detained for a further two years from 17 May 1989 in the same centre. On 3 April 1990, the deputy minister issued a revocation of the extension of detention order made on 29 April 1989 and on the same day issued a fresh detention order directing the first applicant to be detained for 13 months in the same centre. The applicant in Criminal Application No 44-20-90 ('the second applicant') was at first detained for two years from 24 July 1986 in the Rehabilitation Centre in Muar, Johore, on the order of the deputy minister made on 21 July 1986. On 21 July 1988, the deputy minister issued an extension of detention order directing the second applicant to be detained for a further two years from 23 July 1988 in the same centre. On 3 April 1990, the deputy minister issued a revocation of the said extension of detention order and on the same day issued a fresh order directing the second applicant to be detained for one year in the same centre. The applicants submitted that because s 3(1)(b) of the Dangerous Drugs (Special Preventive Measures) Amendment Act 1990 ('Act A766') which amended s 6A of the Dangerous Drugs (Special Preventive Measures) Act 1985 ('Act 316') had enabled a fresh detention order to be made although fresh reports under ss 3(3) and 5(4) of Act 316 are not tendered, a person against whom a fresh detention order is made does not enjoy the same rights as someone against whom an original detention order is made. Hence, there will be a discrimination in law between them and this will contravene art 8 of the Federal Constitution.

Held, dismissing the applications: (1) the provision of s 6A(2) of Act A766 is not discrim-inatory because it clearly covers all persons against whom a fresh detention order is made, not only to a specific person or case. The classification made by s 6A(2) is also clear and it covers all persons against whom fresh detention orders are made under s 6(1) based on s 11B(2). The differentia made had a rational relationship with the objective to be reached by the said law, that is to confirm the fresh detention orders even though the said reports were not tendered. The persons who are included in this category, that is, persons against whom the fresh detention orders are made, are persons against whom the original detention orders have been made prior to that and before the original orders were made, both the reports had been tendered to the minister. The 'right' given to the persons against whom the original detention orders are made had been given and 'enjoyed' by those persons against whom the fresh detention orders are made. Therefore, s 6A(2) is not unconstitutional; (2) s 11B(2) did not provide that the order or fresh direction made must be from the same type as that which had been revoked. This view is also based on the fact that the effect of the direction for extension of the detention order which had been revoked and the fresh detention order which was made is the same -- both resulted in the detainee being detained in the same specified centre; (3) the argument by the applicants that s 5 of Act A766 (the amendment Act) should be included in the Act 316 (the parent Act) is without basis at all because it is up to the discretion of the draftsman and Parliament where the said section should be placed.

Goh Ah Ba v Timbalan Menteri Dalam Negeri, Malaysia & Anor [1991] 1 MLJ 233 High Court, Penang (Abdul Hamid JC).

[Annotation: The judgment was delivered in Bahasa Malaysia.]

The plaintiff applied by way of originating summons for, inter alia: (a) a declaration that the document ('the certificate') issued by the second defendant under s 104 of the Income Tax Act 1967 (Act 53) ('the Act') was null and void as being made ultra vires and/or mala fide and/or contrary to the established principles of natural justice; and (b) a declaration that the order of the third defendant to refuse and/or reject the plaintiff's application for a passport and/or to stop or refuse or revoke the issue of a passport to the plaintiff is null and void on the same grounds. A sum of RM231,016.95 was adjudged against the plaintiff as tax due and payable under a High Court order dated 9 October 1989. The plaintiff made some payments between 1987 and 1988 leaving the balance of RM239,482.39 when the certificate dated 27 June 1988 was issued by the second defendant (the Director of Inland Revenue) to the third defendant (the Director of Immigration). Although the certificate was issued, the plaintiff was not prevented from leaving Sarawak and Malaysia. He was also not informed of the certificate. Further payments were made by the plaintiff on 14 June 1988 but as a second additional tax assessment was made, the outstanding tax due and payable amounted to RM368,744.89 as of 15 June 1991. On 20 April 1990 the plaintiff applied for the renewal of his passport at the Immigration Department as the pages of his then existing passport had been used up although its validity only expired on 9 September 1990. He enclosed the original extract copy of his birth certificate and payment of RM100 with his application form. On 22 April 1990 the plaintiff, on making a telephone call to the Immigration Department to inquire about his application, was informed of the existence of the certificate. Between 20 April 1990 and 23 April 1991 there were communications between the plaintiff and the Department of Inland Revenue, Sarawak ('the Department'). The Department initially accepted the plaintiff's offer to pay by monthly instalment the sum of RM10,000 but later informed the plaintiff that it could only revoke the certificate when the plaintiff has furnished a bank guarantee for settlement of the tax outstanding. The plaintiff apparently did not comply with this. On 23 April 1991 the plaintiff commenced this action and the notice of issuance of the certificate dated 16 May 1991 was served on the plaintiff by the second defendant on 17 May 1991. The main issue which arose was the scope of s 104 of the Act in relation to the actions of the second and third defendants which were complained of. The plaintiff contended, inter alia, that: (a) s 104 of the Act conferred statutory discretion to the relevant persons and that the second defendant did not exercise this discretion. He submitted that before the second defendant could reasonably exercise his statutory discretion, he must have the relevant evidence to form an opinion that the plaintiff was about or likely to leave Malaysia for good; (b) he had been discriminated against, in violation of art 8 of the Federal Constitution as he was prevented from leaving the country even for a short period; (c) the exercise of discretion by the second defendant was not in compliance with the rules of natural justice and/or fairness. The necessary notice under s 104(3) had not been served on him in that the service of the notice was mandatory and not directory; (d) s 104 was unconstitutional, being contrary to arts 5, 8, 11 and 13 of the Constitution; and (e) the third defendant had no power, upon the second defendant's request, to refuse and/or 'defer his decision' indefinitely on his application for the renewal and to impound his birth certificate and RM100 in order to prevent him from leaving Malaysia.

Held, dismissing the action: (1) the fact that the certificate was issued by the second defendant pursuant to s 104 of the Act indicates that the second defendant did exercise his statutory discretion; (2) it is settled law that the construction of any statutory provision in the nature of s 104 of the Act will have to be based on the subjective test requirement. As such, it is a matter for the second defendant to decide and cannot be substituted by an objective test in a court of law. Further, it is not for the court to consider whether there was reasonable cause or ground for the second defendant to form an opinion and thereby issue the certificate. Section 138(3) of the Act can be relied on also by the second defendant so as not to reveal the evidence which led him to form the opinion. Therefore, the nature of 'leaving' the country by a person is not crucial; (3) s 104 comes under Pt VII of the Act with the main heading of 'Collection and Recovery of Tax'. Thus, the primary objective is to collect and recover taxes payable. As such, a person may be prevented from leaving Malaysia until he has paid his taxes or has furnished security for their payment. Accordingly, even if the interpretation of the word 'leave' or 'leaving' in s 104 is crucial, its meaning should not be restricted to mean 'leaving for good'; (4) further, to do so would entail adding the words 'for good' which Parliament did not do. The suggested interpretation by the plaintiff would also defeat the primary objective since no person knowing that he has taxes to pay would declare or even make it easily available any evidence that he is about to leave the country permanently. Further, there is no constitutional right of a Malaysian citizen to leave the country; (5) as long as the second defendant acts within the law, ie s 104, it cannot be said that he has violated art 8 of the Constitution. Firstly, there is no constitutional right to leave the country, and secondly, there is no evidence that the second defendant had acted mala fide or unfairly; (6) s 104(3) is only directory. No general rule can be laid down in construing whether the provisions of a statute are directory or imperative, and in every case the object of the statute must be looked at. Further, in view of the proviso to s 104(3), if Parliament had intended to make the issuance of a notice a condition precedent on the validity or effectiveness of a certificate issued under s 104, it would have stated so and the proviso would not have been included. Also to say that a 'notice' must be served before or on the issuance of a certificate under s 104 will defeat the purpose and effectiveness of Pt VII of the Act. Would-be evaders of income taxes will be able to know first of the issuance of certificates before the relevant authorities such as the Immigration or Police, and would hasten their exit without paying their outstanding taxes; (7) even though the certificate was dated 27 June 1988, it is not disputed that up to 20 April 1990 the plaintiff was not barred from going out of the country. The plaintiff has therefore no reason to say that he has been prejudiced by the issuance of the certificate especially since he knows he owes the Department in income tax; (8) there was no merit in the defendant's argument regarding the violation of arts 5, 8, 11 and 13 of the Constitution; (9) the third defendant had the discretion to defer his decision on the matter and in this case, he had acted reasonably and within the law in the exercise of that discretion; (10) the plaintiff was told of the reason for withholding the renewal of his passport, and if the reason was unjustified, the plaintiff should have made representation to rebut the reason given. The plaintiff's argument on the rules of natural justice was therefore without merit.

Tai Choi Yu v The Government of Malaysia & Ors Originating Summons No MR 17 of 1991 High Court, Kuching (Richard Malanjum JC).

The appellant was convicted of murder before a trial judge and a jury of nine men. The decision by the jury was unanimous. The mandatory death sentence was then imposed. The appellant appealed to the Court of Criminal Appeal of Mauritius, the grounds of appeal relating to a number of alleged misdirections and other failures on the part of the trial judge. The Court of Criminal Appeal dismissed his appeal. The appellant then appealed to the Privy Council on the grounds that his conviction should be quashed because his trial was unconstitutional, having regard to the constitution of the jury. His submissions were, inter alia, that (i) the exclusion at that time of women from jury service was contrary to ss 3 and 16 of the Constitution, which outlaw discrimination by reason of sex; and/or (ii) due to the exclusion of women from the jury, the appellant was not afforded a fair trial by an impartial court established by law.

Held, dismissing the appeal: (1) the meaning of the word 'discriminatory' as defined in s 16(3) excludes discrimination on the ground of sex. Since such discrimination is expressly referred to in s 3, it is evident that the exclusion in s 16 is deliberate, from which it follows that it cannot be said that the provision in the Jury Act for all jurymen is contrary to s 16. Accordingly, under s 3 the appellant was entitled to the fundamental right of protection of the law, as provided in s 10, without himself suffering any discrimination on the grounds of sex; (2) although in the United States a principle that the jury must be drawn from a list which is representative of society is well recognized, whether any such broad principle can be derived from s 10(1) of the Constitution of Mauritius depends upon the construction of the word 'impartial' in that section; (3) on the natural meaning of the words of the section, the provision is directed towards the actual tribunal before which the case is heard, and the hearing of that tribunal, and the introduction of the word 'impartial' is designed to ensure that the members of that tribunal are not only free from actual bias towards the accused, but also appear manifestly so in the eyes of the accused; (4) there is no basis for concluding that at the time the appellant was convicted, the exclusion of women from the jury list in Mauritius had ceased to have objective justification.

Ponsamy Poongavanam v R Privy Council Appeal No 27 of 1989 Privy Council Appeal from Mauritius (Lord Bridge of Harwich, Lord Templeman, Lord Ackner, Lord Goff of Chieveley, Lord Browne-Wilkinson).

In this case, the appellant became the owner of a half-share of land in Singapore and a notice of transfer was given to the respondent, the Chief Assessor. The respondent served a notice on the appellant and his co-owner proposing that the annual value be amended from $1,340 to $26,000 with effect from 4 April 1973. The appellant gave notice, objecting to the increase but the respondent decided not to amend his proposal. The appellant appealed to the Valuation Review Board which dismissed his appeal and confirmed the assessment. He appealed to the High Court which allowed the appeal and discharged the assessment. The respondent appealed to the Court of Appeal which allowed the appeal and restored the assessment. The appellant, with leave of the Court of Appeal, appealed to the Privy Council. In the High Court, Rajah J had allowed the appeal from the Valuation Review Board on the ground that the Chief Assessor's proposal to amend the valuation list in respect of the appellant's property was invalid and the learned judge did not consider the question of value Ð see [1978] 2 MLJ 87. The Court of Appeal held that the learned judge had erred in deciding that the Chief Assessor's proposal was invalid Ð see [1979] 1 MLJ 207. The appellant did not appeal against that part of the judgment. The Court of Appeal also held that the valuation list itself was valid and went on to decide the question of value against the appellant. It was argued before the Privy Council that (a) the Court of Appeal was wrong in holding that the valuation list was valid and (b) the Court of Appeal ought not to have dealt with the question of value because they had not heard submissions from the parties on it.

Held: (1) on the evidence, the valuation list was not so fundamentally defective as to be invalid. Even if it were accepted that, owing to shortage of manpower or some other reason, the list contained more defects than might have been expected, there was no evidence of the massive errors that would be required to justify a conclusion that the list was invalid; (2) a breach of the equal protection clause, that is art 8 of the Constitution, could not be established by proving the existence of inequalities due to inadvertence or inefficiency unless they were on a very substantial scale. Where the defects are the result of inadvertence or inefficiency, such as is alleged in this case, the test of unconstitutionality would not be substantially different from the test of validity of the list. In the present case, defects on the necessary scale had not been proved to exist; (3) the Court of Appeal were therefore correct in holding that the 1973 valuation list was not invalid; (4) as neither party had addressed the Court of Appeal on the question of value it was apparently common ground that if the Court of Appeal held the list to be valid the question of valuation would be best determined by a lower court. The case should therefore be sent back to the Court of Appeal for them to remit it to the High Court to determine the question of value in the light of such evidence limited to value as the parties may put before it. Obiter: in any appeal where either the Chief Assessor or an owner intends to rely on comparisons with other properties, a list of the subjects alleged to be comparable should be supplied to the other party in good time before the hearing.

Howe Yoon Chong v Chief Assessor, Property Tax, Singapore 1980 Privy Council Appeal from Singapore (Lord Wilberforce, Viscount Dilhorne, Lord Fraser of Tullybelton, Lord Russell of Killowen and Lord Roskill).

P was detained under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 by virtue of a detention order issued by the Deputy Minister of Home Affairs. The detention order authorized his detention for a period of two years. Subsequently, the deputy minister directed that his detention be extended for a further period of two years. This direction was subsequently revoked by the deputy minister who issued a fresh detention order in substitution for the directive which had been revoked. P sought to impugn the fresh detention order on the grounds, inter alia, that ss 3 and 5 of the Dangerous Drugs (Special Preventive Measures) Act 1990 are inconsistent with and therefore in violation of art 8 of the Federal Constitution and that the deputy minister in issuing the fresh detention order in substitution of the direction, had acted ultra vires the powers conferred upon him by s 11B(2) of the 1985 Act.

Held, allowing P's application: (1) although it is true to say that ss 3 and 5 of the 1990 Act have reduced the safeguards previously provided for under the 1985 Act, which required fresh reports by both the police officer and the enquiry officer, it would be wrong to say that those safeguards have been totally taken away. This is because the minister is still required to exercise his discretion bona fide and in the public interest having regard to the requirements of s 6(1) of the 1985 Act. In any event, since both the 1985 Act and the 1990 Act were made pursuant to art 149 of the Federal Constitution, the safeguards given by the 1985 Act can be curtailed by the 1990 Act. In the circumstances, as P was unable to establish the necessary degree of discrimination to constitute a violation of art 8, his objection based on art 8, accordingly, failed; (2) in the instant case, the deputy minister, in acting as he did, had acted ultra vires the powers conferred upon him by s 11B(2). This section only empowers the deputy minister to issue a fresh direction and not a fresh detention order after he had revoked the previous direction. The words 'a fresh detention order or ... a fresh direction as is mentioned under subsection (1) ...' can only mean another order or direction of the same kind as that revoked; (3) for the above reasons, the court granted P's application for habeas corpus and directed that he be set at liberty forthwith.

Chew Phang Oo v Timbalan Menteri Dalam Negeri, Malaysia & Anor [1991] 1 MLJ 59 High Court, Penang (Edgar Joseph Jr J).

The plaintiff is an elected Sabah legislative assemblyman. He had pleaded not guilty in 1990 on two charges of participating in an illegal procession in Kota Kinabalu. He filed this originating summons one and a half years later for: (a) a declaration that s 27(8) of the Police Act 1967 ('the Act') is ultra vires the Federal Constitution in that it contravenes arts 8(1) and 10(1) as it discriminates unfairly against persons such as the plaintiff; and (b) a declaration that ss 27(2) and (5) of the Act are ultra vires the Federal Constitution in that they contravene art 10(1)(b) as the stated sections are prohibitive and not restrictive in nature.

Held, dismissing the application: (1) under s 27(2), the applicant for a licence has to satisfy the police officer that the assembly, meeting or procession is not prejudicial to the interest of security or that it will not excite disturbance of the peace. When that satisfaction is achieved, the police will issue a licence. The section is not prohibitive. It is facilitative and regulatory and designed to meet the requirements of art 10(2). It is therefore not ultra vires the Federal Constitution; (2) in s 27(5)(a), intention is important and under sub-s (5)(b), a person who is present in the unlawful assembly through innocent circumstances has a defence. The section is therefore not ultra vires the Federal Constitution; (3) even discriminatory law is acceptable if the law is 'reasonable' or 'permissible'. Article 8(1) assures the individual the right to equal treatment with other individuals in similar circumstances. It does not forbid discrimination in punitive treatment between one class of individuals and another class in relation to which there is some difference in circumstances of the offence that has been committed. One has to answer for the consequences which must necessarily flow from one's employment, position, station or status. All assemblymen will be treated equally with other persons in that class. It is apparent that the RM2,000 floor limit fine imposed by s 27(8) may be intended to keep Parliamentarians from breaking the law. The object of the Act is to discourage illegal assemblies or processions. There is therefore a clear nexus. The award of different sentence for the same offence according to the circumstances of each case does not infringe the principle of equality before the law.

Datuk Yong Teck Lee v Public Prosecutor & Anor [1993] 1 MLJ 295 High Court, Kota Kinabalu (Syed Ahmad Idid J).

The respondents were elected to the Kelantan State Legislative Assembly, the first appellant, during the general elections held in 1990 and were subsequently sworn in as members. In April 1991 the first appellant passed the Laws of the Constitution of Kelantan (First Part) (Amendment) Enactment 1991 which inserted a new provision to the Kelantan State Constitution ('art 31A'). Retrospective effect was given to art 31A which provided that if any member of the first appellant 'who is a member of a political party resigns or is expelled from or for any reasons whatsoever ceases to be a member of such political party, he shall cease to be a member' of the first appellant and his seat shall become vacant. In July 1991 first appellant passed a resolution pursuant to art 31A that the respondents had ceased to be its members and declared the seats for their constituencies vacant. The Election Commission then held by-elections in the respondents' constituencies. In the by-elections the respondents stood for election but lost to Haji Samat ('Samat') and Haji Mahmud ('Mahmud'). The respondents applied for a declaration that art 31A was inconsistent with art 10(1)(c) of the Federal Constitution ('the Constitution') and was therefore void under art 4(1) of the Constitution. The High Court granted the declaration and the appellants appealed to the Supreme Court ('the first appeal'). The respondents also applied to the High Court to declare the election of Samat and Mahmud to be void and to reinstate the respondents as members of the first appellant. The High Court ([1992] 1 MLJ 343) allowed the application and the appellants again appealed to the Supreme Court ('the second appeal'). In the first appeal, the appellants argued that the respondents' right to be members of the first appellant was distinct from the right to freedom of association under art 10(1)(c) of the Constitution. The appellants also argued that art 31A did not restrict the right to freedom of association. In respect of the second appeal, the appellants argued that since Samat, Mahmud and the Election Commission had not been made parties to the proceedings in the High Court, there had been a breach of the rules of natural justice. The appellants further contended neither Samat nor Mahmud could be removed from the first appellant except by virtue of a declaration made by an election judge pursuant to an election petition, considering art 118 of the Constitution and s 32 of the Election Offences Act 1954. The appellants therefore argued that the judge had acted without jurisdiction in declaring the election of Samat and Mahmud to be void.

Held, dismissing both appeals: (1) the right to form an association under art 10(1)(c) of the Constitution includes the right to dissociate from an association. Any restriction to the right to dissociate from an association would make the guaranteed right of association ineffective and illusory; (2) the test which must be applied is whether the right claimed is an integral part of a fundamental right or partakes of the same basic nature and character as the fundamental right so that the exercise of such a right is in reality and substance nothing but an instance of the exercise of the fundamental right. Applying this test the right of the respondents to leave one political party and to join another, was an integral part of the fundamental right of association or at least partook of the same nature and character as the freedom of association; (3) in testing the validity of state action with regard to fundamental rights, the court must consider whether it directly affects the fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ineffective or illusory. The direct and inevitable consequences of art 31A which was designed to enforce party discipline, did impose a restriction on the exercise by members of the first appellant of their fundamental right of association guaranteed by art 10(1)(c) of the Constitution; (4) art 31A was accordingly void under art 4(1) of the Constitution to the extent where it imposed a restriction on the exercise of the fundamental right of association; (5) upon the respondents' election to the legislature, their right to freedom of speech and expression in the legislature is guaranteed by art 72(2) of the Constitution and the right to continue as members for the whole of the duration of their terms was likewise guaranteed by the Constitution subject to the qualification that a member of the legislature may be disqualified upon grounds specified in s 6(1) of Part 1 of the Eighth Schedule to the Constitution. Article 31A however did not fall within any of the grounds for disqualification specified in s 6(1) of Part 1 to the Eighth Schedule to the Constitution; (6) freedom of association is guaranteed by art 10(1)(c) of the Constitution and can only be restricted, inter alia, in the interest of the security of the federation, public order or morality as specified in art 10(2)(c) and (3) of the Constitution. Article 31A could not be deemed necessary or expedient in the interest of the security of the federation, public order, morality, labour or even education; (7) art 10(2) of the Constitution provides that only Parliament may by law impose restrictions on freedom of association. Even if assuming art 31A was valid, such a restriction could not be imposed by a law passed by any state legislature. This would be another ground to invalidate art 31A; (8) the grant of declaratory relief is discretionary. Nowadays the courts recognize the advantages of the declaration and therefore pay little attention to the early cases. The minimum requirement must be to achieve justice between litigants. A judicial attitude of pre-concieved reluctance to grant declaratory relief could amount to a vitiating element in the exercise of the discretion; (9) since the respondents had been removed from the first appellant pursuant to an invalid and void law, their removal was wrongful and consequently the subsequent election of Samat and Mahmud was also wrongful. In such circumstances the judge was entitled in the exercise of his discretion to declare accordingly and to further declare that the respondents were entitled to reinstatement; (10) accordingly art 118 of the Constitution and s 32 of the 1954 Act were irrelevant to the issues arising in the second appeal especially since the respondents were not challenging the validity of the by-elections upon any grounds stipulated in s 32 of the 1954 Act. In any case the reinstatement of the respondents was not dependent on the by-elections being declared void under s 32 of the 1954 Act; (11) the proceedings in this case had from the start received considerable treatment in the local press. Both Samat and Mahmud must have known about it and yet they made no attempt to apply to be joined as defendants; (12) a denial of the opportunity of being heard is a wrong which is personal to the party aggrieved. If such a party does not complain, it is not the affair of others to complain. Moreover the appellants were in reality fighting the suit on behalf of Samat and Mahmud; (13) having regard to the very exceptional circumstances of this case, the judge was not prevented from making the declarations prayed for notwithstanding the fact that two personsinterested in the subject matter of the declarations were not before the court; (14) in any event there were ample grounds in this case to invoke the doctrine of substantive fairness. Even if Samat and Mahmud had been made parties to the proceedings in the High Court, the result of the litigation would have been the same. It could not therefore be said that there was a real likelihood of Samat and Mahmud having suffered any prejudice; (15) the Election Commission was merely charged with the responsibility of conducting the by-elections and it would be indifferent to their results. The non-joinder of the Election Commission did not accordingly prevented the judge from granting the declarations. Even if the Election Commission had been made a party, it would have made no difference to the result of the litigation.

Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor [1992] 1 MLJ 697 Supreme Court, Malaysia (Abdul Hamid Omar LP, Harun Hashim, Mohamed Yusoff, Gunn Chit Tuan and Edgar Joseph Jr SCJJ).

The plaintiffs were elected to the Dewan Undangan Negeri Kelantan (Kelantan State Assembly) during general elections held on 21 October 1990 and were subsequently sworn in as members. On 25 April 1991, the first defendant passed the Enakmen Undang-Undang Perlembagaan Tubuh Kerajaan Kelantan (Bahagian Pertama) (Pindaan) 1991 (Laws of the Constitution of Kelantan (First Part) (Amendment) Enactment 1991) and introduced a new art XXXIA (which has retrospective effect from 19 November 1990) reading as follows: '(1) If any member of the Legislative Assembly who is a member of a political party resigns or is expelled from, or for any reasons whatsoever ceases to be a member of such political party, he shall cease to be a member of the Legislative Assembly and his seat shall become vacant. (2) For the purpose of Clause (1) the Legislative Assembly shall determine whether a seat has become vacant or as to when a seat becomes vacant and the determination of the Assembly shall be final and shall not be questioned in any Court on any ground whatsoever.' On 3 July 1991 the first defendant passed a resolution pursuant to the impugned legislation that the first and second plaintiffs had ceased to be members of the Dewan Undangan Negeri Kelantan and declared the seats for the constituencies of Sungai Pinang and Limbongan vacant. By reason of the vacancies the Election Commission of Malaysia (the third defendant) took steps to hold by-elections in the aforesaid constituencies and the by-elections were held and completed on 26 August 1991. In the by-elections, the plaintiffs stood for election as candidates for the Barisan Nasional but lost. The plaintiffs sought an order declaring that art XXXIA of the Kelantan State Constitution is invalid, null and void as it is ultra vires the provisions of art 10(1)(c) of the Federal Constitution. The plaintiffs contend that the new art XXXIA of the Kelantan State Constitution is inconsistent with the provisions of art 10(1)(c) of the Federal Constitution and is therefore void under art 4(1) of the Federal Constitution.

Held, allowing the application: (1) article 10(2) of the Federal Constitution authorizes only Parliament and not a state legislative assembly to make law to impose restrictions on the fundamental right of a citizen to form associations. The restriction may be imposed as Parliament deems it necessary only in the interest of the security of the Federation or any part thereof, public order, or morality. The word 'morality' means sexual morality and not political morality; (2) the test to be applied in determining whether a statute infringes a particular fundamental right is what is the direct and inevitable consequence or effect of the impugned statute on the fundamental right of the plaintiffs, and if the effect of the statute on the fundamental right is direct or inevitable, then a fortiori the effect must be presumed to have been intended by the statute. Where, therefore, the statute directly affects the fundamental right, or its inevitable effect on the fundamental right is such that it makes exercise of the right ineffective or illusory, the statute must be held to be unconstitutional, and must be struck down; (3) it is clear that art XXXIA of the Kelantan State Constitution imposes a restriction on the exercise by the plaintiffs of their right of association guaranteed by art 10(1)(c) of the Federal Constitution, that is, if they resign from their political party, they would be disqualified from continuing as a member of the state legislative assembly; (4) prima facie, art XXXIA implies that a penalty is attracted for exercising their fundamental right guaranteed by art 10(1)(c) of the Federal Constitution. Therefore, the inevitable effect or consequence of art XXXIA on the fundamental right of association of the plaintiffs is that it makes the exercise of their right ineffective or illusory; (5) if the phrase 'for any reasons whatsoever' contained in the impugned art XXXIA of the Kelantan State Constitution is meant to include resignation of membership of a political party then that part of the art XXXIA is also inconsistent with the provision of art 10(1)(c) of the Federal Constitution and is void under art 4(1) of the Federal Constitution.

Nordin bin Salleh & Anor v Dewan Undangan Negeri Kelantan & Ors [1992] 1 MLJ 343 High Court, Kuala Lumpur (Eusoff Chin J).

[Annotation: Affirmed on appeal. See [1992] 1 MLJ 697.]

Merdeka University Bhd v Government of Malaysia [1981] 2 MLJ 356 High Court, Kuala Lumpur (Abdoolcader J).

This was an appeal from the decision of the High Court reported in [1981] 2 MLJ 356. The appellant, a company limited by guarantee, submitted a petition to the Yang di-Pertuan Agong for an incorporation order for Merdeka University under s 6 of the Universities and University Colleges Act 1971 (Act 30). The petition was rejected and the Minister of Education announced that the rejection of the appellant's petition was for the following reasons: (a) Merdeka University would use Chinese as the medium of instruction; (b) it was meant to cater for students from Chinese independent secondary schools; (c) it was to be set up by the private sector; and as a composite of the basis for rejection, that in effect its establishment would be contrary to the national education policy. The appellant issued a writ asking for a declaration that the rejection of the petition for the establishment of the Merdeka University was null and void as it contravened the Federal Constitution and for a declaration that the refusal of the petition to establish a university was an unreasonable and improper exercise of the discretion conferred by s 6 of the Universities and University Colleges Act 1971. The learned judge held that the rejection was lawful on the ground, inter alia, that if the Merdeka University were established, it would be a public authority within the definition in art 160 of the Federal Constitution and its purpose would accordingly be an official purpose within art 152(b) of the Federal Constitution and it would therefore be excluded by the parenthesis in proviso (a) to art 152(1) from its protection. Consequently, as the Merdeka University proposes to give instruction in its courses in Chinese, whether as the only or the main medium for instruction, the proviso would afford no protection for the purpose and it may be prohibited by the government. The appellant appealed.

Held (by a majority): (1) a university is a statutory authority exercising powers vested in it by federal law and therefore a public authority; (2) Merdeka University if established would be a public authority within art 160(2) of the Federal Constitution and accordingly teaching in Chinese would be use of the language for an official purpose, which use may be prohibited under art 152 of the Constitution; (3) as there is no right to use the Chinese language for an official purpose, it was not unconstitutional and unlawful of the government to reject the petition to establish Merdeka University; (4) with regard to the other arguments raised by the appellant, the Federal Court were in complete agreement with the conclusions of the learned trial judge and the application of the principles of law involved to the facts of the case.

Merdeka University Bhd v Government of Malaysia [1982] 2 MLJ 243 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ (Malaya).

A, who was detained under the Internal Security Act 1960, applied for an order that a writ of habeas corpus be issued directing D to produce A before the court to show cause why A should not be released from detention. A alleged that his detention was not valid as the grounds for his detention were outside the purview of the Internal Security Act 1960. A was detained on the grounds that his activities to practise and propagate Christianity among the Malay community threatened the security of the country. A contended that such activities were not prohibited under the law as at the material time there was no such law prohibiting such propagation. Accordingly, his detention was bad in law in that it was inconsistent with the provision of art 11 of the Federal Constitution.

Held, allowing the application: (1) it is settled law that it is open to the courts, in determining the validity of any order of preventive detention, to consider whether the grounds of the detention fall within the scope of the law providing for preventive detention. However, the allegations of fact upon which the subjective satisfaction of the Minister is based are not open to challenge or judicial review; (2) although the power given to the Minister under s 8 of the 1960 Act is wide, the power must, nevertheless, be exercised within the scope provided under art 149 of the Federal Constitution as the 1960 Act was enacted pursuant to art 149. Having regard to art 149 of the Federal Constitution, it is clear that any provision in the Internal Security Act 1960 which is inconsistent with the provision of art 11 of the Federal Constitution shall not be valid; (3) the learned judge was of the view that the Minister has no power to deprive a person of his right to profess and practise his religion which is guaranteed under art 11 of the Federal Constitution and that if the Minister does so, his act will be inconsistent with the provision of art 11 with the result that any order of detention issued and based on that ground would not be valid; (4) in the instant case, the grounds stated in the order of detention were outside the scope of art 149 of the Federal Constitution. Consequently, the order of detention, which was based on grounds inconsistent with art 11, was outside the purview of the Internal Security Act 1960 and therefore not valid.

Jamaluddin bin Othman v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1989] 1 MLJ 368 High Court, Kuala Lumpur (Anuar J).

[Annotation: Reversed on appeal. See [1989] 1 MLJ 418.]

In 1973 P accepted D1's appointment as a clerk, inter alia, on the condition that she would be subject to government circulars in respect of work, behaviour and conditions of service. D1 issued a circular in 1985 which prohibited any attire covering a female public servant's face when on duty ('the circular'). P had acknowledged seeing 'the circular'. P however was in the habit of wearing 'purdah' which covered her whole face except her eyes since 1983. P refused to comply with 'the circular' on the ground that as a Muslim, she was required to cover her face. X, the chairman of the disciplinary board, decided to take disciplinary action against P after receiving a report concerning P's non-compliance with 'the circular'. X then referred the matter to D1. D1 subsequently wrote a letter to P requesting her to show cause as to why she should not be dismissed from public service. P gave a lengthy explanation. In 1986 D1 sent P a letter dismissing her from public service. P applied to the High Court for a declaration against D1-D2, inter alia, that her dismissal was unlawful and that 'the circular' had contravened her constitutional right to practise her Islamic religion under art 11(1) of the Federal Constitution. P firstly argued that order 24 of the Public Officers (Conduct and Discipline) (Chapter D) General Orders 1980 had not been complied with. P then contended that the name of the person who lodged a complaint or report to X, was never disclosed to P. P also alleged that D1 should make a 'finding of guilt' before dismissing her. D1-D2 called X, a mufti, to testify that Muslim women are not required to cover their faces and 'the circular' was not therefore against the practice and teachings of Islam.

Held, dismissing the application: (1) under order 24 of the 1980 General Orders disciplinary action against P started when a report was received by X, the chairman of the disciplinary board. When X received such a report, he was not required to convene a board meeting. It was enough if X considered the gravity of the alleged disciplinary offence and decided whether proceedings should be taken with a view to dismissal or not. X's decision was not required to be conveyed to P or to anyone else. X would then refer the matter to D1. Accordingly in this case, order 24 of the 1980 General Orders was complied with; (2) the 1980 General Orders does not require the complainant's name to be disclosed to P or anyone else. The complainant's name would most probably be disclosed to P if D1 decides to appoint a committee to inquire into the complaint under order 26(5) of the 1980 General Orders. This matter is however left to the wisdom of D1 wherein the court will not interfere; (3) order 26(4) of the 1980 General Orders does not require D1 to make a 'finding of guilt' before dismissing P. D1 was only required to decide whether P's explanation had exculpated her to the satisfaction of D1; (4) art 11(1) of the Constitution is intended to protect absolutely the religious beliefs of the people but in exercising religious practices, art 11(5) of the Constitution forbids any act which may lead to public disorder or which may affect public health or public morality; (5) there is nothing illegal in laying down conditions for clothings to be worn by government officers while at work for the sake of discipline of the service provided the conditions do not militate against public order, morality or health. Accordingly there should be no objection to 'the circular' on the ground that it was unconstitutional even though the conditions imposed may restrict to some extent, the religious practices of the public servants; (6) 'the circular' is therefore lawful and reasonable. P's disobedience of 'the circular' would justify the taking of disciplinary action against her.

Hajjah Halimatussaadiah v Public Service Commission [1992] 1 MLJ 513 Malaysia & Anor High Court, Kuala Lumpur (Eusoff Chin J).

The appellants were convicted under s 14(3) of the Societies Act (Cap 311) (the Act) for attending a meeting of an unlawful society, namely, the Jehovah's Witnesses. The first and third appellants were further convicted of the offence under s 15(1) of the Act for knowingly allowing their premises to be used for the meeting of an unlawful society. The appellants were all adherents of the Singapore Congregation of Jehovah's Witnesses (SCJW), which was deregistered by the Minister for Home Affairs by Gazette Notification No 179 dated 14 January 1972 (Order 179), in exercise of his powers under s 24(1) of the Act. The appellants appealed against the trial judge's decision to turn down their application under s 56A of the Subordinate Courts Act (Cap 321) to refer certain constitutional issues to the High Court for its decision. Firstly, it was contended that art 15(1) of the Constitution guaranteed freedom of religion to every person including those adhering to religious minorities. Secondly, it was argued that the Act had to be applied consistently with arts 15(1), (3) and (4) of the Constitution, as freedom of religion was not confined to the right to believe but included the right to practice one's belief. Next, it was alleged that where a general law was applied to only one group of citizens, it was clearly discriminatory and a violation of art 12(1) of the Constitution. A further issue of contention was that Order 179 dissolving the SCJW was void as it violated arts 12(1) and 15(1) and (3) of the Constitution, in that it was arbitrary and unreasonable as it was disproportionate to any claim of State interest. Finally, the appellants contended that this court was not bound by the High Court decision in Chan Hiang Leng Colin v PP [1994] 3 SLR 662, which was merely obiter. In addition, the appellants claimed that the trial judge had erred in finding the appellants guilty of the charges, in particular, in holding that a private meeting for prayer and bible study by the appellants violated the Societies Act.

Held, dismissing the appeal: (1) the right to freedom of religion was subject to inherent limitations and was not an absolute and unqualified right. The inherent limitations were presently found in Order 179 and the Societies Act; (2) the courts did not condemn a person's right to his or her religious belief. However, where the manner of professing or practising one's belief was in contravention of any laws for the time being, and which made it a criminal offence, then those who did so had to bear the consequences of their own action; (3) the Constitution did not forbid discrimination in punitive treatment between one class of individuals and another, provided that the dissimilarity in circumstances, which justified the differentiation in punishments imposed, was not purely arbitrary but bore a reasonable relation to the social object of the law; (4) it should be noted that art 12(2) and (3) of the Constitution expressly envisaged that there may have been lawful discrimination based on classification. Where the law applied to one group of citizens, art 12(1) of the Constitution assured to the individual the right to equal treatment with other individuals in similar circumstances; (5) the argument that Order 179 was arbitrary, unreasonable and disproportionate to any claim of State interest was unmeritorious. Moreover the comments on the validity of Order 179 were not merely obiter as they had been expressly dealt with in previous decisions; (6) as to the substantive issue, it was not disputed that the appellants were adherents of the SCJW and were attending a worship and bible study meeting when the first and third appellants' premises were raided by the police. With regard to whether this was a meeting of an unlawful society, it was irrelevant that the congregation was holding a prayer and bible study meeting as s 2 of the Act, which set out the definition of a society, did not distinguish the purpose or nature of the meeting; (7) article 15 of the Constitution merely established the right of a person to profess and practise his religion. It did not regulate the exercise of this right, which was left to legislation and other laws, as expressly provided for under art 15(4).

Kok Hoong Tan Dennis & Ors v Public Prosecutor [1997] 1 SLR 123 High Court, Singapore (Yong Pung How CJ).

The appellants were tried and convicted under s 4(2) of the Undesirable Publications Act (Cap 358) (the UPA) of charges of being in possession of publications published by the Watch Tower Bible & Tract Society (WTBTS), which were prohibited by gazette notification No 123 dated 14 January 1972 (Order 123), made pursuant to s 3 of the UPA. The contents of the prohibited publications were related to the doctrine of the sect known as the Jehovah's Witnesses. Part of the doctrine of the Jehovah's Witnesses advocated that its adherents should refuse to do any form of military duty. As a result, a number of Jehovah's Witnesses refused to do national service. It was on this basis that the Jehovah's Witnesses were de-registered as a society by the Minister for Home Affairs pursuant to s 24 (1) of the Societies Act (Cap 311) and via gazette notification No 179 (Order 179) on 14 January 1972. At the same time, O 123 was passed by the Minister for Culture banning all publications by WTBTS, the parent body of the Jehovah's Witnesses. The appellants did not dispute possession of the prohibited publications. The appeal proceeded on arguments which challenged the respective orders of de-registration and prohibition on the grounds that they were ultra vires the enabling Acts and art 15 of the Constitution of the Republic of Singapore. It was alleged that the appellants and other Jehovah's Witnesses were unlawfully denied the free exercise of their religious liberty as guaranteed under the Constitution. The appellants contended that the two orders were null and unenforceable as having been promulgated arbitrarily and by a denial of natural justice, without notice or hearing, on secret evidence wholly irrelevant to the public interest. In the lower court, O 123 was challenged. However, being a subordinate court, its jurisdiction was limited as it had no powers of judicial review. The district judge accordingly ruled that he had no jurisdiction to review the exercise of discretion by a minister but held that the appellants were entitled to raise as a defence the validity of the order to the extent of whether there was a patent invalidity in the sense of being ultra vires its parent Act. The district judge found no patent invalidity in O 123. At the same time, he did not order a reference to the High Court on the constitutional questions which arose pursuant to his powers under s 56A of the Subordinate Courts Act (Cap 321). As the submissions in the appeal were broader and were centred on constitutional issues, the appellants contended that the appellate court had unlimited jurisdiction to determine all the issues which were raised. The prosecution adopted a similar view of the court's jurisdiction in the matter. Prior to the hearing of the appeal, the appellants applied by criminal motion for various orders seeking leave to adduce additional evidence (Criminal Motion No 16 of 94). These applications were generally for an order under s 257(1) of the Criminal Procedure Code (Cap 68) (CPC) that certain articles and publications on the Jehovah's Witnesses be adduced, an order under s 58 of the CPC directing the production of the files and documents of the respective ministries in making O 123 and O 179, a full response from the respective ministries to interrogatories which the appellants intended to send with respect to the making of O 123 and O 179 and an order for the adducing of expert evidence on the beliefs and practices of the Jehovah's Witnesses. At the same time, the prosecution applied to adduce additional evidence by way of affidavits of the Permanent Secretaries of the Ministry of Home Affairs, the Ministry of Information and the Arts, the Assistant Director of Manpower of the Ministry of Defence and the Director of Personnel, Ministry of Education (Criminal Motion No 19 of 94).

Held, dismissing the appeal: (1) a court's powers, when sitting as an appellate court, are necessarily limited to that of the subordinate court from which the appeal emanated; (2) a criminal court has jurisdiction to consider a defence alleging that a subsidiary legislation is substantially invalid but cannot consider whether it is procedurally invalid. Subsidiary legislation can therefore only be challenged if it is ultra vires its enabling Act or is invalid on the face of it; (3) [1983] 3 All ER 1124. The facts of this case being undoubtedly exceptional, in the interests of justice and in consideration of the fact that the invalidity of the orders, if proved, would constitute substantive defences to the charges, this court, despite sitting as an appellate court in a criminal proceeding, was competent to address itself to all the issues; (4) any additional evidence may only be adduced if it is necessary, ie 'necessary in the interests of justice'. The purpose of adducing additional evidence was only to show that the Jehovah's Witnesses were a respectable religious group whose fundamental tenets could not have been in any sense objectionable and contrary to public order and the public interest. Since this was not in issue, the publications and articles and expert evidence on the beliefs and practices of the Jehovah's Witnesses were irrelevant; (5) ss 125 and 126 of the Evidence Act (Cap 97, 1990 Ed) provides a general prohibition against disclosure of official records relating to affairs of State which the appellants have failed to surmount. In any event, it had not been shown that there was any public interest which dictated that such documents be produced before the court; (6) there is no legal provision in Singapore with respect to criminal proceedings which allows either the prosecution or the defence to obtain evidence from the opposite party by interrogatories. The appellants therefore had no legal basis for their application. Further, the only response which the appellants could get from such interrogatories would be the statement that the de-registration and prohibition orders were based on the Jehovah's Witnesses' refusal to do national service. The appellants' motion was accordingly dismissed; (7) the additional evidence sought to be tendered by the respondent was relevant as it would enable the court to inquire fully into the challenges raised. The contents of the various affidavits amounted to the explanations and reasons for the making of the respective orders. Further, there was no objection to admitting the additional evidence The respondent's motion was accordingly granted; (8) cross-examination of the deponents of affidavits is never allowed in judicial review proceedings, save for very special circumstances. Although the proceeding at hand was not strictly a judicial review, this rule was clearly applicable as the court was essentially exercising the same powers. There was neither a dispute of facts nor any exceptional circumstance which required the cross-examination of the deponents of the affidavits and the proposed cross-examination could not have in any way been relevant to the legal issues raised in this appeal. The appellants' application for such cross-examination was therefore dismissed; (9) the court has the power and duty to ensure that the provisions of the Constitution are observed. The court also has a duty to declare invalid any exercise of power, legislative and executive, which exceeds the limits of the power conferred by the Constitution, or which contravenes any prohibition which the Constitution provides. The Constitution should, however, be primarily interpreted within its own four walls only and not from analogies from other jurisdictions; (10) the basic proposition in judicial review is that the court will not question the merits of the exercise of the ministerial discretion. There can be no enquiry as to whether it was a correct or proper exercise or whether it should or ought to have been taken. The court cannot substitute its own view as to how the discretion should be exercised with that actually taken. In addition, the presumption is that the orders were valid and the burden of proving that they were ultra vires or unconstitutional therefore lay on the appellants who challenge them on such grounds. The appellants had to show that the ministers had acted ultra vires in the sense that they had exercised their discretion on irrelevant grounds, or that they had exceeded their powers under the enabling statutory provisions, or that the actions were unconstitutional as contravening the right of freedom of religion under art 15(1) of the Constitution; (11) religious beliefs ought to have proper protection, but actions undertaken or flowing from such beliefs must conform with the general law relating to public order and social protection. The right of freedom of religion must be reconciled with 'the right of the State to employ the sovereign power to ensure peace, security and orderly living without which constitutional guarantee of civil liberty would be a mockery'. The sovereignty, integrity and unity of Singapore are undoubtedly the paramount mandate of the Constitution and anything, including religious beliefs and practices, which tend to run counter to these objectives must be restrained. Article 15(4) of the Constitution clearly envisages that the right of freedom of religion is subject to inherent limitations and is therefore not an absolute and unqualified right; (12) the adherents of the Jehovah's Witnesses clearly believed that military service was prohibited by their religion, and, as a result, refused to do national service. The evidence produced before the court clearly showed that the relevant ministers had, at the relevant time, considered that the continued existence of a group which preached as one of its principal beliefs that military service was forbidden was contrary to public peace, welfare and good order. This court was not here to review the merits of the decision and conclude that the Jehovah's Witnesses were or were not a threat to public order. The concept of public order as envisaged under art 15(4) was not dissimilar to the notion of public peace, welfare and good order within s 24(1)(a) of the Societies Act (Cap 311). Order 179 could therefore not have contravened art 15(1) or be ultra vires s 24(1)(a); (13) the appellants' submission that there needed to be a clear and immediate danger to public order before the right of freedom of religion could be curtailed, and that the de-registration orders were therefore unjustified since there was no such threat at all, was misplaced. Beliefs, especially those propagated in the name of 'religion', should be put to a stop before the damage sought to be prevented could transpire; (14) the court can only interfere with the exercise of the discretion of the minister under s 3(1) under the UPA to the extent of ensuring that the minister exercises his discretionary powers according to the statutory limitations. The minister's reasons for the ban emanated from considerations of national sinued existence of the Jehovah's Witnesses 'would be prejudicial to public welfare and good order in Singapore'. Such considerations were clearly related to the public interest, and there could therefore be no objection that the prohibition order was ordered on an irrelevant ground. In the circumstances, O 123 was not ultra vires; (15) the evidence clearly showed that the process of de-registration and the prohibition of the publications were a joint operation by the two relevant ministers. As such, the contention that O 123 was flawed in the sense that the Minister for Culture did not himself exercise his discretion but had acted on the basis that the Minister for Home Affairs had made a decision under a different statute, being the Societies Act, and that this therefore amounted to a failure to exercise on a lawful basis the discretion that belonged to him was without merit; (16) there was no express requirement in either s 24 of the Societies Act or s 3 of the UPA for the relevant minister to give the affected parties a right to be heard before the orders are made. The objective of the orders here was clearly for the preservation of national security and the ordinary principles of natural justice have to be modified accordingly. The requirements of natural justice therefore did not have to be complied with fully. Further, since the basis for the orders clearly could not be disputed, no purpose would be achieved if a hearing was held; (17) the respective ministers were clearly of the view that the continued existence of the Jehovah's Witnesses was prejudicial to the national interest. The basis for the de-registration clearly flowed from the danger of allowing absolute freedom of religion which might create a complete denial of a government's authority and ability to govern individuals or groups asserting a religious affiliation. The Jehovah's Witnesses were not mere conscientious objectors to national service but were engaging in conduct which was prejudicial to national security. Their activities were therefore restricted on the basis that they were against the 'public order'. Equally, the prohibition on their publications was a natural consequence and was therefore in the 'public interest'. As such the orders were not irrational or disproportionate; (18) it is clearly not proper to raise ultra vires issues which extend beyond substantive validity, in the sense of being clearly wrong on the face of it, in subordinate court proceedings. Nevertheless, the court had to still take into account the fact that both parties were ad idem with each other as to the court's competence in determining all the issues raised. This was, therefore, an appropriate case for the application of Lord Diplock's second exception in O'Reilly v Mackman [1983] 2 AC 287;(per curiam) the making of a reference under s 56A of the Subordinate Courts Act (Cap 321) is at the discretion of the subordinate courts and not a mandatory one. This was to prevent unnecessary stays of proceeding each time a party purports to raise a constitutional issue. The merits of the case can then be considered by the district judge before deciding whether such a reference ought to be made to the High Court.

Chan Hiang Leng Colin & Ors v Public Prosecutor [1994] 3 SLR 662 High Court, Singapore (Yong Pung How CJ).

P had obtained a court order restraining D from entering, evicting, demolishing or interfering with P1's temple located on the land in question as well as the homes of P2, P3 and P5 and the sundry shop of P4 located on an adjacent land. The court had granted the injunction to P upon a certificate of urgency and upon an undertaking for damages. P had contended that the eviction notices issued to them were bad in law as D1 was not the owner of the said lot and the adjoining land. D1, the district land administrator, applied for the injunction to be set aside. D1 contended that the registered owner of the land on which the temple was located, was the Federal Land Commissioner who was holding the land for and on behalf of the federal government. As for the adjoining land, D1 contended that it was state land within the meaning of s 5 of the National Land Code 1965. As such, D1 contended that P had no legal or equitable interest over the two lots of land in question. It was also contended by D1 that an injunction cannot be issued against the government under s 29 of the Government Proceedings Ordinance 1956.

Held, allowing the application: (1) in the instant case, it was clear that the two lots of land in question belonged to the government as conceded by counsel for P. P were, accordingly, merely squatters and the injunction should not be allowed to continue by virtue of proviso (a) to s 29 of the Ordinance; (2) in the instant case, arts 8 and 11 of the Federal Constitution had no application. It was not a situation where another group of persons had been allowed to remain on the land despite the setting aside of the injunction or that with the demolition of the temple, P1 could not continue to carry out his religious activities in another place; (3) the court, however, granted a stay pending the appeal by P so as to maintain the status quo between the parties.

Kuttikevundaw & Ors v Pentadbir Tanah Daerah Manjung, Lumut & Anor Civil Suit No 21-60-89 High Court, Ipoh (Abdul Malek J).

X, a minor by secular law, was converted as a Muslim by the Kadhi of Pasir Mas, Kelantan without the knowledge of P, her father who was a Buddhist. There was no evidence at all that X was persuaded by any responsible person or authority to change her religion. P sought a declaration that he, as the lawful father and guardian of X, had the right to decide her religion, education and upbringing. There were also other prayers seeking consequential relief. The High Court found in favour of D and P appealed to the Supreme Court.

Held, allowing the appeal: (1) having regard to the relevant constitutional provisions, the provisions of the Guardianship of Infants Act 1961 and the circumstances behind the promulgation of the Federal Constitution, under normal circumstances, a parent or guardian of a non-Muslim infant has the right to decide the choice of various issues affecting the infant's life until he reaches the age of majority. The Guardianship of Infants Act 1961 incorporates the rights and liabilities of infants and regulates the relationship between infants and parents. Religious practice is one of the rights of the infant exercised by the guardian on his behalf until he becomes a major. In all the circumstances and in the wider interests of the nation, no infant shall have the automatic right to receive instruction relating to any other religion than his own without the permission of the parent or guardian; (2) in the instant case, the law applicable to X immediately prior to her conversion is the civil law. Accordingly, the right of religious practice of the infant shall be exercised by the guardian on her behalf until she reaches the age of majority; (3) the Supreme Court, however, declined to make the declaration sought by P as the appeal was only of academic interest in that X was no longer an infant and had reached the age of majority.

Teoh Eng Huat v Kadhi, Pasir Mas, Kelantan & Anor [1990] 2 MLJ 300 Supreme Court, Malaysia (Abdul Hamid LP, Hashim Yeop A Sani CJ (Malaya).

In this case, the plaintiff learnt that his daughter aged 17 years had been converted to Islam. This was without his knowledge and consent. He applied to the High Court for the following declarations and orders: (a) a declaration that he, as the lawful father and guardian of the infant, has the right to decide her religion, education and upbringing; (b) a declaration that the infant shall continue to be brought up in the Buddhist faith in accordance with his wishes; (c) a declaration that the infant's conversion into the Muslim faith made some time between 18 and 22 December 1985 by the first defendant, without his consent, is null and void; (d) an order that the registration of the conversion of the infant into the Muslim faith in the records of the second defendant be expunged; (e) costs; and (f) such further or other order as the Honourable Court deemed fit and proper.

Held: (1) the girl in this case had the right to choose her own religion, if she does it on her own free will in view of arts 11 and 12 of the Federal Constitution; (2) the application in the first prayer as regards the right of the plaintiff to decide the infant's religion should therefore be dismissed; (3) the Guardianship of Infants Act 1961 (Act 13/1961) applies in Kelantan and applies to both the plaintiff and the infant in so far as the provisions were not contrary to the Muslim religion; (4) the father is under the Guardianship of Infants Act 1961, the guardian of the infant and he has the custody of the infant and is responsible for her support, health and education. The court was deprived of the opportunity of interviewing the infant in this case as her whereabouts were unknown and therefore could not make any order under s 10 of the Act read with s 5 thereof; (5) the application of the plaintiff in regard to the right to decide on the education and upbringing of the infant until she attains majority is allowed, subject to the condition that it does not conflict with the principles of the infant's choice of religion guaranteed to her under the Federal Constitution; (6) the other subsequent prayers are dismissed with costs.

Re Susie Teoh; Teoh Eng Huat v Kadhi of Pasir Mas Kelantan and Majlis Ugama Islam dan Adat Istiadat Melayu, Kelantan [1986] 2 MLJ 228 High Court, Kota Bharu (Abdul Malek J).

[Annotation: Reversed on appeal. See [1990] 2 MLJ 300.]

Kok Hoong Tan Dennis & Ors v Public Prosecutor [1997] 1 SLR 123 High Court, Singapore (Yong Pung How CJ).

The appellant, a clerk in the Perak State Legal Adviser's office, had been wearing the 'purdah' during office hours, in contravention of a government circular which prohibited lady civil servants from wearing attire covering the face during office hours. The disciplinary board for Group C officers at the Attorney General's chambers ('the disciplinary board') decided that disciplinary proceedings should be taken against her with a view to her dismissal and informed the Public Services Commission ('the PSC') of its decision. The secretary of the PSC requested the appellant to show cause as to why she should not be dismissed. The appellant's reply gave her reasons for wearing the 'purdah' and quoted verses from the Quran. The PSC decided to dismiss the appellant from service under general O 26 of the Public Officers (Conduct and Discipline) (Chapter 'D') General Orders 1980 ('GO 'D''). The appellant brought an action in the High Court challenging the validity of her dismissal by the PSC. The action dismissed. (See [1992] 1 MLJ 513.) The appellant has appealed on the grounds that: (i) the decision to dismiss her had effectively been made by the disciplinary board and not the PSC, which was in fact the appropriate disciplinary authority under order 24 of GO 'D'; (ii) she was not obliged to comply with the circular as it did not mention the word 'purdah'; (iii) her constitutional right under art 11(1) of the Federal Constitution to profess and practise her religion had been infringed; and (iv) she was obliged to wear the purdah to avoid a 'fitnah' (slander) against her as, according to Surah 24 of the Quran, a Muslim woman must always cover her face, except the eyes.

Held, dismissing the appeal: (1) the procedure adopted by the disciplinary board and the PSC had complied strictly with O 24 and O 26 of GO 'D'. The disciplinary board had decided that proceedings for dismissal should be taken against the appellant and referred the matter to the PSC, which then wrote a show cause letter to her. The appellant was given every opportunity to exculpate herself and, after due consideration of her representations, the PSC decided to dismiss her. Therefore, the appellant failed on the first ground; (2) there was no ambiguity in the circular which did not allow lady civil servants to wear, inter alia, any attire covering the face. The dictionary meaning of 'purdah' is a cloth or curtain for keeping women from sight or a veil or cloth to hide a woman's face. It could not be said that the circular was unclear to the appellant or that she did not understand its meaning or purpose; (3) the freedom of religion guaranteed under art 11(1) of the Federal Constitution is not absolute as art 11(5) does not authorize any act contrary to any general law relating to public order, public health or morality. The prohibition against the wearing of attire covering the face by lady civil officers during work does not affect the appellant's constitutional right to practise her religion. The wearing of purdah had nothing to do with the appellant's constitutional right to profess and practise her Muslim religion; (4) the appellant's interpretation of Surah 24 was misconceived. In the circumstances, the judge was right to reject this aspect of the appellant's evidence regarding the wearing of purdah.

Hajjah Halimatussaadiah bte Hj Kamaruddin v Public Services Commission, Malaysia & Anor [1994] 3 MLJ 61 Supreme Court, Malaysia (Abdul Hamid Omar LP, Edgar Joseph Jr and Mohamed Dzaiddin SCJJ).

On 13 August 1961, the Registrar-General of Citizens issued a notice to the applicant (appellant) in the form provided under r 22 of the Citizenship Rules 1960, notifying him of a proposal to make an order under art 25 of the Constitution of the Federation depriving him of his citizenship and drawing his attention to art 27(2) under which the applicant was entitled to have his case referred to a committee of inquiry. The grounds on which the order under art 25 was proposed to be made were notified to the applicant, being that he did make: (a) deliberate misrepresentation and inversion of Government Education Policy in a manner calculated to excite disaffection against the Yang di-Pertuan Agong and the government of the Federation; and (b) emotional appeals of an extreme communal nature calculated to promote feelings of ill-will and hostility between different races in the Federation likely to cause violence. On 12 September 1961 an order of prohibition nisi was granted to the applicant by Ong J prohibiting the Minister of the Interior (respondent) from referring the applicant's case to a committee of inquiry. The grounds on which applicant obtained this order of prohibition nisi were, inter alia; (i) that it was not competent for the Registrar-General to issue the notice that he purported to have issued under r 22 of the Citizenship Rules 1960; (ii) that the allegations made as to the basis for the notice, assuming them to be true, were not a sufficient compliance with the requirements of paragraph (a) of art 25(1).

Held: (1) under s 6 of the Second Schedule of the Constitution the Minister of Interior and Justice is authorized to make rules and prescribe forms for the exercise of his functions under Part III of the Constitution and under the Second Schedule. Rule 3 of the Citizenship Rule 1960, provides that the Minister may appoint a Registrar-General Citizens in order to give effect to the objects of Part III of the Constitution and the Second Schedule. It follows that when the Registrar-General acts under r 22 of the Citizenship Rules, and signs the notice, he is acting not in the purported exercise of any powers delegated to him, for there is no delegation, but simply as the clerk or amanuensis of the Minister. The notice issued to the applicant was therefore valid in form;

Held: and (d) that in any event the second ground stated in the notice was by itself incapable under that article of providing the required satisfaction to the Minister, because it merely alleged criminal offences against him which if proved would render him liable to punishment, in accordance with the law of the land and no more. Held: (1) the Court of Appeal at this stage was concerned only with the question whether the notice issued to the appellant was good in form and in content; (2) as to the form, s 6 of the Second Schedule to the Constitution authorizes the Minister to make rules and prescribe forms for the purpose of the exercise of his functions under Part III and the Schedule. The form itself is prescribed by the Minister under r 22 of the Citizenship Rules 1960 and r 22 concerns a notice given by the Federal Government. There is, therefore, neither by accident nor design any delegation of the Minister's functions in fact or in law. The form of the notice was therefore in order; (3) though it is necessary for the Minister when making an order under art 25 to have attained satisfaction on the matters laid down in arts 25(1)(a) and 25(3), it is not necessary that the Minister should have actually attained satisfaction before he takes steps to cause an inquiry to be held. However, before he takes such steps, the Constitution requires the fulfilment of four conditions which are (i) the Minister must have certain grounds of fact in mind; (ii) these grounds must consist of acts or speech; (iii) the person against whom the order is proposed to be made is informed of the grounds; (iv) these grounds of fact should be capable, if made out, of showing as a matter of law disloyalty and disaffection towards the Federation. The four conditions were here satisfied and the order nisi would therefore be discharged. Disloyalty and disaffection which would justify depriving a citizen of his citizenship discussed. It was argued on the motion for discharge that the grounds of the order deprived the appellant of his right of free speech. art 10(1)(a) is not a bar to an allegation based on speech under art 25(1)(a). On appeal it was argued by the applicant before the Court of Appeal that: (a) even assuming that the matters of complaint stated in the notice to be true, they were not such as to be capable of attracting the altogether excessive penalty of deprivation of citizenship, having regard to the provisions of art 25 of the Constitution; (b) that the language of the form made it clear that the Registrar-General purported to act and in fact acted as the delegate of the Federal Government and not as a mere amanuensis of the Minister; (c) that the Minister's affidavit not having condescended to any particulars setting out the facts and circumstances on the faith of which he attained the requisite satisfaction, it was not possible to say whether there were good grounds or any grounds for such satisfaction;as to content, all that art 27(1) requires is notice of the ground on which the order is proposed to be made, ie whether it is ground (a), (b) or (c) of art 25. No particulars or details are required to be given in the notice. The notice which was served on the appellant left him in no doubt about the ground alleged against him, for it clearly and unquivocally indicated that art 25(1)(a) was intended. The notice was therefore good in content. Conditions which must be fulfilled in accordance with the wording of the Constitution before notice is issued, as enunciated by Thomson CJ in the High Court, discussed and approved.

Lim Lian Geok v Minister of the Interior, Federation of Malaya [1962] MLJ 159 High Court, Kuala Lumpur (Thomson CJ).

[Annotation: The arguments turning on freedom of speech were not repeated before the Court of Appeal or the Privy Council [1964] MLJ 159.]

In this case, the application was for an order that the respondent be committed to prison for contempt of court. The respondent had acted for the plaintiffs in an application for declaratory orders and other reliefs against certain defendants. The application had been allowed in the High Court but on appeal the appeal was allowed ([1986] 2 MLJ 193). The respondent subsequently wrote letters to three Supreme Court judges involved in the appeal and to the solicitors of the appellants in the appeal. The letters were highly derisive of the Supreme Court. The respondent not only criticized the judgment of the Supreme Court but alleged that the decision of the court was unjust and biased.

Held: (1) in this country the need to protect the dignity and integrity of the Supreme Court and the High Court is recognized by art 126 of the Federal Constitution and also by s 13 of the Court of Judicature Act 1964 (Act 91). A proper balance must therefore be struck between the right of speech and expression as provided for in art 10 of the Federal Constitution and the need to protect the dignity and integrity of the superior courts in the interest of maintaining public confidence in the Judiciary; (2) whether a criticism of a judgment is within the limits of reasonable courtesy and good faith must depend on the facts of each particular case. In determining the limit of reasonable courtesy the court should not, however, lose sight of local conditions; (3) the issue to be determined in this case is not whether criticisms of the court's judgment are well-founded but it is whether having regard to all the circumstances of the case the criticisms levelled by the respondent at the Supreme Court are within the limits of reasonable courtesy and good faith; (4) in this case, on the evidence, the respondent has gone outside the two limits. The blatant accusations and insinuations made by the respondent are clearly intended to bring the court into disrepute and as such constitute the offence of scandalizing the court. On the facts also, the respondent was not within the limit of good faith, as here the personal interest of the respondent is overwhelming. Semble: the Supreme Court was given birth to only on 1 January 1985, and its sensitivity need not be the same as courts of similar jurisdiction in England or other countries. Having regard to local conditions, criticisms which are considered as within the limit of reasonable courtesy elsewhere are not necessarily so here. For the present, except possibly Ð and we say this with great reservation Ð for the limited purpose of proving it in actual court proceedings, any allegation of injustice or bias however couched in respectful words and even if expressed in temperate language, cannot be tolerated particularly when such allegations are made for the purpose of influencing or exerting pressure upon the court in the exercise of its judicial functions.

Attorney General & Ors v Arthur Lee Meng Kuang [1987] 1 MLJ 206 Supreme Court, Kuala Lumpur (Mohamed Azmi, Syed Agil Barakbah and Wan Hamzah SCJJ).

In this case, the appellant had applied for an order of committal for contempt of court arising out of the remarks of the respondent in an interview given to and published in Time magazine. The application was dismissed in the High Court and the appellant appealed.

Held: (1) viewed objectively and dispassionately and in the proper perspective the excerpt complained of appears to be an articulation of the Executive's frustration in not being able to achieve its objects in matters where the intervention of the courts have been sought to some avail, and the way the position is expressed, perhaps somewhat injudiciously in that it may not, inconceivably, well be open to misconstruction, does not amount to an attack on the courts as to constitute a contempt, but only stems from a misconception of the role of the courts; (2) in this context, there is no call to be hypersensitive and to overact impetuously as the impugned remarks do not ex necessitate connote, within the requisite of the strictest burden of proof for proceedings for contempt, an attack on the Judiciary in the way suggested by the applicant but rather tend to ventilate, perhaps understandably, the vexation of the Executive in not being able to get through some desired objective or end without curial intervention; (3) this is not a case where leave should be given to apply for committal proceedings.

Lim Kit Siang v Dato Seri Dr Mahathir Mohamad [1987] 1 MLJ 383 Supreme Court, Kuala Lumpur (Salleh Abas LP, Abdul Hamid CJ (Malaya).

D was an opposition politician. He allegedly slandered P, the Prime Minister, by implying in an election rally speech that P had either condoned or actively encouraged the suicide of a cabinet minister in order to avoid investigation into the minister's alleged corruption. P sued D for defamation. D pleaded that the words complained of were not defamatory. He also raised the defences of constitutional privilege and fair comment.

Held, allowing P's claim: (1) in determining whether words are defamatory, the sense in which they were intended by the defendant is irrelevant and the sense in which they were understood by the plaintiff is also irrelevant. The test is what an ordinary fair-minded person using his general knowledge and commonsense would understand by the words spoken in the context and according to the tone and mode of delivery; (2) having viewed the video tapes of D's speech the court concluded that the words spoken by D did in fact carry a defamatory meaning; (3) the defence of fair comment failed since the imputations made by D were factual in character and not comment; (4) there was no such defence as constitutional privilege in Singapore law. The right of free speech in Singapore is circumscribed by the law of defamation, to which there are established defences; (5) common law privilege applies where defamatory statements are published in pursuance of a legal, social or moral duty to persons having a corresponding duty to receive such information. The privilege does not cover situations where there is no duty to publish. Public figures do not fall into a special category; (6) accordingly, P's claim was allowed. Damages were assessed at S$260,000.

Lee Kuan Yew v Jeyaretnam JB [1990] SLR 688 High Court, Singapore (Lai Kew Chai J).

[Annotation: Affirmed on appeal. See [1992] 2 SLR 310.]

The defendants in this case published a statement in their newspaper which was alleged to be libellous of the plaintiff. The next day they published an apology and beyond the necessary formal step of entering appearance to the writ, they took no further action to justify or defend their action.

Held: in the circumstances of the case and in view of the conduct of the defendants an order would be made for the discontinuance of the action.

Khaw Kai-Boh v Straits Echo Press & Anor [1966] 1 MLJ 190 High Court, Kuala Lumpur (Ong Hock Thye FJ).

These three appeals arose out of a joint trial of three charges, in respect of Frederick Tan Im Kian ('Tan'), under s 5(1)(e), (f) of the Official Secrets Act (Cap 233, 1970 Ed) for communication of certain confidential documents to Phua Keng Tong ('Phua'), and, in respect of Phua, under s 5(2) of the Act for receipt of certain confidential documents. Tan at all material times was the Director of Protocol and Consular Division, Ministry of Foreign Affairs. Phua, a close friend of Tan, was the financial manager of Philips (Singapore) Pte Ltd. The learned senior district judge convicted Tan on all the three charges and sentenced him to one day's imprisonment and to pay a fine of $750 on each charge, the sentence of imprisonment to run concurrently. Phua was acquitted and discharged. The Public Prosecutor appealed against the acquittal of Phua and against the sentences on Tan, who in turn appealed against convictions and sentences.

Held: (1) the right to freedom of expression includes communication or dissemination of information. The Official Secrets Act does impinge upon such a right but s 5(1) of the Act falls within the ambit of art 14(2)(a) of the Constitution of Singapore and is therefore not ultra vires art 14(1) of the Constitution; (2) the Act was enacted in the interest of the security of Singapore and that is a matter expressly provided for in art 14(2). The word 'security' in this context does not mean merely protection from danger, but includes protection of information which the government considers vital or essential for its administration; (3) mens rea is a necessary ingredient of the offence which the prosecution must prove. The prosecution has proved the ingredients of the offences with which Tan was charged, and his convictions must stand. Considering all the relevant facts, the learned judge is not disposed to disturb the nominal terms of one day's imprisonment. The fine of $750, however, is manifestly inadequate and is increased to $1,500 for each of the charges and, in default, one month's imprisonment; (4) the ingredients of the charge have been proved against Phua. The acquittal is set aside, and Phua is convicted of the charge. He is fined $1,500 and, in default, one month's imprisonment.

Public Prosecutor v Phua Keng Tong; Public Prosecutor v Frederick Tan Im Kian; Frederick Tan Im Kian v Public Prosecutor [1986] SLR 168 High Court, Singapore (Thean J).

On 9 February 1993 the plaintiffs obtained an ex parte interlocutory injunction ('the order') restraining the defendants from doing certain acts, including printing, circulating, distributing or publishing any allegation of impropriety, irregularity and illegality against the plaintiffs or their subsidiaries and affiliated companies. On 23 February 1993 the plaintiffs obtained ex parte leave from the High Court to issue a motion for contempt against the defendants for their alleged disobedience of the order. The plaintiffs' substantive motion to commit the defendants for contempt was filed on 25 February 1993. At the commencement of the hearing of contempt proceedings on 27 and 28 May 1993, the defendants took a preliminary objection as to jurisdiction based on constitutional grounds. The defendants contended that the subject matter before the court involved the right to freedom of speech and expression which is enshrined in art 10 of the Federal Constitution and that the court had no jurisdiction or power to prevent the defendants from exercising their rights to freedom of speech and expression. Further, only Parliament had the power to provide law against contempt of court and as Parliament had not done so, there was no law conferring jurisdiction upon the High Court to punish for contempt.

Held, dismissing the defendants' preliminary objection: (1) the law of contempt under art 10(2) of the Federal Constitution is limited to matters directly involving the rights of freedom of speech and expression under art 10(1)(a). It does not extend to other instances of contempt of court; (2) in the present case, the contempt proceeding was not a contempt proceeding in respect of restriction on freedom of speech or expression, but it was a contempt proceeding taken against the defendants for having disobeyed the order of court restraining them from doing certain acts. While the order of the court stood unvaried, the defendants were bound to comply with its terms and failure to obey such an order was a contempt of court. There was prima facie evidence that the defendants had failed to comply with the court's order; (3) by s 25 of the Courts of Judicature Act 1964, all powers which were vested in the courts in the exercise of its jurisdiction prior to Malaysia Day became vested in the court after Malaysia Day. Therefore the jurisdiction vested in the court to hear contempt proceedings before Malaysia Day would also continue to be vested in the court after Malaysia Day; (4) under common law the court has the power to restrain anyone from publishing, unless with just cause, something which is or which is likely to cause damage or injury to other people. The courts of common law without the aid of any authorizing provision also had inherent jurisdiction to prevent abuse of their process and to punish for contempt; (5) under art 162(1) of the Constitution, common law comes within the meaning of 'existing laws' and therefore until it is repealed by the authority it continues to be enforced after Merdeka Day. The Courts of Judicature Act 1964, which is a law made by Parliament after Merdeka Day, did not remove the jurisdiction and powers of the court to apply common law in this country. Consequently, common law remains in force and continues to form part of the law of Malaysia; (6) it was within the jurisdiction and powers of the court to issue the order restraining the defendants from doing those acts. The Malaysian courts had ample jurisdiction, authority and power to punish for contempt of themselves; (7) (per curiam) it is paramount in the public interest that every court should have power and authority or jurisdiction to punish persons who scandalize it or disobey orders made by it. If such power is absent, then the public will lose all confidence in the authority of the judicial arm of the state leading to anarchy and disorder; (8) (per curiam) the fact that the power reserved to Parliament to enact a specific law to deal with contempt of court has not been exercised by it does not leave the High Court bereft of any authority or jurisdiction to exercise the specific powers conferred upon it by art 126 of the Constitution and s 13 of the Courts of Judicature Act 1964 to punish any contempt of itself.

MBf Holdings Bhd & Anor v Houng Hai Kong & Ors Civil 1993 High Court, Kuala Lumpur (Anuar J).

The appellant was found guilty and convicted for having contravened condition no 14 of the licence issued by the OCPD. The charge against him was as follows: 'That you on 20 May 1973 at about 10.45 pm at Padang Balai Raya, Subang New Village, in the district of Petaling Jaya, in the State of Selangor, contravened a condition of a licence (No 297276) to convene an assembly issued to one Madhavan Nair by the Ketua Police Daerah, Petaling Jaya, to wit, you spoke on the issue of the MCE results in contravention of condition 14 of the said licence which specified that ÒTajuk Syarahan tidak boleh menyetoh perkara-perkara berhubong dengan keputusan MCEÓ, and that you have thereby committed an offence under s 27(4)(b) of Police Act No 41/67 and punishable under s 27(8) of the said Act.' When the defence was called by the learned magistrate, the appellant elected to remain silent. Consequently, he was convicted of the charge and sentenced to a fine of $500. He appealed against conviction and contended, inter alia, that under s 27 of the Police Act 1967 (Act 41/1967), the OCPD had no power to impose condition 14. Condition 14 was ultra vires art 10 of the Federal Constitution and therefore void.

Held, dismissing the appeal: (1) the OCPD was acting within the law in imposing condition 14 of the licence; (2) art 10(1) of the Federal Constitution guarantees the rights of every citizen to freedom of speech, assembly and association. These rights are, however, subject to any law passed by Parliament. Such law can, inter alia, impose such restrictions as Parliament may deem necessary or expedient in the interest of public order. Condition 14 therefore was not ultra vires the provisions of art 10(2) of the Federal Constitution and it was within the spirit and ambit of s 27(2) of the Police Act 1967.

Lau Dak Kee v Public Prosecutor [1976] 2 MLJ 229 High Court, Kuala Lumpur (Mohamed Azmi J).

The applicants had been charged with contravention of a condition of a licence to convene a public meeting, ie that no reference should be made to the results of the MCE examination and the status of Bahasa Malaysia as the national language of the Federation. Counsel for the applicants had argued that the condition imposed was ultra vires art 10 of the Federal Constitution. The learned magistrate decided to refer the matter to the High Court.

Held: (1) if the condition imposed had contravened art 10 of the Federal Constitution, it was clear that no such condition could be imposed; (2) in this case, however, the condition was not in contravention of art 10 of the Federal Constitution and therefore the police had powers under s 27 of the Police Act 1967 (Act 41/1967) to impose the condition.

Madhavan Nair & Anor v Public Prosecutor [1975] 2 MLJ 264 High Court, Kuala Lumpur (Chang Min Tat J).

In this case, the appellant had applied for a licence to hold a DAP solidarity dinner and lion dance in a public place. The first respondent issued the licence but imposed seven conditions, two of which the appellant sought to impugn on the ground that they were unconstitutional, null and void and of no effect in that they abridged the right of freedom of speech guaranteed under art 10(1)(a) of the Federal Constitution. One of the conditions restricted the number of speakers to seven only and part of the other forbade the speeches to touch on political issues. The learned trial judge held the latter condition pertaining to speeches touching on political issues to be an unreasonable restriction in violation of the right of freedom of speech but held the former restricting the number of speakers to be valid. The appellant appealed.

Held: there does not appear to have been any valid reason for the restriction imposed on the number of speakers within the time limit granted in the licence, that is from 5 pm to 11.30 pm, and the particular condition was unreasonable in the circumstances as the police had the means to deal with any infringement of the time frame specified in the licence under the provisions of s 27 of the Police Act 1967 (Act 41/1967).

Chai Choon Hon v Ketua Polis Daerah, Kampar and Government of Malaysia [1986] 2 MLJ 203 Supreme Court, Penang (Abdul Hamid Ag LP, Mohamed Azmi and Abdoolcader SCJJ).

In this case, the accused, a member of the House of Representatives, made a speech in Parliament which was thought to be seditious and he was charged with committing an offence contrary to s 4(1)(b) of the Sedition Act 1948 (Act 15). At the end of the prosecution case, the learned trial judge called on the accused to enter his defence. Counsel for the accused announced that the defence did not wish to call any witness. The learned trial judge then referred three questions to the Federal Court as follows: '(1) As a member of Parliament, has the accused's right of free speech in Parliament given (a) by ss 3 and 8 of the Houses of Parliament (Privileges and Powers) Ordinance (No 15 of 1952) and (b) by art 63(2) of the 1957 Federal Constitution been validly limited by the subsequent constitutional amendment with the addition of cl (4) to art 63 by Act A30? (2) As a member of Parliament, is the accused's right of free speech in Parliament given by art 63(2) of the Constitution either (a) part of the basic structure of the Constitution or (b) a fundamental rule of natural justice, so that any purported amendment of the Constitution seeking to limit such right is void and of no effect? (3) Having regard to the position of Malay language as the national language under art 152 cl (1) of the Federal Constitution and questioning it would bring into operation s 3(1)(f) of the Sedition Act 1948 (revised 1969) Ð can the demand for closure of Chinese and Tamil schools in the process of implementing the national language be legally and constitutionally treated as questioning the provision of proviso (a) of art 152(1), notwithstanding that there is no demand for the abolition or prohibition of the teaching or learning of such languages?'

Held: (1) the accused's right of free speech in Parliament given by ss 3 and 8 of the Houses of Parliament (Privileges and Powers) Ordinance 1952, and by art 63(2) of the Federal Constitution, has been validly limited by the amendment effected by the new cl (4) of art 63 added by the Constitution (Amendment) Act 1971; (2) it is unnecessary to decide whether or not the Constitution may be so amended as to destroy its basic structure and, in any event, the accused's right of free speech in Parliament given by art 63(2) of the Constitution does not form part of the basic structure of the Constitution; (3) the said right is not part of the fundamental rule of natural justice; (4) thus the amendments made by the Constitution (Amendment) Act 1971 limiting an MP's right of free speech in Parliament are valid; (5) the answer to the third question is bound up with the facts of the case which were uncertain and as to which there were no findings by the learned trial judge, and it would be premature and speculative to answer this question at this stage; (6) the matter should be remitted to the learned trial judge for continuation and disposal in accordance with this judgment. Semble: it would have been better if the learned judge had not referred the matter to the Federal Court but instead had himself decided the constitutional questions which arose (which he had jurisdiction to do) and decided the case one way or the other.

Mark Koding v Public Prosecutor [1982] 2 MLJ 120 Federal Court, Kuala Lumpur (Suffian LP, Lee Hun Hoe CJ (Borneo).

The accused was charged as follows: 'That you on 23 June 1972 between 8.40 pm and 9.35 pm at the Padang Besar, Tampin, in the District of Tampin, in the State of Negeri Sembilan, uttered seditious words in Mandarin (the full translation of the text of which is attached as Schedule 'A' to this charge) and that you have thereby committed an offence under s 4(1)(b) of the Sedition Act 1948 (Revised 1969), and punishable under s 4(1) of the said Act.' The trial judge found the said charge defective and highly prejudicial to the accused as it did not specify the particular category of seditious tendency as defined in s 3(1) of the Sedition Act 1948 (Act 15). The trial court amended the charge to read as follows: 'That you on 23 June 1972 between 8.40 pm and 9.35 pm at the Padang Besar, Tampin, in the District of Tampin, in the State of Negeri Sembilan, uttered seditious words in Mandarin (the full translation of the text of which is attached as Schedule 'A' to this charge) that is to say, words having a seditious tendency as defined in s 3(1)(a) and 3(1)(e) of the Sedition Act 1948 (Revised 1969) namely, to bring into hatred, contempt and to excite disaffection against the government and to promote feelings of ill-will and hostility between different races of the population, and that you have thereby committed an offence under s 4(1)(b) of the Sedition Act 1948 (Revised 1969) and punishable under s 4(1) of the said Act.' The accused did not seriously deny that he had made the speech which was the subject matter of the charge. He contended, however, that his speech was a fair criticism of government policies, that he had no intention of causing any racial trouble and that he never advocated to the people that they should take the law into their own hands.

Held: (1) bona fide and fair criticism of government policies and of opposition political parties is not within the mischief of the Sedition Act so long as the speaker does not exceed the bounds allowed to him under the law; (2) the intention of the accused when he made the speech and used words which are alleged to be seditious is not material or relevant for it is provided in s 3(3) of the Sedition Act that the intention of the speaker shall be deemed to be irrelevant if in fact the words have a seditious tendency; (3) to establish its case against the accused, the prosecution is not obliged to prove that anything said in his speech was true or false or that it caused any disturbance or a breach of the peace; (4) the accused in this case had not succeeded in establishing, even on a balance of probabilities, that the speech delivered by the accused came with any of the permissible limits as set out in s 3(2) of the Sedition Act.

Public Prosecutor v Oh Keng Seng [1979] 2 MLJ 174 High Court, Seremban (Ajaib Singh J).

In this case, the respondent was charged with uttering seditious words, an offence under the Sedition Act 1948 (Act 15). At the close of the prosecution's case, counsel submitted that there was no case to answer.

Held: (1) all that is required at the close of the prosecution's case is for the prosecution to discharge their evidential burden by adducing sufficient evidence to raise a prima facie case against the accused. At that stage, a trial judge should not consider whether or not a case has been proved beyond a reasonable doubt against the accused. If no evidence is called for the defence, then, and only then, the tribunal of fact must decide whether the prosecution has succeeded in discharging the persuasive burden by proving its case beyond a reasonable doubt; (2) in this case, the prosecution has discharged their evidential burden by adducing evidence of primary facts. The accused must therefore be called to enter on his defence.

Public Prosecutor v Param Cumaraswamy [1986] 1 MLJ 512 High Court, Kuala Lumpur (Chan J).

On 6 April 1971, the Utusan Melayu newspaper published a report of a talk given by a prominent Malay leader and member of Parliament. In the report was an editorial sub-heading, which, in the English translation reads: 'Abolish Tamil or Chinese medium schools in this country'. The first appellant was the editor-in-chief of the Utusan Melayu, and the second appellant, the author of the sub-heading inserted in the report. Sanction for their prosecution was given under s 5(1) of the Sedition Act 1948 (Act 15), and they were tried in due course in the special sessions court on a charge of publishing a seditious publication in contravention of s 4(1)(c) of the Sedition Act, punishable under the same section. The learned special President held the publication to be seditious, that the first appellant 'was responsible for all publications in the Utusan Melayu', that the second appellant was the author of the impugned sub-heading, and that consequently, they were both guilty. They were convicted and fined the sum of $500 and $1,000 respectively, in default one month and two months' imprisonment. The first appellant had given evidence of the responsibilities of his office, as editor-in-chief, over as many as ten publications of the Utusan Melayu group. He had perforce to delegate authority to trusted subordinates. On the Sedition Act, he had organized seminars and discussions relating in particular to the 'sensitive issues' and had instructed his staff on the relevant law as he understood it.

Held: (1) the first appellant had taken all precautionary measures necessary and he had not failed in the high standard of care and caution required of him, and accordingly, his conviction must be set aside; (2) the second appellant was responsible for the sub-heading which clearly violated what was laid down in proviso (a) to art 152 of the Federal Constitution and therefore came within the definition of 'seditious tendency' as extended by the new s 3(1)(f) which was added to the Sedition Act 1948; he was therefore rightly convicted of sedition. Per Ong CJ: '... by virtue of the 1970 amendment to the Sedition Act, ÒseditionÓ no longer requires the same judicial approach as the misdemeanour at common law. The amendment was ad hoc legislation, passed to meet the special needs and circumstances of the time. The duty of the court is to interpret and uphold the law as passed by Parliament. Whether or not para (f) fits into the common law concept of sedition is wholly beside the point. It does give, however, a new and, perhaps, highly artificial meaning to what used to be considered Òseditious tendenciesÓ. English and Indian authorities are, therefore, of little relevance and are not referred to herein. In my view, para (f) is unique in that it raises a presumption of law that anything falling squarely within the terms thereof has a seditious tendency, irrespective of whether or not such thing sows any seeds of disaffection...'

Melan bin Abdullah & Anor v Public Prosecutor [1971] 2 MLJ 280 High Court, Kuala Lumpur (Ong CJ (Malaya).

The first accused was charged with an offence under s 4(1)(b) of the Sedition Act 1948 (Act 15), the second accused was charged with publishing the alleged seditious words and the third and fourth accused were charged with printing the alleged seditious words. The seditious words were alleged to be uttered by the first accused at a dinner held by the Democratic Action Party.

Held: (1) the dividing line between lawful criticism of government is this: if upon reading the impugned speech as a whole the court finds that it was intended to be a criticism of government policy or administration with a view to obtain its change or reform, the speech is safe. But if the court comes to the conclusion that the speech used naturally, clearly and indubitably, has the tendency of stirring up hatred, contempt or disaffection against the government, then it would be unlawful; (2) the speeches taken as a whole went beyond the limits of freedom of expression. It accused the government of gross partiality in favour of one group and this was calculated to inspire feelings of enmity and disaffection among the people of Malaysia. The speech was also apt to promote feelings of illwill and hostility among the different races in Malaysia and touched on the sensitive issue of the special rights of the Malays. The speech was therefore expressive of a seditious tendency and the accused must be found guilty.

Public Prosecutor v Ooi Kee Saik & Ors [1971] 2 MLJ 108 High Court, Kuala Lumpur (Raja Azlan Shah J).

[Annotation: On 16 September 1971, the Federal Court, by a majority of four to one, allowed the appeal of the second accused on the ground that the High Court trial was a nullity on a technical point, being contrary to s 138 of the Criminal Procedure Code (Cap 6). The Federal Court, however, was satisfied that the conduct of the trial was impeccable. See Fan Yew Teng v PP [1975] 2 MLJ 235.]

This was a criminal reference to the Supreme Court by way of a special case by the High Court. The following four questions of law were referred to the Supreme Court for its determination: (i) whether s 8A(1) read with s 8A(2) of the Printing Presses and Publications Act 1984 ('the Act') imposes restrictions on the right to freedom of speech and expression conferred by art 10(1)(a) of the Federal Constitution ('the Constitution'); (ii) if so, whether the restrictions imposed are permitted by or under art 10(2)(a) of the Constitution; (iii) whether s 8A(1) read with s 8A(2) of the Act is consistent with art 10(1)(a) and (2)(a) of the Constitution, and therefore, valid; and (iv) whether s 8A(2) of the Act, by presuming 'false news' per se to be malicious, amounts to pre-censorship, and accordingly, contravenes art 10(1)(a) and (2)(a) of the Constitution. Counsel for the accused contended that s 8A(1) read with s 8A(2) of the Act violates art 10(1)(a) and (2)(a) of the Constitution in that it imposes a 'blanket restriction' against the publication of all false news without specifying or limiting its scope to within any of the restrictions permitted under art 10(2)(a) of the Constitution, and is, therefore, void by virtue of art 4(1) of the Constitution.

Held, answering questions (i), (ii) and (iii) in the affirmative, and question (iv) in the negative: (1) it is clear beyond argument that s 8A(1) of the Act does impose restrictions on the right to freedom of speech and expression conferred by art 10(1)(a) of the Constitution; (2) (3) in considering whether the restriction against the malicious publication of false news as imposed by s 8A(1) of the Act is one which is permitted by or under art 10(2)(a) of the Constitution, their Lordships were of the opinion that although not all maliciously published false news will fall within the orbit of the permitted restrictions enumerated under art 10(2)(a) of the Constitution, it cannot be gainsaid that some will; (4) their Lordships invariably agreed with the senior federal counsel that the malicious publication of false news may lead to those specified situations against which art 10(2)(a) of the Constitution expressly enables Parliament to legislate. It is in view of this that the restrictions imposed by s 8A(1) of the Act on the right to freedom of speech and expression conferred by art 10(1)(a) of the Constitution can be supported as falling within the boundaries of the restrictions permitted under art 10(2)(a) of the Constitution; (5) s 8A(2) of the Act is only a reversal of onus provision which operates at the trial stage in order to assist the prosecution by presuming malice upon proof of the falsity of the news published, and thus, can in no way be equated with pre-censorship, which, if it takes place, can only do so before publication; (6) the right to freedom of speech and expression conferred by art 10(1)(a) of the Constitution includes within its ambit the freedom of the press; (7) it is clear law that there is a strong presumption of the constitutional validity of an impugned legislation, and thus, the burden of proof lies on the party seeking to establish the contrary; (8) art 10(1)(a), (b) and (c) of the Constitution can only be relied upon to impugn legislation which directly restrict the rights guaranteed therein. Legislation which incidentally restrict the rights guaranteed by art 10(1)(a), (b) and (c) of the Constitution need not be justified as falling within the permissible restrictions contemplated by art 10(2), (3) and (4) of the Constitution; (9) by virtue of art 4(2)(b) of the Constitution, it is not open to any court to enquire into the question whether Parliament deems or does not deem a restriction as necessary or expedient in respect of any of the interests set out in art 10(2)(a) of the Constitution. Nevertheless, a law which purports to have been passed under art 10(2)(a) of the Constitution is still open to challenge on the ground that it is not in any of the interests set out in art 10(2)(a) of the Constitution. This is because any other moreextensive meaning to be assigned to art 4(2)(b) of the Constitution will render art 10(2) of the Constitution otiose; (10) in Malaysia, when an infringement of the right to freedom of speech and expression conferred by art 10(1)(a) of the Constitution is alleged, the scope of the court's inquiry is limited to the question whether the impugned legislation comes within the orbit of the restrictions permitted under art 10(2)(a) of the Constitution. Thus, if the impugned legislation is in pith and substance one which relates to the subjects enumerated under the permitted restrictions found in art 10(2)(a) of the Constitution, it is valid, and the question whether the restrictions it imposes is reasonable does not arise; (11) in deciding whether a particular piece of legislation falls within the orbit of the restrictions permitted under art 10(2)(a) of the Constitution, consideration must be given to the question whether the legislation is directed at a class of acts too remote in the chain of relation to the subjects enumerated under art 10(2)(a) of the Constitution. In other words, the objects of the impugned legislation must be sufficiently connected to the subjects enumerated under art 10(2)(a) of the Constitution, and, the connection contemplated must be real and proximate, not far-fetched or (12) generally, where a law purports to authorise restrictions in language wide enough to cover restrictions both within and without the permissible limits of legislative action, it cannot be upheld, not even so far as it is applied within the constitutional limits, for it is impossible to apply the principle of severability. However, it is well settled that if certain provisions of a law construed in one way will make them consistent with the Constitution, while another interpretation will render them unconstitutional, the courts will lean in favour of the former construction; (13) s 8A(1) read with s 8A(2) of the Act does not impose a 'blanket restriction' against the publication of all false news irrespective of whether such false news come within any of the permissible restrictions specified under art 10(2)(a) of the Constitution. The mere publication of false news is not an offence under s 8A(1) of the Act, unless, the false news was maliciously published. In this context, it is not strange that a malicious publication of false news can be a wrongful act which is so inherently likely to fall within the permissible restrictions defined in art 10(2)(a) of the Constitution that it should be made a crime under s 8A(1) of the Act;although a court is entitled to decide the question whether a particular piece of legislation falls within the orbit of the interests enumerated under art 10(2)(a) of the Constitution, if the law is directed at a class of acts in the interests of, say, public order, there is authority for saying that it does not violate the rights enunciated in art 10(1)(a) of the Constitution even if some of the acts may not lead to public disorder.

Public Prosecutor v Pung Chen Choon [1994] 1 MLJ 566 Supreme Court, Malaysia (Abdul Hamid Omar LP, Gunn Chit Tuan CJ (Malaya).

P sued D for defamation. At the summons for direction stage D sought leave to amend the defence by adding a new paragraph. The paragraph pleaded that P was attempting to restrict D's constitutional right of free speech. Leave was refused and D appealed.

Held, dismissing the appeal: (1) the constitutional right of freedom of speech and expression is restricted by the laws of defamation. Article 14(2) of the Constitution provides that Parliament may impose restrictions on the right of free speech to provide against defamation. The relevant enactment is the Defamation Act (Cap 75); (2) in a contested interlocutory application for leave to amend pleadings, the principles to be applied are the same as for an application to strike out the proposed amendment. The test is whether the proposed amendment could if it were part of the pleadings be struck out as disclosing no reasonable defence. The proposed amendment did not constitute a defence to P's claim for defamation, and accordingly the learned judge had been correct to refuse leave to amend the defence.

Jeyaretnam v Lee Kuan Yew [1990] SLR 38 Court of Appeal, Singapore (Wee Chong Jin CJ, Thean and Chan Sek Keong JJ).

D1-D2 published two articles in a newspaper which P alleged to be defamatory of him. D1-D2 pleaded in their defence, inter alia, protection under art 10(1)(a) of the Federal Constitution, justification and fair comment. Upon P's application, the High Court ordered D1-D2 to deliver particulars of fact on their pleas of justification and fair comment ('the first order'). D1-D2 purportedly complied with 'the first order' by delivering the particulars. P was however not satisfied and applied to the High Court to strike out the particulars and also to strike out a paragraph of the statement of defence which pleaded that art 10(1)(a) of the Constitution provided a complete defence to P's action ('para 1'). The High Court initially dealt with P's application to strike out the particulars and ordered D1-D2 to restate the particulars in compliance with 'the first order' and Form 35 of the Rules of the High Court 1980 ('the second order'). D1-D2 supplied a second set of particulars pursuant to 'the second order' but P applied yet again to strike out these particulars on the ground of non-compliance with 'the first order' ('the second application'). D1-D2 objected to 'the second application', inter alia, on the ground that since the prayers asked for in 'the second application' were substantially the same as those contained in P's earlier application, the principles of res judicata and/or issue estoppel applied to preclude P from pursuing the same matter twice. D1-D2 also argued that Parliament has not enacted any law under art 10(2)(a) of the Constitution restricting the right of free speech under art 10(1)(a) of the Constitution and the Defamation Act 1957 being a pre-Merdeka legislation cannot be construed as a law imposed by Parliament to restrict the right of freedom of speech. D1-D2 therefore contended that P's action constituted an unlawful interference of D1-D2's right of freedom of speech as enshrined in art 10(1)(a) of the Constitution. D1-D2 relied on the First Amendment to the Constitution of the United States of America to support their argument that art 10(1)(a) of the Constitution provided a complete defence to P's action.

Held, allowing the application: (1) 'the second order' had nothing to do with the merits of P's application. D1-D2's contention in respect of res judicata and/or issue estoppel did not therefore have any basis; (2) particulars to be supplied must relate to the facts and not evidence as the proceedings were still at the exploratory stage of finding out what those facts were to support the pleas of justification and fair comment; (3) the function of particulars is to ensure that litigation should be conducted fairly without surprises and to reduce costs; (4) D1-D2's reference to documents alone could never be regarded as particulars of fact which they had been ordered to furnish because such reference pointed more to the nature of the evidence on which they intend to produce at trial; (5) where the alleged defamatory article alluded to charges which were general in nature, D1-D2 who pleaded justification, must state some specific acts and instances of misconduct imputed to P and follow these with the precise particulars of fact as tending to show the truth of such misconduct; (6) the particulars supplied by D1-D2 were too general as to embarrass P as he did not know the precise acts he was alleged to have done which justify the general charges against him; (7) D1-D2 have had every opportunity to furnish the particulars. D1-D2's conduct and reluctance to supply sufficient and material particulars and the substance of what they had supplied, all add up to the conclusion that they did not have the material facts on which they could justify the defamatory meanings of the words they had published or on which their comments were based. This is thus a proper case to strike out D1-D2's defences of justification and fair comment under O 18 r 19(1)(c) of the 1980 Rules; (8) the right of freedom of speech as conferred by art 10(1)(a) of the Constitution is not absolute but is subject to restrictions imposed by Parliament under art 10(2)(a) of the Constitution. It is however not necessary for Parliament to do so because at Merdeka day there were already laws in existence which restricted the right of freedom of speech; (9) s 3(1) of the Civil Law Act 1956 allows the courts in the absence of any written law, to apply the common law of England relating to civil wrongs of all kinds including defamation subject to such qualifications as local circumstances render necessary. The common law of defamation was modified by the Defamation Act 1957 which continue to have the force of law as Parliament has not repealed it. Moreover art 162(1) of the Constitution preserves all existing law in operation immediately before Merdeka day. It is thus clear that, read with art 162(1) of the Constitution, art 10(2)(a) of the Constitution does not eliminate existing defamation laws in operation prior to Merdeka day; (10) in terms and expression, the First Amendment to the American Constitution is totally and radically different from art 10 of the Malaysian Constitution and as such American case law is not of any persuasive value; (11) since art 10(1)(a) of the Constitution does not prohibit P from pursuing his rights against defamation, he is entitled to sue D1-D2; (12) the Defamation Act 1957 restricts D1-D2's right to free speech and since the 1957 Act does not include the defence under art 10(1)(a) of the Constitution, 'para 1' of the defence was struck out as being frivolous and vexatious under O 18 r 19(1)(a) of the 1980 Rules and under the court's inherent jurisdiction.

Lee Kuan Yew v Chin Vui Khen & Anor [1991] 3 MLJ 494 High Court, Kuala Lumpur (Siti Norma Yaakob J).

[Annotation: The defendants appealed to the Supreme Court vide Civil Appeal No 02-262 of 1989 and the court (comprising Abdul Hamid Omar LP, Mohamed Azmi and Gunn Chit Tuan SCJJ) dismissed the appeal on 25 June 1990.]

The appellant in this case was charged on two separate charges with having caused the death of two named persons in circumstances amounting to murder, an offence punishable under s 302 of the Penal Code. The High Court convicted him as charged and sentenced him to death. He appealed, inter alia, that the High Court erred in applying ss 181(2) and 186A, Criminal Procedure Code (Cap 113, 1970 Ed) two recent provisions which were enacted by Parliament and came into operation on 1 January 1977. He claimed that he had a substantive right which accrued to him when he was first charged on 13 December 1976 to make an unsworn statement under the law as it stood before ss 181(2) and 186A came into operation. He further contended that these two statutory provisions were void as being repugnant to art 7 of the Malaysian Federal Constitution which is law in Singapore by virtue of the Republic of Singapore Independence Act 1965.

Held, dismissing the appeal: (1) before the trial of the appellant the Legislature by s 186A of the Criminal Procedure Code had expressly taken away the right of an accused person at his trial to make an unsworn statement from the dock; (2) the two new sections did not contravene the provisions of art 7 of the Malaysian Federal Constitution; (3) there was overwhelming evidence which showed that the appellant intentionally and deliberately inflicted the fatal injuries on two unarmed persons.

Haw Tua Tau v Public Prosecutor 1978 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Kulasekaram and D'Cotta JJ).

[Annotation: See the decision of the Privy Council in [1980-1981] SLR 73; [1981] 2 MLJ 49.]

A person at large on bail is not so restrained of his liberty as to be entitled to the writ of habeas corpus which for centuries has been issued only when the applicant is in illegal confinement. It follows therefore that if a person is not detained in custody he is not entitled to a writ of habeas corpus. A person on bail cannot by any stretch of imagination be said to be detained in custody and is therefore not entitled to a writ of habeas corpus. In this case, the learned magistrate was wrong in adjourning the proceedings to a later date to enable the applicant to apply for habeas corpus. The magistrate should have either made an order discharging the applicant or an order for his return to Malaysia. As the magistrate did not make any such order and as the proceedings in the magistrate's court had not been concluded and the applicant was on bail, he had no means of challenging the validity of those proceedings.

Re Onkar Shrian 1969 High Court, Singapore (Choor Singh J).

In April 1988, A was arrested on suspicion of trafficking in heroin. Upon representations being made by counsel, A was released unconditionally. However, three months after his release, A was arrested again and detained under s 30 of the Criminal Law (Temporary Provisions) Act (Cap 67) ('the Act'). He applied for a writ of habeas corpus claiming that he was innocent and had been framed by his colleagues, alternatively that where he should have been charged under the Misuse of Drugs Act (Cap 185), detention under the Act was not proper.

Held, dismissing the application: (1) the mere suggestion of possible injustice and hardship to the defendant was not a reason for granting the writ of habeas corpus as a matter of course. The applicant must make an affidavit setting out the facts and circumstances of the case and give some cogent grounds as to why the detention was unlawful. A mere statement that the detention was unlawful would not entitle the applicant to an order for leave to issue the writ; (2) the main ground advanced by A was that he was innocent. A habeas corpus judge was not concerned with the guilt or innocence of a person detained by the authorities. The court's concern was whether the detention was unlawful. A had not raised any proper grounds in his affidavit as to why the detention was unlawful; (3) the Act conferred the power on the minister to cause detention without trial even if there was some other written law under which the detainee could be dealt with. A's second argument was therefore rejected summarily.

Kamal Jit Singh v Minister of Home Affairs & Ors [1993] 1 SLR 24 High Court, Singapore (GP Selvam JC).

Nurul Ain Hun bte Abdullah ('Nurul') had left the house of her father, the respondent, of her own accord and gone to the office of the kadi in Tampin and had willingly embraced the religion of Islam on 27 May 1992. She was 18 years and 20 days old at the time and had been registered in the register of Muslim converts. Subsequently on 31 July 1992, she announced in a press conference her wish to leave the religion of Islam and return to her original religion, that is, Buddhism. The appellant applied for a writ of habeas corpus against the respondent directing the person of Nurul to be brought before the court to determine her welfare. Nurul was alleged to be detained by the respondent since 16 July 1992.

Held, dismissing the application: (1) from the affidavit evidence produced by the applicant the contents of which were not disputed by the respondent and further from the oral evidence of Nurul herself, it is clear that she had lawfully embraced the religion of Islam willingly. Therefore, Nurul is bound by the provisions of the Administration of Islamic Law (Negeri Sembilan) Enactment 1991 and the applicant was responsible for her welfare; (2) Nurul's decision to leave the religion of Islam by her affidavit dated 31 July 1992 cannot be regarded as final until she herself states her intention to the applicant and her decision is registered. As such, Nurul remains a Muslim; (3) the basis of jurisdiction in habeas corpus is unlawful detention, that is, detention or imprisonment that cannot be defended in law. The words 'being unlawfully detained' in art 5(2) of the Federal Constitution means detention by force and the words 'be produced before the court' in art 5(2) of the Federal Constitution means produced from actual custody; (4) from Nurul's affidavit evidence dated 31 July 1992, it is clear here that Nurul has of her own accord followed the respondent on 16 July 1992 and at that time she was an adult and of sound mind.

Majlis Agama Islam Negeri Sembilan v Hun Mun Meng [1992] 2 MLJ 676 High Court, Seremban (Faiza Tamby Chik J).

The appellant was detained under the Internal Security Act (Cap 143, 1985 Ed) ('the ISA') in 1987 for her alleged involvement in a Marxist plot to 'subvert the existing social and political system in Singapore'. Her application for habeas corpus was granted by the Court of Appeal on a technical deficiency in the detention order (see Chng Suan Tze v Minister of Home Affairs & Ors) but she was sub-sequently rearrested. In January 1989, Acts No 1 and No 2 of 1989 amended s 8 of the ISA; these Acts came into operation respectively on 27 and 30 January 1989. Act No 2 of 1989 added four new provisions to the ISA which had the effect of: (a) pegging the law governing judicial review of any decision made or done by either the President or the minister under the ISA to that subsisting as at 13 July 1971 (s 8B(1)); (b) ousting judicial review of any act done or decision made by either the President or the minister under the provisions of the ISA, except questions relating to compliance with any procedural requirement of the Act (s 8B(2)); (c) stopping all appeals to the Privy Council in all ISA cases (s 8C); and (d) making the new provisions applicable retrospectively, ie in respect of proceedings instituted before or after the commencement of the Internal Security (Amendment) Act 1989. In the High Court, the appellant's application for habeas corpus was dismissed by Chua J (see [1989] 2 MLJ 449) and in this appeal, she argued that: (a) the Court of Appeal's views on judicial review in Chng Suan Tze correctly expressed (i) the law in ISA cases except where the law has been amended by subsequent legislation and (ii) the law of England, and the conformity between the law of England, Singapore and other Commonwealth countries; (b) the law governing judicial review in Singapore was the same as in England as at 13 July 1971 and that Chng Suan Tze did not make new law, but expressed a view on the law which followed long standing principle, universally applied throughout the common law world, which places on the courts the duty to ensure that the executive does not act outside the limits of its powers. Accordingly, the new s 8B(1) of the ISA had no effect on the principles stated in that case; (c) in fulfilling their role of ensuring that the government does not step outside the ambit of its statutory powers, the courts are entitled to review the grounds and the facts to determine whether the power had been exercised for the purpose of the ISA; that in exercising such function, the court is entitled to ask for some evidence, beyond the mere assertion of the executive, to show that the detention is made for the purpose of the ISA; (d) in the present case, the government's submission based on the amendments to the ISA and the Constitution, if accepted, would give arbitrary and unlimited power to the executive as the court would not be able to intervene in the clearest cases of abuse of power; (e) the amendments to the ISA do not confer such arbitrary and unlimited power on the executive and it is for the court to decide whether what the executive has done is within the scope of the legislation.

Held, dismissing the appeal: (1) the language of s 8B(1) is plain and unambiguous and it expressly refers to the relevant law applicable and declared in Singapore on 13 July 1971 and excludes the law in any Commonwealth country before, on or after that date. The case of Lee Mau Seng v Minister of Home Affairs is undisputedly the relevant decision given on 31 July 1971 and referred to in the section. It must therefore follow that s 8B(1) be construed as reinstating Lee Mau Seng as 'the applicable and declared law governing judicial review' under the ISA; (2) the appellant has not denied that the allegations of fact supporting the grounds of detention were founded on the primary facts set out by the court. These allegations of fact made by the government are inferences or judgmental facts on which, in this case, the government was entitled to reach. The appellant had not discharged the burden of proving that the original detention order was ultra vires on the ground that there was no factual basis that national security considerations were involved. The factual basis was, in the court's view, the government's allegation or perception of the existence of the Marxist plot. It was on account of this alleged plot that national security interests became a factor in determining whether the appellant had been involved in the plot and if so, whether she ought to be detained. In that respect, there is no question that the original detention order was not within the scope of the ISA; (3) the next question to consider is whether a change occurred in the security status of the appellant when the detention order was suspended. Under s 10 of the ISA, the minister may revoke any suspension detention direction 'if he is satisfied ... it is necessary in the public interest that such direction be revoked'. The necessity to revoke is a matter for the subjective satisfaction of the minister. Public interest is not the same as national security interest, and what is in the public interest is not necessarily confined to the requirements of national secur-ity. As such, even if it is shown that a decision is not made on considerations of national security, it does not follow that the decision may not have been made on other public interest grounds; (4) it is clear from the terms of s 10 that the government is entitled at any time and from time to time to reassess the security risk of the appellant to decide whether or not to revoke the suspension direction in the public interest, whether or not the appellant had breached any of the conditions of her release. The minister has stated on affidavit that he did reassess the security status of the appellant after she made the joint press statement. Having regard to the circumstances of the case, the appellant has not discharged the burden of proving that the minister revoked the suspension direction on the ground that she made a joint press statement and not on the ground of a reassessment of her security status. She has also not proved that in the reassessment the minister had not taken into account the interest of national security; (5) in determining whether or not the minister had considered national security interests in revoking the suspension direction, the court considered the following matters in determining whether a factual basis existed for national security interest to be taken into account: first, that the original detention order was within the scope of the ISA. A Marxist plot to subvert the existing social and political system in Singapore is by its nature a national security concern and the detention order, read together with the statutory statement, spoke for itself in the matter of national security. Secondly, the release of the appellant and the other detainees pursuant to the suspension directions was conditional. In releasing her conditionally, the government merely made an assessment that she was unlikely to resume her former activities and was no longer a security threat, and in this situation, there is no basis for saying that the interest of national security was not involved when the revocation order was made. Thirdly, there is no evidence that the minister's reassessment was not a genuine reassessment but was merely an excuse to redetain the appellant because she had made the joint press statement. Finally, there is in evidence the deposition of the minister that the Cabinet met on 8 December 1988 to reconsider the position of the appellant and was satisfied that it was necessary to detain her under the ISA; (6) in the circumstances, the court found it unnecessary to consider whether s 8B(2) of the ISA has the effect of precluding the court from reviewing a detention order which is demonstrably made for a purpose or purposes other than national security, or whether, in the alternative, the amendments to s 8 of the ISA are outside the scope of the legislative powers conferred by the amended art 149 of the Constitution or whether, in the further alternative, the purported amendments to the Constitution are invalid as violating the basic structure of the Constitution.

Teo Soh Lung v Minister of Home Affairs & Ors [1990] SLR 40 Court of Appeal, Singapore (Wee Chong Jin CJ, Thean and Chan Sek Keong JJ).

A were wanted by the United States government for drug offences. Warrants of apprehension were issued by a magistrate for their arrests pursuant to a complaint filed under s 133(1) of the Criminal Procedure Code (Cap 68) (CPC). A were arrested, produced before a district judge and remanded for a period greater than seven days. Subsequently A were brought before the same district judge and fresh remand was ordered for seven days. A took out a motion for writs of habeas corpus on the grounds of oppression and unlawful detention.

Held, dismissing the motions: (1) in habeas corpus proceedings, the court was not concerned with past illegalities unless such illegalities subsisted and vitiated the present detention; (2) each remand order was a fresh remand order, and as the remand orders subsisting at the return of the writs were valid remand orders, A were in lawful custody for the purpose of the proceedings; (3) the alleged oppressive acts by the prison authorities were not proved; (4) there was sufficient evidence before the magistrate to justify the warrants of apprehension; (5) hearsay evidence was admissible in an application under s 10 of the Extradition Act (Cap 103).

Son Kaewsa & Ors v Superintendent of Changi Prisons & Anor [1992] 1 SLR 276 High Court, Singapore (Chan Sek Keong J).

In this case, the applicant had applied by originating summons for an order of writ of habeas corpus to be issued for the production of the body of one Rajammah. The first and third defendants brought a motion for an order that the application be struck out. It was argued that the application was wrongly brought by originating summons and that the application should have been made under Chapter XXXVI of the Criminal Procedure Code (Cap 6).

Held, dismissing the application: (1) the power to issue directions, orders or writs including writs of the nature of habeas corpus for the enforcement of any of the rights conferred by Part II of the Constitution of Malaysia are specifically provided as an additional power for the High Court under s 25 of the Courts of Judicature Act 1964 (Act 91), but such power must be exercised in accordance with any written law or rules of court relating to the same; (2) the only written law relating to directions of the nature of habeas corpus is to be found in Part XXXVI of the Criminal Procedure Code and therefore the proper procedure in this case would be for the applicant to apply under s 365 of the Criminal Procedure Code and not by the ex parte originating summons-in-chamber.

Munusamy v Subramaniam & Ors [1969] 2 MLJ 108 High Court, Seremban (Abdul Hamid J).

The appellant alleged unlawful detention and applied for a writ of habeas corpus. He was arrested on 27 March 1975 at Kuala Kurau together with five others on suspicion of having committed murder, and on 16 April 1975 they were produced before the Magistrate, Parit Buntar, and tentatively charged with murder of two male Chinese contrary to s 302 of the Penal Code. The preliminary inquiry was fixed for 23 June 1975 but on that date the prosecution sought an adjournment. The inquiry was accordingly adjourned to 13 August 1975 when the prosecuting officer again sought an adjournment for a further week. On 20 August 1975, the prosecution informed the magistrate that he was directed by the Deputy Public Prosecutor to request the court to grant a discharge to the applicant and the others, whereupon the magistrate discharged all of them. As the applicant walked out of the courthouse he was immediately apprehended and taken to Barit Buntar Police Station where the order of detention made against him by the minister under s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969, and the grounds and allegations of fact were read and explained to and served on him. The detention order was dated 12 August 1975 and recited that whereas the minister was satisfied that it was necessary to make the order in respect of the applicant for the purpose of preventing him from acting in any manner prejudicial to public order or for the suppression of violence or the prevention of crimes involving violence, in exercise of the powers conferred upon him by s 4(1) of the ordinance he thereby directed that by the order the applicant be detained for a period of two years from 13 August 1975. The statement of grounds and allegations of fact was dated 13 August 1975. The applicant contended that he had been unlawfully detained under s 4(1) of the ordinance, that the detention order was null and void and in breach of the provision of arts 5 and 7 of the Constitution, and that the ordinance was promulgated for certain specific purposes and not applicable to loyal citizens like him. He further affirmed that he was not a person who acted or would act in any manner prejudicial to public order or resort to violence, and categorically denied the allegations contained in the statement of grounds and allegations of fact on which the order was made and based.

Held: (1) the grant of habeas corpus is as of right and not in the discretion of the court in the circumstances of a fundamental right guaranteed by the Constitution being involved and s 365 of the Criminal Procedure Code (FMS Cap 6) must now therefore be read in this light and as modified accordingly by the application of the provisions of art 162(6) of the Constitution; (2) a person is entitled to seek a writ of habeas corpus as of right and is not obliged to rely on the less convenient remedy of appeal or any other alternative remedy provided by statute. The existence of an alternative remedy, however convenient, beneficial and effectual does not prevent the issue of a writ of habeas corpus and it is open to the court notwithstanding to examine the legality of the impugned detention; (3) in this case, the applicant was not precluded from making this application at this stage notwithstanding his right to make and the pendency of such representations to an advisory board under the ordinance; (4) the order of detention made by the minister in respect of the applicant in the circumstances of this matter does not ipso facto amount to the exercise of his powers under s 4(1) of the ordinance for ulterior purpose or purposes other than that mentioned in the detention order so as to vitiate and render it mala fide. The onus of proving mala fides on the part of the detaining authority is on the applicant and is normally extremely difficult to discharge as what is required is proof of improper or bad motive in order to invalidate the detention order for mala fides and not mere suspicion; (5) the object and ambit of the ordinance is such and the purposes specified in s 4(1) are so wide as to negate any right in the applicant in the circumstances of his case to demand that the grave question of his guilt or innocence on the tentative charge of murder should be left to the court and the jury-box as the sanctuary of his life and liberty and not submerged in the amplitude of preventive detention on the basis of Executive discretion and satisfaction within the purview of the prescribed statutory provision on relevant grounds; (6) mere circumvention of the ordinary process of law cannot by itself amount to mala fides as otherwise this would in most cases virtually result in rendering moribund and impotent the laws legally enacted to provide for preventive detention for specified purpose; (7) the prerequisite for a valid detention order is ministerial satisfaction under s 4(1) of the ordinance and the fact that the statement in writing required to be furnished to the detenu under s 5(2)(b) is dated a day later than the order of detention cannot impair the validity of the order otherwise properly made or embase it for bad faith; (8) where an order of detention is challenged on the ground of mala fides, what has got to be made out is not the want of bona fides on the part of the police, but the want of bona fides as well as the non-application of mind on the part of the detaining authority; (9) there has in the circumstances been no breach of art 7(2) of the Constitution nor does it affect the position in any way; (10) in this case the applicant had been legally detained by a valid detention order made by the minister in the exercise of his powers under the provisions of s 4(1) of the ordinance and the detenu had failed to establish that it was tainted with mala fides or made improperly.

Yeap Hock Seng @ Ah Seng v Minister for Home Affairs, Malaysia & Ors [1975] 2 MLJ 279 High Court, Ipoh (Abdoolcader J).

Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ 129 Federal Court, Kuala Lumpur (Azmi LP, Ong Hock Thye CJ (Malaya).

In this case, the accused was charged with the offences of possession of a firearm and of ammunition punishable under s 57 of the Internal Security Act 1960 (Act 82). At the trial certain preliminary objections were raised. It was argued that (1) the circumstances under which the accused was tried on the charge under the Internal Security Act led to an infringement of art 8(1) of the Federal Constitution which guarantees equal protection under the law; (2) there had been no promulgation as to security areas under the Internal Security Act; (3) this was a security matter and that the Internal Security Act was intended for combating political subversion and that security areas were intended to be limited areas in the Federation and not the whole of the Federation; (4) as the accused had also been charged in the magistrate's court for robbery and a preliminary inquiry was pending he could not be charged in the High Court for the offence, as this would mean he would be in jeopardy twice.

Held: (1) it is clear that when a person is charged under the Internal Security Act on a security offence there is no violation of art 8 of the Federal Constitution. It is not for the court to inquire why the Public Prosecutor had declared an offence a security offence; (2) a person has to be convicted or acquitted before he could be said to be in double jeopardy.

Public Prosecutor v Teh Cheng Poh [1978] 1 MLJ 68 High Court, Penang (Arulanandom J).

[Annotation: This case went on appeal to the Federal Court (see [1977] 2 MLJ 66) and then to the Privy Council (see [1979] 1 MLJ 50).]

The following questions were referred to the Federal Court under the provision of s 65(1) of the Courts of Judicature Act 1964 (Act 91): (1) Can an incriminating statement made by an accused to a psychiatrist or a medical officer be admissible against the accused and especially when it springs from the existence of the highest degree of confidence between the psychiatrist and the patient? Does this special relationship affect its admissibility? (2) If such an incriminating statement is admissible, could there be circumstances which would render it inadmissible? (3) Does s 24 of the Evidence Ordinance 1950 apply where a patient makes a statement to a psychiatrist in a mental hospital during the course of a normal routine examination of the patient?

Held: (1) the privilege of excluding professional confidence in s 126 of the Evidence Ordinance does not protect professional disclosures made to clergymen or doctors. The answer to the first question, therefore, must be in favour of admissibility; (2) as to the second question the only point of substance is where the incriminating statement is in the nature of confessions. Such a statement is not admissible if it is excluded by any of ss 24, 25 and 26 of the Evidence Ordinance; (3) the answer to the third question is that s 24 of the Evidence Ordinance applied. The psychiatrist in a mental hospital is a person in authority in the institution where he conducts a routine examination of a patient. Hence, any inducement, threat or promise proceeding from him, having reference to the charge against the patient, must render any self-incriminatory statement by the patient inadmissible. Observations on the examination of medical witnesses where the defence of insanity is raised.

Public Prosecutor v Haji Kassim [1971] 2 MLJ 115 Federal Court, Kuala Lumpur (Ong CJ (Malaya).

Pursuant to a restriction order made by D1 under the Restricted Residence Enactment (Cap 39), P was restricted to Kota Tinggi, Johore for a period of five years. The order, though made on 19 November 1986, was only served on P on 25 November 1986. Upon the order being served on him, P was released from prison in Penang on 25 November 1986 and taken to the Penang police station lock-up to spend a night while the police authorities arranged transport and police escorts to bring him to Kota Tinggi in Johore. In the instant application, P claimed that his detention and custody in prison from 19 November to 26 November was illegal, unauthorized and not in accordance with law as it contravened art 5(1) of the Federal Constitution. P also contended that his current restriction to Kota Tinggi, pursuant to the order dated 19 November issued by D1, was bad, illegal and of no effect.

Held, allowing the application: (1) the test to apply in such cases under such circumstances is to determine whether the necessary steps to be taken by the authorities for the implementation of the restriction order are done with all convenient speed. In the instant case, D had not provided any explanation for the delay; (2) in the result, the court held that the detention and custody of P in prison from 19 November to 26 November 1986 was illegal, unauthorized and not in accordance with law as it contravened art 5(1) of the Federal Constitution. As P's current restriction to Kota Tinggi was pursuant to the order dated 19 November issued by D1 which was bad and illegal, it was of no legal effect. P's application was, accordingly, allowed by the court.

Saw Soon Tee v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors Originating Summons No 24-167-90 High Court, Johore Bahru (James Foong JC).

On 1 October 1986 at about 12.20 am, acting on information received, the applicant Koh Yoke Koon was arrested by the police at a stall in Jalan Solok, Tangkak, Muar, Johore. The applicant was then remanded in custody under s 117 of the Criminal Procedure Code for 14 days pursuant to an order made by a magistrate. He was released on 14 October 1986, but on the same day he was rearrested and detained at Muar police station pending inquiries under s 3. Upon the conclusion of these investigations, the police submitted a report to the Ministry of Home Affairs. On 9 December 1986, the Deputy Minister for Home Affairs signed the detention order under s 4 of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (PU(A) 187/1969) authorizing the detention of the applicant for a period of two years with effect from 12 December 1986. The applicant, therefore, challenged the validity of the detention order by the minister and the detention thereunder.

Held, granting the habeas corpus and setting the applicant free: (1) having regard to the provisions of the ordinance, the requirements therein as to the place of detention even though procedural are mandatory in character and so breaches thereof cannot be condoned; (2) the applicant's period of detention in police custody at the Muar station from 14 December 1986, until some time in the morning of 16 December 1986 when he was moved to the rehabilitation centre was wholly unauthorized and therefore in violation of art 5(1) as being otherwise than in accordance with law; (3) the detention order will not operate to salvage the case for the detaining authority for it specifically provided for detention at the centre for two years from 12 December 1986 and cannot therefore have the effect of rendering legal the applicant's illegal detention at the Muar police station from 14 December 1986 until his removal therefrom on the morning of 16 December 1986; (4) the detention of the applicant under s 4(1) was not procured by steps all of which were entirely regular nor was the court satisfied that 'every step in the process' which led to such detention was followed with extreme regularity and therefore the court should not allow the imprisonment to continue. To hold to the contrary would in effect mean that the minister had power to continue the detention of one who is being illegally detained; (5) the deputy minister had unwittingly exceeded the powers conferred upon him by ordering the continued detention of one who was being illegally detained with the result that the detention order, even if valid, was not legally effective at the date of the service thereof to allow the detention of the applicant to continue; (6) the applicant was entitled to be set at liberty. Per curiam: '...in a matter concerning the liberty of the subject Ð always a priceless asset Ð the court should walk very warily, preferring to interpret words and phrases in their ordinary and natural meaning than to embark on inferences or speculations about such a power.'

Koh Yoke Koon v Minister for Home Affairs, Malaysia & Anor [1988] 1 MLJ 45 High Court, Penang (Edgar Joseph J).

[Annotation: The decision of the trial judge was upheld on appeal to the Supreme Court (see [1988] 2 MLJ 301).]

In this case, the respondent was first arrested by the police on 1 October 1986 for alleged involvement in secret society activities. He was remanded in custody on an order by a magistrate for 14 days and released on 14 October 1986. On the same date, he was rearrested and detained under s 3 of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (PU(A) 187/1969). He was detained in police custody for a period of 60 days as allowed by s 3 of the ordinance. The period of 60 days expired on 13 December 1986. He was, however, detained in the Muar police station until sometime in the morning of 16 December 1986 when he was moved to the Pulau Jerejak Rehabilitation Centre pursuant to a detention order made by the Deputy Minister of Home Affairs pursuant to s 4(1) of the ordinance. The order was to take effect from 12 December 1986 and a copy of the order was served on the respondent on 14 December 1986. The order clearly stated that the respondent was to be detained at the Pulau Jerejak Rehabilitation Centre. On an application for habeas corpus, the learned trial judge held that the respondent's detention at Muar police station from 14 December 1986 until 16 December 1986 was unauthorized and illegal. He therefore made an order granting habeas corpus to the respondent (see [1988] 1 MLJ 45). The appellant appealed.

Held, dismissing the appeal: (1) in the present case, the language of the detention order is clear and unambiguous. According to the detention order, the respondent was to be detained at the Pulau Jerejak Rehabilitation Centre and nowhere else; (2) the learned trial judge was correct in holding that for the period 14 December 1986 until the morning of 16 December 1986 the respondent cannot be said to be in lawful custody or detention. In the circumstances, the continued detention of the respondent should not be allowed.

Public Prosecutor v Koh Yoke Koon [1988] 2 MLJ 301 Supreme Court, Kuala Lumpur (Abdul Hamid CJ (Malaya).

The respondent had been arrested under an order made by the Deputy Minister of Home Affairs under s 2(i) of the Restricted Residence Enactment (FMS Cap 39). The grounds for the detention were that as a registered dealer in commodity trading the respondent had cheated many investors by giving false promises and making false declarations resulting in the investors sustaining considerable financial losses. The grounds for the detention were served on the respondent and he was informed that he could appeal for consideration to the Deputy Minister. Representations were made on behalf of the respondent but were rejected by the Deputy Minister. Subsequently the Deputy Minister made another order under s 2(ii) of the enactment requiring the respondent to reside in the town of Gua Musang in Kelantan for the period of three years from the date of the order. The respondent applied to the High Court for declarations that (1) he was entitled to an inquiry before the said orders were made; and (2) the grounds for his detention were not within the scope of the enactment. Harun J held that the respondent was entitled to an inquiry before an order can be made against him under s 2(ii) of the enactment. He also held that the grounds for restricted residence in the case were within the scope, ambit and purview of the enactment (see [1986] 2 MLJ 235). The appellants appealed against the finding of the learned judge that the respondent was entitled to an inquiry and the respondents cross-appealed against the finding of the learned judge that the grounds for detention were within the scope, ambit and purview of the enactment.

Held, allowing the appeal and dismissing the cross-appeal: (1) an inquiry by the Deputy Minister before he makes an order under s 2(ii) of the Restricted Residence Enactment is optional and for the purpose only of satisfying himself that there are reasonable grounds for believing that the respondent should have his residence restricted. The respondent is not entitled as of right to an inquiry before an order under s 2(ii) of the enactment is issued against him; (2) the learned judge was right in holding that the grounds for restricted residence in this case were within the scope, ambit and purview of the enactment.

Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors v Cheow Siong Chin [1988] 1 MLJ 432 Supreme Court, Kuala Lumpur (Abdul Hamid CJ (Malaya).

In this case, the appellant was convicted in the sessions court of an offence under s 4 of the Firearms (Increased Penalties) Act 1971 (Act 37) and sentenced to imprisonment for life with six strokes of whipping. He appealed to the High Court and on the application of the appellant the learned judge stayed the proceedings and certified the following constitutional question for the determination of the Federal Court: 'Whether or not the sentence of life imprisonment for the duration of natural life as provided under s 4 of the 1971 Act read with the s 2 definition of life imprisonment as amended by Act A256/1974 is unconstitutional and violates art 5(1) and art 8(1) of the Federal Constitution.'

Held: it is now firmly established that 'law' in the context of such constitutional provisions as arts 5, 8 and 13 of the Constitution refers to a system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation at the commencement of the Constitution. There is nothing in the statutory provision sought to be impugned to infringe this principle. Neither is there anything arbitrary, fanciful or oppressive in the legislatively defined sentence for the specific offence in question committed under the 1971 Act.

Che Ani bin Itam v Public Prosecutor [1984] 1 MLJ 113 Federal Court, Kuala Lumpur (Raja Azlan Shah LP, Hashim Yeop A Sani and Abdoolcader FJJ).

In this case, the respondent had been charged with having under his control in a security area without lawful excuse or authority ammunition contrary to s 57(1) of the Internal Security Act 1960 (Act 82) which carries a mandatory death sentence. Counsel for the respondent raised a preliminary point at the commencement of the trial, contending that the mandatory death penalty was unconstitutional. Subsequently, the Attorney General suggested that the matter be referred to the Federal Court. The learned trial judge agreeing, stayed the proceedings and referred the following question of law to the Federal Court: 'Whether or not the mandatory death sentence provided under s 57(1) of the Internal Security Act 1960, is ultra vires arts 5(1), 8(1) and 121(1) of the Federal Constitution'.

Held: (1) it is clear from art 5(1) of the Federal Constitution that the Constitution itself envisages the possibility of Parliament providing for the death penalty so that it is not necessarily unconstitutional; (2) although the Internal Security Act is designed to stop or prevent subversive action, as the whole of it is valid and is still in force it can be used as authority for prosecuting persons who have completed acts made criminal by the Act, not only for stopping or preventing such acts. What better way is there of preventing similar acts than by prosecuting offenders like the respondents? (3) in the light of art 145(3) of the Constitution, the Attorney General has complete discretion whether to charge the respondent under the Internal Security Act 1960 or the Arms Act 1960 (Act 206); (4) capital punishment is not unconstitutional per se. In their judicial capacities, judges are in no way concerned with arguments for or against capital punishment. Capital punishment is a matter for Parliament. It is not for judges to adjudicate upon its wisdom, appropriateness or necessity if the law prescribing it is validly made; (5) all criminal law involves classification of individuals for the purpose of punishment. Equality before the law and equal protection of the law require that like should be compared with like. What art 8(1) assures to the individual is the right to equal treatment with other individuals in similar circumstances. Everybody charged under s 57(1) of the Internal Security Act 1960 is liable to the same punishment and therefore it is not discriminatory; (6) it is the function of the Legislature, not the Judiciary, to decide the appropriate punishment for persons charged under the Internal Security Act and the Arms Act. Provided that the factor which Parliament adopts as constituting the dissimilarity in circumstances which justifies dissimilarity in punitive treatment is not purely arbitrary but bears a reasonable relation to the object of the law there is no inconsistency with art 8(1) of the Constitution. Article 8(1) is concerned with equal punitive treatment for similar legal guilt, not with equal punitive treatment for equal moral blameworthiness; (7) there is nothing unusual in a capital sentence being mandatory and indeed its efficacy as a deterrent may to some extent be diminished if it is not.

Public Prosecutor v Lau Kee Hoo [1983] 1 MLJ 157 Federal Court, Kuala Lumpur (Suffian LP, Wan Suleiman FJ, Salleh Abas FJ, Abdul Hamid FJ and Abdoolcader J).

This was an appeal from the conviction and sentence by the learned judge of the High Court. On the appeal two grounds were presented: (a) the mandatory death sentence under the Internal Security Act 1960 (Act 82) is unconstitutional, and (b) there was no proof that the appellant was in control of the detonators and hand-grenades, the subjects of the charge.

Held, dismissing the appeal: (1) Parliament has the plenary powers to enact capital punishment in particular under the Internal Security Act. The authority to enact the law, as a constitutional matter, has never been in doubt; (2) in the circumstances of this case, and on the evidence, the appellant's knowledge that the detonators and grenades were buried in his oil palm holding amounts to control of them.

Lau Kee Hoo v Public Prosecutor [1984] 1 MLJ 110 Federal Court, Kuala Lumpur (Raja Azlan Shah LP, Abdul Hamid, Mohamed Azmi, Hashim Yeop A Sani and Abdoolcader FJJ).

This was an application to have the plaintiff's statement of claim struck out under O 18 r 19, Rules of the High Court 1980, on the ground that the statement of claim disclosed no cause of action. The plaintiff sought for a declaration that the mandatory sentence of death under s 57(1) of the Internal Security Act 1960 (Act 82) was unconstitutional as being unreasonable, oppressive and infringing the equality provision of the Constitution.

Held: (1) the statement of claim should be struck out only in plain and obvious cases where the judge can say at once that the statement of claim as it stands is insufficient even if proved to entitle the plaintiff to the relief. It follows that so long as the statement of claim discloses some ground of action, the mere fact that the plaintiff is not likely to succeed is no ground to strike out the statement of claim; (2) as regards art 5(1) of the Federal Constitution, the law is that if Parliament deems it necessary that the death penalty should be mandatory it is not within the province of the court to adjudicate upon the wisdom of such a law. The law may be harsh but the role of the court is only to administer the law as it stands; (3) art 8 of the said Constitution is not contravened because although the mandatory death sentence may appear cruel it is not unequal in its application in that every person convicted of the offence would be subject to the same punishment; (4) the plaintiff had exhausted all remedies available to him, both judicial and administrative. Therefore, the subject sought for declaration was not a proper one and that the discretion of the court should be exercised against granting the application of the plaintiff; (5) the application of the Attorney General would be granted and the statement of claim would be struck out.

Attorney General, Malaysia v Chiow Thiam Guan [1983] 1 MLJ 51 High Court, Kuala Lumpur (Hashim Yeop A Sani J).

In this case, the accused had been charged for being in possession of a hand-grenade in a security area without lawful excuse and without lawful authority, an offence punishable with death under s 57(1)(b) of the Internal Security Act 1960 (Act 82). Counsel for the accused raised a preliminary issue and submitted that the mandatory death sentence prescribed under s 57(1)(b) of the Internal Security Act 1960 is unconstitutional as it infringes arts 5(1), 8(1), 12(1) and 149(1) of the Federal Constitution.

Held: (1) art 5(1) of the Federal Constitution is not infringed because the accused is not going to be deprived of his life or personal liberty except in accordance with law, that is, the Internal Security Act 1960. The courts are concerned with the administration of law and they are obliged to administer the law as it is found in the statute books. Whether or not the death sentence is morally right or wrong is a matter not for the courts but for Parliament to decide; (2) s 57(1)(b) of the Internal Security Act 1960 does not contravene art 149(1) of the Federal Constitution because to stop or prevent subversion it is necessary to provide for offences and penalties; (3) the fundamental right of equality before the law and to the equal protection of law are not violated by the fact that the accused is charged under s 57(1)(b) of the Internal Security Act and not under s 8 of the Arms Act 1960 (Act 206), as the Attorney General has the power under the Constitution at his discretion to institute, conduct or discontinue criminal proceedings for any offence and it is up to the Attorney General to decide if he would charge any person and under which law depending on the evidence available to him; (4) the fact that the court has no alternative does not make the mandatory death sentence unconstitutional. The courts are concerned with the administration of the law and they are obliged to administer the law as found in the statute books.

Public Prosecutor v Yee Kim Seng [1983] 1 MLJ 252 High Court, Ipoh (Ajaib Singh J).

In these cases, the appellants had been convicted in the High Court for offences under the Internal Security Act 1960 (Act 82) and sentenced to death. Their appeal to the Federal Court had been dismissed and the Pardons Board had duly considered the sentences imposed and had not seen fit to interfere. The appellants in each case applied, inter alia, for (1) a declaration that the mandatory sentence passed under the Internal Security Act was unconstitutional and (2) stay of execution pending finalization of the proceedings. In the High Court, the claim was struck out on the ground that it disclosed no cause of action. The appellants thereupon applied for a stay of execution pending appeal to the Federal Court.

Held: the courts are without jurisdiction to deal with this sort of application for the reason that mercy is not the subject of legal rights. Any stay of execution would only be an extension of the prerogative of the Yang di-Pertuan Agong in accordance with art 42 of the Federal Constitution.

Chiow Thiam Guan v Superintendent of Pudu Prison & the Government of Malaysia [1983] 2 MLJ 116 Federal Court, Ipoh (Wan Suleiman, Salleh Abas and Abdul Hamid FJJ).

P appealed to the Supreme Court against the decision of the High Court dismissing their applications for writs of habeas corpus for their release from detention under the Dangerous Drugs (Special Preventive Measures) Act 1985. P were detained separately pursuant to orders under s 6(1) of the 1985 Act. P challenged their detention on the ground that it was bad as the detention had commenced from a date different from the date of the detention orders.

Held, allowing the appeals: (1) it is clear from the words 'from the date of such order' in s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 that the material date for the commencement of the detention is the date when the order is made and signed by the Minister. On this construction, the period of two years must be calculated from the date the order was made and signed by the Minister and not any other date; (2) the law of preventive detention must be construed strictly and in the case of doubt, the court should lean in favour of the subject. A detention not in accordance with law is inconsistent with the fundamental right guaranteed by art 5(1) of the Federal Constitution; (3) for the above reasons, their Lordships allowed the appeals of P and granted their applications for writs of habeas corpus.

Tan Hoon Seng v Minister for Home Affairs, Malaysia & Anor; Ng King Chew v Minister for Home Affairs, Malaysia & Anor [1990] 1 MLJ 171 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

P were arrested and detained under the Dangerous Drugs (Special Preventive Measures) Act 1985. P were detained for a period of two years pursuant to a detention order issued under the 1985 Act. The Deputy Minister of Home Affairs subsequently extended the duration of the detention order by another two years. P challenged the legality of their continued detention on various grounds. It was contended that the order extending the period of their detention was illegal and invalid in that it authorized their detention beyond the life-span of the 1985 Act. It was also contended that the continued detention of P was bad as the Minister had authorized their continued detention after taking into consideration the report of the advisory board which was made contrary to the 1985 Act. P further contended that there had been non-compliance with arts 5(3) and 151(1)(a) of the Federal Constitution in that they were not informed of the grounds of their arrest as soon as may be and that they were denied the right to make representation against their continued detention.

Held, dismissing P's applications for habeas corpus: (1) having regard to s 1(5) of the 1985 Act, the order extending the duration of P's detention was valid even though part of the period of their continued detention would go beyong the life-span of the 1985 Act. Parliament can at any time before the 1985 Act lapses pass a resolution pursuant to s 1(4) of the 1985 Act to extend its life-span. In any event, the detention order would be valid and legally enforceable only during the period the 1985 Act remains in force; (2) in the instant case, the Minister had extended the duration of P's detention on the same grounds on which the respective detention order was originally made. The exercise of the Minister's discretion in this respect was accordingly not tainted by the report of the advisory board made contrary to the 1985 Act. That being the case, the Minister's subjective satisfaction was not open to inquiry by the court; (3) as the order extending the duration of P's detention was based on the same grounds on which the respective detention order was originally made, P could not be heard to say that they had been denied the right to make a second representation against their continued detention. There is in law and in fact only one detention order against each of P. Section 11A(3) provides additional safeguards to a detained person in case fresh grounds are to be considered against him; (4) in the instant case, the court was satisfied that P were properly informed of the grounds of their arrest and consequently there had not been any infringement by the detaining authority of art 5(3) of the Federal Constitution; (5) under the 1985 Act, the Yang di-Pertuan Agong's satisfaction is not a precondition to the Minister making a valid detention order. If the detention order by the Minister is invalid, even the confirmation of it by the Yang di-Pertuan Agong will not save it. Accordingly, the argument of P that there was a contravention of s 10(2) of the 1985 in that there was no communication of the decision of the Yang di-Pertuan Agong to the Minister regarding the recommendation of the advisory board was without merit; (6) as the detention of P was in accordance with law, the court, accordingly, dismissed P's applications for habeas corpus.

Zakaria bin Jaafar v Menteri Hal Ehwal Dalam Negeri & Ors; Tan Poh Hee v Menteri Hal Ehwal Dalam Negeri & Ors Criminal Application Nos 44-2 of 1989 and 44-4 of 1989 High Court, Johore Bahru (Mokhtar Sidin JC).

Six persons were arrested and charged with rioting sometime in May 1967. The trial was adjourned from time to time on no less than seven occasions when finally it was concluded. The accused was one of the persons subpoenaed as a witness at the trial of the six accused. The seventh rioter was arrested sometime in March 1968. The accused was also one of the two witnesses subpoenaed to attend court. On the day fixed for hearing the prosecution applied for an adjournment and a fresh date was fixed for hearing on 27 August 1968. When the case was called on 27 August 1968 the prosecuting officer advised the magistrate that two of the witnesses (one of whom was the accused) had failed to turn up in court. The magistrate then issued a warrant for the arrest of the accused with the further order that no bail was to be allowed. He then adjourned the case to 13 November 1968. On 28 August 1968, on hearing of the order of arrest against him, the accused went to the court to surrender himself. He was brought before the magistrate, and the magistrate told the accused to go home and await arrest. The accused was arrested on 17 September 1968 and charged with intentionally omitting to appear in court on 27 August 1968. No facts were given and no reference was made to any allegation that the facts were as in the charge. After a plea in mitigation the accused was fined $100 which was paid but he was issued a receipt under a different name. The accused asked for a reconsideration of his case by letter.

Held: (1) the record clearly showed that the magistrate had made the bailable offence under s 174 of the Penal Code a non-bailable one. The learned magistrate had no right whatsoever to deprive a subject of his constitutional right to liberty and to be tried according to law; (2) the correct procedure where a man surrenders himself to a warrant of arrest would be to put him on bond for his appearance on the date and then release him; (3) at the trial of the accused of the charge under s 174 of the Penal Code no facts were given and the accused was never asked to admit the facts which would establish his guilt and therefore a grave injustice was inflicted upon him in the case; (4) the endorsement of a new date of hearing on the subpoena on 27 August 1968 by a police personnel was not a proper or effective endorsement so that in the result there had not been served on the accused a proper subpoena to enforce his presence in court on 27 August 1968 and accordingly no offence had been committed under s 174 of the Penal Code.

Sebastian v Public Prosecutor [1968] 2 MLJ 214 High Court, Ipoh (Chang Min Tat J).

Chia Khin Sze v The Mentri Besar, State of Selangor [1958] MLJ 105 High Court, Kuala Lumpur (Sutherland J).

In this case, the applicant applied for an order directing the respondents to issue a Malaysian passport to him or alternatively to show cause why the said order should not be made. It was claimed on behalf of the respondents that the issue of a passport was a prerogative of the Yang di-Pertuan Agong.

Held: (1) an order under s 44 of the Specific Relief Act 1950 (Act 137) can only be made against a person holding a public office and could therefore not be made against the first two respondents, the government of Malaysia and the Menteri Hal Ehwal Dalam Negeri; (2) the refusal or delay in granting the applicant a passport was tantamount to preventing him from leaving the country and was in violation of his right of personal liberty under art 5(1) of the Federal Constitution; (3) the issue or withdrawal of passports is not a prerogative and the exercise of the executive discretion in this case could be reviewed by the courts; (4) although the applicant in this case had no other remedy other than by way of an order under s 44 of the Specific Relief Act 1950, it had not been shown that the duty in this case which was imposed on the passport authorities was of a purely ministerial character involving no judgment or discretion on the part of the third and fourth respondents and therefore the application must be dismissed.

Loh Wai Kong v Government of Malaysia & Ors [1978] 2 MLJ 175 High Court, Penang (Gunn Chit Tuan J).

[Annotation: This case was referred to the Federal Court by the respondents (see [1979] 2 MLJ 33) on the issue of whether the refusal or delay in granting a passport was tantamount to preventing the appellant from leaving the country.]

The respondent had applied for an order directing the appellants to issue a Malaysian passport to him. He contended that he had a fundamental right to travel abroad and that the refusal of a passport violated this right. The learned judge rejected the application (see [1978] 2 MLJ 175) but in the course of the judgment made certain observations on the law to which the appellants took objection. He held in effect that the refusal or delay in granting a passport was tantamount to preventing the appellant from leaving the country and was in violation of his right of personal liberty under art 5(1) of the Federal Constitution. The appellants appealed and the respondent cross-appealed.

Held: (1) that article does not confer on the citizen a fundamental right to leave the country. On the contrary, the government may stop a person from leaving the country if, for instance, there are criminal charges pending against him; (2) art 5 does not confer on the citizen a fundamental right to travel overseas; (3) personal liberty in art 5 of the Federal Constitution means liberty relating to or concerning the body of the individual;art 5 does not confer on the citizen a right to a passport. The government has a discretion whether to issue or not to issue, delay the issue of or withdraw a passport, for instance if criminal charges are pending against the applicant. The exercise of this discretion is subject to review by a court of law, as in the case of other discretionary powers.

Government of Malaysia & Ors v Loh Wai Kong [1979] 2 MLJ 33 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah, Wan Suleiman, Chang Min Tat and Syed Othman FJJ).

In these cases, the appellants appealed against their convictions for offences of trafficking in heroin contrary to s 3 of the Misuse of Drugs Act 1973. The evidence against the appellants showed that they were in each case arrested in possession of the heroin which exceeded 15 grammes and that they were transporting the heroin. As the amount of heroin involved exceeded 15 grammes in each case the mandatory sentence of death was imposed on the appellants. The appellants appealed to the Court of Criminal Appeal, which dismissed the appeal, following its earlier decision in Wong Kee Chin v PP [1979] 1 MLJ 157 on the true construction of the Control of Drugs Act 1973. At the appeal before the Privy Council, two additional grounds were raised on the constitutionality of the provisions in the Act. The first was that the provision in s 15 of the Act that proof of possession of controlled drugs in excess of the minimum quantities stated in the section gives rise to a rebuttable presumption that such possession is for the purpose of trafficking is inconsistent with the Constitution; and the second was that the provision in s 29 and the Second Schedule of the Act for a mandatory death penalty for trafficking in controlled drugs in excess of the higher minimum quantities stated in the schedule, is likewise inconsistent with the Constitution.

Held: (1) (b) if the quantity of controlled drugs being moved was in excess of the minimum quantity specified for that drug in s 15 of the Act, that section creates a rebuttable presumption that such is the purpose for which they were being moved, and the onus lies upon the mover to satisfy the court, upon the balance of probabilities, that he had not intended to part with the possession of the drugs to anyone else, but to retain them solely for his own consumption; (2) the Court of Criminal Appeal had in these cases applied the correct construction to the Misuse of Drugs Act 1973 and the appeals on this ground must fail; (3) in a constitution founded on the Westminster model and particularly in that part of it that purports to assure to all individual citizens the continued enjoyment of fundamental liberties or rights, references to 'law' in such contexts as 'in accordance with law', 'equality before the law', 'protection of the law' and the like, refer to a system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation in Singapore at the commencement of the Constitution. It would have been taken for granted by the makers of the Constitution that the 'law' to which citizens could have recourse for the protection of fundamental liberties assured to them by the Constitution would be a system of law that did not flout those fundamental rules. If it were otherwise it would be misuse of language to speak of law as something which affords 'protection' for the individual in the enjoyment of his fundamental liberties, and the purported entrenchment (by art 5) of arts 9(1) and 12(1) would be little better than a mockery; (4) in the case of the Control of Drugs Act 1973, any act done by the accused, which raises the presumption that it was done for the purpose of trafficking, is per se unlawful, for it involves unauthorized possession of a controlled drug which is an offence under s 6 of the Act. There is no conflict with any fundamental rule of natural justice and so no constitutional objection to a statutory presumption (provided that it was rebuttable by the accused) that his possession of controlled drugs in any measurable quantity without regard to specified minima was for the purpose of trafficking in them. There is therefore no substance in the suggestion that s 15 of the Act is inconsistent with the Constitution, at any rate so far as it relates to proved possession, with which the cases under appeal were concerned; (5) the presumption under the Misuse of Drugs Act 1973 works as follows: when an accused is proved to have had controlled drugs in his possession and to have been moving them from one place to another (a) the mere act of moving them does not of itself amount to trafficking within the meaning of the definition in s 2 of the Act, but if the purpose for which they are being moved was to transfer possession from the mover to some other person at their intended destination the mover is guilty of the offence of trafficking under s 3 of the Act, whether that purpose was achieved or not;there is nothing unconstitutional in the provision for a mandatory death penalty for trafficking in significant quantities of heroin and morphine. The dissimilarity in circumstances adopted as justifying the differentiation in punishment was not purely arbitrary but bore a reasonable relation to the social object of the law and there is therefore no inconsistency with art 12(1) of the Constitution.

Ong Ah Chuan v Public Prosecutor; Koh Chai Cheng v Public Prosecutor 1980 Privy Council Appeal from Singapore (Lord Diplock, Lord Keith of Kinkel, Lord Scarman and Lord Roskill).

Yeap Hock Seng @ Ah Seng v Minister for Home Affairs, Malaysia & Ors [1975] 2 MLJ 279 High Court, Ipoh (Abdoolcader J).

Where a detainee is being held in a prison, the inconvenience and possible delay in either getting him before a commissioner of oaths, or alternatively of getting the latter to visit the prison amounts to 'other sufficient cause' for the detainee himself not filing the affidavit in support of an application for habeas corpus. One Haron was detained under the Restricted Residence Enactment (Cap 39). An application by originating motion was made by his wife for issue of a writ of habeas corpus challenging the detention on the ground that there had been non-compliance with art 5(3) of the Federal Constitution in that the detainee had not been informed 'as soon as may be of the grounds of his arrest'. The applicant's counsel urged that the power to detain was exercised mala fide by the authority, in consequence the court had jurisdiction to look into and examine whether the grounds for arrest were reasonable.

Held: (1) as in her supporting affidavit the applicant had deposed that when she saw the detainee a few hours after his arrest he was fully informed by the police and knew the reasons for his arrest, this satisfied the requirement of art 5(3) of the Constitution which applies to arrests made under any law including the Restricted Residence Enactment in this case; (2) the legal position is that the detention order must be in exercise of a valid legal power. Once this is shown it is for the detainee to show that the power was exercised improperly. Thus the applicant in this case failed to discharge the onus cast upon her.

Aminah v Superintendent of Prison, Pengkalan Chepa, Kelantan [1968] 1 MLJ 92 High Court, Kota Bharu (Wan Suleiman J).

In this case, the applicants had been detained under the Emergency (Public Order and Prevention of Crime) Ordinance 1969. It was alleged that they were engaged in drug trafficking. The applicants applied for writs of habeas corpus on the grounds: (1) that the applicants' detention was not within the scope and object of the Emergency (Public Order and Prevention of Crime) Ordinance 1969; (2) that the applicants were not informed of the grounds of their arrest and therefore there had been contravention of the provisions of art 5(3) of the Federal Constitution; (3) that the applicants had not been given an effective opportunity to make representations against their detention; (4) that the copies of the purported detention orders served on the applicants were not signed and were not under the hand of the minister.

Held, dismissing the applications: (1) the preamble of the ordinance declared that it was passed for securing public order, the suppression of violence and the prevention of crime involved in violence and although the preamble is not part of the ordinance one can look into it to understand the scope of the ordinance. It is clear that securing public order covers suppression of crimes which endanger the safety of the people and cause harm to society. Detention of persons found to be trafficking in drugs is therefore well within the scope of the ordinance as it is a notorious fact that trafficking in drugs causes serious harm and destroys the body politic not only nationally but also internationally; (2) the evidence in this case showed that the detainees were informed by the officers who arrested them of the grounds of the arrest. In any event any complaint about the arrest of the applicants would appear to be purely academic and of no relevance to an application for a writ of habeas corpus against the detention of order of the Minister of Home Affairs; (3) although the forms supplied to the applicants to enable them to make representations against their detention were defective, the facts showed that it was not that the applicants were not given an opportunity to make representations against the order of detention but that they for reasons best known to themselves were not interested or did not want to make representations against the orders of detention; (4) it was not necessary that the orders of detention be signed personally by the minister; (5) the orders of detention in this case which were made by the minister were valid and not justiciable in the absence of proof of mala fides.

Re PE Long @ Jimmy & Ors; PE Long & Ors v Menteri Hal Ehwal Dalam Negeri Malaysia & Ors [1976] 2 MLJ 133 High Court, Penang (Arulanandam J).

The applicant who is a member of Parliament, a state assemblyman and an advocate and solicitor was placed under detention by virtue of a detention order issued by the first respondent under s 8 of the Internal Security Act 1960 (Act 82). The applicant applied for a writ of habeas corpus. He challenged the detention order. There were six allegations made against the appellant which formed the basis of the detention order. The present case centred on the sixth allegation which was that the applicant, at the place, time and on the date stated in the detention order, used the issue of appointing non-Mandarin-qualified headmasters and senior assistants in the national-type Chinese primary schools to incite racial sentiments of the Chinese community. This allegation was later admitted by the minister to be an error as the detainee did not on that date, time and place speak on the issue.

Held, allowing the application: (1) there are three exceptions to the non-justiciability of the minister's mental satisfaction in cases of this kind. They are (a) mala fides, (b) the stated grounds of detention not being within the scope of the enabling legislation, ie the Act, and (c) the failure to comply with a condition precedent; (2) mala fides does not mean at all a malicious intention. It normally means that a power is exercised for a collateral or ulterior purpose, ie for a purpose other than the purpose for which it is professed to have been exercised; (3) although the error relating to the sixth allegation was probably made in the course of inquiries by the police, the minister cannot rid himself of the error of the police because the process starting with the initial arrest of the applicant under s 73 of the Act pending inquiries until the execution of a detention order made by the minister would appear to be a continuous one. Such being the case, any period or any part of such one continuous process can be looked into to see if the care and caution have been exercised with a proper sense of responsibility for the purpose of ascertaining if the detention order was properly made; (4) viewed objectively and not subjectively, the error, in all the circumstances, would squarely amount to the detention order being made without care, caution and a proper sense of responsibility. Such circumstances have gone beyond a mere matter of form; (5) the sixth allegation, though an irrelevant allegation which the court can inquire into, was also an inaccurate allegation that can be treated as being outside the scope of the Act; (6) with regard to the contention that the detention order was necessary having regard to the first to fifth allegations, this court should not accede to the contentions.

Karpal Singh s/o Ram Singh v Menteri Hal Ehwal Dalam Negeri Malaysia & Anor [1988] 1 MLJ 468 High Court, Ipoh (Peh Swee Chin J).

[Annotation: The decision of Peh J was overturned on appeal to the Supreme Court (see [1988] 3 MLJ 29).]

Re Choo Jee Jeng [1959] MLJ 217 High Court, Singapore (Ambrose J).

These were appeals from the judgments of the High Court ([1977] 1 MLJ 39 and 82). The appellants were subject to orders of detention made under s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (PU(A) 187/1969). They made representations against the orders to the advisory board, but the board did not make recommendations thereon within three months of the detention orders. Nevertheless the Yang di-Pertuan Agong had acting on advice confirmed the detention orders. All the three appellants applied for habeas corpus, alleging that their continued detention after a lapse of three months from the date of their detention (within which period the advisory board had not made their recommendations) was unlawful in the light of the provisions of art 151(1)(b) of the Federal Constitution and the provisions of s 6 of the Emergency (Public Order and Prevention of Crime) Ordinance 1969. The High Court dismissed the applications and the appellants appealed to the Federal Court.

Held, allowing the appeals: (1) reading art 151(1)(b) of the Federal Constitution and s 6 of the Emergency (Public Order and Prevention of Crime) Ordinance 1969, the only reasonable conclusion is that a citizen cannot be detained for more than three months from the order of detention unless (a) the advisory board considers the representations of the detainees and makes recommendations thereon to the Yang di-Pertuan Agong within three months from the detention order and (b) the Yang di-Pertuan Agong confirms the order of detention after considering the recommendations; (2) the failure of the advisory board to carry out its duty within the prescribed time in these cases rendered the continued detention after the three-month period to be unlawful as it could not be said to be in accordance with law; (3) although the orders of detention in these cases had been confirmed by the Yang di-Pertuan Agong, that decision was ultra vires and could be corrected by the court.

Re Tan Boon Liat @ Allen & Anor et al; Tan Boon Liat v Menteri Hal Ehwal Dalam Negeri & Ors; Chuah Han Mow v Menteri Hal Ehwal Dalam Negeri & Ors; Subramaniam v Menteri Hal Ehwal Dalam Negeri & Ors [1977] 2 MLJ 108 Federal Court, Kuala Lumpur (Suffian LP, Gill CJ (Malaya).

The applicant, who had been detained at Tempat Tahanan Perlindungan, Taiping, under the Internal Security Act 1960 (Act 82), applied for the issue of a writ of habeas corpus. He requested that an order be issued for him to appear during the hearing of the application. The respondents raised objections to the applicant's request.

Held, allowing the application: (1) a detainee is not entitled as of right to be present at the hearing of his habeas corpus application just because he prefers to argue his own case. However, the principle does not completely shut the doors to the court's power to require the production of a detainee in cases where, having regard to the circumstances of the case, the court considers his presence necessary; (2) the two tests to apply in determining whether the court considers his presence necessary are (a) whether the detainee had sufficient reasons to discontinue his legal representation and (b) if so, whether hearing of the habeas corpus application in the total absence of the detainee or his legal representative can lead to a failure of justice; (3) in the present case, the detainee claimed that he experienced difficulties in giving adequate instructions to his former solicitors because the detainee camp allows only one visit by his lawyer in any given week and his lawyers are located in Malacca. Furthermore, the detainee is undergoing financial hardship. As such, the detainee is a person who is forced by circumstances to appear in person; (4) in trials by affidavit, submissions by the parties involved usually form the fundamental and indispensable part of the proceedings. Only through submissions can a party effectively marshall his scattered facts contained in one or more affidavits into more cogent arguments to meet his opponent's case. The detainee would be deprived of this essential process of presenting his case if the court were to proceed with the hearing without his presence; (5) having regard to all the circumstances, the detainee's presence is necessary towards ensuring a fair and impartial hearing of his application and to proceed with hearing the case in his total absence will result in an imbalance of justice.

Lim Guan Eng v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1988] 3 MLJ 323 High Court, Malacca (Wan Yahya J).

In this case, the respondent had been arrested by a police officer, who deposed that he arrested and detained the respondent pursuant to s 73(1) of the Internal Security Act 1960 (Act 82). At the time of the arrest, the officer explained to the respondent that he (the public officer) had reason to believe that there were grounds which justify the respondent's detention under s 8 of the Act and that he had acted in a manner prejudicial to the security of the country. The respondent instituted habeas corpus proceedings in the High Court. The police officer who arrested and detained the respondent gave an affidavit giving the facts which may be summarized as follows. At all material times the respondent was the managing director of Malayan Commercial Services Sdn Bhd, a company dealing in consultancy services. During the period October 1975 to August 1985, the respondent was also a director of the Perwira Habib Bank and a member of its loans committee. It was alleged that the respondent provided consultancy services through the said company which resulted in massive loans by the bank to various parties, thereby causing substantial losses to the bank. A police investigation of the alleged criminal breach of trust of moneys during the respondent's tenure as director of the bank was undertaken during the first week of January 1987 and the respondent was interviewed for three days by the police in that connection. According to Deputy Superintendent Basri bin Ismail, he had reason to believe that the substantial losses suffered by the bank were caused particularly through the acts of the respondent which evoked feelings of anger, agitation, dissatisfaction and resentment amongst members of the armed forces. The basis for the belief would appear to be as stated in para 5 of his affidavit which read as follows: '5. The Lembaga Tabung Angkatan Tentera holds 46.48 per cent of the shares of the bank. All servicemen in the armed forces who do not qualify for pension are required by law to contribute to the Tabung Angkatan Tentera. In addition, a large number of members of the armed forces are account holders of the bank.' After considering the lengthy affidavit of the police officer, the learned judge, Harun J, held that there was no evidence disclosed that the respondent has acted in any manner which is prejudicial to the security of the country and accordingly ordered the release of the respondent forthwith. The appellant appealed.

Held: (1) where a person who has been deprived of his liberty challenges the detention, it is for the authority to show that the person has been detained in exercise of a valid legal power. Once that is shown, it is for the detainee to show that the power had been exercised mala fide or improperly or made for a collateral or ulterior purpose; (2) s 73(7) of the Internal Security Act 1960 states that a person detained pursuant to the powers conferred in the Act shall be deemed to be in lawful custody. The burden is consequently shifted to the detainee; (3) what s 73(1) of the Act provides is that a police officer may arrest any person in respect of whom the officer has reason to believe there are grounds to justify the person's detention under s 8 of the Act and that person either has acted or is about to act in a manner prejudicial to the security of the nation. Sections 73(1) and 8 of the Act are so inextricably connected that the subjective test should be applied to both. The court cannot require the police officer to prove to the court the sufficiency of the reason for his belief under s 73(1). It follows that the learned judge was in error when he said in his judgment to the effect that if there is evidence that the applicant has acted in a manner prejudicial to the security of the country such evidence must be disclosed to the court to enable the court to be satisfied that the arrest and detention of the detainee under s 73 is justified in the circumstances; (4) the learned judge was also in error to ignore the express provision of cl (3) of art 151 of the Federal Constitution for by that clause the authority cannot be required to furnish facts whose disclosure would in its opinion be against the national interest; (5) if facts are furnished voluntarily and in great detail as in this case for consideration of the court, it would be naive to preclude the judge from making his own evaluation and assessment to come to a reasonable conclusion; (6) in this case, the learned judge thought it to be incredible that losses sustained by a public bank where the depositors also include members of the public at large could result in any organized violence by the soldiers. The court found it difficult to disagree with the learned judge on his conclusion.

Re Tan Sri Raja Khalid bin Raja Harun; Inspector-General of Police v Tan Sri Raja Khalid bin Raja Harun [1988] 1 MLJ 182 Supreme Court, Kuala Lumpur (Salleh Abas LP, Hashim Yeop A Sani and Wan Hamzah SCJJ).

This was an appeal against the decision of the High Court dismissing an application by the appellant for a writ of habeas corpus. The appellant had been detained under an order of detention made by the Minister of Home Affairs which recited that 'whereas the Yang di-Pertuan Agong is satisfied with respect to the undermentioned person that, with a view to preventing that person from acting in any manner prejudicial to the security of Malaysia/maintenance of public order therein/the maintenance of essential services therein, it is necessary to make the following order...'. The grounds of detention served on the appellant stated that the order was made on the ground that the appellant had acted in a manner prejudicial to the security of Malaysia; therein set out were 12 allegations of fact on which the order was based. The learned trial judge held that the order of detention was made in exercise of a valid power and that the detainee had not discharged the burden, which was on him, of showing that the order was made mala fide or improperly. On appeal it was argued that: (i) the learned trial judge had failed to recognize the nature and extent of the onus placed on the respondent by the Constitution to prove the legality of the detention and was wrong in holding that there was an onus on the appellant to discharge; (ii) s 8 of the Internal Security Act 1960 (Act 82) allows a person to be detained on four grounds; the order of detention stated three grounds in the alternative, the grounds supplied to the appellant stated only one ground, and all this showed a casual and cavalier attitude on the part of the responsible authorities indicating that they had not given the matter adequate consideration, and therefore the order of detention was invalid and the appellant's detention unlawful; (iii) the allegations of fact supplied to the appellant were vague, insufficient and irrelevant and thus hampered the appellant in the exercise of his right to make representations, consequently invalidating the original order of detention.

Held, dismissing the appeal: (1) the learned trial judge was correct in holding that the appellant's detention had been made in the exercise of a valid legal power and therefore the onus lay on the appellant to show that such power had been exercised mala fide or improperly; (2) the defect (if any) in the detention order in setting out the objects and purposes of the detention in the alternative was a defect of form only and not of substance, it did not show that the executive had not adequately applied its mind to the desirability of detaining the appellant and therefore did not invalidate the order; (3) if, however, the appellant thought that the allegations were vague, insufficient or irrelevant he should have asked for particulars; (4) the vagueness, insufficiency or irrelevance of the allegations of fact supplied to the appellant did not relate back to the order of detention and could not render unlawful, detention under a valid order of detention;the question whether there was reasonable cause to detain the appellant was a matter of opinion and policy, a decision which could only be taken by the Executive.

Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ 129 Federal Court, Kuala Lumpur (Azmi LP, Ong Hock Thye CJ (Malaysia).

This was an application for a writ of habeas corpus. On 2 May 1971, the applicant was arrested without warrant by a police officer and remained in police custody until 22 May 1971, when an order of detention was made by the Minister for Home Affairs under s 8(1) of the Internal Security Act 1960 (Act 82) directing that he be forthwith detained for a period of two years. From the date of his arrest on 2 May 1971, until after the order of detention was made on 22 May 1971, the applicant was denied access to his solicitors in spite of requests by his solicitors for access to enable them to be instructed and advise him in regard to his arrest and detention by the police. Two main but unrelated issues were raised by the applicant. The first was that from the time of his arrest and for 20 days thereafter his constitutional right to be allowed to consult a legal practitioner of his choice had been denied to him and the denial of this constitutional right amounted to an abuse of power such as would have justified an order for his release. The second was that the order of detention made on 22 May 1971 was void or invalid because (a) on the face of the order itself it was ambiguous and ultra vires and (b) the grounds on which the order was made and the allegations of fact on which the order was based were vague, inadequate and irrelevant, and (c) the order of detention was made in bad faith and, therefore, his detention was illegal or unlawful.

Held: (1) a person who is lawfully detained under the Internal Security Act is entitled to consult a legal practitioner of his choice as there is nothing in the Act inconsistent with the fundamental rights given by art 5(3) of the Constitution to a person who is arrested to be allowed to consult a legal practitioner of his choice; (2) habeas corpus is not an available remedy to a person who, after his arrest by the police and under lawful detention by the police under powers conferred by the Internal Security Act, has been refused by the police to be allowed his constitutional right under art 5(3) of the Constitution to be allowed a legal practitioner of his choice. Such a person must seek other available remedies, such as may be found in s 18(2) and the First Schedule of the Supreme Court of Judicature Act (Cap 15, 1970 Ed); (3) the words 'if the President is satisfied...' used in s 8(1) of the Internal Security Act must be so construed as to make that section ultra vires. To construe those words to mean that the Legislature intended the President to be personally satisfied would be in conflict with art 5(1) of the Constitution of Singapore. However, to construe those words to mean 'if the President acting in accordance with the advice of the Cabinet or of a minister acting under the general authority of the Cabinet is satisfied' would be giving effect to and be completely consonant with the provisions of art 5(1). This view is fortified by the provisions of art 10(1)(b) where the words used, when it is intended that the President is to be personally satisfied, are 'if the President acting in his discretion is satisfied...'; (4) the recital in the order of detention in this case followed strictly the language of s 8(1) of the Internal Security Act and there is nothing in the Act requiring that the order should be in any particular form. The order was therefore not invalid for ambiguity or duplicity because the recital stated four grounds in the alternative for detaining the applicant; (5) art 151 of the Constitution does not prohibit an order of detention from specifying that the citizen named is to be detained for a period exceeding three months. Article 151(1)(b) makes the continued detention of the named citizen after three months unlawful unless its requisites have been complied with; (6) it is not open to a court in Singapore to examine the grounds and allegations of fact supplied to the applicant pursuant to art 151(1) of the Constitution and s 11(2) of the Internal Security Act for the purpose of deciding whether or not some or all of them are so vague, unintelligible or indefinite as to be insufficient to enable the applicant to make representation against the order of detention; (7) 'mala fides' or bad faith is not a justiciable issue in the context of the Internal Security Act and the power conferred by the Act on the President who has to act in accordance with the advice of the Cabinet to direct the issue of the order of detention if he is satisfied under the Act that it is necessary to do so.

Lee Mau Seng v Minister for Home Affairs, Singapore & Anor 1969 High Court, Singapore (Wee Chong Jin CJ).

[Annotation: In this motion the court ordered that the application for the issue of a writ of habeas corpus be refused and the applicant was ordered to pay costs to the Attorney General for three-quarters of the taxed costs.]

This was an application by six persons who were being detained under the Internal Security Act 1960 for a writ of habeas corpus. The applicants alleged that their detention was illegal or improper. The applicants had been originally detained under the Prevention of Public Security Ordinance 1955 and subsequently, the orders of detention were purported to be extended by direction orders issued under s 8(1A) of the Internal Security Act. The orders were signed by the Permanent Secretary to the Ministry of the Interior and Defence and recited that 'the Minister hereby directs' the person named to be detained for a further period of two years.

Held, granting the application: (1) under s 8(1A) of the Internal Security Act, the power to continue the detention of a person detained under an order of detention after the expiry of the period of detention is vested in the President and only the President can direct that the period of the order of detention be extended; (2) the President can signify the exercise of his power either personally or in accordance with s 34 of the Interpretation Act (Cap 3, 1970 Ed) under the hand of a Minister or of the Secretary to the Cabinet; (3) the five orders or directions in this application were ex facie not made under the hand of the President nor were they in compliance with s 34 of the Interpretation Act and therefore they were ex facie defective orders and unlawful; (4) as the orders were defective they do not provide legal justification for the detention of the applicants and an order must be made for their discharge.

Lim Hock Siew & Ors v Minister of the Interior & Defence 1965 High Court, Singapore (Wee Chong Jin CJ).

This was a joint application by eight female applicants for a writ of habeas corpus. The applicants had been detained under the Internal Security Act (Cap 115, 1970 Ed). They claimed that they were detained in an improper manner. It was alleged that sometime in the middle of 1970, they were ordered by the superintendent of their place of detention to join a 'hobby' class where they were required to do manual work for five hours a day. On their refusal to comply with this order, they were punished by being confined in punishment cells for weeks and deprived of 'privileges' such as visits, newspapers and reading materials. They contended that the superintendent's order was unlawful as the new r 86 of the Internal Security (Detained Persons) Rules 1960 was ultra vires s 8(3) of the Act and the punishment meted out to them rendered the manner of their detention improper.

Held, dismissing the application: (1) the new r 86 falls within the scope of the powers conferred by s 8(3) of the Act on the minister to make rules for the discipline of persons detained in a place of detention and is not inconsistent with r 84; (2) habeas corpus is not an available remedy to an application relating to the manner and conditions of detention.

Lau Lek Eng & Ors v Minister for Home Affairs, Singapore & Anor 1972 High Court, Singapore (Wee Chong Jin CJ).

In this case, the appellants had been arrested by the police pursuant to the police power of arrest under s 73 of the Internal Security Act 1960 (Act 82). They were each kept in separate places and no counsel was allowed to see them. It was argued on behalf of the appellants that the arrest was illegal and therefore habeas corpus should be issued by the court for their release. The application was rejected in the High Court and the appellants appealed. The grounds put forward on the appeal were, inter alia, as follows: (a) s 73 of the Internal Security Act is unconstitutional since it does not comply with the requirement of art 151. Since the provisions regarding investigative preventive detention do not comply with the constitutional requirements of art 151(1), namely, provision for informing a detainee of the grounds of his detention and allegations of facts constituting the grounds, s 73 is therefore void and as such the arrest and detention of the appellants are illegal; (b) art 149(1) limits the application of the Internal Security Act only to communist insurgency and subversion; (c) the police power under s 73 of the Internal Security Act to arrest and detain a person pending inquiry is open to judicial examination, the test being an objective test; (d) although the Internal Security Act may be held to be valid despite being contrary to the provision of fundamental liberties, there is nothing in s 73 of the Internal Security Act which is inconsistent with art 5(2) of the Federal Constitution. Consequently, the provision of art 5(2) must be read into s 73. The court must therefore hold an inquiry into the complaint of the appellants in order to determine the lawfulness of their arrest and detention; (e) in addition to the right of inquiry by the court, the appellants have also a right to be informed of the grounds of their arrest and the right to consult and be defended by a legal practitioner of their choice. If these rights or any one of them are denied, the arrest and detention would be held to be illegal; (f) as the appellants were each held in separate places, this would amount to solitary confinement and that being the case the detention ceases to be preventive and becomes punitive and consequently becomes illegal in the sense that it is not authorized by s 73 of the Internal Security Act.

Held, dismissing the appeals: (1) in approaching the appeals, the court must be guided by the clear words of the Federal Constitution and the Internal Security Act. There can be no doubt that the Internal Security Act is a special law, however unpopular it may be, passed under the authority of art 149 of the Federal Constitution; (2) the police power of arrest and detention under s 73 of the Internal Security Act could not be separated from the ministerial power to issue an order of detention. There is only one preventive detention and that is based on the order to be made by the minister under s 8 of the Act. However, the minister will not be in a position to make that order unless information and evidence are brought before him, and, for this purpose, the police are entrusted by the Act to carry out the necessary investigation and, pending inquiries, to arrest and detain a person in respect of whom the police has reason to believe that there exists grounds which would justify the detention of such person under s 8 of the Act; (3) (4) it is clear from the provisions of the Constitution and the Internal Security Act that the judges in the matter of preventive detention are the executive. This is supported by art 151(3) which says that the article does not impose an obligation on any authority to disclose facts, whose disclosure would in its opinion be against the national interest; (5) the Internal Security Act is valid and from the wording of the provision of the Act, there is nothing to show that it is restricted to communist activities; (6) in this case, whether the objective or subjective list is applicable, it is clear that the court will not be in a position to review the fairness of the decision-making process by the police and by the minister because of the lack of evidence since the Constitution and the law protect them from disclosing any information and materials in their possession upon which they based their decision. Thus, it is more appropriately described as the subjective test; (7) in this case, there is insufficient evidence for the court to say that the fact (as agreed between the parties) that the detainees were kept in separate rooms amounted to solitary confinement and therefore punitive detention; (8) the conditions or restrictions laid down in art 151(1) of the Federal Constitution would come into play only after the minister's order of preventive detention has been executed. At the initial stage, art 151(1) has no application;as to when a detainee arrested under s 73 of the Internal Security Act should be allowed to exercise his right under art 5(3) of the Constitution to consult a counsel of his choice, this should best be left to the good judgment of the authority as and when such right might not interfere with the police investigation. To show breach of art 5(3), an applicant has to show that the police has deliberately and with bad faith obstructed a detainee from exercising his right under the article.

Theresa Lim Chin Chin & Ors v Inspector General of Police [1988] 1 MLJ 293 Supreme Court, Kuala Lumpur (Salleh Abas LP, Lee Hun Hoe CJ (Borneo).

Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ 129 Federal Court, Kuala Lumpur (Azmi LP, Ong Hock Thye CJ (Malaya).

Lee Mau Seng v Minister for Home Affairs, Singapore & Anor 1969 High Court, Singapore (Wee Chong Jin CJ).

This was a joint application by four applicants for a writ of habeas corpus. They were detained under the Internal Security Act (Cap 115, 1970 Ed). In a joint affidavit the applicants claimed that their prolonged detention of over seven years and, in particular, in the central police station lock-up for several months 'is most improper and constitutes the greatest abuse of the law'. In a subsequent afffidavit, the applicants alleged 'lack of good faith surrounding (their) prolonged detention', and at the hearing, relied on another ground that the detention was unlawful because the orders of detention made on 20 November 1967 were unlawful orders.

Held: (1) the applicants were unable to show that their lengthy period of detention or their detention at the central police station lock-up was contrary to the provisions of s 8 of the Internal Security Act; (2) the allegation of lack of good faith surrounding their prolonged detention was not only a mere unsubstantiated allegation, but it was not clear against whom it was made. In any event, 'bad faith' was not a justiciable issue in the context of the Internal Security Act; (3) the orders of detention made on 20 November 1967 were valid and lawful orders and were in strict compliance with s 8 of the Act, therefore the application must be dismissed.

Wee Toon Lip & Ors v Minister for Home Affairs, Singapore, & Anor 1972 High Court, Singapore (Wee Chong Jin CJ).

Lee Mau Seng v Minister for Home Affairs, Singapore & Anor 1969 High Court, Singapore (Wee Chong Jin CJ).

Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ 129 Federal Court, Kuala Lumpur (Azmi LP, Ong Hock Thye CJ (Malaya).

This was an application under s 375 of Criminal Procedure Code (Cap 132) for a writ of habeas corpus. The court granted an order nisi directing the Minister of Home Affairs and the Commissioner of Police, Singapore, to show cause why the applicant should not be set at liberty. In their affidavits they stated that the applicant was detained under the Criminal Law (Temporary Provisions) Ordinance 1955. It was contended for the applicant that (1) the two advisory committees were not properly appointed in that there was no official notice of their appointment in the Government gazette; (2) there was no provision in the ordinance for the appointment of a secretary; (3) r 3 of the Criminal Law (Advisory Committee) Rules 1958 dealing with the constitution of the advisory committee was ultra vires the ordinance Ð r 3 of the ordinance provides that every advisory committee should consist of a chairman, an alternate chairman and a panel of members. The applicant contended that once an advisory committee has been appointed, the whole body must meet for the purpose of deciding any matter referred to them under s 48(4) and that there was no sufficient reference to the advisory committee within the meaning of s 48.

Held: (1) there is no statutory provision for public notification of these advisory committees. Para 4 of the minister's affidavit has set out the name of the chairman of each committee and the name of the secretary, and para 5 mentions that the members of the advisory committees are averse to having their identities known. In view of this, there was no reason to question the validity of the appointments of both committees; (2) although the only mention of a secretary in the relevant legislation is in the schedule attached to the Criminal Law (Advisory Committee) Rules 1958, such an appointment far from being in conflict with the ordinance, is in fact necessary for the efficient working of the committees; (3) had r 3(3) provided that the advisory committee could be composed of a chairman, or any member of the committee, sitting alone, that would have been contrary to the spirit and manifest intention of the ordinance and therefore ultra vires, for s 51 specifically provides that each of the advisory committees must consist of not less than two persons. The fact that there were more than two persons of whom three would constitute the body for the hearing of the matter is not unreasonable or contrary to justice. Rule 3 is therefore not ultra vires; (4) the term 'refer' is not a term of art. It means no more than that the advisory committee should have their attention drawn by the minister to the matter in question. A reference by the minister to the secretary of an advisory committee is a sufficient compliance with the requirements of the ordinance, for the secretary is a recognized channel prescribed by normal administrative machinery.

Re Lee Yew Seng [1960] MLJ 37 High Court, Singapore (Rose CJ).

[Annotation: See also Ex parte Johannes Choeldi & Ors [1960] MLJ 184 in which an action for a writ of habeas corpus succeeded for the reason that the Controller of Immigration had stated incorrect grounds in issuing a removal order in respect of detained immigrants.]

This was an application made under s 375, etc of the Criminal Procedure Code and sought for a declaration that the solitary confinement of the applicant at the Central Police Station lock-up was improper and without any legal justification whatsoever. The applicant also asked for a writ of habeas corpus to be issued directing the proper detaining authorities to forthwith effect his removal to a proper place of detention.

Held: (1) the application was misconceived, because it did not comply with the procedure laid down by s 386 of the Criminal Procedure Code; (2) as the detention order was made in accordance with the provisions of s 3 of the Preservation of Public Security Ordinance 1955 the detention was lawful and cannot be attacked; (3) there was no evidence to indicate that the applicant's conditions of detention were improper or oppressive as to require intervention by the courts on an application under s 375 of the Criminal Procedure Code.

Chok Kok Thong v Minister for Home Affairs & Ors [1963] MLJ 232 High Court, Singapore (Winslow J).

The applicant applied for a writ of habeas corpus to be issued for his release. The applicant had been detained for a period of two years under s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (PU(A) 187, 1969). He had made written representations against the order of detention but no inquiry had been held, although three months had elapsed since his detention. It appeared from an affidavit filed by the Secretary of the Advisory Board that the representations of the applicant were received on 15 November 1976 and had been fixed for hearing on 21 September 1976.

Held: (1) it is probably open to a detenu to say that by right the advisory board should hear his representations and make recommendations thereon within three months but it is obvious that such a right cannot be held to be a real and substantial right of a citizen guaranteed by the Constitution an infringement of which may justify the court to award a writ of habeas corpus; (2) in this case, there has been a failure to comply with the statutory direction but mere non-compliance with the directory provision, so long as the advisory board considers the representations and makes its recommendations, should not render unlawful a detention lawfully made.

Subramaniam v Menteri Hal Ehwal Dalam Negeri & Ors [1977] 1 MLJ 82 High Court, Kuala Lumpur (Abdul Hamid J).

See criminal law, para I [31].

Public Prosecutor v Manogaran s/o R Ramu [1997] 1 SLR 22 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The respondent was convicted on 28 July 1991 by a district court on his own plea on a charge of drunk driving under s 67(1) of the Road Traffic Act (Cap 276) ('the Act'). He was fined S$1,000, in default three months' imprisonment, and disqualified from driving all classes of vehicles for four years. The respondent had previously on 5 March 1990 been convicted on a similar charge under s 67(1) of the Act before it was amended. The amended s 67(1) came into effect on 2 April 1990, increasing the punishment for both first and repeat offenders. The new s 67(1) provided for a minimum fine for first offenders and both a minimum fine and a mandatory term of imprisonment for repeat offenders. The district court had treated the respondent as a first offender. The Public Prosecutor appealed to the High Court against sentence (see [1991] 2 MLJ 504). The High Court varied the sentence to an imprisonment of one month, the order of disqualfication to stand and also ordered a refund of the fine which had been paid. The High Court treated the respondent as a first offender under the new s 67(1). The Public Prosecutor applied to the High Court under s 60 of the Supreme Court of Judicature Act (Cap 322) to reserve a question of public interest for the decision of the Court of Criminal Appeal as to whether a court, for the purposes of sentencing an accused convicted under the new s 67(1), should take into account the accused's previous conviction under the same section before the amendment and impose the minimum sentence provided for. The respondent submitted, inter alia, that a repealed statutory provision was not part of the corpus juris of Singapore. He submitted that as the provision creating the offence of drunk driving was the re-enacted s 67(1), the offence referred to by the word 'conviction' must mean a conviction under the re-enacted s 67(1).

Held, allowing the motion: (1) the court had no doubt at all that the previous conviction of the respondent under s 67(1) of the Road Traffic Act (Cap 276) should be taken into consideration in deciding whether the proper punishment in his case should be that for a second or subsequent offence. The court held that the punishment in this case should have been as for a second offence; (2) no meaningful distinction could be drawn between a repeal and an amendment for the purpose of resolving the question whether the respondent was to be treated as a second offender. Whether an Act had been repealed or amended was a matter of substance and not one of form. There was no magic to the use by the draughtsman of the word 'repeal'. The amendment to the subsection could be effected by either repealing the whole subsection and substituting therefor a new subsection, or by deleting from the old subsection the portion dealing with punishment and inserting the wording of the new enhanced punishment. Either way achieved, editorially and in legal effect, the same result; (4) there were situations in which an argument could properly be raised based on a distinction between repeal and amendment as in instances where the 'repeal' affected the subsistence of the fact. However in the present case there was no question concerning the survivability of an act done under a repealed statutory provision. The conviction of the respondent under s 67(1) before the 'repeal' was a fact which did not cease to exist on the 'repeal'. He remained as a person who had been so convicted. The question whether the legislative act was a repeal or amendment was thus quite devoid of substance in the case before the court; (6) the court had no doubt at all that what Parliament intended to do was simply to enhance the punishment for persons found guilty of driving while under the influence of alcohol and drugs. The Legislature was particularly intent on dealing severely with repeat offenders. The respondent's argument led to the absurd result that a person, no matter how many times he had been convicted in the past under the old subsection, would be treated as a first offender if he was convicted for the first time under the new subsection. This would obviously defeat the Legislature's intention. The repeal and simultaneous re-enactment of substantially the same statutory provisions must be construed, not as an implied repeal of the original statute, but as an affirmance and continuance of the statute in uninterrupted operation; (7) there was nothing in the court's holding that would offend against the rule against the retrospective operation of statutes. There was no question of the respondent being punished for an act or omission which was not punishable by law when it was done. The offence with which he was charged was without doubt an offence at the time it was committed. The punishment for a second offence is nothing other than what was prescribed by the Act.

Public Prosecutor v Tan Teck Hin [1992] 1 SLR 841 Court of Criminal Appeal, Singapore (LP Thean, Chan Sek Keong and Warren LH Khoo JJ).

The appellant was tried and convicted for unlawful control of a firearm in contravention of s 57(1) of the Internal Security Act 1960, and for consorting with armed persons in contravention of s 58(1) of the same Act and was sentenced to death. On appeal it was argued, inter alia, the trial was a nullity as it was not held before a judge and jury under the provisions of the Criminal Procedure Code (FMS Cap 6) but was heard by a judge alone under the provisions of the Emergency (Criminal Trials) Regulations 1964 which came into force after the commission of the alleged offences but before the commencement of the trial.

Held: reg 4 of the Emergency (Criminal Trials) Regulations 1964 deals only with the mode of trial and being purely procedural is retrospective in its effect; and there is nothing in it which contravenes art 7(1) of the Federal Constitution, which prohibits punishment for an act which was not punishable by law when it was done or made.

Lim Sing Hiaw v Public Prosecutor [1965] 1 MLJ 85 Federal Court, Kuala Lumpur (Thomson LP, Barakbah CJ (Malaya).

In this case, the appellant had been arrested and detained under a warrant issued under the provisions of the Restricted Residence Enactment. The appellant had not been produced before a magistrate within 24 hours of his arrest. He claimed damages but it was held that no action could be brought against the police officer as he was acting in compliance with a warrant issued by a competent authority. The appellant appealed but before the appeal was heard the Federal Constitution was amended by Act A354/76 which provided in effect that art 5(4) of the Constitution shall not apply to the arrest or detention of any person under the existing law relating to restricted residence and that this amendment shall have effect from Merdeka Day. It was argued that the amendment was unconstitutional.

Held: (1) the Federal Constitution now stands in its own right and it is the wording of the Constitution itself that is to be interpreted and applied, and this wording can never be overridden by the extraneous principles of other constitutions; (2) the Federal Constitution prescribes four different methods for amendment. It is clear that the framers of the Constitution prudently realized that future context of things and experience would need a change in the Constitution, and they, accordingly, armed Parliament with the power of formal amendment. They must be taken to have intended that, while the Constitution must be as solid and permanent as we can make it, there is no permanence in it. There should be a certain amount of flexibility so as to allow the country's growth. In any event, they must be taken to have intended that it can be adapted to changing conditions and that the power of amendment is an essential means of adaptation; (3) it is the supreme law, and accordingly it cannot be said to be at variance with itself; (4) Parliament can alter the entrenched provisions of art 5(4) to remove the provision relating to the production before a magistrate of any arrested person under the Restricted Residence Enactment as long as the process of constitutional amendment as laid down in art 159(3) is complied with. When that is done it becomes an integral part of the Constitution;if Parliament retrospectively affects vested rights or pending proceedings, then it would be the duty of an appellate court to apply the law prevailing on the date of appeal before it. Subject to the constitutional limitation of art 7 of the Constitution, to wit, protection against retrospective criminal laws and repeated trials, Parliament would be within the ambit of its competence if it deems fit to legislate retrospectively.

Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 Federal Court, Kuala Lumpur (Ali, Rajah Azlan Shah and Wan Suleiman FJJ).

[Annotation: In view of the demise of Ali FJ the court asked both counsel for the parties under s 42 of the Courts of Judicature Act 1964 (Act 91) whether they consented to accept judgments by the remaining judges of the court, it being understood that if there was no majority opinion the proceedings should be reheard. Both counsel consented.]

In these cases, the accused had been charged before the sessions court for offences under s 39B(1) of the Dangerous Drugs Act 1952 (Act 234). The Dangerous Drugs (Amendment) Act 1983 amended the Dangerous Drugs Act 1952, so that offences under s 39B(1) were made punishable by death and became triable only in the High Court. Prior to the amendment the cases were punishable with imprisonment for life or death and could be tried in appropriate cases in the sessions court. All the cases were transmitted to the High Court for trial. The question that arose in these cases was 'whether ss 15 and 16 of the Dangerous Drugs (Amendment) Act 1983 which confer exclusive jurisdiction on the High Court to try offences in contravention of s 39B(1) of the Dangerous Drugs Act 1952 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?'.

Held: (1) the provisions of the Dangerous Drugs (Amendment) Act 1983 are not retrospective by express enactment or by necessary implication; (2) 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 ss 15 and 16 of the amending Act can in no way deprive an accused person of this right; (3) assuming that ss 15 and 16 of the amending Act have retrospective operation and the saving provisions of s 30 of the Interpretation Act 1967 (Act 23/1967) do not apply, they violate art 7(1) of the Federal Constitution and are therefore vitiated; (4) the Attorney General having elected for trial in the sessions court and as the orders for transmission were made in the absence of a requisition by the Attorney General ss 15 and 16 of the amending Act come within the constitutional inhibitions of art 145(3) of the Federal Constitution.

Public Prosecutor v Hun Peng Khai & Ors [1984] 2 MLJ 318 High Court, Penang (Edgar Joseph Jr J).

[Annotation: Following an application by the Attorney General for a ruling on whether a sessions court has the jurisdiction to try any case under s 39(b) of the Dangerous Drugs Act 1952 after the amendment to s 41(1) of the said Act, the Federal Court (Abdul Hamid CJ (Malaya), Hashim Yeop A Sani and Abdoolcader FJJ) sitting at Ipoh on 23 July 1984 ruled that the amendment to the Dangerous Drugs Act (making death sentence mandatory for trafficking) does not apply to cases pending hearing in the sessions courts before the amendment came into force on 14 April 1983.]

The respondent was convicted and sentenced by the district court for offences under the Penal Code. The Public Prosecutor (the appellant) appealed against the decision of the trial judge that his sentencing powers were governed by the law prior to the 1984 and 1986 amendments on sentencing made to the Criminal Procedure Code. The respondent contended, inter alia, that an enhancement of the sentencing powers of the district court is in effect a substantive change in the law and any retrospective application of changes of the court's sentencing powers would infringe art 11(1) of the Constitution of the Republic of Singapore.

Held, allowing the appeal: (1) the punishment for the offences which the respondent was convicted is prescribed in s 467 of the Penal Code. There has been no change in the punishment prescribed in s 467 by the amendments. The amending statutes have not increased the penalties for the offences which the respondent was convicted of, over and above those which were in existence at the time of the commission of offences by the respondent. The only change has been to increase the sentencing powers of the district court. No new disabilities or obligations have been created by the amending statutes, they do not alter the character of the offence or take away any defence which was formerly open to the respondent. It is a mere matter of procedure and according to all the authorities, it is therefore retrospective; (2) the second limb of art 11(1) of the Singapore Constitution was not infringed. That article protects accused persons from greater punishment for an offence than that prescribed at the time of the commission of the offence.

Public Prosecutor v Peter Tham Wing Fai [1988] SLR 421 High Court, Singapore (Chua J).

The applicant applied for the issue of writs of habeas corpus to determine the legality of his detention in orders issued by the learned Presidents of the Sessions Courts for his extradition to the United States of America. The points raised on the application related to (a) the legality of the decision of the committal courts and (b) the legality of the committal warrants issued by the committal courts.

Held: (1) s 3A of the Extradition Ordinance (introduced by the Fugitive Criminals (Special) Extradition Act 1977) gives the minister an ad hoc power to deal with cases of extradition whether or not there is a treaty for the mutual surrender of fugitive criminals. It was not the function of the court in this case to examine whether there was a valid treaty or any arrangement between Malaysia and the United States; (2) the section is not invalid even though it has retrospective effect as it deals not with the penal nature of the offences but the procedure for extradition; (3) the function of the court ceased after the committal of the fugitive criminal to await surrender. Surrender is a matter for the minister and the powers and duties under s 5(1) of the Extradition Ordinance are to be exercised by the minister and not by the court; (4) the committal court in an extradition proceeding need only consider at the close of the hearing whether there was a prima facie case and this was done in this case; (5) although the wrong form of warrant had been used, the mistake was curable under the provisions of the Criminal Procedure Code.

Chua Han Mow v Superintendent of Pudu Prison [1979] 2 MLJ 70 High Court, Kuala Lumpur (Syed Othman FJ).

[Annotation: This case was appealed to the Federal Court (see [1980] 1 MLJ 219) and was subsequently dismissed.]

In this case, the accused was charged for an offence of trafficking in a dangerous drug, to wit, cannabis, in contravention of s 39B(1) of the Dangerous Drugs Act 1952 (Act 234). The accused was found guilty. On the day when the accused was found guilty, s 39B(1) of the Dangerous Drugs Act 1952 was amended to provide for the mandatory sentence of death upon conviction in all cases of trafficking in contravention of the section. Before the amendment, the court had the option of sentencing the accused to death or imprisonment for life. The question which arose was what is the material date for determining sentence for such offences, is it the date of the offence or the date of conviction? The further question would arise if the material date was the date of conviction whether the amendment was constitutional so far as cases committed before the date of its coming into force was concerned.

Held: (1) purely as a matter of construction and considered by itself, s 39B(1) of the Dangerous Drugs Act 1952, in the form it now takes is open to only one reasonable construction, namely that it is the date of conviction which is the relevant date for purposes of sentencing; (2) the subsection if it operates retrospectively, is clearly a law which comes within the striking range of art 7(1) of the Federal Constitution and is therefore invalidated so far as cases where the offence was committed prior to the date of its coming into force are concerned; (3) the court therefore has a discretion in the matter of sentence as it is the subsection in the form it took prior to the amendment which applies.

Public Prosecutor v Mohamed Ismail [1984] 2 MLJ 219 High Court, Penang (Edgar Joseph Jr J).

[Annotation: The accused was sentenced to life imprisonment and ordered to be given six strokes on 18 April 1983. The grounds of judgment were reported at [1984] 1 MLJ 134.]

A was convicted of drunken driving under s 67(1) of the Road Traffic Act (Cap 276) on 5 March 1990. On 2 April 1990 s 67(1) was repealed and replaced with a new section that prescribed a mandatory minimum sentence. A was convicted under the new s 67(1) on 30 July 1990. The issue was whether he was a repeat offender under the new section so as to attract the enhanced penalty.

Held: (1) a distinction should be made between an amendment by deletion or insertion of words from or into existing legislation and an amendment by repeal and substitution of a whole section. In the latter case the substituted section is a new one; (2) therefore, the new s 67(1) was a different section and a conviction under the old s 67(1) did not count as a prior offence for the purposes of the enhanced punishment; (3) the words 'second or subsequent conviction' in s 67(1) meant a second or subsequent conviction under the re-enacted section. To treat A as a repeat offender under the re-enacted section would be to apply the section to him retrospectively.

Public Prosecutor v Tan Teck Hin [1991] SLR 514 High Court, Singapore (Chua J).

[Annotation: For subsequent proceedings, see [1992] 1 SLR 841.]

In this case, the appellant was arrested on an endorsed warrant alleging offences under the Prevention of Corruption Ordinance 1960 of Singapore against him. The appellant applied to the High Court for a determination of several questions. Ong CJ dismissed the appeal. One of the questions put before the High Court was whether the Commonwealth Fugitive Criminals (Amendment) Act 1969 was retrospective and therefore contrary to art 7(1) of the Constitution.

Held: since this is not a hearing for a declaration that the Commonwealth Fugitive Criminals (Amendment) Act 1969 was invalid on the ground that Parliament had no authority to enact it, but on the ground that it was inconsistent with art 7(1), the High Court was competent to make such a ruling.

Gerald Fernandez v Attorney General, Malaysia [1970] 1 MLJ 262 Federal Court, Kuala Lumpur (Azmi LP, Suffian and Ali FJJ).

The appellants had been convicted in Jamaica for murder and had been sentenced to death between May 1982 and July 1984. In all these cases, leave to appeal had been refused as early as 1987 but their execution had not been carried out. The appellants took up a constitutional issue and contended that this long delay will make the carrying out of their execution in future an inhuman and degrading punishment and also that it was in contravention of s 17(1) of the Jamaican Constitution. The appellants had not commenced proceedings on this constitutional issue in Jamaican courts. The appellants directly appealed to the Judicial Committee of the Privy Council contending that the Council may exercise its original jurisdiction and commute their sentence. The Privy Council considered the scope of its jurisdiction.

Held, dismissing the appeal: (1) the jurisdiction of the Privy Council may be found in s 3 of the Judicial Committee Act 1833 and it is restricted to appellate jurisdiction; (2) as the cases under consideration had not been dealt with by the lower courts in Jamaica, the Privy Council has no jurisdiction before the matter is first decided by courts in Jamaica; (3) the present appeals could not also be deemed as appeals against sentence as no such appeal lay because the death sentence is mandatory in Jamaica for such crimes; (4) however, s 4 of the 1833 Act allows matters not within the ambit of appeal to be referred to the Privy Council but this has not been done in the immediate cases; (5) nevertheless, long delays in carrying out a death sentence may be considered inhuman and degrading punishment in contravention of s 17(1) of the Jamaican Constitution; (6) if the appellants' sentences are not commuted by the Jamaican Executive, they may first appeal to the Supreme Court in Jamaica and seek commutation of their sentences in view of the case Pratt v AG for Jamaica.

Walker & Anor v R and other actions Privy Council Appeal Nos 21, 25 and 26 of 1993 Privy Council on appeal from Jamaica (Lords Griffiths, Lane, Ackner, Goff of Chieveley, Lowry, Slynn of Hadley and Woolf).

The appellants were convicted on 15 January 1979 by the Jamaican High Court for murder and sentenced to death which is a mandatory punishment for such crimes in Jamaica. The Court of Appeal dismissed the appellants' appeal against conviction and sentence on 5 December 1980. Leave for further appeal was also refused. At that stage, it was incumbent on the Governor-General to refer the matter to the Jamaican Privy Council as to whether the death sentence should be reduced or set aside. However, the Governor General failed to do this until much later. In 1984, the appellants wrote to an English Member of Parliament seeking his assistance to find out why their application for leave to further appeal to the Privy Council was refused. It then became apparent the learned judge who heard the application in 1980 had not prepared any reasons. Reasons for refusal were then prepared and handed on 24 September 1984. However, no appeal was made to the Privy Council until 1986. The appellants then appealed to Inter-American Commission on Human Rights ('IACHR'). In October 1984, IACHR dismissed the appellants' contention that the trial was unfair but recommended that the sentence be commuted to a life sentence for humanitarian reasons. However, this was not referred to the Jamaican Privy Council for consideration. In March 1986, the appellants appealed to the Judicial Committee of the Privy Council in United Kingdom. The application for leave was heard with reasonable dispatch and refused on 17 July 1986. Thereafter, the appellants appealed to the United Nations Human Rights Commission ('UNHRC') and the body asked the Jamaican Government not to carry out the death sentence until it had time to decide on the admissibility of the complaint. The Jamaican Privy Council considered the appellants' case for the first time in November 1986 and rejected UNHRC's request. The execution date was set for 24 February 1987. However, just prior to the execution, it was stayed. On 13 October 1987, the Jamaican Privy Council considered the appellants' case again and then ordered execution to be carried out on 18 February 1988. However, pursuant to another appeal by UNHRC to allow time for it to consider the case, the Governor-General of Jamaica stayed execution for the second time. In April 1989, the UNHRC decided that the delay in the handing down of a written judgment relating to refusal of leave to appeal by the Court of Appeal, had attributed to the delay in the Privy Council's deliberation over the appeal and as such this amounted to a denial of justice. This decision was based on the erroneous premise that written judgment is necessary precedent for appeal. However, the Jamaican Privy Council waited for 18 months before deciding on the decision handed down by UNHRC. The Jamaican Privy Council rejected the decision by UNHRC. The appellants in February 1991 commenced proceedings under the Constitution that the death sentence would be in contravention of the fundamental liberties relating to prevention of torture or inhuman or degrading punishment. Section 17(1) of the Jamaican Constitution disallows inhuman and degrading punishment but the second clause, 17(2) states that any punishment imposed under and in accordance with law would not infringe s 17(1). The High Court as well as the Court of Appeal rejected the appellants' contention. Much reliance was placed on s 17(2) which stated that such a right against inhuman or degrading punishment would not apply to infliction of lawful punishment. The Judicial Committee of the Privy Council considered the scope of the article and whether inordinate delay attributable to appeal procedures will make punishment inhuman or degrading.

Held, allowing the appeal: (1) as the death sentence is authorized by the Jamaican Legislature, such a punishment cannot be considered as an inhuman or degrading form of punishment by virtue of s 17(2) of the Constitution; (2) however, s 17(2) is confined to authorizing descriptions of punishment for which the court may pass sentence and does not prevent the appellant from arguing that the circumstances in which the executive intend to carry out the sentence are inhuman or degrading in contravention of s 17(1) of the Jamaican Constitution; (3) it is inhuman to keep a man facing the agony of execution over a long and extended period of time and such punishment may be described as degrading; (4) however, if the delay is purely the result of the prisoner's own doing, like escaping from custody and subsequent arrest, the prisoner cannot be allowed to escape from his punishment as to do so will permit the use of illegitimate means to escape punishment; (5) a more difficult question is whether the delay occasioned by the legitimate resort of the accused to appellate procedure should be taken into consideration in deciding whether there is a long delay; (6) it was held that time expended on appellate procedure and procedures relating to reprieve should be taken into account in deciding whether there is an inordinate delay making the carrying out of execution inhuman; (7) where the state wishes to retain capital punishment, it must also accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing reasonable time for appeal and consideration of reprieve; (8) the contention that the appellant will take all opportunity to preserve his life and delays in relation to his appeal should be attributed to him, cannot be accepted as the appellant cannot be faulted for taking advantage of the system; (9) if the appellate procedures enables the prisoner to prolong the appellate hearing over a period of years, the fault is with the appellate system and not the prisoner; (10) delays caused by political moratorium on death sentence or time taken by the world human rights organizations in considering any complaints should also be taken into account and any inordinate delays will make the carrying out of death sentence inhuman and in contravention of s 17(1) of the Jamaican Constitution; (11) s 25(2) of the Constitution provides the Jamaican Supreme Court with powers to commute sentence when a prisoner applies to the court contending that his right enshrined in s 17(1) had been infringed; (12) in the instant case, the delay which resulted had been caused by a number of factors including the failure by the Jamaican Privy Council to review the case soon after the dismissal by the Court of Appeal and if it had been done, it would have galvanized the appellant into acting faster in appealing to the Privy Council; (13) the delay caused in the instant case was unacceptable and well beyond five years which may be considered to be the maximum time allowed for execution of a prisoner after sentence under normal conditions, and hence the appeal was to be allowed and the sentence commuted to life imprisonment.

Pratt & Anor v Attorney General for Jamaica & Anor Privy Council Appeal No 10 of 1993 Privy Council Appeal from Jamaica (Lords Griffiths, Lane, Ackner, Goff of Chieveley, Lowry, Slynn of Hadley and Woolf).

The applicant was produced before the magistrate at Port Dickson under s 4(1)(b) of the Drug Dependants (Treatment and Rehabilitation) Act 1983 (Act 283). He asked for bail and when he was produced again on 13 April 1987, the learned magistrate ordered the applicant to be detained for two years at Pusat Serenti, Tampin. The father of the applicant then applied to the High Court for the magistrate's order to be set aside on the ground, inter alia, that the applicant was not represented by counsel at the hearing on 13 April 1987.

Held, allowing the application: (1) even without reference to art 5(3) of the Federal Constitution, it is incumbent on the learned magistrate to give the applicant the opportunity of making representations; (2) there is no record that the applicant here was given that opportunity of making representations which is not the same as making appeals and pleas. Making representations means the right to protest which, by necessary implication and reading it in the context of art 5(3) of the Constitution, is a right to challenge whatever is being brought against him. On this ground alone, the order of the learned magistrate made under s 6(1)(a) of the Act is invalid.

Hoo Thian Siong v Public Prosecutor [1988] 2 MLJ 401 High Court, Seremban (Mustapha Hussain J).

In this case, the appellant applied for a declaration: (a) that he is a person belonging to the State of Sabah in accordance with s 66(1)(a) of the Immigration Act 1959/63 (Act 155), read in conjunction with s 71(1)(a) of the Act; (b) that he is a permanent resident of the State of Sabah within the meaning of s 71(1)(a) of the Act; (c) that his right to remain in Sabah conferred under s 10 of the Act in the form of an entry permit issued to him is still subsisting and that he cannot be deprived of that right by the state or any other authority; (d) that the entry permit conferring permanent resident status on him in Sabah cannot lawfully be cancelled under s 14 of the Act. The learned judge of the High Court declined to grant the declaration sought on the ground that the application was premature and that the matter would be more appropriately dealt with under the special machinery provided by the Immigration Act. The appellant appealed.

Held: (1) the appellant was entitled to a declaration that he belongs to the State of Sabah in accordance with s 66(1)(a) and s 71(1)(a) of the Immigration Act and that he is a permanent resident of Sabah within s 71(1)(a) of the Act; (2) his right to remain in Sabah conferred under s 10 of the Act in the form of the entry permit issued to him is still subsisting but he may be deprived of it by the state or any other authority in the circumstances set out in s 14 of the Act; (3) art 9 of the Federal Constitution which provides that every citizen has a right to move freely throughout the federation and to reside in any part of the federation is, however, subject to the special provisions of the immigration laws relating to the two Borneo states. Insofar as immigration is concerned, the Borneo states have full control. This arrangement was agreed before Malaysia and embodied in the Report of the Inter-Governmental Committee 1962; (4) the entry permit may lawfully be cancelled under s 14 of the Act.

Datuk Syed Kechik bin Syed Mohamed v Government of Malaysia & Anor [1979] 2 MLJ 101 Federal Court, Kuala Lumpur (Suffian LP, Lee Hun Hoe CJ (Borneo).

In this case, the case against the accused had been adjourned to 11 April 1968 for hearing. Counsel for the appellant wrote to the magistrate stating that he would be engaged on 11 April 1968 and requesting an adjournment to another suitable date. The learned President of the Sessions Court replied that the application would be considered in open court but on 11 April 1968, when counsel did not appear, the trial proceeded in his absence. No mention was made of the application for adjournment.

Held: the accused had the right to choose his own counsel and to be defended by such counsel if that counsel is willing and able to represent him. In this case, it appeared that no thought was paid to the fact that the accused had a counsel who was prepared to defend him but was unable to be present in court that day. The accused had been prejudiced in his defence by the total absence of consideration of the application filed by his solicitor. In the circumstances the appeal should be allowed and a retrial ordered.

Bakar bin Ahmad v Public Prosecutor [1969] 4 MC 294 High Court, Malacca (Sharma J).

This was an appeal from the decision of Harun J ([1977] 1 MLJ 259). The appellant had been arrested on suspicion of being involved in the theft of an electric generator. After being questioned by the first respondent he was produced before a magistrate and subsequently ordered to be detained under s 117 of the Criminal Procedure Code (FMS Cap 6). An application was made for a lawyer to visit the appellant but this was not immediately granted and the lawyer was informed that he could see the appellant on a subsequent date when the investigations were expected to be completed. An application was then made for the release of the appellant it being argued that the refusal to allow the appellant to consult his counsel during the period of police detention was a breach of his constitutional right and rendered the order of the magistrate unlawful. In those circumstances, it was argued that the appellant had the right to damages for false imprisonment against the police officer and the government of Malaysia. The application was dismissed in the High Court where it was held that although the right to consult counsel begins from the moment of arrest, the exercise of that right was postponed for so long as the arrested person was detained under s 117 of the Criminal Procedure Code. The appellant appealed to the Federal Court.

Held, dismissing the appeal: (1) the learned judge was not correct in stating in effect that the right to counsel could only be exercised after the completion of police investigation under s 117 of the Criminal Procedure Code; (2) in spite of the magistrate's order under s 117 of the Criminal Procedure Code the right of the arrested person to counsel is not lost. The right starts right from the day of arrest but it cannot be exercised immediately after arrest if it impedes police investigation or the administration of justice; (3) the onus of proving to the satisfaction of the court that giving effect to the right to counsel would impede police investigation or the administration of justice falls on the police; (4) on the facts of this case the police had given good and sufficient reasons why such right could only be exercised after the period of police investigation was completed.

Hashim bin Saud v Yahaya bin Hashim & Anor [1977] 2 MLJ 116 Federal Court, Alor Star (Gill CJ (Malaya).

This was an application by a detainee under the Restricted Residence Enactment (FMS Cap 39) to be allowed representation by counsel and to call witnesses at an inquiry to be held under that enactment. The respondent in exercise of the powers in s 2(i) of the enactment had issued a warrant for the arrest and detention of the applicant, and he deemed a further inquiry to be necessary. The form of the further inquiry was one to be held in camera without the person concerned being represented by counsel. The issue in this case was whether the Constitution gives a right to be defended by counsel in such a case.

Held: (1) a right to be defended by counsel pre-supposes a right to be heard. In this case, the respondent was under no obligation to hold an inquiry, since he was performing an entirely executive power, therefore the applicant had no right to be heard, and he could not have the right to be defended by counsel; (2) as the fundamental liberty under the Constitution, art 5, was intended to be merely declaratory of existing law, ie the law anterior to the Constitution, there was no right of representation by counsel in respect of an executive act; (3) art 5(4) of the Constitution is intended to apply to arrests under the Criminal Procedure Code and not to arrests under the Restricted Residence Enactment; similarly cl (3) of art 5 of the Constitution does not apply to cases under the Restricted Residence Enactment.

Chia Khin Sze v The Mentri Besar, State of Selangor [1958] MLJ 105 High Court, Kuala Lumpur (Sutherland J).

[Annotation: See comment on case at [1958] MLJ xli. Dissented from in Aminah v Superintendent of Prison, Pengkalan Chepa, Kelantan [1968] 1 MLJ 92 and overruled in Assa Singh v Mentri Besar, Johore [1969] 2 MLJ 30.]

The applicant was being prosecuted for capital offences under the Internal Security Act 1960 (Act 82). The legal practitioner by whom the applicant desired to be defended was being held in preventive detention. The applicant, by notice of motion, applied for the production of his detained counsel of choice, so as to represent him at his trial. The question of law to be decided by the court is whether an accused person who is being prosecuted upon a capital charge can exercise his constitutional right under art 5(3) to be defended by a legal practitioner of his choice despite the fact that the latter is being detained under executive detention. The court also had to decide whether it is empowered to order the production of the detained counsel.

Held, dismissing the application: (1) a person is entitled to be represented by counsel of his choice if that counsel is willing and able to represent him. In this case, as the counsel concerned is the subject of a detention order under preventive detention law it cannot be said that he is able to represent the accused even though he may be more than willing to do so; (2) a condition precedent for the court to invoke its power under r 93(1) of the Internal Security (Detained Persons) Rules 1960 is that the person must be required by the court. The mere fact that an accused may require the production of the person detained is not conclusive of the matter, though of course it is a relevant consideration; (3) it has not been alleged that the trial of the applicant in this case will involve difficult questions of law but, even if it does, it cannot be said that the counsel detained, Mr Karpal Singh, possesses experience of a nature not available amongst advocates and solicitors in Malaysia. The condition precedent for invoking the power to order production of a detained person, namely, that his presence is required by the court, has not been satisfied and therefore the application must be dismissed.

Sim Kee Guan v Public Prosecutor [1988] 2 MLJ 382 High Court, Penang (Edgar Joseph J).

By an order dated 12 October 1986 made by a magistrate, the accused persons' counsel, SP Annamalai, was removed from acting for the accused on the ground that he had been summoned to appear as a witness for the prosecution in the case against the accused. The accused applied to the High Court to review the magistrate's order.

Held, setting aside the order: (1) the powers of revision of the High Court are left to be exercised according to the discretion of the judge. That discretion must be exercised according to the rules of reason and justice and according to law. There must be substantial ground or reason before a judge should invoke the power of revision conferred oh him; (2) it is a well-settled principle of law that an accused person has a right to counsel. A court should, however, have the inherent jurisdiction to ensure that all trials are conducted justly and fairly. No person, least of all an advocate, should be allowed to interfere with or obstruct the performance of this duty by the presiding judicial authority; (3) it is undesirable for an advocate to appear as a counsel in a trial when he is required to be a material witness. If an advocate, knowing that he is going to be a material witness, insists on appearing as counsel in the case, the presiding court has the jurisdiction to take the appropriate action in the interest of justice to ensure the fair and orderly conduct of the trial. In the present case, the magistrate, therefore, had the jurisdiction to make an order restraining Mr Annamalai from acting for the accused persons; (4) the court should, however, be slow to interfere with the right of a party to be represented by counsel of his choice, and a strong case must be made out before an order restraining the selected counsel from acting in a particular case can be made. In these circumstances, the onus of proof is on the prosecution to provide the court with some material to indicate that the counsel in question is a witness who is required to give material evidence; (5) in the present case, the prosecution gave no indication as to why Mr Annamalai was regarded as a material witness. The only evidence adduced was the submission of the prosecuting officer that a statement was recorded from Mr Annamalai and that he was required to give material evidence. This was not sufficient. The order of the magistrate was therefore wrong and could not be sustained and was accordingly set aside.

Public Prosecutor v Vengadasalam & Ors [1990] 1 MLJ 507 High Court, Alor Setar (Lim Beng Choon J).

Liaw Kwai Wah & Anor v Public Prosecutor [1987] 2 MLJ 69 Supreme Court, Kuala Lumpur (Abdul Hamid CJ (Malaya).

The applicant was charged in the sessions court at Johore Bahru with an offence under s 4(c) of the Prevention of Corruption Act 1961 (Act 57). He had instructed Mr CKG Pillay, an advocate and solicitor in Johore, as his solicitor but, according to his affidavit, 'in view of the complexity of the case, he feels that full justice can only be done if Dato David Marshall is instructed by Mr Pillay to act for him'. He applied for the ad hoc admission of Dato David Marshall to lead Mr Pillay in defending him in that case. The Attorney General and the Bar Council objected to the application on the ground that there was nothing to show that Dato David Marshall had the special qualifications or experience mentioned in s 8A(2) of the Advocates and Solicitors Ordinance 1947. Counsel argued not only upon the matters set out in the affidavits, but also on the right of the subject to consult and be defended by a legal practitioner of his choice as provided by cl (3) of art 5 of the Constitution which reads: '(3) Where a person is arrested he shall be informed as soon as may be of the grounds of the arrest and shall be allowed to consult and be defended by a legal practitioner of his choice'. Thus the issue before the court was whether the right to choose here extended to any legal practitioner of any country in the world.

Held, dismissing the application: (1) the right given to the arrested person in the article must be limited to the choice of legal practitioners who are qualified to practise under our law; (2) specifically the Constitution applies to Malaysia. The right given under art 5 cannot be read as extending to any legal practitioner anywhere in the world, regardless whether or not he is qualified to practise here;whether or not a practitioner from outside the Federation possesses special qualifications or experience 'to do justice in a case' is irrelevant for the purpose of ad hoc admission. What is relevant is whether for the purpose of a particular case he possesses special qualifications or experience not available amongst advocates and solicitors in Malaysia. To say that a practitioner, whether in this country or elsewhere, possesses the qualifications or experience to do justice in a case is inimical to our concept of justice. The administration of justice is a matter for the courts and not a matter for any advocate and solicitor in this country or from abroad.

D'Cruz v Attorney General, Malaysia & Anor [1971] 2 MLJ 130 High Court, Johore Bahru (Othman J).

In this case, the applicant had been arrested by the police on the strength of a report of theft. After being produced before a magistrate he was remanded for a period of 11 days in police custody. An application was made by an advocate and solicitor who had been appointed to act for the applicant, for an opportunity to see the prisoner for consultation. This was refused and the respondent stated that the advocate and solicitor could see the applicant after the completion of the remand period. An application was thereupon made for habeas corpus but before the matter was brought to court the applicant had been released. The learned judge held that the question which arose in the case was of considerable importance and public interest and that it was proper for him to make a ruling thereon. The question was whether the right of a person who is arrested and remanded in police custody to consult and be defended by a legal practitioner of his own choice commences immediately after arrest or within a reasonable time before police investigation is completed.

Held: (1) the right of a person who is arrested and remanded in police custody to consult and be defended by a legal practitioner of his own choice as envisaged in art 5(3) of the Constitution begins right from the day of his arrest even though police investigation has not yet been completed; (2) in order to satisfy the constitutional requirement of art 5(1) of the Constitution, that right should be subject to certain legitimate restrictions which necessarily arise in the course of police investigation, the main object being to ensure a proper and speedy trial in the court of law; (3) such restrictions may relate to time and convenience of both the police and the person seeking the interview and should not be subject to any abuse by either party; (4) in order to render such interview effective it should be held not within the hearing of any member of the police though within their sight; (5) the action of the respondent in this case in restricting the learned counsel's application to interview his client on the expiry of the detention period was unreasonable; (6) the police should not in any way delay or obstruct such interviews on arbitrary or fanciful grounds with a view to deprive the accused of his fundamental right.

Ramli bin Salleh v Inspector Yahya bin Hashim [1973] 1 MLJ 54 High Court, Alor Star (Syed Agil Barakbah J).

[Annotation: The learned judge in this case after making the ruling referred the matter for the opinion of the Federal Court under s 48 of the Courts of Judicature Act 1964 (Act 91). The Federal Court (Federal Court Special Case No 1 of 1972, Ong CJ, Suffian, Gill, Ali and Ong Hock Sim FJJ) on 2 October 1972, unanimously refused to give an opinion, saying that under s 48 the Federal Court had no jurisdiction to determine abstract matters or matters of academic interest such as disclosed in the reference. Suffian FJ thought that the learned judge when making the ruling was already functus officio and that he should not have made it. Ong Hock Sim FJ considered that as the prisoner was already released, the ruling was uncalled for as the matter had become purely an academic exercise. No written judgment of the Federal Court was delivered. The refusal of the Federal Court to deal with the reference renders the guideline enunciated by the learned judge merely obiter. Reference may be made to the articles 'Right of an Arrested person to Consult Counsel' by Tan Sri Mohamed Salleh Abas ([1972] 2 MLJ lxiii) and 'When does the Right of an Arrested Person to Consult Counsel under art 5(3) of the Federal Constitution Begin?' by Karpal Singh ([1973] 1 MLJ xxi).]

In this case, the subject had been arrested by the police on 26 December 1974 and after being produced before the magistrate on 28 December 1974, he was formally charged on 7 January 1975 for abetment in gang robbery. The applicant, the father of the subject, instructed his solicitors and counsel attempted to see the subject but was unsuccessful. Subsequently, the applicant applied for a writ of habeas corpus and it was alleged that (1) the right of the subject to consult and be defended by counsel of his choice commenced immediately after his arrest; (2) this right is an unqualified right and the denial of his right by the police has rendered the detention unlawful.

Held: (1) although under art 5(3) of the Federal Constitution the person arrested has the right to be informed 'as soon as may be' of the grounds of his arrest, the clause does not direct the time when the right of the person arrested to consult and be defended by counsel of his choice begins; (2) the right of the person to consult and be defended by counsel of his choice should be reconciled with the duty of the police to investigate into the offence and such right should not be exercised to the detriment of such investigation; (3) in this case, the failure of counsel to meet the subject on 2 January 1975 had been satisfactorily explained in the affidavit of the respondent and therefore the application for issue of a writ of habeas corpus should be refused.

Ooi Ah Phua v Officer-in-Charge, Criminal Investigations, Kedah/Perlis [1975] 1 MLJ 93 High Court, Alor Star (Hashim Yeop A Sani J).

[Annotation: The applicant's appeal to the Federal Court (see [1975] 2 MLJ 198) was dismissed.]

This was an appeal from the decision of Hashim Yeop A Sani J (reported in [1975] 1 MLJ 93) dismissing an application for a writ of habeas corpus. The facts in this case were that the subject had been arrested by the police on 26 December 1974 and after being produced before the magistrate on 28 December 1974 he was formally charged on 7 January 1975 for abetment in armed robbery. The appellant, the father of the subject, instructed solicitors, and counsel attempted to see the subject but was unsuccessful. Subsequently, the appellant applied for a writ of habeas corpus and it was alleged that (1) the right of the subject to consult and be defended by counsel of his choice commenced immediately after his arrest; (2) this right is an unqualified right and the denial of this right by the police had rendered the detention unlawful. The application having been dismissed in the High Court, the appellant appealed to the Federal Court.

Held, dismissing the appeal: (1) the right of an arrested person to consult his lawyer begins from the moment of arrest but that right cannot be exercised immediately after arrest. A balance has to be struck between the right of the arrested person to consult his lawyers on the one hand and on the other the duty of the police to protect the public from wrongdoers by apprehending them and collecting whatever evidence exists against them. The right should not be exercised to the detriment of any investigation by the police; (2) in any event habeas corpus was not the correct remedy in this case as the only complaint was that after the arrest of the subject, his solicitor was denied access to him.

Ooi Ah Phua v Officer-in-Charge, Criminal Investigation, Kedah/Perlis [1975] 2 MLJ 198 Federal Court, Alor Star (Suffian LP, Lee Hun Hoe CJ (Borneo).

On 31 October 1993, the plaintiff was arrested and detained at Johor Bahru prison pursuant to an order made by the Deputy Minister of Home Affairs ('the Deputy Minister') under s 2(i) of the Restricted Residence Act 1933 ('the Act') on the ground that he had been running an illegal four-digit gambling operation in Muar, Johor since 1990. On 19 November 1993, the Deputy Minister issued a restriction order under s 2(ii) of the Act restricting the plaintiff to Kuala Kurau, Perak for three years commencing from 19 November 1993 and placing the plaintiff under police supervision during that period pursuant to s 2A(i) of the Act. Both orders were served on the plaintiff on 19 November 1993 but it was only on 20 November 1993 that the plaintiff was brought to Kuala Kurau. In support of this habeas corpus application, the plaintiff's wife affirmed an affidavit averring that the plaintiff was brought to Tangkak Police Station on 19 November 1993 where she met the plaintiff. Consequently, it was argued that the Deputy Minister did not sign the orders under ss 2(ii) and 2A(i) of the Act on 19 November 1993 but that the order were postdated. The plaintiff's wife further averred that while under lawful detention at Johor Bahru prison, her husband was denied; (i) access to counsel, contrary to the second limb of art 5(3) of the Federal Constitution; and (ii) access to writing materials and could not write to the Deputy Minister and, consequently, was unable to make an appeal within 14 days as required by the Deputy Minister. Counsel for the plaintiff argued that as the plaintiff's wife's allegations were not rebutted by the defence, they should be deemed to be admitted. On the other hand, the federal counsel for the defendants argued that the plaintiff's wife had failed to state the sources and grounds of her information and belief as required under O 41 r 5(1) and (2) of the Rules of the High Court 1980 ('the RHC'), thus rendering the allegations valueless as hearsay. The federal counsel argued that the failure of the plaintiff's wife to comply with O 41 r 5(1) and (2) of the RHC was a defect which went to the very root of the legal process and could not be cured. Consequently, the defendants need not reply to those allegations.

Held, allowing the application for habeas corpus and ordering the release of the plaintiff: (1) the plaintiff's complaint that he was denied access to counsel did not run counter to the second limb of art 5(3) of the Federal Constitution and was not therefore a ground for which the proper remedy is habeas corpus; (2) the plaintiff's wife had rightly affirmed an affidavit in support of the habeas corpus application and had adverted to her personal knowledge as she had met with the plaintiff in the Johor Bahru prison and was asked by him to obtain the services of counsel. She had explained her position and authority in affirming the affidavit as she had been given the authority to do so by the plaintiff, in view of the fact that there was no commissioner for oaths in Kuala Kurau, Perak. The allegations contained in her affidavit had therefore complied with O 41 r 5(1) and (2) of the RHC; (3) as the allegations of the plaintiff's wife had complied with O 41 r 5(1) and (2) of the RHC, the allegations must be true as the defendants failed to rebut it in their affidavits; (4) the prolonged detention of the plaintiff at Johor Bahru prison before the restriction order under s 2(ii) of the Act was issued was illegal, contrary to law and rendered the restriction order null and void and the Deputy Minister's feeble explanation for the delay could not be accepted by the court; (5) although it is basic and fundamental that in the course of litigation, rules of procedure must be observed, no irregularity or defect automatically renders the proceeding a nullity as the court has a discretion under O 2 r 1 of the RHC to remedy any such non-compliance; (6) however, where the liberty of an individual is at stake, there must be meticulous compliance with the law and in applying for a writ of habeas corpus, the plaintiff is entitled to avail himself of any technical defects which may invalidate the order which deprives him of his liberty. The plaintiff was set at liberty forthwith.

Ng Chai Yang v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1994] 2 MLJ 336 High Court, Taiping (Abdul Malik Ishak JC).

The plaintiff claimed damages for wrongful detention and denial of right to consult counsel. The plaintiff had been arrested on 8 August 1952 on suspicion of being involved in the theft of an electricity generator. On 9 August 1952, as the investigations were not completed, the accused was produced in court and an application made for his further detention till 19 August 1972. The plaintiff was released on 14 August 1972. The plaintiff was not allowed to see counsel during the period of his detention when police investigations were in progress.

Held: (1) on the facts, the arrest of the plaintiff was lawful as there was reasonable suspicion that the plaintiff was concerned with the theft. It followed that his subsequent detention by the police before production before the magistrate and subsequently by the special order of the magistrate was legal; (2) where a person is lawfully detained, his detention does not become unlawful if the police deny that person his right to consult and be defended by a legal practitioner of his choice; (3) under the Federal Constitution it is provided that a person who is arrested shall be allowed to consult and be defended by a legal practitioner of his choice but there is no provision that he be informed of that right; (4) a lawyer has no constitutional right of access to an arrested person but it is not necessary for an arrested person to exercise his right to consult a lawyer and make his choice of a practising lawyer before that lawyer is entitled to see him; (5) the right to consult counsel begins from the moment of arrest but the exercise of that right is postponed for so long as the arrested person is detained under s 117 of the Criminal Procedure Code (FMS Cap 6); (6) the claim for damages in this case therefore failed and must be dismissed.

Hashim bin Saud v Yahaya bin Hashim & Anor [1977] 1 MLJ 259 High Court, Alor Star (Harun J).

[Annotation: This case was appealed and reversed in the Federal Court (see [1977] 2 MLJ 116). Nonetheless, Raja Azlan Shah FJ, delivering the judgment of the Federal Court, held that there was no violation of art 5(3) of the Federal Constitution.]

Cohen Aaron Shelton v Jemaah Pengampunan Pulau Pinang & Anor Originating Summons No 24-15-90 High Court, Penang (Mohtar Abdullah J).

The police in the present case wanted to apply for remand of the accused for a further period of time. Counsel for the accused wanted to be present during the remand proceedings to oppose the application for further remand. However, the President of the Sessions Court refused to give him any audience at that stage. As a result, the present proceedings were brought by way of revision to determine the main issues in this case, namely (1) whether a magistrate or President who authorizes or refuses to authorize the detention of an arrested person pursuant to the provisions of s 117 is an 'inferior criminal court' within the meaning of s 323 of the Criminal Procedure Code (FMS Cap 6) ('the code'); (2) whether an arrested person has the right to be represented by a legal practitioner in remand proceedings under s 117 of the code.

Held: (1) when a magistrate or President exercises powers under s 117 he does so as an inferior criminal court within the meaning of s 323 of the code; (2) generally an arrested person has a right to be represented by a legal practitioner in remand proceedings before a magistrate under s 117 unless the police can discharge the onus of satisfying the magistrate that to allow him to exercise that right would result in undue interference with the course of investigation; (3) from the record of the proceedings in the court below, the President had erred: first, in peremptorily excluding counsel merely on the ground that counsel has no right to be heard, and secondly, in not recording his reasons for extending the order for remand as required under the explicit provisions of s 117 (iii) of the code.

Saul Hamid v Public Prosecutor [1987] 2 MLJ 736 High Court, Penang (Edgar Joseph Jr J).

In this case, the case against the accused had been adjourned to 11 April 1968 for hearing. Counsel for the appellant wrote to the magistrate stating that he would be engaged on 11 April 1968 and requesting an adjournment to another suitable date. The learned President of the Sessions Court replied that the application would be considered in open court, but on 11 April 1968, when counsel did not appear, the trial proceeded in his absence. No mention was made of the application for adjournment.

Held: the appellant had the right to choose his own counsel and to be defended by such counsel. In this case, the appellant had been prejudiced in his defence by the total absence of consideration of the application filed by the solicitors for the appellant. In the circumstances, the appeal should be allowed and a retrial ordered.

Bakar bin Ahmad v Public Prosecutor [1969] 4 MC 294 High Court, Malacca (Sharma J).

In this case, the accused were charged with murder and were produced in the magistrate's court for fixing a date for preliminary inquiry. Counsel appearing for them made the allegation that they had been manhandled and assaulted by the police and that he had not been allowed to see them. He applied for them to be sent for medical examination and for access to them. The learned magistrate made the orders in terms of the application. The case was called up to the High Court in revision.

Held: (1) there was no complaint on oath that the accused had been manhandled or assaulted by the police and in the absence of such a complaint, the first order could not be validly made; (2) the applicable portion of art 5(3) of the Constitution guarantees the right to counsel to the arrested person and not counsel himself. It had not been shown in this case that the arrested persons had requested to consult and be defended by a legal practitioner of their choice and that this request had been refused and there could not be any justification for the complaint when what was shown was that a legal practitioner who had not yet been chosen to defend the arrested persons was not allowed to see them; (3) as no time is prescribed in the Constitution within which the accused person should be allowed to consult counsel, the provisions of s 30 of the Interpretation and General Clauses Ordinance 1948 would be applicable and therefore the right is to be given 'with all convenient speed'. What is 'convenient speed' would depend on the circumstances of each particular case.

Public Prosecutor v Mah Chuen Lim & Ors [1975] 1 MLJ 95 High Court, Johore Bahru (Othman J).

The appellant was convicted of the offence of giving false information under s 26A(a) of the Prevention of Corruption Act (Cap 241). On the first day of trial, the appellant requested for an adjournment because his counsel, Mr Damodara, was unable to represent him. However, Mr Damodara had offered a substitute counsel, namely, Ms Dube who was willing to take on the case. The appellant first refused to engage her services but subsequently changed his mind. The trial was adjourned for a few days to enable Ms Dube, who was unwell, more time to prepare the case. However, on the subsequent date, the appellant once again discharged Ms Dube. He had engaged another counsel, Mr Jeyaretnam, who made an application to adjourn the proceedings as he could not represent the appellant on that date. This application was refused and the appellant, who was then unrepresented, chose not to take part in the proceedings. He was convicted and on appeal alleged that the trial judge had erred in refusing to grant the appellant an adjournment to enable him to be represented by counsel of his choice, thus resulting in a miscarriage of justice.

Held, dismissing the appeal: (1) an accused's right to be represented by counsel of his choice was not an unqualified right. He was only entitled to be represented by counsel of his choice if that counsel was willing and able to represent him. If counsel failed to turn up or was not willing or able to act, the accused person could not by virtue of that fact alone claim that his constitutional right had been violated and as such any proceedings against him would be rendered null and void; (2) on the present facts, there has been no miscarriage of justice. The appellant had been given ample opportunity to be represented by Ms Dube who was able and willing to act. He could not be allowed to insist on being represented by Mr Jeyaretnam when he well knew that the latter would not be able to represent him at the trial date. The appellant's conduct in the whole proceedings left much to be desired. In any event, the trial judge had proceeded with the trial very carefully, and had made every effort to satisfy himself that every element of the offence had been proven by the prosecution beyond reasonable doubt.

Balasundaram v Public Prosecutor [1996] 2 SLR 331 High Court, Singapore (Yong Pung How CJ).

In this case, the appellant had been charged with criminal breach of trust under s 409 of the Penal Code (FMS Cap 45). At the date of hearing of the case, counsel for the accused was not present as it appeared that he had urgent business in Johore Bahru relating to a land matter. The learned President of the Sessions Court proceeded with the hearing in the absence of counsel. After the appellant had been called for his defence, a second counsel appeared and after consulting his client, informed the court that he had advised him to remain silent. The appellant was convicted and sentenced to 18 months' imprisonment. The appellant appealed. The main grounds of appeal were that the learned President erred in proceeding to hear and determine the case without the presence of defence counsel and in making the accused conduct his own defence.

Held: (1) the right to counsel under art 5(3) of the Federal Constitution relates only to the choice of counsel who is willing and able to act. It does not confer a right to counsel in every case, that is to say, it does not mean that an accused person cannot be tried unless he is represented by counsel; (2) on the facts of this case there had been no miscarriage of justice. The evidence related entirely to the appellant's daily routine at his work and the President recorded very detailed evidence and gave the appellant every opportunity to cross-examine the witnesses and explain his rights at the trial. The trial was proper and the absence of counsel did not vitiate the trial; (3) the appeal against conviction and sentence must be dismissed.

Mohamed bin Abdullah v Public Prosecutor [1980] 2 MLJ 201 High Court, Kuala Lumpur (Harun J).

The appellants were charged that, in furtherance of their common intention, they trafficked in 254.36g of diamorphine on 24 May 88 at 1.55pm at Plums Coffee House, Hyatt Hotel. One Michael Fullet who was a special agent attached to the United States Drug Enforcement Agency ('DEA'), had been approached by the Central Narcotics Bureau ('CNB') to assist them by posing as a buyer from a Singaporean wishing to sell to a foreign buyer. A meeting was arranged between the Singaporean seller and Fullet on 23 May 1988. At this meeting, Fullet met the first appellant who offered to sell him 1kg of heroin. Fullet accepted this offer. As a result, Fullet and the first appellant met again on 24 May 1988 for the drugs to be handed to Fullet. On this day the second appellant was also present and handed the drugs to Fullet in the toilet of Plums Coffee House. At the trial, the first appellant's defence was that he had found the substance in his flat and had brought it to Fullet because he wished to find out from Fullet what it was. The second appellant testified that he had merely followed the first appellant to the meeting as he hoped to get free food and drinks at Fullet's expense. Both were convicted.

Held, dismissing the appeal: (1) there is no requirement for the prosecution to specify in the charge the criminal act allegedly committed in furtherance of the appellants' common intention. In any case the first appellant was not prejudiced by this omission because he was aware of the charge he had to meet; (2) although the prosecution has not specified the manner of trafficking concerned in the charge, it could hardly be said that the first appellant was in doubt as to what overt act of trafficking he had been accused of. The omission to specify the manner of trafficking did not produce a miscarriage of justice; (3) Fullet was not an agent procovateur as the initiative to sell the drugs clearly emanated from the first appellant; (4) the learned trial judge was justified in refusing an application for an adjournment to adduce expert evidence as to the authorship of a statement recorded from a defence witness, one Zainal, as the defence was unable to give any good grounds for the adjournment; (5) even if s 23(1)(a) of the Misuse of Drugs Act (Cap 185) ('MDA') applied to Zainab's statement, so too did s 23(3). For that reason no inequity was occasioned to the first appellant by the admission of the statement; (6) the trial judge had not placed any improper reliance on that statement by treating it as substantive evidence as he had only used it for the purpose of impeaching Zainab's credit as a witness; (7) the first appellant suffered no prejudice in being refused permission to cross-examine the second appellant during the voir dire of the admission into evidence of the second appellant's s 122(6) statement. That statement was admitted only after the trial judge was convinced on all the evidence before him that the statement was made voluntarily; (8) there was no violation of the first appellant's constitutional right of access to counsel. An accused person has a right to counsel within a reasonable time after his arrest. In this case the first appellant was allowed access to counsel within two weeks and this was a reasonable time; (9) the trial judge had considered the second appellant's clarification of his s 122(6) statement but had rejected that clarification. This court on appeal saw no reason to disturb this finding of fact.

Jasbir Singh & Anor v Public Prosecutor [1994] 2 SLR 18 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

A was convicted of counterfeiting offences contrary to the Criminal Code of Mauritius and was sentenced to three years' penal servitude. A's trial had begun before two magistrates, X and B, who heard part of the evidence: it then continued before P and B who convicted A. Accordingly A appealed, relying on the fundamental principle of justice laid down in Wong v R that in a criminal case those who return the verdict should see and hear all the witnesses. A submitted this principle had been broken. Held, allowing the appeal: (1) s 10(1) of the Constitution of Mauritius requires that the principle of justice as stated in Wong v R [1981] 1 WLR 1356 should be complied with. There was a significant breach of that principle in the present case; (2) in an appropriate case, it would be possible to include evidence that might be given otherwise than only before those who decide the case, eg the tribunal will hear evidence in the form authorized by statute and this would be in accordance with the statement of principle in Wong v R.

Marday v R Privy Council Appeal No 1 of 1990 Privy Council Appeal from Mauritius (Lords Bridge, Templeman, Goff, Browne-Wilkinson and Sir Maurice Casey).

On 11 May 1989, the appellant was convicted on a charge of murder with two others and sentenced to death. Their appeals against conviction were subsequently dismissed by the Court of Criminal Appeal on 25 April 1991. The appellant's solicitors were first notified of the appellant's right to file a petition for clemency on 17 July 1991. On 29 July 1991, the appellant's sister, through a Malaysian firm of solicitors, submitted a petition to the President on his behalf. Notwithstanding this, the appellant's solicitors were repeatedly notified of the right to submit a petition. In the interim period, the solicitors of the second accused sought a stay of execution pending consideration of the possibility of an appeal to the Privy Council. Several extensions of time for filing of the petition were given to both solicitors. The petition for clemency by the appellant was finally filed on 27 July 1993 but no petition was filed on behalf of the second accused. It was not until 8 March 1994 that the second accused declared that he did not wish to submit a petition. On 7 June 1994, the President gave his decision rejecting the appellant's petition for clemency and scheduled the execution for 17 June 1994. However, on the eve of the execution, a stay of execution was sought from the President when the second accused claimed that he was solely liable for the murder. A respite of the execution was ordered and the appellant's solicitors were asked to submit a further petition for clemency. This further petition was presented on 29 August 1994. This was subsequently rejected by the President on 25 October 1994, and execution was rescheduled for 11 November 1994. On 10 November 1994, the appellant filed an application in the High Court seeking a stay of execution of the death sentence and a declaration that it would be unconstitutional and unlawful to execute him, contrary to art 9(1) of the Constitution. It was argued that, based on the Privy Council decision in Pratt v A-G for Jamaica [1994] 4 All ER 769, it would be cruel and inhuman punishment to carry out the execution in view of a prolonged delay of more than five years since the date of conviction. The application was dismissed. The High Court held that the decision in Pratt was inapplicable in Singapore and that the delay in execution, if any, was caused in part by the appellant's solicitors. However, the President ordered a respite of the execution pending an appeal to the Court of Appeal. On appeal, the appellant's stance was, instead, that there was a prolonged delay of two years and ten months before the President gave his decision on the petition filed by the appellant's sister on 29 July 1991. It was contended, in reliance on several decisions of the Indian Supreme Court, that this delay was unjustified and unconstitutional.

Held, dismissing the appeal: (1) the position in India is that the courts have a jurisdiction to consider whether subsequent events after the judicial process has ended amount to an infringement of his constitutional rights. A similar position does not exist in Singapore. Further, the Indian authorities cited were irrelevant as a material difference exists between Indian criminal procedure and the criminal procedure in Singapore. In India, the death penalty is not mandatory and the intention of the legislature was clearly to make life imprisonment the general rule and the death sentence an exception to be resorted to for special reasons. As a result, an appellate court would readily take notice of any delay in the judicial process and make an order of commutation of the sentence to life imprisonment. The position in Singapore is markedly different. Capital cases here carry a mandatory death penalty; (2) once the Court of Appeal had disposed of the appeal against conviction and had confirmed the sentence of death, it was functus officio as far as the execution of the sentence was concerned. It is not possessed of power to order that the sentence of death be stayed or commuted to a sentence of life imprisonment, especially when the appellant was convicted of an offence which carried a mandatory sentence of death; (3) the power of commutation or remittance of sentence lay only with the President. Likewise, the power to order a stay of execution or respite of the sentence lay exclusively with the President. It was solely the prerogative of the President to decide whether a delay in execution amounted to sufficient ground to justify a commutation of sentence. It was clearly not part of the court's functions; (4) (per curiam) (i) in principle, condemned prisoners on death-row should not be subjected to a prolonged period of imprisonment as there is no doubt that they suffer a certain level of anguish and mental agony while awaiting execution. However, such anguish is an inevitable consequence. The accumulation of time spent on death-row therefore does not constitute an independent infringement of the appellant's constitutional rights; (ii) there was no undue and unconscionable delay in the execution. The delay was attributable in a large measure to the appellant's solicitors' failure to file the petition expeditiously and also in light of the second accused's desire to appeal to the Privy Council.

Jabar v Public Prosecutor [1995] 1 SLR 617 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant was convicted of an offence under s 14(3) of the Societies Act (Cap 311) for being a member of an unlawful society, namely, the Jehovah's Witnesses. He challenged the decision on the following grounds. Firstly, the trial judge had erred in finding that the appellant was a member of an unlawful society. This was further evidenced by the fact that he was at home at the time a raid was conducted and was not attending any Jehovah's Witnesses meetings. Next, he argued that the right to profess and practice one's religion was constitutionally enshrined and could not be an offence. Finally, the validity of the ministerial Order 179 of 1972 deregistering the society was challenged.

Held, dismissing the appeal: (1) it was clear that the appellant was a member of an unlawful society. He was an active participant in the ministry of the Jehovah's Witnesses in Singapore, serving as a member in various committees. Moreover, the appellant would still have committed the offence whether he was attending a meeting or not. Section 14(3) of the Societies Act encompassed both those who were members of and those who attended the meetings of an unlawful society; (2) art 15(4) of the Constitution clearly envisaged that the right to profess and practice one's religion was subject to inherent limitations and was not an absolute and unqualified right (3) ministerial order 179 was not invalid or contrary to any provisions of the Constitution.

Chan Cheow Khiang v Public Prosecutor [1996] 3 SLR 271 High Court, Singapore (Yong Pung How CJ).

The appellant, who was a member of the Jehovah's Witnesses, was convicted of two offences under s 4(2) of the Undesirable Publications Act (Cap 338) for having in his possession publications which were prohibited under sÊ3(1) of the said Act, vide Gazette Notification No 123 dated 14 January 1972 (Order 123) and Gazette Notification No 405 dated 4 February 1994 (Order 405). The Orders prohibited the importation, sale and circulation of all materials published or printed by the Watch Tower Bible and Tract Society (WTBTS) and the International Bible Student's Association (IBSA). The appellant appealed against the trial judge's decision to turn down his application under s 56A of the Subordinate Courts Act (Cap 321) for certain constitutional questions to be referred to the High Court. In gist, the questions dealt with the following issues. Firstly, the appellant contended that Orders 123 and 405 should be void as it was contrary to art 15 of the Constitution. Secondly, the appellant stated that the wording of the Orders was ambiguous and that the effect of the Orders was too wide and excessive. Lastly, the court was asked to determine whether the contents of the publications had to be examined in relation to a reference to military service before the publications came within the exception under art 15(4) of the Constitution.

Held, dismissing the appeal: (1) art 15(1), which enshrined the fundamental right of a person to profess, practice and propagate his religion, must be read in the light of art 15(4) which clearly envisaged that the right to freedom of religion was subject to inherent limitations and was not an absolute and unqualified right; (2) both Orders 123 and 405 were not ultra vires or unconstitutional nor were they inconsistent with art 15. There was also no ambiguity in the wordings of Orders 123 and 405 which restricted both the rights of individuals as well as groups of persons to access of all publications by WTBTS and IBSA; (3) the ban on the publications was total and not with reference to their contents but by reference to the publisher. Any order other than a total blanket order would be administratively inconvenient as it would be absurd to expect every published material to be vetted; (4) there was no requirement in Orders 123 and 405 that sufficient nexus had to be found in the contents of the publications with reference to military service before the publications came within the exception under art 15(4); (5) all the questions which were raised had been dealt with in previous cases and there was no reason and indeed no justification for a reference to the High Court under s 56A of the Subordinate Courts Act (Cap 321).

Liong Kok Keng v Public Prosecutor [1996] 3 SLR 263 High Court, Singapore (Yong Pung How CJ).

The two accused were jointly charged with murder. The deceased was found lying supine on Bukit Timah Avenue in front of a parked motor lorry. There were bloodstains on the road but none on the lorry, the driver's cabin or the road below the cabin. There was no objection to the four statements made by the second accused to the police being admitted in evidence. In his statements, the second accused admitted that he and the first accused had planned to rob a Chinese woman at Bukit Timah. The deceased turned up instead of the intended victim. He was confronted by the first accused. In the ensuing struggle, the second accused went to the assistance of the first accused. However, the second accused denied committing the murder. The first acccused challenged the admissibility of three statements made by him. After a trial-within-a-trial, the cautioned statement of the first accused was admitted. In this statement, the first accused admitted that he was armed. The court called upon the defence of both accused on the murder charge. The first accused gave evidence in his defence. The second accused elected to remain silent. In his defence, the first accused said that he was feeling 'high' at the time of the offence due to the drugs and alcohol he had consumed earlier. He also could not remember the events of the offence nor could he confirm that the second accused was with him at that time.

Held, convicting the first accused of murder and the second accused on a lower charge of robbery: (1) the first accused dragged the deceased down from the seat of the lorry and a struggle ensued during which the first accused, using considerable force, inflicted stab wounds on the back region of the deceased when the deceased was standing on the ground. There were no bloodstains in or around the vicinity of the driver's cabin that would indicate that the deceased was stabbed while he was in the driver's cabin; (2) the first accused's defence that he could not remember the events that took place during the morning of the killing because he had consumed alcohol and drugs earlier was rejected. The first accused only chose to remember selectively what occurred at the time of the offence. The first accused was not so intoxicated with alcohol and drugs that he did not know what he was doing; (3) the first accused was also not so intoxicated with alcohol and drugs as to be unable to form any intention to inflict any of the wounds on the deceased. He did intentionally inflict the bodily injuries that were inflicted on the deceased. These bodily injuries were sufficient in the ordinary course of nature to cause death and did cause death; (4) the statements made by the second accused could not be taken into consideration against the first accused for the offence of murder as the second accused did not in the statements himself confess to the charge of murder. Section 30 of the Evidence Act (Cap 97) was therefore not applicable; (5) the version of how the stab wounds were inflicted, as given by the second accused in his statement, required an explanation in view of contrary expert forensic evidence; (6) in calling for the defence of the second accused, the court was not required to (and it did not) consider the weight to be given to the statements he made to the police. Once the defence was called, the whole statement, both the incriminating parts and the excuses or explanations, must be considered in deciding where the truth lies; (7) the second accused agreed to join the first accused to rob a Chinese woman but he did not have a common intention with the first accused to cause the death of the deceased. The second accused did not know that the first accused was armed and had consistently maintained that he was shocked when he saw the first accused holding the bloodstained knife and had immediately released the deceased and took no part in the killing; (8) only such inference as appear to be proper in the circumstances of the case can be drawn from the accused's failure to give evidence in his defence. The first accused did not give any evidence to incriminate the second accused in the killing. It would appear that the second accused, seeing that the first accused did not incriminate him, decided to repay his debt to his friend by electing to remain silent so that he need not have to say anything further to incriminate the first accused. In the circumstances, the court was not prepared to draw an adverse inference against the second accused by reason of his failure to testify; (9) s 121(2) of the Criminal Procedure Code (Cap 68) ('CPC') gives a person who is being examined by a police officer during police investigations a right to decline to answer any questions that may incriminate him. Section 121(2) of the CPC sets out the so-called 'right of silence' enjoyed by suspects when interrogated by the police. It is expressed in the Latin maxim nemo debet se ipsum prodere and has been described by the Privy Council in Haw Tua Tau v Public Prosecutor as one of the fundamental rules of justice within the meaning of the word 'law' in art 9(1) of the Constitution; (10) art 9(1) of the Constitution provides that no person shall be deprived of his life or personal liberty save in accordance with law. Since the 'right to silence' in s 121(2) of the CPC is a constitutional right, an accused or a suspect should be cautioned of his right to decline to make an incriminating statement notwithstanding that s121(2) does not specifically require that any such caution be administered. A statute should be construed in such a way as will give effect to a constitutional right; (11) art 4 of the Constitution (1992 Ed) provides that any law enacted by the Legislature after the coming into operation of the Constitution which was inconsistent with the Constitution shall, to the extent of the inconsistency, be void. The Constitution came into operation in 1963. The proviso to s 122(5) of the CPC (1985 Ed) was effected by Act 10 of 1976. By reason of art 4, if the provisions of s 122(5) are inconsistent with the Constitution, those provisions, to the extent of the inconsistency, would be void. To admit a statement under s 122(5) without regard to the right of silence contained in s 121(2) of the CPC would create an inconsistency. There would however be no inconsistency if s 122(5) was read as being subject to the right of silence contained in s 121(2); (12) the warning in the s 122(6) notice makes it clear that the accused has a right to remain silent. To that extent therefore there is no inconsistency between s 122(6) and s 121(2). As the first accused was not told of his right to remain silent, the statements recorded from him under s 121 of the CPC were inadmissible in evidence. Section 122(5) must be construed in such a way that it will give effect to the right of silence contained in s 121(2) of the CPC. The reasons given by the Privy Council in Haw Tua Tau applies, mutatis mutandis, to the provisions of s 121(2) and s 122(5) of the CPC; (13) besides the fact that the first accused was not told of his right to silence, he was wrongly told that he was 'bound to tell the truth, the whole truth and nothing but the truth' to the police. In addition, having heard the evidence of the accused, the police officers and the interpreter, and bearing in mind that the two statements were recorded eight and eleven days respectively after the first accused had been in police custody, it was unsafe to admit those statements as evidence even if the caution had in fact been correctly interpreted to the first accused.

Public Prosecutor v Mazlan bin Maidun & Anor [1993] 1 SLR 512 High Court, Singapore (Rajendran J and Goh Phai Cheng JC).

This was an appeal against the acquittal of the respondent on a charge of contravention of a restriction order. The respondent had been detained under s 8(1)(a) of the Internal Security Act 1960 (Act 82) since 1963. In 1968 he was served with a restriction order and it was for breach of this order that he was charged. It was argued on behalf of the respondent that once an order had been made under s 8(1)(a) of the Act, the minister was functus officio and was therefore precluded from making an order under s 8(1)(b). This argument was accepted by the learned President of the Sessions Court.

Held, allowing the appeal: (1) the act of the minister in issuing a detention or restriction order under s 8(1)(b) of the Act is in the exercise of his administrative function and the orders cannot be equated to orders of conviction for an offence or crime; (2) the minister was not precluded from making the restriction order in this case and as there was no evidence of bad faith, the restriction order was valid and should be enforced.

Public Prosecutor v Musa [1970] 1 MLJ 101 High Court, Kota Bharu (Syed Othman J).

Ong Ah Chuan v Public Prosecutor; Koh Chai Cheng v Public Prosecutor 1980 Privy Council Appeal from Singapore (Lord Diplock, Lord Keith of Kinkel, Lord Scarman and Lord Roskill).

Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119 Supreme Court, Kuala Lumpur (Salleh Abbas LP, Seah, Mohamed Azmi, Hashim Yeop A Sani and Abdoolcader SCJJ).

Tun Datu Haji Mustapha bin Datu Harun v Tun Datuk Haji Mohamed Adnan Robert, Yang di-Pertua Negeri Sabah and Datuk Joseph Pairin Kitingan (No 2) [1986] 2 MLJ 420 High Court, Kota Kinabalu (Tan Chiaw Thong J).

In this case, a tribunal had been set up under art 125(3) of the Federal Constitution to inquire into and make recommendations concerning the Lord President, Tun Dato Haji Salleh Abas, to His Majesty the Yang di-Pertuan Agong. The Supreme Court had on 2 July 1988 made an ex parte order restraining the tribunal from submitting any recommendations, report or advice respecting the inquiry to His Majesty the Yang di-Pertuan Agong. The Attorney General applied by motion to set aside the order on the ground that the making of the said order was wrong in law in the circumstances of the case. Another ground was relied on in this notice of motion but the Attorney General did not proceed with the ground as there was an originating summons for a declaration on the interpretation of ss 38 and 39 of the Courts of Judicature Act 1964 (Act 91) which were referred to in that ground. Two applications were also dealt with by the court. The first was by the five suspended Supreme Court judges who sat in the Supreme Court which issued the ex parte order. Their application was for leave to intervene in the proceeding. The second application was by Tun Haji Mohamed Salleh Abas to strike out the notice of motion of the Attorney General on the grounds that (a) the tribunal is intended to be independent of the government and the Attorney General is not entitled to represent the members of the tribunal; and (b) the Attorney General had in fact participated in the proceedings of the tribunal representing the government and was therefore incompetent to represent members of the tribunal.

Held: (1) as the basis of the application to intervene, namely, what interpretation should be given to ss 38 and 39 of the Courts of Judicature Act 1964, is no longer in issue, leave to intervene by the five judges was refused. In any event, the jurisdiction of the court to allow intervention is entirely discretionary and since the tribunal which is yet to be appointed to inquire into their cases is not a court of law, this is not a proper case to allow leave to intervene; (2) the Attorney General is a public officer under the Constitution. He was required by the rules of procedure of the tribunal to assist the tribunal. Article 145 of the Constitution properly read gives ample power to the Attorney General to represent the government and any body or person performing any functions under the Constitution; (3) the Supreme Court is principally an appellate court with appellate jurisdiction and it had no jurisdiction to entertain the application to restrain the tribunal in the case as there was no pending appeal; (4) the functions of the tribunal appointed under art 125(3) of the Constitution is to inquire and investigate on the representation and then report to the Yang di-Pertuan Agong with any recommendation it may make. The tribunal is a body which investigates and does not decide. It is performing a constitutional function. The tribunal should not therefore be restrained from performing its constitutional function; (5) the members of the tribunal are appointees of the Yang di-Pertuan Agong. It is clear from the language of art 125 that the Yang di-Pertuan Agong is entitled to the report of the tribunal. To restrain the tribunal from submitting their report is in effect to restrain the Yang di-Pertuan Agong from receiving the report; (6) the restraining order is therefore bad in law, invalid and unenforceable as against the Yang di-Pertuan Agong and the tribunal.

Tun Dato Haji Mohamed Salleh bin Abas v Tan Sri Dato Abdul Hamid bin Omar & Ors [1988] 3 MLJ 149 Supreme Court, Kuala Lumpur (Hashim Yeop A Sani and Harun SCJJ, Mohamed Yusoff, Gunn Chit Tuan and Anuar JJ).

X was born a Sikh and was brought up in the Sikh faith. X then converted to Islam in June 1991 before the district kadi. X's conversion was registered with the 'Majlis Agama Islam'. X was found dead on 3 October 1991. A who was X's mother, applied to the High Court for a declaration that X was at the time of his death, not a Muslim and/or had renounced his Islamic faith. A alleged that X by a deed poll had renounced his Islamic faith and resumed the practice of the Sikh faith. It was also alleged that X was rebaptised by a Sikh priest at a Sikh temple and he had thereafter regularly attended the congregation at the temple. A further averred that X continued to eat pork and had not been circumcised. There was however evidence of the document examiner that the deed poll was forged. The High Court dismissed A's application and A appealed to the Supreme Court. The Supreme Court then remitted the case back to the High Court for it to refer certain questions of Islamic law to the 'Fatwa Committee' under s 37 of the Administration of Muslim Law Enactment 1962 (Kedah). One of the opinions given in the 'fatwa' was that a convert who executes a deed poll renouncing Islam, is an apostate. After receiving the 'fatwa', the High Court sat and confirmed its earlier decision. A appealed to the Supreme Court. A argued that the High Court should have accepted the evidence of the Sikh priest and X's brother with regard to X's rebaptism and congregation at the Sikh temple. A also contended that the High Court should allow the case to be reopened after receiving the 'fatwa'.

Held, dismissing the appeal: (1) there is no provision in the 1962 Enactment for converts to leave Islam. Clear provisions for converts to leave Islam should be incorporated in all the state enactments to avoid difficulties of interpretation by the civil courts. This is particularly important in view of art 121(1A) of the Federal Constitution which has taken away the jurisdiction of the civil courts in respect of matters within the jurisdiction of the Syariah courts; (2) art 121(1A) of the Constitution however does not take away the jurisdiction of the civil courts to interpret any written law of the states enacted for the administration of Muslim law; (3) the questions referred to the 'Fatwa Committee' were agreed to by all parties and the direction to refer was given by the Supreme Court for the High Court to apply the 'fatwa' to the facts as found by the High Court. The High Court was thus correct in not allowing the case to be reopened; (4) evidence by a handwriting expert should be viewed with caution as it is only an opinion but such evidence is entitled to be given proper consideration and weight in the context of the other evidence available to the court; (5) in this case the testimony of the document examiner was not the only evidence relied on by the High Court. The High Court had considered all the evidence and found the story submitted by A as being highly improbable. It could not be said the High Court's findings of fact were against the weight of evidence; (6) an appellate court would not interfere with the findings of fact of the trial judge who saw and heard the witnesses and had made an assessment on the credibility and weight of the evidence. In this case the High Court had not misdirect itself in law or in fact.

Dalip Kaur v Pegawai Polis Daerah, Bala Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

Order 48A r 1 of the Rules of the Supreme Court 1957 provides in effect that two or more persons claiming as xo-partners and carrying on business within the jurisdiction may sue in the name of the firm. The question that arose in this case was whether the plaintiffs who had their place of business in Tawau, Sabah can sue in Peninsular Malaysia as a firm.

Held: the High Court in Malaya and the High Court in Borneo have separate and distinct territorial jurisdictions and therefore the plaintiffs could not avail themselves of O 48A r 1 of the Rules of the Supreme Court 1957 but should sue in the name of the co-partners.

Sharikat Nip Kui Cheang Timber Contractor v Safety Line and General Insurance Co Sdn Bhd [1975] 2 MLJ 115 High Court, Kuala Lumpur (Hashim Yeop A Sani J).

The applicant intended to issue a writ of summons for declarations, inter alia, that subsidiary legislation made by the State Authority in Penang under the National Land Code was ultra vires and null and void. He applied to the Federal Court for leave to issue the writ.

Held: (1) the declarations to be sought in this case could not be said to come within the provisions of cl 3 and cl 4 of art 4 read together with art 128 of the Federal Constitution, as the law which is to be challenged is not a primary law made by the State Legislature and the challenge will not be made on the ground that the matter has trespassed on the federal sphere; (2) the High Court has jurisdiction to deal with the matter even though the questions raised might have effect on any provisions of the Federal Constitution and therefore, no leave of the Federal Court was required.

Yeoh Tat Thong v Government of Malaysia & Anor [1973] 2 MLJ 86 Federal Court, Kuala Lumpur (Azmi LP).

The applicant applied under s 365(1)(b) of the Criminal Procedure Code (FMS Cap 6) (`the Code') to the High Court for directions of the nature of habeas corpus for a child (`the child'), who was alleged to be illegally detained in private custody by the two respondents, to be set at liberty. The applicant in her affidavit disclosed that there was a temporary order (`the order'), made by the Kuala Lumpur Syariah High Court on 15 August 1996, to the effect that the child be placed under the care and control of the second respondent at the first repondent's residence until the disposal of the case. Counsel for the respondents raised a preliminary objection relating to the jurisdiction of the High Court and submitted that the court had no jurisdiction to entertain the matter because the it had no jurisdiction under art121(1A) of the Federal Constitution (`the Constitution') `in respect of any matter within the jurisdiction of the syariah courts'. Counsel for the applicant conceded the effect of art 121(1A) but further argued that this court should consider that the child was illegally detained on 16 August 1996 and that the order of the Syariah High Court had no effect. He submitted that this was because the child was kidnapped by the first respondent on 16 August and that although the order of the Syariah High Court gave custody of the child to the second respondent, the order was not served on the applicant before the child was taken away and therefore the order had no effect because the kidnapping had vitiated the order. Counsel for the applicant was of the view that if any of the steps leading to the `detention' of the subject was not followed, then this court had to interfere. He argued that therefore the custody of the child on 16August was unlawful.

Held, dismissing the application: (1) the High Court could not, in a habeas corpus application under s365 of the Code, review or question the validity of a subsisting order made by a syariah court which was a court of competent jurisdiction. And in any event, the High Court by virtue of art121(1A) of the Constitution had no jurisdiction to question an order made in respect of a matter where the Syariah High Court, a creature of a written law, had jurisdiction given to it under a written law. This court would have to accept the Syariah High Court order as a valid order. This court could not go behind the order and consequently it had to accept that the custody of the child with the second respondent in the house of the first respondent was not illegal. The sole issue being whether the child was illegally detained and, that question having been answered in the negative, therefore the habeas corpus application could not be employed as a means of securing judicial determination of any peripheral issue outside the alleged illegal detention. (2) (obiter) in this case, the child was in private custody. He was not being detained by a statutory authority under any statute. As no such statute was applicable, there was no issue of any statutory requirement having been breached. As to the effect of the order that the applicant alleged was not served on the day the child was taken away by the first respondent, that was a matter of law that could only be dealt with under the Administration of Islamic Law (Federal Territories) Act 1993 or rules made thereunder, and not by this civil court.

Nor Kursiah bte Baharuddin v Shahril bin Lamin & Anor [1997] 1 MLJ 537 High Court, Kuala Lumpur (KC Vohrah J).

In this application in which the applicant is praying for a writ of habeas corpus, the respondents raised the following preliminary objections: (i) the court has no jurisdiction to hear the instant application; and (ii) a writ of habeas corpus is not the appropriate remedy for the applicant as the remedies prescribed by s 170 of the Armed Forces Act 1972, and furthermore, the issues raised by the applicant did not support his application for a writ of habeas corpus.

Held, dismissing the preliminary objections raised by the respondents: (1) by virtue of art 121 of the Federal Constitution, there shall only be two High Courts in Malaysia, ie the High Court of Malaya and the High Court of Borneo. Therefore, irrespective of where the High Court of Malaya sits, it is still sitting as the High Court of Malaya; (2) under s 3 of the Courts of Judicature Act 1964, the local jurisdiction of the High Court of Malaya is defined as 'the territory comprised in the states of Malaya'. In other words, the local jurisdiction of the High Court of Malaya covers the whole of peninsular Malaysia; (3) the definition of the local jurisdiction of the High Court of Malaya should not be interpreted as creating individual local jurisdictions for the High Court of Malaya in respect of each of the states in peninsular Malaysia in which it sits; (4) consequently, irrespective of where the High Court of Malaya sits, it shall have the jurisdiction to preside over all matters that arise in whichever part of peninsular Malaysia; (5) therefore, the court has the jurisdiction to hear the instant application; (6) the respondents' argument relating to the issue of a 'court of convenience' was misconceived. The issue of a 'court of convenience' does not relate to the issue of the jurisdiction of the High Court of Malaya, but to issue of the transfer of cases to different places at which the High Court of Malaya may sit; (7) applying the case of Yeap Hock Seng v Minister of Home Affairs Malaysia [1975] 2 MLJ 279, the court dismissed the respondents' contention that a writ of habeas corpus is not the appropriate remedy for the applicant in view of the remedies prescribed by s 170 of the Armed Forces Act 1972; (8) the respondents' contention that the issues raised by the applicant were not supportive of an application for a writ of habeas corpus was also dismissed. This was because one of the issues raised by the applicant involved an allegation that he was not informed of the grounds of his arrest, which, if true, may be a valid ground for the granting of a writ of habeas corpus.

Lt Kdr Balakrishnan v Menteri Pertahanan Malaysia & Anor Criminal Application No 44-22-93 High Court, Kuala Lumpur (Abdul Aziz Mohamad J).

Dayasar Corp Sdn Bhd v CP Ng & Co Sdn Bhd [1990] 1 MLJ 191 High Court, Johore Bahru (Abu Mansor J).

Walker & Anor v R and other actions Privy Council Appeal Nos 21, 25 and 26 of 1993 Privy Council on appeal from Jamaica (Lords Griffiths, Lane, Ackner, Goff of Chieveley, Lowry, Slynn of Hadley and Woolf).

In this case, the accused had been charged with two charges for possession of firearms and ammunition at Ipoh which was a security area by virtue of PU(A) 148/69. The evidence showed that the firearms and ammunition were found in a plastic bag and purse under the driver's seat of the car belonging to and driven by the accused. The court held that a prima facie case had been established and called on the accused for his defence. The accused elected to make a written statement from the dock.

Held, convicting the accused: (1) the court has to take judicial notice of all laws and regulations and therefore the proclamation need not be proved in view of s 56 of the Evidence Act 1950 (Act 56); (2) in regard to the sanction of the public prosecutor, the crucial factor is the offence itself and not so much the exact details which must be the same as the charges. Although the time and place mentioned in the sanction and in the charges are different, the offence in this case was a continuous one and there was no reason to amend the charges as regards the time and place; (3) the date of the pro-clamation was wrongly given in the charge and the court found it necessary to amend the charges as regards the date of the proclamation. It is not, however, strictly necessary to quote the notification reference in the charges and therefore the amendment to the charges was purely procedural; (4) the provision for the laying down of the proclamation before the Houses of Parliament is merely directory and not mandatory and the relevant proclamation is therefore valid without the need to ascertain whether it had been so laid; (5) the court having earlier found that the prosecution had established a prima facie case against the accused, on the basis of the accused's prepared statement, the court was of the opinion that his mere denial through this statement from the dock had not raised any doubt on the prosecution's case. The accused was therefore convicted on the two charges as amended as regards the date of the proclamation.

Public Prosecutor v Lee Ah Ha [1989] 1 MLJ 120 High Court, Ipoh (Abdul Malek J).

Public Prosecutor v Pung Chen Choon [1994] 1 MLJ 566 Supreme Court, Malaysia (Abdul Hamid Omar LP, Gunn Chit Tuan CJ (Malaya).

In this case, the applicant applied for a declaration that the Hindu Endowments Ordinance 1906 (SS Cap 175) is invalid and void. He applied for leave under art 4(4) of the Federal Constitution.

Held: proceeding for a declaration under art 4(4) read with art 128(1)(a) applies only to post-Merdeka law whether federal or state. Since the Hindu Endowments Ordinance (SS Cap 175) is a pre-Merdeka law the present application should not have been brought to the Supreme Court as a court of first instance.

Ramasamy a/l Shanmugam v State Government of Penang and Government of Malaysia [1986] 2 MLJ 188 Supreme Court, Kuala Lumpur (Mohamed Azmi SCJ).

The Yang di-Pertuan Agong issued a proclamation of emergency on 14 September 1966 and the Federal Parliament subsequently enacted the Emergency (Federal Constitution and the Constitution of Sarawak) Act 1966 (Act 68/1966). On 23 September 1966, the Council Negri of Sarawak expressed its non-confidence in the plaintiff who was the incumbent Chief Minister. The first defendant, who was Governor of the state then proceeded to dismiss the plaintiff as Chief Minister and appointed the second defendant in his place. In this case, the plaintiff had claimed: (a) a declaration that the calling, meeting and vote of the Council Negri on 23 September 1966 was illegal, null, void and of no effect; (b) a declaration that his purported dismissal by the first defendant was ultra vires, null and void; (c) a declaration that the purported appointment of the second defendant as Chief Minister was illegal, null, void and of no effect; (d) a declaration that the plaintiff is and was at all material times from 22 July 1963, the Chief Minister of Sarawak. In the plaintiff's statement of claim, he claimed (a) that the proclamation of a state of emergency made by the Yang di-Pertuan Agong on the advice of the Federal Cabinet on 14 September 1966 was null, void and of no effect by reason of the fact that it was not made bona fide but was made in fraudem legis, (b) that the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 of the Parliament of Malaysia was null, void and of no effect. The defendants applied for the writ and pleadings to be struck out because they involved matters beyond the jurisdiction of the court.

Held: (1) art 32(1) of the Constitution of Malaysia only protects the Yang di-Pertuan Agong personally from proceedings in a court but cannot be construed to protect the federal government from action in the courts in respect of its acts committed in the name of the Yang di-Pertuan Agong and when the Yang di-Pertuan Agong acts on the advice of the Federal Cabinet his act must be deemed to be the act of the federal government; (2) the court would be usurping the functions of the trial judge if it acceded to the request to strike out the writ and statement of claim on this point; (3) the plaintiff could not in an action against the defendants ask the High Court to make a declaration that a federal law is invalid on the ground mentioned in art 4 of the Constitution; (4) since the bona fides of the making of the proclamation of emergency in this case was challenged there was a cause of action within the jurisdiction of the court and without hearing evidence it would not be possible to say whether it will succeed or fail;the leave of a judge of the Federal Court must be obtained before proceedings for a declaration of the invalidity of a federal law can be brought in the High Court and as this was not done in this case the writ of summons and the statement of claim, in so far as they alleged the invalidity of the Act of the Federal Parliament, must be struck out.

Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli (No 2) [1967] 1 MLJ 46 High Court, Kuching (Pike CJ (Borneo).

In this case, the applicant had been charged with committing armed gang robbery under ss 392 and 397 of the Penal Code (FMS Cap 45), an offence punishable under s 5 of the Firearms (Increased Penalties) Act 1971 (Act 37) as amended. It was argued that the Firearms (Increased Penalties) (Amendment) Act 1974 was ultra vires the Federal Constitution as it contravened art 8(1) of the Constitution and was therefore void. An adjournment was obtained to enable the applicant to obtain the leave of a judge of the Federal Court to start proceedings for a declaration that the Act was void for the reason stated.

Held: as the argument of the applicant was that the Act was invalid because it was inconsistent with the Constitution, cl (4) of art 4 and cl (1) of art 128 of the Constitution did not apply and the point may be raised in the ordinary way in the course of submission and determined in the High Court, without reference to the Federal Court, and there is no need for leave of a judge of the Federal Court.

Ah Thian v Government of Malaysia [1976] 2 MLJ 112 Federal Court, Kuala Lumpur (Suffian LP).

In this case, the applicant intended to sue the Sabah government for a declaration that a new sub-s (7) of s 24 of the Sabah Forests Enactment 1968 was void as it was contrary to several provisions of the Federal Constitution. The applicant applied to a judge of the Federal Court for leave to bring the action.

Held: as the validity of the new section is to be challenged on the ground that it is contrary to the provisions of the Federal Constitution and not on the ground that it deals with a matter with respect to which the Sabah Legislature has no power to make law, the High Court has jurisdiction in the matter and the leave of a judge of the Federal Court is not required.

Syarikat Banita Sdn Bhd v Government of State of Sabah [1977] 2 MLJ 217 Federal Court, Kuala Lumpur (Suffian LP).

Parliament had resolved that the appellant was guilty of contempt of the Committee of Privileges and of Parliament by his publication of five offending newsletters relating to certain proceedings of the committee. He was fined $5,000 for each of the offending newsletters. The Attorney General sued the appellant on behalf of the government of Singapore for the total sum of $25,000 and obtained summary judgment by an order of the Registrar of the Subordinate Courts. The appellant appealed to the High Court. His defences were: (a) the finding by the Committee of Privileges and of Parliament that the publication of the five offending newsletters by the appellant amounted to contempt of the committee or of Parliament was wrong in law; (b) Parliament acted in excess of its jurisdiction in imposing the fines for contempt; and (c) the Committee of Privileges and Parliament had failed to observe the rules of natural justice.

Held, dismissing the appeal: (1) Parliament has the right to control its own proceedings and to regulate its internal affairs without interference by the courts. Whatever matter arises concerning Parliament ought to be examined, discussed or adjudicated in Parliament and not elsewhere; (2) s 20 of the Parliament (Privileges, Immunities and Powers) Act (Cap 217, 1985 Ed) expressly confers upon Parliament the power to punish for contempt whether it is committed within or outside Parliament and whether it is committed by a member or a stranger. What constitutes a contempt of Parliament is essentially a matter which only Parliament itself can decide. If a contempt issue arises relating to the internal proceedings of Parliament, the courts will decline to interfere; (3) the appellant's contention that art 9(1) of the Constitution of Singapore, which provides that no person shall be deprived of his life or personal liberty save in accordance with law, was of prevailing effect was not correct as no question of life or personal liberty was involved in this case; (4) the courts would not interfere on a matter of domestic discipline unless there was a breach of the rules of natural justice. In the present case, there had been no breach of the rules of natural justice. The appellant was given the right to be heard when the Chairman of the Committee of Privileges sent the complaint to the appellant for his explanation and the appellant submitted his written explanation in a letter. The rules of natural justice do not require that a hearing must be an oral hearing.

JB Jeyaretnam v Attorney General of Singapore [1987] SLR 428 High Court, Singapore (Chua J).

[Annotation: The appellant further appealed to the Court of Appeal vide Civil Appeal No 66 of 1987. The Court of Appeal comprising Thean, Chan Sek Keong and Rajah JJ dismissed the appeal and gave a written judgment on 15 December 1988.]

The Penang Chamber of Commerce having been invited by the Governor of the Colony to submit to him for approval the name of a gentleman to fill a vacancy in the Legislative Council and the chamber having under its own rules held two ballots for the purpose of electing its nominee, the first resulting in the election of B and the second in the election of H, declared H nominated, but the defendants (the chairman and the committee of the chamber) being advised that the second ballot was void, subsequently notified their intention of declaring B the nominee of the chamber. In an action by H against the defendants, claiming an injunction to restrain them from so doing,

Held: (1) H had no legal right which had been or could be injured so as to give the court jurisdiction to interfere by injunction; (2) there was no legal duty attaching to the chamber, or its officers, in respect to the mode in which they carried out the Governor's invitation or ascertained their nominee; (3) the said invitation did not confer upon them any legal right or franchise, or ministerial duties; and (4) the choice of a name by the chamber, to be submitted for approval, was a step in the performance of an executive act and savoured of the exercise of political function which it would be improper for the court to interfere with.

Huttenbach v Wright & Ors [1893] 2 SSLR 50 High Court, Straits Settlements (Gatty J).

The plaintiff was a candidate for the General Elections. In an action against the Returning Officer it was

Held: (1) the Returning Officer was a servant of the Crown and could not be sued in the way the plaintiff had done; (2) a private individual could not, in an action in his own name, indicate rights which were public in nature unless he suffered substantial damage.

David Marshall v Ponnuduray [1963] MLJ lxxxv High Court, Singapore (Wee Chong Jin CJ).

The appellant had been convicted for offences under s 57(1)(a) and (b) of the Internal Security Act 1960 (Act 82), and sentenced to death. On appeal it was argued (1) that the trial court had no jurisdiction to try the offences of which the appellant was charged and convicted by reason, inter alia, of (a) the absence of any preliminary inquiry as required by s 138 of the Criminal Procedure Code (FMS Cap 6); (b) the absence of a jury as required by s 200 of the said code, (2) that the procedure adopted by the learned trial judge for the trial was a procedure appearing in the Schedule of the Emergency (Criminal Trials) Regulations 1964, being seemingly the procedure referred to in reg 4 thereof, which reg 4 in so far as it purports to authorize any one of the many deputy public prosecutors to deprive a man charged with a capital offence of the protection of a preliminary inquiry and of a jury is ultra vires. It was argued for the appellant that although it was recited in the Emergency (Essential Powers) Act 1964 (Act 30/1964), that any regulation made under it shall have effect notwithstanding anything inconsistent therewith contained in any written law other than the Act, this did not authorize the making of regulations inconsistent with the Constitution as in the circumstances the words 'written law' in the Act could not include the Constitution. Alternatively it was argued that Parliament had exceeded its powers by purporting to delegate to the Yang di-Pertuan Agong power to enact regulations inconsistent with the Constitution.

Held: (1) and that this necessarily included authority to delegate part of that power to legislate to some other authority, notwithstanding the existence of a written Constitution; (2) the provisions of the Emergency (Essential Powers) Act 1964 are not beyond the power of Parliament to enact and as Parliament has expressly enacted that regulations made under the Act are to be valid notwithstanding any inconsistency with the provisions of the Constitution, such regulations cannot be challenged on the ground of any such alleged inconsistency; (3) the true effect of art 150 of the Federal Constitution is that, subject to certain exceptions set out therein, Parliament has, during an emergency, power to legislate on any subject and to any effect, even if inconsistencies with articles of the Constitution (including the provisions for fundamental liberties) are involved;on the facts the appellant was rightly convicted and therefore the appeal must be dismissed.

Eng Keock Cheng v Public Prosecutor [1966] 1 MLJ 18 Federal Court, Kuala Lumpur (Barakbah CJ (Malaya).

In this case, the respondent had been detained under the Emergency (Public Order and Prevention of Crime) Ordinance 1969. In habeas corpus proceedings taken by the respondent, it was argued that as the ordinance had not been laid before Parliament as required by art 150(3) of the Federal Constitution, it did not have the force of law. At the hearing in the High Court, the Deputy Public Prosecutor conceded that the ordinance had not been laid before Parliament and therefore it was held that the detention of the respondent was unlawful and he was released. On appeal, the Federal Court allowed additional evidence by affidavit, which showed that the ordinance had been laid before the Houses of Parliament.

Held: (1) it was clear that the ordinance had been properly laid before both Houses of Parliament as required by the Constitution and therefore it has the force of law; (2) the ordinance was promulgated at a time when Parliament was not sitting and therefore was valid and did not need to be validated by the Emergency (Essential Powers) Act 1979 (Act 216); (3) the detention of the respondent was lawful and the order of the learned judge must be set aside.

Inspector-General of Police & Anor v Lee Kim Hoong [1979] 2 MLJ 291 Federal Court, Kuala Lumpur (Suffian LP, Wan Suleiman and Syed Othman FJJ).

In 1898, the British Resident of Pahang for and on behalf of the Sultan, granted a 77-year lease to the Pahang Corp Ltd, the appellants' predecessor in title. This lease was exceptional in that it granted the lessees, inter alia, an exemption from paying all duties, taxes and tolls. The lease also subjected the lessees to the mining regulations and laws from time to time in force in all matters and contained a covenant for quiet enjoyment. The lessees were also given full mining rights over about 300 square miles of Pahang. In 1906, the Pahang Corp Ltd assigned all the benefits of the lease to the appellants with the Secretary of State's consent and according to the terms of the 1898 lease. At the beginning of 1931, rumours of a tin restriction scheme were afloat in the Federated Malay States and the appellants, fearing a breach of their lease, wrote a letter to the government for an assurance that there would be no breach. The government replied that it was not prepared to treat the lease as an exception, and that it would not exclude the appellants' lease from the operation of any legislation passed in connexion with the tin quota scheme. The appellants sought several declarations to the effect that: (i) they were exempt from any legislation prohibiting their mining or exporting tin; (ii) if they were not exempted from such legislation, the State of Pahang would be liable for damages for breach of agreement; (iii) an assent by the Sultan of Pahang to any legislation enforcing and restricting the appellants' tin output or export would constitute a breach of the lease and entitle them to damages and compensation; and (iv) the appellants were lessees of Pahang and the Tin and Tin-Ore (Restriction) Enactment (Enactment No 23 of 1931) does not take away the appellants' right to compensation for a breach of the lease. The court, faced with the construction and effect of the Tin Restriction Enactment,

Held:

Held:

Held: (Prichard J): the Sultan of Pahang by treaty has delegated his legislative authority and powers to the joint Rulers and Federal Council, and during the continuance of the treaty the Federal Council is exactly in the same position as the British Parliament and the English principle that it is not competent to bind future legislation applies equally to the Federated Malay States. (Burton J): the effect of the Federal Council Treaty of 1909 was that each Ruler delegated his prerogative of legislation in matters affecting the Federation, to the four Rulers and the Federal Council. The Federal Council Treaty of 1927 restored to the Rulers the exercise of the prerogative of legislation and an enactment of the Federal Council derives its force in Pahang from the prerogative of the Sultan of Pahang. The Legislature of the Federated Malay States is a sovereign one and is legally as omnipotent as the British Parliament, and it was competent for it to override the lease by enactment even though it caused a breach of the covenants in the lease. (Mudie J): The Federal Council is a legislative as well as an advisory body, and the effect of the treaties of 1909 and 1927 was to limit the absolute sovereignty of the Rulers. The Rulers retained the right to enact laws in their own states, provided such laws are not repugnant to the provisions of a federal enactment, but their legislative power in the Federation is limited to assenting to measures passed by the Federal Council.

Pahang Consolidated Co Ltd v State of Pahang 1931 Court of Appeal, Federated Malay States (Pritchard, Burton and Mudie JJ).

In this case, the appellant had been charged with unlawful possession of a revolver and ammunition under the Internal Security Act 1960 (Act 82). He was tried in accordance with the special procedure prescribed by the Emergency (Security Cases) Regulations 1975 (PU(a) 320/75 as amended by PU(A) 326/75). He was convicted and sentenced to death Ð see [1978] 1 MLJ 30 and 68. His appeal to the Federal Court was dismissed Ð see [1977] 2 MLJ 66. His appeal was, however, allowed by the Yang di-Pertuan Agong on the advice of the Judicial Committee of the Privy Council ([1979] 1 MLJ 50). The Privy Council held that the appellant was correctly charged but the regulations under which he was tried was ultra vires the Federal Constitution and therefore his trial was a nullity. The conviction and sentence were set aside and the case remitted to the Federal Court for further consideration as to whether or not to order a new trial.

Held: (1) by virtue of the Emergency (Essential Powers) Act 1979 (Act 216), the Essential (Security Cases) Regulations have been validated and with effect from the date they purported to come into force; (2) the regulations, having been ruled to be ultra vires, it is open to Parliament to validate them and, further, to validate them with retrospective effect;the conviction and sentence of the appellant have been set aside by the Yang di-Pertuan Agong acting on the advice of the Privy Council and no longer exist. In the circumstances, this was a proper case in which a retrial should be ordered.

Teh Cheng Poh v Public Prosecutor [1979] 2 MLJ 238 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ (Malaya).

Public Prosecutor v Dato' Yap Peng [1987] 2 MLJ 311 Supreme Court, Kuala Lumpur (Salleh Abas LP, Lee Hun Hoe CJ (Borneo).

In this case, the applicant company did not pay quit rent for the rubber estate of which it was the owner, and the estate had been forfeited to the Johore government. Its appeal to have the forfeiture annulled was turned down and it therefore applied for leave of a judge of the Federal Court to ask for a declaration that s 100 of the National Land Code (Act 56/1965) is void as it is ultra vires art 76(4) of the Federal Constitution.

Held: (1) the contention in this case was that Parliament had no power to enact the impugned law and therefore as this was not an inter-governmental dispute leave is necessary before proceedings can be commenced; (2) leave should be granted to give the applicant company the opportunity of having this matter ventilated in court.

East Union (Malaya) Sdn Bhd v Government of State of Johore & Government of Malaysia [1980] 2 MLJ 143 Federal Court, Kuala Lumpur (Suffian LP).

[Annotation: After leave was granted, the matter was again brought before the Federal Court by the same parties (see [1981] 1 MLJ 151).]

The applicants in this case applied for leave under art 4(4) of the Federal Constitution. The issue in the case was whether the penal offences introduced by the new s 298A of the Penal Code by the Penal Code and Criminal Procedure Code (Amendment) Act 1983 are ultra vires art 74(1) of the Federal Constitution as being in excess of the legislative power of Parliament.

Held: (1) in this case, the validity of the legislation is to be challenged on the ground that it deals with a matter with respect to which Parliament has no power to make law. As such, leave of the court is required under art 4(4) of the Federal Constitution; (2) the application is not frivolous and the applicants should be allowed to canvass their case before the full court on the constitutionality and validity of the new s 298A of the Penal Code.

Mamat bin Daud & Ors v Government of Malaysia [1986] 2 MLJ 192 Supreme Court, Kuala Lumpur (Mohamed Azmi SCJ).

The appellant had been convicted of possession of four pistols and 175 rounds of ammunition and sentenced to death. In the course of his interrogation by the police, the appellant had led the police to the place where he hid the pistols and ammunition and the exhibits were found. The exhibits were subsequently handed over by Inspector Takbir to another police officer. At the trial, Inspector Takbir produced the exhibits and identified them. No other police officers who had handled the exhibits were called to testify. No objection was raised by the defence. At the appeal, it was argued that there was a break in the chain of evidence. It was also argued that as the Essential (Security Cases) Regulations 1975 had been held to be invalid, the accused had been declared judicially innocent and in enacting the Emergency (Essential Powers) Act 1979 (Act 216), Parliament in effect had purported to condemn the accused and therefore the Act was unconstitutional, null and void.

Held: (1) it is unnecessary to call evidence to ensure that there is no break in the chain of evidence. If the officer who picked up the object at the scene produced it and identified it as that very object, that is enough and there is no need to call every other officer who handled it, unless there is doubt as to the identity; (2) the appellant in this case had been convicted and the conviction had not been quashed by a superior court. If there was any doubt as to the validity of the conviction, it has been validated by the Emergency (Essential Powers) Act 1979 and thereafter it was subject to appeal in the ordinary way; (3) it is not for the courts to decide whether Parliament should have enacted Act 216, but there is no doubt that Parliament has power to enact it.

Su Ah Ping v Public Prosecutor [1980] 1 MLJ 75 Federal Court, Kuala Lumpur (Suffian LP, Wan Suleiman FJ and Hashim Yeop A Sani J).

In this case, the applicant was injured while working in a factory and lost her thumb and three fingers. Under the provisions of the Employees Social Security Act 1969 (Act 4), she belonged to a class of employees who were insured against such accidents and accordingly she was awarded a benefit of $1.50 per day giving her a sum of about $1,026 over a period of two years. She refused to accept the award contending that it was unconstitutional in that if she were not barred by the Act to sue her employees for negligence she could expect to get much higher damages. She applied to a judge of the Federal Court for leave to commence proceedings in the Federal Court for a declaration that the Act was inconsistent with various provisions of the Constitution and further for a declaration that the Act is void to the extent of such inconsistencies.

Held: in the present case, the Employees Social Security Act 1969 is being challenged not on the basis that Parliament has no power to enact it but on the ground that some of its provisions are inconsistent with certain provisions of the Constitution. The intended suit is within the jurisdiction of the High Court and therefore the provision of art 4(4) of the Federal Constitution regarding leave to commence proceedings in the Federal Court does not arise.

Rethana v Government of Malaysia [1984] 2 MLJ 52 Federal Court, Kuala Lumpur (Mohamed Azmi FJ).

In this case, the applicant applied by motion for a declaration that s 100 of the National Land Code (Act 56/1965) enacted by the Federal Parliament is void on the ground that it is ultra vires art 76(4) of the Federal Constitution. Leave was granted to bring the motion and the matter came before the Federal Court. It was argued that (a) as 'land revenue' and its collection are not enumerated in cl (4) of art 76, Parliament does not have power to enact s 100 which deals with the collection of revenue; (b) even before the National Land Code there were already uniform laws dealing with the collection of land revenue in arrears and that what was effected by ss 97 and 100 was a fundamental change in the law.

Held: (1) cl (4) of art 76 refers to 'land tenure' as a matter with respect to which Parliament may legislate and this is wide enough to cover collection of land revenue; (2) the impugned provision ensured uniformity of law and practice and therefore is constitutional, regardless of the position previously.

East Union (Malaya) Sdn Bhd v Government of the State of Johore and Government of Malaysia [1981] 1 MLJ 151 Federal Court, Kuala Lumpur (Suffian LP, Wan Suleiman, Syed Othman, Abdul Hamid FJJ and Hashim Yeop A Sani J).

The applicants in this case applied for leave under art 4(4) of the Federal Constitution. The issue in the case was whether the penal offences introduced by the new s 298A of the Penal Code by the Penal Code and Criminal Procedure Code (Amendment) Act 1983 are ultra vires art 74(1) of the Federal Constitution as being in excess of the legislative power of Parliament.

Held: (1) in this case, the validity of the legislation is to be challenged on the ground that it deals with a matter with respect to which Parliament has no power to make law. As such, leave of the court is required under art 4(4) of the Federal Constitution; (2) the application is not frivolous and the applicants should be allowed to canvass their case before the full court on the constitutionality and validity of the new s 298A of the Penal Code.

Mamat bin Daud & Ors v Government of Malaysia [1986] 2 MLJ 192 Supreme Court, Kuala Lumpur (Mohamed Azmi SCJ).

In this action, the plaintiffs sought for declarations: (a) that the purported laws (1) the Notice of Periodic Revision of Rent published under Penang PU4 of 1970 and (2) the Standard Rate Rent Direction published under Penang PU32 of 1969 were null and void and of no operative effect; (b) that the Legal Notification PU(A)526 of 1969 was ultra vires s 439 of the National Land Code 1965 (Act 56/1965); (c) that the plaintiffs' land was not alienated land within the meaning of s 101 or s 102 of the Land Code. It was contended for the plaintiffs that as the land had been granted under the condition laid down in the grant that the land rent of $2.10 was to be payable until 1974, it was illegal to prescribe a new enhanced land rent, as was purported to be done by the legislation.

Held: (1) as at present advised, in view of the concession by both counsels that the court had jurisdiction to make a declaration as to the validity of the subsidiary legislations, the court would accept jurisdiction in this case; (2) the plaintiffs' land which was granted under the powers conferred by the State Lands Ordinance was 'alienated land' within the meaning of the National Land Code 1965 (Act 56/1965); (3) that therefore the subsidiary legislations were made in exercise of the powers conferred by the National Land Code and were therefore not invalid; (4) the government was not bound by any limitations imposed by the previous government in respect of the statutory land grants.

Oriental Holdings Sdn Bhd v Government of the State of Penang & Government of Malaysia [1972] 2 MLJ 248 High Court, Penang (Chang Min Tat J).

The first appellant, L, was convicted on three charges for having used a firearm with intent to cause injury to three persons and had thereby committed offences punishable under s 4 of the Arms Offences Act 1973 ('the Act'). Both the second appellant, H, and the third appellant, W, were charged and convicted under s 5 of the Act for being accomplices in the robbery committed by L, in which L had used a firearm with intent to cause injury to three persons. This was an appeal by the appellants against their conviction. It was contended on the appeal that there were two statutory provisions, s 4 of the Act and s 324 of the Penal Code alone or read with s 511 of the Penal Code which can be applied to persons placed in identical circumstances, ie persons who are alleged to have 'used' or attempted to 'use' an arm and thus the Public Prosecutor is given an unfettered discretion or an arbitrary power to choose as against those persons which of the statutory provisions to apply. The contention was that in such a situation, s 4 of the Act which imposes a heavier penalty than s 324 of the Penal Code is ultra vires as being in violation of art 8(1) of the Constitution of Malaysia.

Held: (1) it is clear that the policy of the Legislature as enacted in the Act is that all persons who unlawfully possess, carry or use arms should be charged and on conviction punished under the Act and therefore there was no discrimination inherent in the Act itself. Section 4 of the Act therefore does not violate the provisions of art 8(1) of the Constitution of Malaysia; (2) there is always a presumption in favour of the constitutionality of an enactment and the burden is on the person who attacks it to show that there has been a clear transgression of constitutional principles; (3) it must be presumed that the Legislature understands and correctly appreciates the need of its own people, and that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; (4) in order to sustain the presumption of constitutionality, the court may take into consideration matters of common knowledge, matters of common report, the history of the time and may assume every state of facts which can be conceived existing at the time of legislation; (5) that while good faith and knowledge of the existing conditions on the part of the Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation; (6) on the facts, having regard to the different and in many respects conflicting versions presented by the prosecution, L's conviction on the third charge ought to be set aside. The appeal in respect of his conviction on the first and the second charge is dismissed; the appeals of the second and third appellants are dismissed.

Lee Keng Guan & Ors v Public Prosecutor 1975 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Kulasekaram JJ).

Yap Hon Chin v Parry [1911] 2 FMSLR 70 Privy Council Appeal from Federated Malay States (Lord Macnaghten, Lord Mersey and Lord Robson).

The applicant in this case, the Publicity Secretary of the Democratic Action Party, Youth, Malaysia, applied to court for a determination of the validity of the Emergency (Essential Powers) Ordinance No 1 of 1969 and the Essential (Community Self-Reliance) Regulations 1975. The ordinance as published in the gazette notification did not (a) bear the public seal and (b) did not contain the formula and legend usually appended at the end of such ordinances. The applicant contended that this meant that the Yang di-Pertuan Agong had not assented to such ordinance, that it had not been properly or at all promulgated and had not the force of law of the land. The applicant also contended that the Yang di-Pertuan Agong had no power to make essential regulations and that the Prime Minister had no power to make orders under such regulations.

Held: (1) although the gazette publication on the face of it lacked authentication, evidence of the due promulgation of the ordinance could be proved aliunde; (2) in this case, the court was satisfied that the ordinance was duly promulgated and has the force of law; (3) art 150(2) provides that upon the issue of a proclamation of emergency by the Agong under art 150(1), the legislative power becomes vested in the Agong. This means that so long as the proclamation of emergency subsists and both Houses of Parliament are not sitting, the Agong may promulgate ordinances having the force of law; (4) however, art 40 limits the executive authority of the Yang di-Pertuan Agong to acting on the advice of the cabinet or of a minister acting under the general authority of the cabinet; (5) the Essential (Community Self-Reliance) Regulations 1975 could be and were validly made by the Yang di-Pertuan Agong.

N Madhavan Nair v Government of Malaysia [1975] 2 MLJ 286 High Court, Kuala Lumpur (Chang Min Tat J).

The plaintiff was returned as a member of Parliament for Menglembu in August 1974. On 13 January 1975, he was convicted in the High Court for an offence under the Sedition Act 1948 (Act 15) and was sentenced to a fine of $2,000 or six months' imprisonment ([1975] 1 MLJ 176). On the same day, he appealed against the said decision and the appeal is now pending in the Federal Court. By the letter dated 4 February 1975, the first defendant informed him that on his conviction and sentence aforesaid he had become disqualified under art 48(1)(e) of the Federal Constitution and by virtue of art 50(1) his seat had become vacant. By writ of election dated 17 February 1975, the Secretary to the Election Commission directed the Returning Officer for the Parliamentary constituency of Menglembu to proceed with the by-election of the said constituency. The required notice under the Elections (Conduct of Elections) Regulations 1959 was published in the Utusan Malaysia newspaper on 20 February 1975. The main issue for determination in this case was whether the plaintiff's conviction and fine of $2,000 in default of six months' imprisonment automatically rendered the plaintiff's seat vacant in the Dewan Ra'ayat having regard to the provision of art 53 of the Constitution.

Held: (1) art 48(1) of the Federal Constitution applies to both pre-election as well as post-election disqualification. Thus, anyone coming within one of the sub-cll (a) to (f) of this article will not be fit to be a candidate for membership of the Dewan Ra'ayat or to be an appointee to the Dewan Negara. Furthermore, if a sitting member of Parliament incurs any of the disqualifications mentioned above, and no question arises as to his disqualification, he will be disqualified; (2) arts 50(1) and 53 apply only to post-election disqualification; (3) the Constitution does not confer on the House of Representatives the power to decide elections in dispute, but only questions relating to the disqualification of members; (4) the plaintiff's seat did not become vacant automatically merely because he had been convicted by the High Court and fined $2,000 and had not received a free pardon. He was entitled to exhaust his legal rights just as the House of Representatives was entitled to decide as to his disqualification at any time it deemed fit once the question of his disqualification was raised, although in what circumstances it was raised were not at all relevant; (5) the Election Commission and the Returning Officer for the Parliamentary Constituency of Menglembu could not legally hold a by-election for the parliamentary constituency of Menglembu on the ground that no vacancy of seat had occurred in the aforesaid constituency.

Fan Yew Teng v Setia Usaha, Dewan Ra'ayat & Ors [1975] 2 MLJ 40 High Court, Kuala Lumpur (Mohamed Azmi J).

In this case, the applicant applied by originating summons for the determination of the question whether the seat of a member of the Legislative Assembly, who was also the Speaker, had been vacated as he had not taken the oath required of a member. The respondent applied to set aside the originating summons on the grounds, inter alia, that (1) the application was not maintainable in law and procedure and (2) the court had no jurisdiction to entertain the application as the reliefs sought were exclusively within the jurisdiction of the Legislative Assembly of the State of Perak.

Held: (1) the proceedings by originating summons were incompetent as they do not come within the requirements of O 54A r 1A of the Rules of the Supreme Court 1957; (2) the Legislative Assembly is the final arbiter in any question arising as to whether a member of the Legislative Assembly has become disqualified for membership. The matters raised were for the Legislative Assembly to decide and within its exclusive jurisdiction and not for the courts to determine.

Lim Cho Hock v Speaker, Perak State Legislative Assembly [1979] 2 MLJ 85 High Court, Ipoh (Abdoolcader J).

This was an appeal from the conviction of the appellant on five charges under the Official Secrets Act 1972 (Act 88) for (a) receiving secret official information having reason to believe at the time of the receipt of the information that it was unauthorized; (b) failing to disclose the source of the information; (c) failing to take reasonable care to prevent publication of the information; (d) communicating the information in a speech and (e) divulging the said information in a letter to a news review. The information in question related to tenders in relation to the purchase of fast strike craft for the Royal Malaysian Navy. The appellant was convicted and sentenced to $5,000 or 1 year's imprisonment on the first charge; $1,000 or two months' imprisonment on the second charge and $3,000 or nine months' imprisonment on each of the third, fourth and fifth charges (see [1979] 2 MLJ 37). The Public Prosecutor cross-appealed on the sentences, contending that they were inadequate.

Held: (1) the function of the court is judicial not legislative and the court ought not to legislate under the guise of exercising its judicial powers and functions. In particular, the court has no power to create a right for any person to ignore the provisions of the Official Secrets Ordinance or any other law of the land; (2) the learned trial judge in this case was correct in holding that the information referred to in the charges was obtained in contravention of the Act; (3) the duty of the appellant as a Parliamentarian does not include the right to disclose or make available for disclosure secret information outside the walls of the House to the public at large, whatever his motives might be; (4) the offences in the charges have therefore clearly been committed. Although the offences were of a serious nature, the learned trial judge was right in not imposing a sentence of imprisonment; (5) no reasons were given by the learned trial judge for the amounts of the fines imposed. In view of the circumstances in this case, the fines should be reduced as follows: $1,500 on the first charge; $1,000 on the second charge; $1,000 on the third charge; and $1,500 each on the fourth and fifth charges.

Lim Kit Siang v Public Prosecutor [1980] 1 MLJ 293 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ (Malaya).

In this case, the accused was charged with five charges under the Official Secrets Act 1972 (Act 88), for: (a) receiving secret official information having reason to believe at the time of the receipt of the information that it was unauthorized; (b) failing to give information of the source of the information; (c) failing to take reasonable care to prevent publication of the information; (d) communicating the information in a speech; and (e) divulging the said information in a letter to a news review. The information in question related to tenders in relation to the purchase of fast strike craft for the Royal Malaysian Navy.

Held: (1) the crux of the offence under s 8(1) of Official Secrets Act 1972 is the wrongful communication of official information. The wrongful communication of official information is an offence whatever the purpose of the communicator and however innocent the recipient of what he communicates. Communication is not wrongful if it is made to a person to whom he is duly authorized to communicate it or to a person to whom it is his duty to communicate it; (2) in this case, there can be no doubt that all the information contained in the documents relating to the tender exercise were classified and were clearly those documents which s 8 of the Act requires to be protected from disclosure to unauthorized persons; (3) as the tender documents and associated documents were official secrets, a government servant who communicates such information does so in contravention of the Act and he commits an offence under s 8(1) if he communicates such information to a person other than a person to whom he is duly authorized to communicate it or to a person to whom it was his duty to communicate it; (4) there was abundance of evidence in this case to show that there was unauthorized communication. The nature of the information communicated to the accused clearly showed that the leakage must necessarily have originated from a government source, from someone who had access to the documents associated with the tender exercise; (5) in this case, the accused not only received the information but received it in accordance with his desire and not contrary to it. There were sufficient materials for the court to draw the inference that the accused had reasonable grounds to believe that the official information was communicated to him in contravention of the Act; (6) there is no provision or authority to the effect that a member of Parliament, by virtue of his status as such, is privileged to receive official information, otherwise unauthorized. There is no authority for a government servant to make such disclosure unless it is shown that it is the duty of the particular government servant to disclose to a particular person and that that person is the person to whom the officer has a duty to disclose, for instance a minister who is also a member of Parliament; (7) the privilege of a member of Parliament to raise any matter in Parliament can only be invoked in respect of proceedings in Parliament and not outside the House; (8) it could not be contended in this case that the confidentiality of the information had been broken and that authority to disclose could be implied; (9) the charges against the accused had been proved beyond reasonable doubt and he has not raised any defence sustainable in law and in fact.

Public Prosecutor v Lim Kit Siang [1979] 2 MLJ 37 High Court, Kuala Lumpur (Abdul Hamid J).

[Annotation: The decision of Abdul Hamid J was affirmed on appeal to the Federal Court (see [1980] 1 MLJ 293).]

The defendant submitted written representations to the Clerk of Parliament in response to a notice made by the Clerk inviting representations on the Companies (Amendment) Bill from the public for the consideration of the select committee. The defendant was not invited to give oral evidence before the select committee. The plaintiffs took the view that they had been gravely defamed by certain of the statements which formed part of the defendant's representations and issued a writ against him claiming damages for defamation and an injunction to restrain the defendant from further publishing the statements. The defendant raised the defence of absolute privilege and subsequently applied for the following preliminary issue to be determined by the court, ie whether the defence of absolute privilege is as a matter of law available to the defendant.

Held: (1) the act of the defendant in submitting written representations was so ancillary to, and connected with, proceedings in Parliament as to become part of those proceedings. They were part of the parliamentary process by which the House reached its decision on the bill laid before it; (2) the fact that the defendant was not invited to attend before the select committee in order to give evidence in support of his representations should not affect the character of the representations he made, in the sense of clothing them with absolute privilege if he gave evidence in support of them and depriving them of privilege if he did not; (3) the word 'person' in s 5(2) of the Parliament (Privileges, Immunities and Powers) Act (Cap 49, 1970 Ed) means any person and includes strangers. Both the Clerk of Parliament and the defendant, the one by inviting representations and the other by responding to his invitation, were performing acts under the authority of Parliament by virtue of Standing Order 75. It follows that the defendant is entitled to the immunity provided by s 5(2) of the Act; (4) s 5(2) deals with the acts of all persons done under the authority of Parliament and s 17(1) confers immunity on all persons who appear and give evidence in person. The facts of the present case have resulted in an overlap in the provisions of ss 5(2) and 17(1) but that is not an uncommon result of the proper construction of a statute; (5) there is no conflict between the provisions of ss 4, 5(2) and 17(1) of the Parliament (Privileges, Immunities and Powers) Act. Section 4 is a general statement which reflects art 9 of the UK Bill of Rights;there was nothing before the court to suggest that in Singapore, written representations to the select committee have been regarded by representors as charters to defame under the cloak of absolute privilege. Were that to happen, it would be reasonable to expect Parliament to enact legislation to define proceedings in Parliament so as to exclude written representations to the select committee in cases where the representor does not attend and give evidence in person. Unless and until such legislation is passed into law in Singapore, it remains in the overriding public interest that written representations to Parliament should attract absolute privilege so that persons making them in the discharge of their rights should feel free to do so without being threatened with, or vexed by, proceedings whether they be civil or criminal.

Times Publishing Bhd & Ors v Sivadas [1988] SLR 599 High Court, Singapore (Grimberg JC).

This was an application under s 375 of the Criminal Procedure Code for a writ of habeas corpus. The court granted an order nisi directing the Chief Secretary and the Commissioner of Police to show cause why the writ should not issue. In their affidavits they stated that the applicant was detained under a detention order made under s 3(1) of the Preservation of Public Security Ordinance 1955. It was contended for the applicant that (1) s 3(1) of the ordinance makes provision for extra-territorial matters, namely, the security of the Federation of Malaya and the maintenance of public order and essential services therein and that the subsection was therefore ultra vires the Legislative Assembly established in Singapore by the Singapore Colony Order in Council 1955; (2) where a statute requires that a public officer should be satisfied of something before exercising a statutory power, if it could be shown that there were no grounds on which he could be so satisfied, the court might infer either that he did not honestly form that view or that, in forming it, he could not have applied his mind to the relevant facts; and (3) the statement of the grounds of detention supplied to the applicant was inadequate and, therefore, the detention was improper.

Held: (1) the principle to be applied in deciding whether a law is ultra vires the Legislature of the Colony of Singapore is laid down in Wallace Bros & Co Ltd v Commissioner of Income Tax, Bombay (1948) 75 IA 86. The test is whether s 3(1) of the ordinance is for the peace, order and good government of the Colony, notwithstanding the fact that it may relate to persons, acts or things beyond the limits of the Colony. As the subsection provides for public security and aims at stamping out activities prejudicial to public security carried on in the Federation of Malaya and the Colony by a subversive organization operating in both territories, it is for the peace, order and good government of the Colony. Accordingly the subsection was not ultra vires the Legislative Assembly of the Colony; (2) as a statement of the grounds of detention had been supplied to the applicant in accordance with s 5(2) of the ordinance, the applicant failed to show that there were no grounds on which the Governor could be satisfied that the detention was necessary. It followed therefore that neither of the inferences suggested by counsel for the applicant could be drawn; (3) as s 3(1) of the ordinance imposed a subjective test, it was not open to the court to inquire whether in fact the Governor had reasonable grounds for being satisfied that the detention was necessary. If the ordinance did not impose a subjective test, the court would have refused a writ of habeas corpus on the ground that an alternative remedy was available and that a writ of habeas corpus not being a writ of course might be refused for that reason.

Re Choo Jee Jeng [1959] MLJ 217 High Court, Singapore (Ambrose J).

[Annotation: See case note by Professor LA Sheridan in (1960) 20 Mod LR 77.]

Government of the State of Kelantan v Government of the Federation of Malaya & Anor [1963] MLJ 355 High Court, Kuala Lumpur (Thomson CJ).

All three appeals arose from a judgment of the High Court and concerned the same subject matter. The respondents' complaint related to the Bakun Hydroelectric Project (`the project') which Ekran Bhd was in the process of constructing near Belaga in the Kapit Division of the State of Sarawak. The whole of the affected area belonged to the State of Sarawak, though about 10,000 natives were in occupation of it under customary rights. The respondents were three such natives and they and their ancestors had, from time immemorial, lived upon and cultivated the land in question. While the project would deprive them of their livelihood and their way of life, all those affected by the project would be resettled by the state government and their customary rights would be extinguished in accordance with the Land Code (Sarawak Cap 81). In the High Court, the respondents applied for declarations that the Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) (Amendment) Order 1995 (`the Amendment Order') was invalid and that before Ekran Bhd carried out the project, it had to comply with the Environmental Quality Act 1974 (`the EQA'). The Amendment Order had retrospectively excluded the operation of the Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987 (`the 1987 Order') to Sarawak. The respondents contended that the project was governed by the EQA and the 1987 Order. They complained that they were not given a copy of the environment impact assessment report on the project and had been deprived of procedural fairness in that they were not given an opportunity to make representations in respect of the impact which the project would have upon the environment, before the decision to implement the project was made. The High Court granted the declarations (see [1996] 2 MLJ 388). The Director General of Environmental Quality, the Government of Malaysia, the Natural Resources and Environment Board of Sarawak, the Government of Sarawak and Ekran Bhd appealed. The appellants argued that although the EQA was expressed to apply throughout Malaysia, it did not extend to the project because the land in question belonged to the State of Sarawak, with respect to which Parliament had no legislative authority. In fact, Sarawak had its own environmental law in the Natural Resources Ordinance 1949 (`the Ordinance'). Article 74 of the Federal Constitution read together with the Ninth Schedule placed land as a legislative subject in the State List. `Environment' was not specified as a separate legislative subject because it was a multi-dimensional concept that was incapable of having any independent existence. The appellants contended that since the project was in respect of land and a river that were wholly within Sarawak, it was the Ordinance and not the EQA that applied. Since the EQA did not apply to the project, the respondents had no vested rights in the matter of procedural fairness and had not been deprived of such rights by the Amendment Order. The issues to be decided in these appeals were: (a) whether the EQA applied to the project; and (b) whether the respondents had locus standi to bring this action.

Held, allowing the appeals: (1) (per Gopal Sri Ram and Mokhtar Sidin JJCA) courts should, when determining the scope of Federal and state legislation upon a particular subject, ensure that the enactments of each legislative power were read so as to avoid inconsistency or repugnancy between them. While both Parliament and the Sarawak Legislative Assembly had concurrent power to make law regulating the production, supply and distribution of power, since the `environment' in question, by reason of item 2(a) of List II and item 13 of List IIIA of Sch 9 to the Federal Constitution, lay wholly within the legislative and constitutional province of the State of Sarawak, that state had exclusive authority to regulate, by legislation, the use of it in such manner as it deemed fit. The EQA thus did not apply to the environment that was the subject matter of this case and the respondents had no vested or other interest under the EQA upon which the Amendment Order could have any effect; (2) (per Gopal Sri Ram and Mokhtar Sidin JJCA) in any event, the respondents lacked substantive locus standi, and the relief sought should have been denied because: (a) the respondents were, in substance, attempting to enforce a penal sanction. This was a matter entirely reserved by the Federal Constitution to the Attorney General of Malaysia in whom resided the unquestionable discretion whether to institute criminal proceedings; (b) the complaints advanced by the respondents amounted to deprivation of their lives under art 5(1) of the Federal Constitution. Since such deprivation was in accordance with the law, ie the Land Code (Sarawak Cap 81), they had on the totality of the evidence suffered no injury and there was thus no necessity for a remedy; (c) there were persons, apart from the respondents, who were adversely affected by the project. There was no special injury suffered by the respondents over and above the injury common to others. The action commenced by the respondents was not representative in character and the other affected persons were not before the court; and (d) the judge did not take into account relevant considerations when deciding whether to grant declaratory relief. In particular, he did not have sufficient regard to public interest. Additionally, he did not consider the interests of justice from the point of view of both the appellants and the respondents; (3) (per Mokhtar Sidin JCA) under the Ordinance, which was the legislation applicable in this case, there was no requirement for the respondents to be supplied with copies of the environmental impact assessment report. As such the respondents had no cause of action in this appeal. Even if s 34A of the EQA applied, the respondents would only be given copies of the report if they had asked for it. There was no accrued right that the report had to be distributed to the public without the public asking for it; (4) (per curiam) (per Gopal Sri Ram JCA) when our courts came to decide whether to grant standing to apply for a declaration in public law in a particular case, they had to be extremely cautious in applying decisions of courts of other countries because the reasons for granting or refusing standing in those other jurisdictions may depend upon the economic, political and cultural needs and background of individual societies within which the particular court functioned.

Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors and other appeals [1997] 3 MLJ 23 Court of Appeal, Kuala Lumpur (Gopal Sri Ram, Ahmad Fairuz and Mokhtar Sidin JJCA).

The respondent was a member of a political party and was nominated to stand for a parliamentary constituency. His election expenses were borne by the party. The respondent signed a document undertaking to donate the allowance paid to him as a member of the Dewan Rakyat to the party. He also agreed that in the event of his doing any act which was seen to be against the interests of the party he would forfeit his seat in the Dewan Rakyat and the party could then submit the letter of resignation, signed by him, to the Speaker of the Dewan Rakyat. The respondent was elected as a member and at first he kept to his undertaking and requested his Parliamentary remuneration to be paid to the party. The party in turn gave him a monthly sum of $300. Subsequently he asked the party to increase the allowance to $600 but receiving no reply, he resigned from the party. The party thereupon sent the letter of resignation to the Speaker. The result was that the respondent lost his seat in the Dewan Rakyat. He brought an action against the party claiming the refund of $8,024.70 being his parliamentary remuneration retained by the party and the payment of $41,325.80 being the amount of parliamentary remuneration which he would have received had it not been for the party's submission of the letter of resignation. The learned trial judge held that the undertakings were illegal, but held notwithstanding the illegality that the respondent was entitled to the refund of $8,024.70 and to the special damages of $41,325.80, subject to the deduction of $15,000 for the election expenses ([1982] 1 MLJ 36). The appellant appealed.

Held: (1) in whatever way the matter was looked at the respondent's claims must be dismissed. If the arrangements were not illegal and therefore valid, it goes without saying that what was done by the party and the appellant with regard to the remuneration and the resignation were fully authorized by the arrangement and no claim could arise therefrom, unless it could be shown that the appellant was in breach of the agreement, which was not the case here; (2) if on the other hand the arrangement was illegal, as correctly found by the trial judge, the respondent should not be entitled to the claim also, because the court will not lend its aid to an illegal transaction. No attempt was made by the respondent to show that he had nothing to do with the arrangement or that he was an innocent party. The appellant as the defendant was allowed by law to rely on the illegality in order to reject the respondent's claim; (3) the arrangement was not a fraud and neither were the facts constituting the alleged causes of action for malicious falsehood, fraudulent misrepresentation or conspiracy separable from those constituting the illegality. Nor were the acts of the appellant done otherwise than in pursuance of the arrangement so as to exclude the maxim volenti non fit injuria; (4) even if the arrangement was held to be a friendly or gratuitous one, the respondent was still not entitled to recover any claim because of the maxim volenti non fit injuria.

Datuk Ong Kee Hui v Sinyium Anak Mutit [1983] 1 MLJ 36 Federal Court, Kuching (Lee Hun Hoe CJ (Borneo).

By an originating summons dated 1 March 1986, the plaintiff applied for four declaratory reliefs to the effect that the dissolution of the Sabah State Legislative Assembly was null and void and of no effect and that the third to eighth defendants were not entitled to act under art 113 of the Federal Constitution and call or conduct a general election under art 21(4) of the Sabah Constitution. In the present application, the plaintiff sought an injunction to restrain the third to eighth defendants by themselves or by any person acting on their behalf from acting under art 113 of the Federal Constitution upon the Proclamation of Dissolution until the hearing and disposal of the main summons. The plaintiff claimed that there were serious questions to be tried. Summons against the fifth defendant was struck out, thus leaving seven defendants in the originating summons. It was submitted on behalf of the third to seventh defendants that an injunction is not available to the plaintiff as under s 29(2) of the Government Proceedings Ordinance 1956 no injunction could be granted against an officer of the government if the effect of granting the injunction or making the order would be to give relief against the officers which would not have been obtained in proceedings against the government.

Held, dismissing the plaintiff's application: (1) art 13 of the Sabah Constitution provides that the Legislature of the state shall consist of the Governor and the Legislative Assembly, therefore the dissolution of the Legislative Assembly of Sabah by the first defendant under art 21(2) of the State Constitution was a legislative act and not an executive act. The proclamation was prima facie valid until declared otherwise, and the clear duty of the Election Commission could only be to hold an election within the prescribed period. In the public interest or in the interest of justice, the court exercised its discretion and refused to issue an injunction against the third to seventh defendants; (2) the third to seventh defendants were in the employment of the federal government and there could not be any other interpretation as their salaries were paid by the government. As such, no injunction can be granted against them.

Abdul Ghapur bin Haji Salleh v Tun Datuk Haji Mohamed Adnan Robert, Yang di-Pertua Negeri, Sabah & Ors [1987] 2 MLJ 724 High Court, Kota Kinabalu (Abu Mansor J).

The applicant applied for leave to commence proceedings for a declaration that the Constitution (Amendment) Enactment 1986 of Sabah is invalid on the ground that the Legislature of Sabah has no power to enact it. The declarations sought were as follows: (a) a declaration that the respondents are not empowered to make laws with respect to the matter of disqualification for membership of the Assembly as effected by the Constitution (Amendment) Enactment No 3 of 1986; (b) a declaration that the Constitution (Amendment) Enactment No 3 of 1986 of the State of Sabah thereby effecting an amendment to the Constitution of the State of Sabah by addition of cl 2(d) to art 18 thereto is null and void and of no effect by reason of the respondent's incompetence to enact the same.

Held: (1) the subject of disqualification of a member of the legislative assembly of the state is a state subject and it is also obvious that disqualification is a subject within the competency of a state; (2) if the new provision in the Constitution (Amendment) Enactment 1986 is regarded as a provision for the tenure of seats of members of the State Legislature, then it is certainly a state matter clearly falling under item 7 (Machinery of State Government) of the state list; (3) reading item 7 of the state list with art 74(4) of the Federal Constitution it is obviously within the power of the State Legislature to enact a law in the nature of the new art 18(2)(d) of the Sabah Constitution; (4) the application is frivolous and leave should be refused.

Abdul Karim bin Abdul Ghani v Legislative Assembly of Sabah [1988] 1 MLJ 171 Supreme Court, Kuala Lumpur (Hashim Yeop A Sani SCJ).

The plaintiff, a company limited by guarantee, submitted a petition to the Yang di Pertuan Agong for an incorporation order for Merdeka University under s 6 of the Universities and University Colleges Act 1971 (Cap 30). The petition was rejected and the Minister of Education announced that the rejection of the plaintiff's petition was for the following reasons: (a) Merdeka University would use Chinese as the medium of instruction; (b) it is meant to cater for students from Chinese independent secondary schools; (c) it is to be set up by the private sector; and as a composite for the basis of rejection that in effect its establishment would be contrary to the national education policy. The plaintiff requested a dialogue with the minister but there was no response. The plaintiff issued a writ asking for a declaration that the rejection of the petition for the establishment of Merdeka University is null and void as it contravenes the Federal Constitution and for a declaration that the refusal of the petition to establish the university is an unreasonable and improper exercise of the discretion conferred by s 6 of the Universities and University Colleges Act 1971.

Held: (1) it is a condition precedent to the exercise of the power of the Yang di-Pertuan Agong under s 6 of the Universities and University Colleges Act 1971 to make an incorporation order that he has to be satisfied that it is expedient in the national interest that a university should be established. If he is not so satisfied he has no power to make an incorporation order and must accordingly reject the application. Even if the condition precedent is met, the Yang di-Pertuan Agong is left with a discretion as to whether or not to make an order and has the power but not the duty to do so, but as a general rule of law once the condition precedent is fulfilled then the power ought to be exercised unless it is impracticable to do do; (2) the Yang di-Pertuan Agong is a constitutional monarch and is required under art 40(1) of the Federal Constitution in the exercise of his function (except on certain matters that do not concern these proceedings) to act in accordance with collective or individual ministerial advice and not on his own initiative; (3) the substantial questions arising for consideration in this case are whether or not in the exercise of his power under s 6 of the Universities and University Colleges Act 1971, the Yang di-Pertuan Agong and in effect the defendant, the government of Malaysia, took into account legally relevant considerations and acted fairly, there was any misdirection in fact or in law (including the provisions of the Federal Constitution), the decision was made on sufficient material and evidence or on extraneous considerations or was so unreasonable that no reasonable person could have come to it; (4) the discretion conferred by s 6 of the Universities and University Colleges Act in the subjective form 'if he is satisfied' does not exclude judicial review if objective facts have to be ascertained before arriving at such satisfaction. The discretion would be reviewable and the deciding authority has in fact to have reasonable grounds and it is insufficient if he merely thinks he has reasonable grounds. The test of unreasonableness is not whether a particular person considers a particular course unreasonable, but whether it could be said that no reasonable person could consider that course reasonable; (5) the Constitution is not to be construed in any narrow or pedantic sense but this does not mean that the court is at liberty to stretch or pervert the language of the Constitution in the interests of any legal or constitutional theory or even for the purpose of supplying omissions or of correcting supposed errors; (6) if the Merdeka University were established, it would be a public authority within the definition in art 160 of the Federal Constitution and its purpose would accordingly be an official purpose within art 152(b) of the Constitution and it would therefore be excluded by the parenthesis in proviso (a) to art 152(1) from its protection. Consequently as the Merdeka University proposes to give instruction in its course in Chinese, whether as the only or the main medium of instruction, the proviso would afford no protection for that purpose; (7) the proposal to use Chinese as the medium of instruction would be contrary to the national education policy; (8) the plaintiff cannot rely on the provisions of art 8(2) of the Federal Constitution to argue that the rejection of the petition would result in discrimination in violation thereof. It is clear that the second reason for the rejection of the petition is intricately interwoven with the first reason on the question of language in relation to the medium of instruction and the negation of the national education policy and attracts the same consequences in its practical effect; (9) on the evidence there was sufficient justification and basis for the defendant to rely on the financial aspect on the third reason, that the university is to be set up by the private sector, for the rejection of the petition; (10) the point taken by the plaintiff that the reasons for the rejection of the petition are incompatible with art 26 of the Universal Declaration of Human Rights does not arise in this case and in any event the pertinent provisions for consideration are those contained in municipal legislation. The court's power to make declarations is confined to matters justiciable in the courts and limited to legal and equitable rights and does not extend to moral, social or political matters; (11) it is clear from the evidence, both oral and documentary that all relevant matters were before the minister to enable him to come to a fair and reasonable decision and that he had sufficient material before him for consideration for this purpose. The petition was clear and unambiguous and the minister said he considered with care all the relevant factors before coming to the conclusion that the petition could not be acceded to as he was satisfied that it was not expedient in the national interest to do so. The minister did not decide arbitrarily without any basis and on the material before him he said that he required no further details as everything was clearly stated in the petition and there was nothing that needed clarification. In the circumstances of this case, the failure to accord a dialogue, with or without a request therefor, did not in any way affect the situation and the defendant therefore did not act unfairly in not entertaining the request for a dialogue; (12) in the circumstances and on the evidence the Yang di-Pertuan Agong has acted properly, reasonably, fairly and in accordance with the law in the exercise of his broad discretion in the matter under s 6(1) of the Universities and University Colleges Act 1971 on sufficient evidence and material and has taken all relevant matters into account without being influenced by any irrelevant considerations. The reasons given for the rejection of the plaintiff's petition clearly bear a vital nexus with the question of expediency in the national interest; (13) on all the three reasons given for the rejection of the petition there was sufficient basis and justification for the Yang di-Pertuan Agong to be satisfied on any one or more of them that it was not expedient in the national interest for Merdeka University to be established.

Merdeka University Bhd v Government of Malaysia [1981] 2 MLJ 356 High Court, Kuala Lumpur (Abdoolcader J).

Merdeka University Bhd v Government of Malaysia [1982] 2 MLJ 243 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ (Malaya).

The appellant was on 5 May 1983 served with an enlistment notice with accompanying instructions pursuant to s 10 of the Enlistment Act (Cap 93, 1985 Ed) and was on 22 June 1983 enlisted for full-time national service in the Vigilante Corps. For his national service, he was posted to the Construction Brigade and was required to undergo a three-month residential training at the Civil Defence School II for the acquisition of skills in construction work. He left the school one Saturday on 2 July 1983 at 1 pm but failed to return by 9 pm on Sunday. Medical certificates covering the period 4-8 July 1983 were tendered. However, he failed to report at 9 pm on 8 July 1983 and continued to absent himself from duty for 50 days from that day until 24 September 1983. He was arrested by CNB officers on 13 October 1983 and admitted to Selarang Park Drug Rehabilitation Centre for treatment for drug addiction. On 30 May 1984, he was transferred to Jalan Awan Drug Rehabilitation Centre until 16 November 1984 when he was discharged. He was then arrested upon his discharge and subsequently convicted by a district court on 15 November 1984 on a charge under s 15(1) of the Vigilante Corps Act (Cap 80, 1970 Ed) for his unlawful absence from duty at Civil Defence School II with the intention of not returning to duty. The appellant did not dispute the evidence of the officer in charge of Civil Defence School II that he had briefed all newly enlisted national servicemen who were assigned to the construction Brigade in compliance with a direction issued by the Minister for Home Affairs, Singapore, to the Commandant, Vigilante Corps. The said direction of the minister ('the assignment') was made in pursuance of s 5(b) of the Vigilante Corps Act. The appellant's counsel made a submission of no case to answer on the following grounds: (a) that the assignment was ultra vires the Vigilante Corps Act and therefore the appellant, as a member of the Vigilante Corps, was under no duty to undertake or perform civil defence duties; (b) that the imposition of construction work on the appellant was unconstitutional as a form of forced labour prohibited by art 10(2) of the Constitution of the Republic of Singapore; (c) that the assignment was invalid or had no effect as it had not been published in the Gazette as required by s 23(1) of the Interpretation Act (Cap 1, 1985 Ed); (d) that if the assignment was valid, the appellant had no notice of it. The learned district judge rejected all these submissions and convicted the appellant. The appellant was sentenced to four months' imprisonment with effect from 22 August 1986 which was the day the appellant had been lawfully detained in a drug rehabilitation centre. The appellant has appealed against his conviction and the Public Prosecutor has appealed against sentence.

Held, allowing the appeal against conviction for desertion: (1) the minister in making the assignment acted within the scope of his power under s 5 of the Vigilante Corps Act; (2) the assignment was constitutional since the minister made the assignment pursuant to a delegated power vested in him by s 5 of the Vigilante Corps Act; (3) the appellant's conviction was set aside on the ground that the assignment was a subsidiary legislation which required mandatory publication. As the assignment was for some reason inadvertently not published in the Gazette, it was invalid in the sense that it failed to take effect even though it was valid in the sense that the minister had the power to make it. Consequently, the assignment could not have lawfully vested in the Vigilante Corps functions and duties relating to civil defence; (4) in substitution, the appellant was convicted under s 24(1) of the Vigilante Corps Act of being absent from the place where he was lawfully required for the time being to be. The appellant was sentenced to two months' imprisonment with effect from 1 June 1988.

Cheong Seok Leng v Public Prosecutor [1988] SLR 565 High Court, Singapore (Chan Sek Keong JC).

The Resident of a Federated Malay State is vested with powers of arrest and detention under the Banishment Enactment. Before these powers can be exercised he is bound to take the required preliminary steps necessary for the creation of those powers. Once it is satisfied that those steps have been lawfully taken, the court is functus officio. A natural-born subject of the Ruler of State of Negri Sembilan cannot be regarded as a natural-born subject of the ruler of any other state in the Federation.

Ho Chik Kwan v British Resident, Selangor [1932] MLJ 99 Court of Appeal, Federated Malay States (Elphinestone CJ, Gerahty and Mudie JJ).

[Annotation: The Treaty of Federation 1895 preserved the power of the ruler to banish from his own state the natural-born subject of the ruler of any other states of the Federation.]

The appellant was at the material time a member of Parliament. Two complaints were made in Parliament against the appellant, which complaints were then referred to the Committee of Privileges ('the committee'). The committee determined the complaints and submitted a report to Parliament. Parliament accepted the report and passed two resolutions finding the appellant, in respect of the first complaint, guilty of abuse of the privileges of Parliament in his allegations of executive interference in the judiciary and imposing a fine of $1,000; and in respect of the second complaint, guilty of contempt of the committee and of Parliament by his publication of five newsletters relating to the proceedings of the committee and imposing a fine of $5,000 for each newsletter, making a total of $25,000. The appellant refused to pay the fines and the Attorney General, acting under s 23 of the Parliament (Privileges, Immunities and Powers) Act (Cap 217, 1985 Ed) ('the Act') on behalf of the government of Singapore instituted two actions in the subordinate courts, namely, MC Suit No 2339 of 1987, claiming for the sum of $1,000, and DC Suit No 1451 of 1987, claiming for the sum of $25,000. Later the Attorney General took out an application for summary judgment in each action for the amount claimed. The registrar ordered that judgment be entered for the respective amounts against the appellant with costs. The appellant's appeal in each of the cases to the High Court was dismissed by Chua J: see [1988] 3 MLJ 465. The appellant then appealed to the Court of Appeal. The question before the Court of Appeal was whether there was any triable issue either of fact or of law in the defences raised by the appellant. In MC Suit No 2339 of 1987 the only defence raised by the appellant was that there was a breach of the rules of natural justice on the part of the committee and Parliament. In DC Suit No 1451 of 1987 the appellant raised three defences, namely: (i) the committee was wrong in law in finding that the appellant was guilty of contempt of the committee and of Parliament and that even if the offending newsletters were perverted reports and contained distortions and serious misrepresentations, they could not and did not amount to contempt of the committee or of Parliament, and that Parliament was wrong in accepting the report of the committee and passing the second resolution as it did; (ii) that Parliament was not empowered by law to impose the fines by way of punishment and therefore acted in excess of its authority in so doing; and (iii) that there was a breach of the rules of natural justice in the proceedings before the committee and in the proceedings in Parliament in that the appellant was not given an opportunity to be heard. It was also argued by the appellant that the publication of the newsletters was not an offence committed in the view of Parliament or in the precincts thereof when Parliament was sitting or in any committee and did not come within s 21(1)(c) of the Act, and therefore Parliament could not refer the matter to a committee under s 21(1)(b) of the Act. He contended that if the publication was an offence, it was one under s 31(h) of the Act and that Parliament must act under s 21(1)(c) of the Act and pass a resolution referring the matter to the Attorney General with a view to the institution of criminal proceedings. The appellant in his defence complained of the composition of the committee and further that he was denied an impartial and fair hearing before the committee; that he was not allowed to present adequately his case and was continuously interrupted; and that he was not permitted to put a number of questions to the Chief Justice and to cross-examine the Attorney General.

Held, dismissing the appeal: (1) under art 163 of the Constitution of Singapore, Parliament is empowered by law to determine and regulate its privileges, immunities and powers and pursuant to that provision enacted the Parliament (Privileges, Immunities and Powers) Act, which by s 3(1) thereof confers on Parliament and the Speaker, members and committees of Parliament, the same privileges, immunities and powers as those of the Commons House of Parliament of the United Kingdom and of its Speaker, members and committees as at the time of the establishment of the Republic of Singapore. One of such privileges and powers is that of committing for contempt and such privileges and powers include the right of finding for itself what constitutes contempt and the right to commit members and others for contempt and punish them accordingly. The ingredients of Parliament judging the contempt and committing for contempt are important ingredients in the privileges of Parliament. In addition, there are other powers conferred on Parliament by the Act. In particular, s 20(2) of the Act empowers Parliament to inflict punishment on any member for dishonourable conduct, abuse of privilege or contempt by, inter alia, imposing a fine not exceeding the sum of $50,000; (2) the resolutions of Parliament were conclusive and it was not open to the court to go beyond those resolutions and determine the same issues; (3) s 21(1) of the Act did not apply to the complaint concerning the newsletters because the offence was committed when neither Parliament nor the committee was sitting. The proper procedure, as had been invoked here, was that provided by Standing Order 95(7)(c) of Parliament, pursuant to which the complaint was made to the Speaker who referred it to the committee; (4) under s 20(1) of the Act, Parliament had the power to impose the fines as it did on the appellant by way of punishment for abuse of privilege and contempt; (5) in regard to the complaint of abuse of privileges, the appellant himself appeared before the committee and participated in the proceedings and was heard. There was, therefore, no breach of the rules of natural justice. The complaints of the appellant regarding the composition of the committee and the proceedings before the committee related to the internal proceedings of the committee. Parliament and its committee have the right to regulate and control their proceedings and to regulate their internal affairs. Whatever arises in and concerning Parliament and its committee ought to be examined, discussed and adjudged in Parliament; (6) in regard to the complaint regarding the newsletters, a copy of the complaint was referred to the appellant and he was invited to give a reply thereto. He wrote to the chairman of the committee a detailed reply to the complaint. In these circumstances, there was also no breach of the rules of natural justice. The appellant was given full opportunity of stating his case to the committee, which he did. The rules of natural justice do not require that a hearing must be an oral hearing; (7) as regards the appellant's complaint that he was not given an opportunity to be heard by Parliament before the two resolutions were passed, there was nothing in law to suggest that the appellant should be given another opportunity to be heard before the punishments were inflicted on him by Parliament. Under s 24 of the Act, Parliament could have summoned the appellant to attend before it to be informed of or to receive the punishments, if Parliament so wished; but in this case Parliament decided not to do so, and was clearly entitled so to decide.

JB Jeyaretnam v Attorney General of Singapore [1988] SLR 170 Court of Appeal, Singapore (Thean, Chan Sek Keong and Rajah JJ).

Haji Salleh bin Jafaruddin v Datuk Celestine Ujang & Ors [1986] 2 MLJ 412 Supreme Court, Kuching (Seah, Mohamed Azmi and Wan Hamzah SCJJ).

JB Jeyaretnam v Attorney General, Singapore [1988] SLR 170 Court of Appeal, Singapore (Thean, Chan Sek Keong and Rajah JJ).

The plaintiff applied for various declarations arising out of his conviction for sedition and a fine of $2,000 imposed on him in the High Court ([1975] 1 MLJ 176). A motion had been introduced into the Dewan Ra'ayat that the question whether the plaintiff has become disqualified for membership of the House be referred to the Committee of Privileges. The plaintiff sought declarations in effect that he had a right to exhaust his legal right of appeal and to petition the Yang di-Pertuan Agong for a pardon before the Dewan Ra'ayat could take a decision in his disqualification; and that it was only the Dewan Ra'ayat and not the Committee of Privileges which could go into the question of his disqualification.

Held: (1) the decision on the issue of disqualification is for the Dewan Ra'ayat to take and when taken it is final and cannot be questioned in any court; (2) the court cannot interfere with the right of the Dewan Ra'ayat to decide the question of the plaintiff being disqualified from membership and the reliefs sought by the plaintiff are outside the jurisdiction of the court; (3) the government of Malaysia cannot be a proper defendant from whom the reliefs sought, even if available, could be made, and therefore the government was not a necessary party to the proceedings.

Fan Yew Teng v Government of Malaysia [1976] 2 MLJ 262 High Court, Kuala Lumpur (Chang Min Tat J).

A was an opposition Member of Parliament. He was convicted of certain offences under the Penal Code. His appeal to the High Court was dismissed on 10 November 1986. The High Court judge declined to reserve questions of law for the decision of the Court of Criminal Appeal. As a result of his convictions, his seat in Parliament was declared vacant. Subsequently, disciplinary proceedings were commenced against A under the Legal Profession Act and he was ordered to be struck off the roll. On his appeal to the Privy Council, it was ruled that he had been improperly convicted and his name was restored to the roll. A had not been pardoned by the President. He applied for declarations that he had not vacated his seat in Parliament, inter alia, because no resolution of Parliament had been passed to that effect. Secondly, he argued that in the light of the Privy Council's decision he ought not to have been disqualified by reason of the convictions.

Held, dismissing the application: (1) article 45(1) of the Constitution provides for the automatic vacation of his seat by a member who has been convicted and fined more than S$2,000. A resolution of Parliament is not necessary to effect the vacation; (2) in the instant case, by 10 November 1986 A had exhausted all his legal remedies regarding the convictions. The Privy Council had no jurisdiction to overturn those convictions, as they themselves recognized. Accordingly, A's application was dismissed.

Jeyaretnam JB v Attorney General [1990] SLR 610 High Court, Singapore (Chao Hick Tin JC).

P was convicted for an offence in the High Court and was sentenced with, inter alia, whipping. P's appeal against conviction and sentence was dismissed by the Supreme Court. P then applied to the 'Yang Di Pertua Negeri' to remit the sentence of whipping. P also applied to be represented by counsel in the hearing before the Pardons Board. The Pardons Board refused to allow P to be represented by counsel during the Pardons Board's proceedings. The 'Yang Di Pertua Negeri' subsequently refused to remit the whipping sentence. P applied to the High Court for a declaration, inter alia, that the Pardons Board's refusal to allow P to be represented by counsel during the Pardons Board's proceedings rendered the Pardons Board's advice to the 'Yang Di Pertua Negeri' invalid and, accordingly, the decision of the 'Yang Di Pertua Negeri' in refusing to remit the whipping sentence was also rendered invalid. D1 applied to strike out P's application, inter alia, on the ground that it did not disclose any cause of action. P, however, argued that since the Attorney General's opinion would be considered by the Pardons Board under art 42(5) and (9) of the Federal Constitution, P was entitled either to a copy of that opinion or to be represented by counsel during the Pardons Board's hearing so as to refute any matter arising from that opinion. P also sought to rely on a decision by the Indian Supreme Court to support his contention. P lastly urged the High Court to refer the question as to whether the courts could review the prerogative of pardon to the Supreme Court under s 48 of the Courts of Judicature Act 1964.

Held, allowing D1's application: (1) it is clear that the courts have no jurisdiction to review the prerogative of pardon under art 42(1) of the Federal Constitution; (2) the Federal Constitution does not provide P with a right to counsel for proceedings before the Pardons Board. Nor is P entitled to the Attorney General's opinion; (3) the decisions of the Indian Supreme Court concerning the scope of judicial review of the prerogative of pardon which are inconsistent with the Malaysian Supreme Court's decisions are not applicable here; (4) P's application therefore did not disclose any cause of action; (5) the court has a discretion whether or not to refer a question on the effect of a provision in the Federal Constitution to the Supreme Court. Since the question raised by P had been conclusively decided by the Supreme Court, the court would not exercise its discretion to refer that question to the Supreme Court.

Cohen Aaron Shelton v Jemaah Pengampunan Pulau Pinang & Anor Originating Summons No 24-15-90 High Court, Penang (Mohtar Abdullah J).

[Annotation: The judgment was delivered in Bahasa Malaysia.]

Ho Chik Kwan v British Resident, Selangor [1932] MLJ 99 Court of Appeal, Federated Malay States (Elphinestone CJ, Gerahty and Mudie JJ).

In this case, the petitioner applied for leave to appeal, the only ground raised being the constitutionality of ss 121(6) and (7) and 122(1) of the Criminal Procedure Code. Section 121(6) requires a person charged with an offence, or officially informed that he may be prosecuted for it, to be given a notice in writing advising him that if there is any fact which he intends to rely upon in his defence in court he should mention it then and warning him that, if he holds it back until he goes to court, his evidence may be less likely to be believed. Section 122(1) provides that at his trial the court may draw such inferences as appear proper from his failure to mention, in response to such a warning, a fact on which he has sought to rely.

Held: the provisions of the Criminal Procedure Code plainly do not contravene the Constitution and leave to appeal must be refused.

Sundram Jaykumal v Public Prosecutor [1981] 2 MLJ 297 Privy Council Appeal from Singapore (Lord Diplock, Lord Bridge of Harwick and Sir Owen Woodhouse).

The applicants in the first three criminal applications ('the first three applicants') were detained under s 4(1) of the Emergency ( Public Order and Prevention of Crime) Ordinance 1969 ('the Ordinance'). Counsel for the first three applicants submitted that one of the allegations of fact on which the detention order in respect of each applicant was based also formed the subject matter of criminal proceedings against them jointly, which had not yet been disposed of, and that their detention in the circumstances was tantamount to prosecuting them twice in respect of the same offence. He submitted that the Deputy Minister had not considered the pending prosecution of the applicants in a court of law when making the detention orders, which showed the absence of care on his part and the improper exercise of the power of detention by him. The other ground for challenging the detention orders was that the designated police officer reported the circumstances of the arrest and detention of the applicants to the Minister pursuant to s 3(3)(c) of the Ordinance whereas the detention orders were made by the Deputy Minister. Counsel submitted that the detention orders should have been made by the Minister himself and not by the Deputy Minister. In the other seven applications, the Deputy Minister of Home Affairs made a detention order under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 ('the Act') for the detention of the applicants ('the seven applicants'). The detention orders were challenged, inter alia, on the ground that the respective reports of the circumstances of the arrest and detention of the seven applicants under s 3(2)(c) of the Act were addressed to the Inspector-General of Police whereas they should have been addressed to the designated police officer.

Held, dismissing all the applications: (1) the charge and alternative charge in the criminal proceedings were in respect of different offences and based on facts which were distinct from the facts which, inter alia, formed part of the bases of the grounds upon which the detention orders were made; (2) a person can plead autrefois acquit or autrefois convict in subsequent criminal proceedings only where he is tried for the same offence of which he had been acquitted or convicted, on the ground that the subsequent criminal proceedings put him under jeopardy twice for the same offence. However, he cannot so plead in subsequent criminal proceedings where he is tried for a different offence from that of which he was acquitted or convicted in earlier criminal proceedings, albeit based on the same facts or on facts arising from one series of acts so connected together as to form the same transaction. A person cannot also plead autrefois acquit or autrefois convict in subsequent criminal proceedings where he had not been acquitted or convicted of an offence in earlier criminal proceedings which have come to an end, even if he is charged with the same offence in the subsequent criminal proceedings. For a person to avail himself of the protection given under art 7(2) of the Federal Constitution ('the Constitution'), he must first be acquitted or convicted of an offence by a court of competent jurisdiction and he must subsequently be charged for the same offence. In no other circumstances can he claim the protection of art 7(2), and certainly not in a situation where he has been charged with an offence but has not been acquitted or convicted of that offence; (3) in the light of art 43A(2) of the Constitution and s 30 of the Interpretation and General Clauses Ordinance 1948, a Deputy Minister is conferred with all the powers of the Minister under the Ordinance; (4) having regard to the grounds and allegations of facts upon which the detention orders were based, it cannot be said that the Deputy Minister acted improperly or mechanically in making the orders. Therefore, the three applicants had been legally detained pursuant to valid detention orders made by the Deputy Minister in the exercise of powers under s 4(1) of the Ordinance and that they had failed to establish that the orders are tainted with mala fides or otherwise made improperly or mechanically as would entitle them to the issue of orders of habeas corpus; (5) as for the seven applicants, it did not matter that the reports were addressed to the Inspector-General of Police although intended for the designated police officer. This was because s 3(2)(c) of the Act provides for the circumstances of the arrest and detention to be reported to either of those officers who in turn has to forthwith report the same to the Minister. The Act recognizes the fact that the Inspector-General of Police may not be able to personally deal with all the cases reported to him under s 3(2)(c) of the Act and hence the provision in that section for him to designate a police officer to whom the reports can also be made. For the above reasons, the seven applicants have also been legally detained under valid detention orders made by the Deputy Minister in the exercise of powers under s 6(1) of the Act and that they have failed to establish that they are entitled in the circumstances to the issue of orders of habeas corpus; (6) (obiter) even if the three applicants were charged in the same or subsequent criminal proceedings with one of the allegations of fact on which the detention order was based, they would not be able to claim the protection provided by art 7(2) of the Constitution against being exposed or subjected to double jeopardy. This additional charge would properly lie together with the pending charges by virtue of s 163 of the Criminal Procedure Code (FMS Cap 6) ('the CPC') which provides that there shall be a separate charge for every distinct offence of which any person is accused and s 165 of the CPC which provides for a person to be charged with and tried in respect of more offences than one committed in one series of acts so connected together as to form the same transaction, and in relation to the acts alleged, constituting an offence falling within two or more separate definitions of the law and the person accused of them being charged with and tried at one trial for each of such offences; (7) (obiter) even if the allegations of fact on which the detention order was based was the same as the offences with which the applicants were charged in the criminal proceedings, that by itself would not show mala fides on the part of the Deputy Minister as the impugned allegations of fact was not the sole fact upon which the detention orders were grounded. Taking the allegations of facts collectively, it cannot be said on the face thereof that the Deputy Minister had acted mechanically in making the respective detention orders; (8) (obiter) the court cannot go behind the detention orders to question the sufficiency of the facts upon which they were made, even more so where the applicants themselves have chosen not to make any representations to the advisory board thereby shutting themselves out from a possible avenue of access to the evidence levelled against them which might have aided them in these proceedings.

Nadarajan v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor and other applications [1994] 2 MLJ 657 High Court, Penang (Selventhiranathan JC).

The only issue for determination in this application for a writ of habeas corpus was the question as to whether s 3(2)(c) of the Dangerous Drugs (Special Preventive Measures) Act 1985 ('the Act') had been complied with by the respondents in the detention of the applicant. Counsel for the applicant contended that the provision of the Act could not be taken as being complied with by the mere appending of the necessary report of the reporting officer ('exh YKS1') in the affidavit of the assistant commissioner of police. It was submitted that exh YKS1 was inadmissible in evidence as it ran foul of the rule that the court was entitled to the best evidence. It was conceded by counsel for the applicant that exh YKS1 was a public document. A collateral point, which developed during the course of argument on the rules governing affidavits, was whether they should be governed by the Rules of the High Court 1980 ('the RHC') or s 365 of the Criminal Procedure Code (FMS Cap 6) ('the CPC') and whether such matters were criminal or civil causes.

Held, dismissing the application: (1) habeas corpus proceedings are quasi-criminal proceedings under s 365 and Ch XXXVI of the CPC, and the word 'affidavit' in s 366 under the same chapter when read in conjunction with the aforesaid words in s 424(i) of the CPC clearly ordains the application of certain provisions of the RHC to habeas corpus proceedings; (2) where the document is a public do-cument, the best evidence rule is inapplicable. Secondary evidence may be adduced not only as to the existence of such document but also as to its contents. Therefore there was no gap in the chain of evidence relating to the authorization for the detention of the applicant and the contents of exh YKS1 showed that s 3(2)(c) has been duly complied with.

Ng Hong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia Ng Hong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1994] 1 MLJ 592 High Court, Penang (Vincent Ng JC).

This was an application for a writ of habeas corpus ad subjicendum whereby the applicant challenged both the validity of a detention order dated 17 February 1986 made against him pursuant to the provisions of s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 ('the ordinance') and his detention thereunder.

Held, allowing the application: (1) it is of first importance for a person arrested under s 3(1) to know, at the earliest possible moment, by virtue of what power he is being arrested. He must also be informed, at the same time, of the grounds of his arrest; (2) in the present case, there was an improper arrest and detention under s 3(1) for non-compliance with the first limb of art 5(3) of the Constitution and that in any event, the applicant's detention during the period when inquiries under s 3(1) ended and detention under s 4(1) began was unlawful; (3) furthermore, the criminal activities alleged against the applicant are too remote in point of law to justify the making of the detention order.

Yit Hon Kit v Minister of Home Affairs, Malaysia & Anor [1988] 2 MLJ 638 High Court, Penang (Edgar Joseph J).

[Annotation: An appeal to the Supreme Court in this case was withdrawn on 23 August 1986.]

The plaintiff was arrested and an order was made to restrict him to the town of Gemas for three years. After his arrest, the plaintiff was detained for 19 days in the Taiping Prison and he not given any opportunity to make an appeal to the first defendant to deny the charges against him or to request for an inquiry. The plaintiff is now seeking a declaration that the restricted residence order ('the order') was not valid and was of no effect and that the plaintiff need not abide by the order.

Held, dismissing the application: (1) there is no special statutory format which the plaintiff need use to ask for an inquiry. Had he so much as made a one line request within the 14 days given to him, it would have been conveyed to the Minister. Here, the plaintiff never attempted to exercise that right to so ask; (2) where there is no time frame for such an order to be made, the Minister must issue the order with all convenient speed, which will depend on the facts of each case. It was reasonable to infer that any consideration of the issue of an order by the Minister can only be done after the period of 14 days had lapsed. After the lapse of the period of appeal, there must be notification to the Home Ministry that the plaintiff had asked for no inquiry. After the notification the Home Ministry would proceed to have the order prepared and signed and served on the plaintiff. In this case, there had been no undue or inordinate delay.

Lee Swee Fei v Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1994] 2 MLJ 468 High Court, Kuala Lumpur (Abu Mansor J).

Cohen Aaron Shelton v Jemaah Pengampunan Pulau Pinang & Anor Originating Summons No 24-15-90 High Court, Penang (Mohtar Abdullah J).

In this case, the accused had been tried and convicted before a magistrate's court of the offence of voluntarily causing hurt by means of an instrument for cutting, namely a parang, an offence punishable under s 324 of the Penal Code. In the course of trial, it transpired that the hurt suffered by the victim was grievous hurt. The learned magistrate ignored this evidence and went on with the trial at the end of which he convicted and sentenced the accused as charged under s 324 of the Penal Code. On appeal to the High Court, it was contended that as the victim's hurt was grievous the accused should have been charged and tried under s 326 of the Penal Code, which prescribes a penalty of penal servitude for life or ten year's imprisonment and that as such a charge would have been beyond the jurisdiction of the magistrate, the trial in this case was a nullity. In the High Court, Ibrahim J held that the trial was not a nullity but he referred the following question to the Federal Court: 'Whether in view of the fact that the accused were charged under s 324 of the Penal Code and tried by the magistrate in the lower court and decided therein the facts clearly disclosed an offence under s 326 of the Penal Code the said trial was a nullity?'

Held: (1) the Public Prosecutor is given wide discretion over the control and direction of all criminal proceedings and can in particular decide to prefer a charge for a less serious offence when there is evidence of a more serious offence which should be tried in a higher court; (2) the trial in this case was not a nullity and therefore the question referred to the Federal Court must be answered in the negative.

Long bin Samat & Ors v Public Prosecutor [1974] 2 MLJ 152 Federal Court, Kota Bharu (Suffian LP, Ali Hassan and Wan Suleiman FJJ).

The plaintiff, who was a school teacher, had been charged on fives charges of using criminal force on four girls in his class to outrage their modesty. He was acquitted of those charges. Subsequently, the Public Service Commission instituted disciplinary proceedings against the plaintiff with a view to his dismissal. The plaintiff was charged with five charges that he abused his position as teacher by outraging the modesty of the same four pupils. He applied for a declaration that reg 11 of the Public Service (Disciplinary Proceedings) Regulations 1970 is ultra vires art 7(2) of the Federal Constitution, as it applies to Singapore, and that the determination in the magistrate's court was a conclusive acquittal and discharge of the plaintiff which constituted issue estoppel or res judicata, thus making it improper for the Public Service Commission to proceed on the same charges.

Held: (1) art 7(2) is a constitutional entrenchment of the pleas of autrefois acquit and autrefois convict. The relevant word in the interpretation of art 7(2) is 'offence'. Under the Penal Code (Cap 103, 1970 Ed), 'offence' denotes a thing made punishable by the code or any other law. Significance also has to be attached to the word 'tried' in art 7(2). This clearly means trial before a judge according to the laws of the land. 'Offence' therefore means any act or omission punishable by law; (2) no principle of law precludes a man who has been acquitted or convicted upon a set of facts alleged to constitute an offence being subsequently subjected upon the same facts to disciplinary action by a domestic tribunal; (3) therefore reg 11 of the Public Service (Disciplinary Proceedings) Regulations 1970 is not ultra vires art 7(2) of the Federal Constitution; (4) it was not improper for the Public Service Commission to institute disciplinary proceedings in this case as the exercise by the Public Service Commission of its powers is not by way of punishment but rather to enforce a high standard of propriety and professional conduct; (5) there was no res judicata in this case as the parties were different and the facts were relevant to the accusation of a different character, that is, misconduct.

Mohamed Yusoff bin Samadi v Attorney General 1972 High Court, Singapore (Chua J).

The appellants in this case were members of a committee of inquiry appointed by the Public Service Commission under r 4 of the Public Service (Disciplinary Proceedings) (Procedure) Rules 1964, to inquire into certain charges preferred against the respondent, who was an Assistant Superintendent of Police in the Singapore Police Force. The committee inquired into the charges and reported to the Public Service Commission. Subsequently the Public Service Commission by letter addressed to the first appellant as chairman of the committee, directed the committee to establish the full facts of the case and in particular to call the Commandant of the Police Training School. Consequently, the committee informed the respondent that it would meet to hear further evidence. The respondent through his solicitor objected to such further proceedings and took out proceedings against the appellants for a declaration that the appellants had ceased to hold office as members of the committee of inquiry and that the decision of the appellants to hear further evidence was illegal, void and inoperative. The respondent also sought an injunction to restrain the appellants from hearing further evidence. An application was made for an interlocutory injunction to restrain the appellants from hearing the further evidence. Chua J heard the application and granted the interlocutory injunction. The appellants appealed.

Held, allowing the appeal: (1) although the Public Service (Disciplinary Proceedings) (Procedure) Rules 1964 are statutory rules, they are except for such rules as are for the purpose of carrying out the object of art 135(2) of the Constitution of Malaysia, procedural rules which are not mandatory but merely directory, and therefore any breach or non-compliance with any such purely procedural rule or sub-rule does not give a person aggrieved a legal right to redress in a court of law; (2) as there was no provision in the rules to say when a committee of inquiry shall cease to exist, the Public Service Commission was entitled to require the committee to consider further evidence; (3) in this case it would appear that if the action had proceeded to trial, the respondent would prima facie fail to obtain the two declarations and consequential injunction sought, and therefore the respondent was not entitled to obtain the interlocutory injunction.

Wong Keng Sam & Ors v Pritam Singh Brar 1965 Federal Court, Singapore (Wee Chong Jin CJ, Tan Ah Tah FJ and Ambrose J).

The respondent, a probationary police inspector, received a letter from the Penolong Pengarah Pengurusan (Tatatertib) on behalf of the Deputy Inspector-General of Police alleging that he was guilty of three instances of irresponsible conduct relating to his work as an investigating officer. The letter required him to give an explanation against the allegations. There was nothing in the letter which showed that the disciplinary authority intended or contemplated the punishment of reduction in rank. On receipt of the letter, the respondent wrote his reply giving his explanation to the allegations. After a lapse of more than one year, he was informed that his explanation had not been accepted and that as a punishment he was demoted to his former rank of police constable plus a total fine of three days' salary. He instituted a suit for wrongful dismissal claiming that the punishments inflicted upon him were null and void because the proceedings were not carried out in compliance with the rules of natural justice. The learned trial judge gave judgment for the respondent and the appellants appealed.

Held, dismissing the appeal: (1) the proper disciplinary authority in this case was the Inspector-General of Police and as the show cause letter was issued on the direction not of the Inspector-General of Police but of the Deputy Inspector-General of Police, the requirement of General Orders, Chapter D, O 30 was not complied with; (2) as the show cause letter did not direct the respondent's attention to the possibility of the punishment of reduction in rank, it has not sufficiently complied with the requirements of para (2) of General Orders, Chapter D, O 30; (3) if the show cause letter had included the proposed punishment, there is no necessity for the appellants to give the respondent another opportunity of being heard before the punishment is imposed; (4) in the circumstances, it was too late for the appellants to make any rectification as the matter having been fought all the way though the court system has already become res judicata.

Inspector-General of Police & Anor v Alan Noor bin Kamat [1988] 1 MLJ 260 Supreme Court, Kuala Lumpur (Salleh Abas LP, Wan Suleiman and Syed Agil Barakbah SCJJ).

This was an appeal against the judgment of Winslow J who made a declaration that the order of dismissal of the respondent by the Public Service Commission was null and void ([1968] 2 MLJ 253). The respondent had originally been charged with four charges of breach of discipline under the Police Force Ordinance 1958 and after an inquiry by a disciplinary board he was found guilty on two of the four charges and the Commissioner of Police imposed a fine of $50 on the first charge and reprimanded him on the second charge. The respondent thereupon appealed against the decision of the Commissioner and subsequently he was informed that the Public Service Commission had decided after hearing the appeal that he should be dismissed from the service. The respondent commenced an action claiming a declaration and damages. As a result Winslow J made the declaration above mentioned. The questions which were raised on the appeal were: (1) whether the Public Service Commission, in ordering the dismissal of the respondent, was acting in exercise of its original jurisdiction conferred on it by the Constitution of Malaysia or in exercise of its appellate jurisdiction conferred on it by s 28(2) of the Police Force Ordinance; (2) if the Public Service Commission was acting in exercise of its appellate jurisdiction, whether it had power, in an appeal by the respondent, against his conviction and sentence to enhance the punishment awarded by the Commissioner of Police; (3) if the Public Service Commission was acting in the exercise of its original jurisdiction, whether the respondent had been dismissed without being given a reasonable opportunity of being heard.

Held, dismissing the appeal: (1) it was beyond doubt that the Public Service Commission in ordering the dismissal of the respondent in this case was acting in the exercise of its appellate jurisdiction under s 28(2) of the Police Force Ordinance; (2) the Public Service Commission had no power to enhance the punishment and therefore in dismissing the respondent it was acting without jurisdiction. Semble: if in this case the Public Service Commission could be said to be exercising its original jurisdiction, then on the facts the respondent had not been given a reasonable opportunity to be heard on the question of his dismissal.

Attorney General, Singapore v Ling How Doong 1969 Federal Court, Singapore (Wee Chong Jin CJ, Tan Ah Tah FJ and Chua J).

The plaintiff, an inspector attached to the Special Branch, had on 14 June 1965, four charges preferred against him for breach of discipline under the Police Force Ordinance. The then acting Commissioner of Police, Singapore Component, Royal Malaysian Police, appointed a board to conduct a disciplinary inquiry in accordance with the Police Regulations 1959. The board found the plaintiff guilty of two out of the four charges (as amended in the course of the proceedings). The Commissioner informed the plaintiff that the board had found him guilty of two charges and that he had accepted the board's finding and decided to impose a fine of $50 for the first charge and to reprimand him for the second charge. The plaintiff being dissatisfied with the decision appealed against it. The Public Service Commission, after the appeal, decided that he should be dismissed from the service. The plaintiff then commenced this action claiming a declaration and damages. Counsel for the plaintiff submitted four arguments: (1) the board had no power to amend the charges; (2) the board acted on no or not sufficient evidence or acted contrary to the evidence before it and was therefore wrong in law; (3) the appeal against the Commissioner's award should have been preferred to the President according to the Police Force Ordinance and not to the Public Service Commission; and (4) even if the Public Service Commission did have the power to hear the appeal, it had no power to enhance the punishment awarded by the Commissioner of Police.

Held: (1) the board did have power to amend the charges; (2) the present case did not warrant such an interference; (3) although under the Police Force Ordinance, an inspector may appeal to the President, this provision since 10 September 1963 must be read in the light of art 140(1) of the Constitution of Malaysia, which sets up a Public Service Commission. Under an instrument of delegation of powers and duties of the Public Service Commission, an inspector awarded disciplinary punishment by the Commissioner of Police, Singapore, may appeal to the Inspector-General. However, since the separation of Singapore from Malaysia, there is no longer an Inspector-General in Singapore and as such the appellate authority delegated to the Inspector-General has reverted to the donor of the former, namely, the Public Service Commission as successors to the Police Service Commission. Even otherwise since under the Constitution, the Public Service Commission is in control of disciplinary proceedings of the police officers, the provisions of the Police Force Ordinance must give way to the Constitution whenever there is a conflict between the said provision and the Constitution; (4) even if the board was acting in a judicial or quasi-judicial capacity, the court can only exercise supervisory jurisdiction over the board by ensuring that the proceeding against an officer who has been found guilty on departmental charges has not been conducted in any manner inconsistent with the rules of natural justice, or in violation of statutory rules prescribing the mode of inquiry or that the finding is not, on the face of it, so wholly arbitrary and capricious that no reasonable person could even have reached it;an appellate body is barred from enhancing sentence in the absence of a clear power conferred by the relevant legislation unless the body is vested with revisional jurisdiction. In the present case, the Police Force Ordinance which is the only relevant legislation gives no such enhancing power to the Public Service Commission, nor is the Public Service Commission exercising any revisional jurisdiction, and as such, the Public Service Commission has no power whatsoever to enhance the sentence as imposed upon by the Commissioner of Police. Even if the commission purported to act in exercise of its original jurisdiction, yet since the plaintiff had not been given an opportunity of being heard on the proposed punishment of dismissal, the requirements of art 135(2) had not been complied with.

Ling How Doong v The Attorney General, Singapore 1965 High Court, Singapore (Winslow J).

[Annotation: The defendant's appeal was dismissed by the Federal Court sitting in Singapore (see [1969-1071] SLR 42; [1969] 1 MLJ 154).]

This was an application for an order of prohibition to prohibit the chairman of the committee of inquiry from proceeding with an inquiry which has been instituted at the instance of the Public Service Commission with a view to the dismissal of a public officer, who was an official of the appellant union. The main ground relied on was that s 77 of the Industrial Relations Ordinance 1960 would be contravened if the inquiry was held.

Held: (1) even if it was such a threat, it could not be said to be a threat to dismiss him by reason of the circumstances that he was dissatisfied with working conditions under para (d) or because he was a member of a trade union falling within para (e) of s 77 of the Industrial Relations Ordinance as the charges preferred against the officer in this case fell outside the ambit of these paragraphs; (2) the institution of disciplinary proceedings against an officer in contemplation of his dismissal is not necessarily a threat to dismiss him;it was doubtful, even if the committee of inquiry could be said to be exercising quasi-judicial functions, whether its decision could be said to affect any legal right which a civil servant may possess, because art 132 of the Federal Constitution provides that public officers hold office during the pleasure of the Yang di-Pertuan Agong or the Yang di-Pertuan Negara as the case may be.

Amalgamated Union of Public Employees v Permanent Secretary (Health) & Anor [1965] 2 MLJ 209 High Court, Singapore (Winslow J).

The plaintiff joined the Singapore Police Force as a recruit police constable on 1 March 1958. He was confirmed as a sergeant in January 1979. The terms and conditions of his service were governed by the Police Force Act (Cap 78, 1970 Ed), the Police Regulations, the Police General Orders and various letters of appointment, promotion and confirmation sent by the relevant authorities and accepted by the plaintiff from time to time. On 14 October 1980, the plaintiff was handed a letter dated 8 October 1980 from the Acting Permanent Secretary (Home Affairs) in which he was informed that the Commissioner of Police acting under s 28(A) of the Police Force Act had referred to the Public Service Commission (PSC) a case where disciplinary proceedings were to be taken against the plaintiff and that the same were thereby commenced against him under reg 4 of the Public Service (Disciplinary Proceedings) Regulations 1970 (the 1970 Regulations) on four charges. The said letter also requested the plaintiff to state in writing any representations which he wanted to make to exculpate himself from the charges. On 21 October 1980 the plaintiff wrote to the Permanent Secretary (Home Affairs) stating the grounds on which the plaintiff was entitled to be exculpated. On 22 October 1980, the plaintiff was interdicted from duty by the PSC and on 13 September 1982 he was dismissed from the police force by the PSC. The plaintiff brought this action against the defendant claiming that his dismissal from the Singapore Police Force on 13 September 1982 was null and void or alternatively that his dismissal was wrongful. The plaintiff contended, inter alia, that the PSC acted in breach of r 4(3) and r 7(i) of the 1970 regulations by interdicting the plaintiff from duty without considering the exculpatory statement of the plaintiff.

Held, dismissing the plaintiff's claim: (1) they are not a judicial or quasi-judicial body and they have no power to make any decision in any inquiry. No decision can emanate from the inquiry committee; (2) the PSC may have to act judicially or quasi-judicially by the very nature of the power they exercise and the decisions they make which can affect the livelihood of public officers, but they are not obliged to give reasons for their decisions; (3) the PSC in interdicting the plaintiff from duty acted in accordance with r 7 of the 1970 regulations. Rule 7(i) does not require the PSC to consider the exculpatory statement of the plaintiff before interdicting him. It empowers the PSC to interdict any officer in the public interest instantly and this must mean without having to hear him. The power of the PSC under r 7 is not dependent on or related to their power under r 4; (4) the respective functions of the inquiry committee and the PSC are mutually exclusive. The inquiry committee are not a delegated body of the PSC for the purpose of making any decision;it is irrelevant to consider whether art 135(2) of the Federal Constitution has been impliedly repealed. The reason is that the reprint of the Constitution of the Republic of Singapore came into force on 31 March 1980 pursuant to art 93 (now art 155 of the Reprint) of the Constitution of Singapore as amended by the Constitution (Amendment) Act 1979. Article 135(2) has been omitted in the Reprint. By virtue of art 155 thereof, the Reprint shall be deemed to be and shall be, without any question whatsoever in any courts of justice and for all purposes whatsoever, the authentic text of the Constitution of the Republic of Singapore in force as from 31 March 1980 until superceded by the next or subsequent authorized reprint.

Heng Kai Kok v Attorney General, Singapore [1986] SLR 408 High Court, Singapore (Chan Sek Keong JC).

Surinder Singh Kanda v Government of the Federation of Malaya [1962] MLJ 169 Privy Council Appeal from Malaysia (Lord Denning, Lord Hodson and Lord Devlin).

The plaintiff, a government servant, held the post of Assistant Controller of Foreign Exchange which appointment had been made by the Public Services Commission. On 16 July 1960 the Principal Establishment Officer informed the plaintiff by letter that as a result of the abolition of his post, it had been decided to retire him in accordance with s 10(f) of the Pensions Ordinance. The Principal Establishment Officer claimed to have acted under powers purported to have been delegated to him by the High Commissioner although the delegation had not been published by notification in the Gazette as required by s 2 of the Delegation of Powers Ordinance 1952.

Held: the requirement in s 2 of the Delegation of Powers Ordinance that power is to be delegated by notification published in the Gazette is of an imperative nature. The notification is the operative act of delegation, and the act of delegation is only complete when the instrument of delegation is contained in a notification published in the Gazette. In this case as no notification was made in the Gazette the dismissal was void and of no effect.

M Ratnavale v Government of the Federation of Malaya [1963] MLJ 393 High Court, Penang (Hepworth J).

The applicant, a health inspector under the Town Board, Tanjong Malim, applied for the post of assistant passport officer in the Federation of Malaya Government Overseas Missions advertised in the Malay Mail newspaper dated 19 February 1957 as follows: 'Applicants will be selected according to the following order of preference: (i) Serving assistant passport officer and serving junior assistant passport officers in the Immigration Department who have not had less than five years' service and who posses school certificate. (ii) All serving government officers who have had five years' service and who possess school certificate ... officers will be eligible for overseas allowance when abroad ... free passages to overseas posts ... free medical (but not dental) attention ... outfit allowances ... applications (those from serving officers to be submitted through heads of department with confidential reports and record of service) to reach the Secretary, Public Service Commission (Designate), Young Road, Kuala Lumpur, 28 February 1957.' Consequently the applicant was informed that he was accepted and after undergoing a period of training he was posted to the Immigration Office, Kuala Lumpur until December 1958 when he was transferred to the Immigration Office at Johore Bahru. On 5 November 1959, the Secretary to the Public Services Commission, in a letter addressed to the applicant as 'assistant passport officer on probation', informed him that following a report from the Controller of Immigration concerning his conduct in the irregular issue of certain passports disciplinary action was being taken against him with a view to his dismissal. The applicant made representations as invited by the said letter and on 24 December 1959, the applicant was informed that the respondent had decided that he should not be dismissed but that his appointment on probation be terminated forthwith by payment of one month's salary in lieu of notice. The applicant now moved the court for an order of certiorari to quash the decision of the respondents on the grounds of error in law, want of jurisdiction and failure to observe principles of natural justice.

Held: the Malay Mail advertisement was an invitation to qualified persons to apply and the resulting invitations were offers. The information conveyed to the applicant was an unqualified acceptance to join the overseas mission and he so understood it and no mental reservation or tacit misunderstanding on the part of the respondents should be permitted to destroy the contractual obligation. The respondents therefore acted ultra vires in purporting to terminate the applicant's services in the manner applicable to officers on probation.

Coelho v Public Services Commission [1964] MLJ 12 High Court, Kuala Lumpur (Ong J).

Munusamy v Public Services Commission [1964] MLJ 239 Federal Court, Kuala Lumpur (Thomson LP, Barakbah CJ (Malaya).

In this case, the respondent had declared at the time of his joining the Railway service on 19 February 1941 that his date of birth was 26 June 1916. On that basis he was compulsorily retired from service on attaining the age of 55 on 26 June 1971. The respondent claimed that his correct date of birth was 21 June 1921. He obtained authenticated documents from India relating to his actual date of birth and on the presentation of these documents to the Registrar of Identity Cards, his identity card was amended to show the date of birth. He applied to the Principal Establishment Officer to have his date of birth amended but his application was turned down. He thereupon applied to the High Court for a declaration that he had been prematurely and unlawfully retired before his retiring age of 55 and in the High Court, Mohamed Azmi J made the declaration and ordered that he be reinstated in his employment ([1974] 1 MLJ 201). On appeal,

Held: (1) by virtue of s 4(1A) of the Railway Ordinance 1948, the respondent being in the service of the Railway Administration is deemed to be in the service of the Government of the Federation and therefore General Orders are applicable to him; (2) in the absence or his having failed to take such proceedings he had no right of action against the appellant; (3) under General Orders A 19(e) the Principal Establishment Officer has absolute discretion in determining the application for amendment of the date of birth and if the respondent was dissatisfied with his decision in the exercise of such discretion, it was open to him to take proceedings against the government;under General Order A 19(d) the respondent was bound by his statement which he made as to his date of birth when he was appointed to the railway service.

General Manager, Keretapi Tanah Melayu v Veeriah [1975] 1 MLJ 123 Federal Court, Kuala Lumpur (Gill CJ, Ali and Ong Hock Sim FJJ).

In this case, the respondent had required the appellant to retire from the service of the government on the ground that he had attained the age of 55 years. The respondent took the appellant's birth date as stated in the appellant's record of service. The Director of Public Service had refused a request for amendment of the recorded birth date. The appellant alleged that his birth date was wrongly recorded and brought an action for wrongful termination of his service alleging that the respondent had contravened s 10 of the Pensions Ordinance 1951 and art 136 of the Federal Constitution and the rule of natural justice. Wan Hamzah J dismissed the claim, following the decision of the Federal Court in General Manager, Keretapi Tanah Melayu v Verriah [1975] 1 MLJ 123. The appellant appealed.

Held, dismissing the appeal: the learned trial judge was correct in dismissing the claim for the reasons set out in his judgment.

Doraisamy v Government of Malaysia [1982] 2 MLJ 155 Federal Court, Ipoh (Gill CJ (Malaya).

In this case the plaintiff who was 58 1/2 years old was required to retire under s 10(a) of the Pensions Ordinance 1951. The plaintiff contended that he was entitled to remain in service until he had attained the age of 60 years, in accordance with the service circular No 6 of 1961, and that therefore the compulsory retirement was bad in law and therefore void and inoperative.

Held: (1) the decision to retire the plaintiff could validly be made under s 10(a) of the Pensions Ordinance by the Principal Establishment Officer under powers delegated to him by the Yang di-Pertuan Agong; (2) the compulsory retirement under s 10(a) of the Pensions Ordinance is not equivalent to dismissal and the plaintiff was therefore not entitled to be given a reasonable opportunity of being heard before he was compulsorily retired.

Thambipillai v Government of Malaysia [1969] 2 MLJ 206 High Court, Alor Star (Wan Suleiman J).

Pillai v State of Kedah [1927] 6 FMSLR 160 Court of Appeal, Federated Malay States (Sproule and Stevens JJ).

The plaintiff was appointed temporary clerk of works by the Public Service Commission. His services as such were terminated by the State Engineer. The plaintiff claimed that the termination of his services was void by reason of art 135(1) and (2) of the Federal Constitution as it was made by an authority subordinate to that which appointed him as clerk of works and which had no authority to appoint or terminate his services.

Held: the plaintiff was not dismissed from service and art 135 of the Federal Constitution did not apply to this case. Hence, it does not matter if the authority which terminated the service was subordinate to the Public Service Commission so long as that authority did so on behalf of the government.

HA Gomez v Government of Malaysia [1978] 2 MLJ 69 High Court, Kuala Lumpur (Harun J).

Sithambaran v Attorney General 1972 High Court, Singapore (Tan Ah Tah J).

The plaintiff, who was a police officer, was detained under an order issued by the Minister of Home Affairs. Whilst in detention he received a statement in writing sent by the Police Force Commission pursuant to General Order 30(2) of the Public Officers (Conduct and Discipline) (General Orders, Chapter D) Regulations 1969, requiring him to show cause why he should not be dismissed from the police force. The plaintiff sent a written reply to the Police Force Commission. There was no formal inquiry held and the plaintiff was dismissed from the police force by the Police Force Commission. The plaintiff sought, inter alia, a declaration that his dismissal was void.

Held: (1) the Public Officers (Conduct and Discipline) (General Orders, Chapter D) Regulations 1969 are valid, although the effect may be to deprive an officer of the guarantee embodied under art 135(2) of the Federal Constitution; (2) if the dismissal of the officer was made by the appropriate service commission empowered under the Federal Constitution, it was perfectly valid and effective, even though no inquiry was held.

Najar Singh v Government of Malaysia & Anor [1973] 2 MLJ 191 High Court, Kuala Lumpur (Abdul Hamid J).

[Annotation: The plaintiff's appeal to the Federal Court was dismissed (see [1974] 1 MLJ 138).]

The first plaintiff was a detective police sergeant in the police force and was attached to the Gambling Suppression Branch of the Criminal Investigation Department of the said force. The second plaintiff was a detective police constable, also attached to the Gambling Suppression Branch of the Criminal Investigation Department. On 5 March 1977 the two plaintiffs conducted a raid on No 46B Holy Innocents Lane, Singapore. The premises were occupied by Madam Chia with her son Lee Boon Keng and his family. During the raid betting slips were found on the premises. Chia Yak Moy, an adopted son of Madam Chia, was arrested and taken to the police station. The next day he was taken to court where he pleaded guilty to a charge of being in possession of betting slips and was fined. By a letter dated 13 January 1978, the first plaintiff was informed that disciplinary proceedings under reg 4 of the Public Service (Disciplinary Proceedings) Regulations 1970 (the regulations) had been commenced against him on two charges, ie conniving with the second plaintiff in 'demanding and accepting a gratification of $1,200 from a member of the public, one Chia Yak Moy, as an inducement for not taking action against one Lee Boon Keng under the Common Gaming Houses Act (Cap 96, 1970 Ed)' and for perverting 'the proper administration of justice by putting one Chia Yak Moy under arrest and subsequently charging him for an offence under the Common Gaming Houses Act when (he) knew that the real culprit was one Lee Boon Keng'. The second plaintiff too received a similar letter dated 13 January 1978 almost on identical terms informing him that disciplinary proceedings had also been commenced against him on the corresponding two charges. Both plaintiffs submitted their exculpatory statement by letters dated 19 January 1978 wherein they denied the said two charges. The Public Service Commission ('PSC') were not satisfied with these exculpatory statements of the two plaintiffs and they appointed a committee of inquiry under reg 4(3) of the regulations. The committee in their report stated both the charges against the two plaintiffs had not been proved. The first plaintiff received a letter dated 15 August 1978 from the Permanent Secretary (Home Affairs) that the PSC after careful consideration of the facts of the case and the report of the committee had decided that he be dismissed and he was thereby dismissed from the service with effect from the date following the receipt of the letter by him. A similar letter was also received by the second plaintiff on 18 August 1978. As the two letters of 15 August 1978 addressed to the two plaintiffs did not mention on which of the two charges that had been preferred against them that they had each had been found guilty, counsel for the plaintiffs wrote to the Permanent Secretary (Home Affairs) on 5 September 1978 for clarification on this point. The Permanent Secretary (Home Affairs) by letter of 15 September 1978 informed that they were found guilty of the first charge. Counsel for the plaintiffs submitted that the PSC had no powers to differ from the findings of the committee which had found them not guilty on both the charges that had been preferred against each of the two plaintiffs. It was also contended that the PSC had disregarded the rights of the plaintiffs under art 135(2) of the Malaysian Constitution, and had acted in violation of those rights.

Held, dismissing the plaintiffs' action: (1) if the committee in its report makes any finding as to the guilt or otherwise on the charge preferred against the subordinate officer concerned, it is purely expressing its opinion and no more, and it is at best a matter which may be taken into consideration by the PSC and is by no means binding on the PSC. In this case, the PSC were perfectly entitled to differ from the views of the committee on the question of whether the officers concerned were guilty of the charge or not; (2) the jurisdiction over inferior tribunals is supervision and not review. Its supervision would be to ensure that the inferior tribunal acts within the jurisdiction permitted by Parliament in its mandate to the tribunal. If the tribunal on a true construction of the Police Force Act is to inquire into and finally decide questions within a certain area, the court's supervisory function is to see that it makes the authorized inquiry according to natural justice and arrives at a decision whether right or wrong; (3) the PSC were not bound by the procedure set out in s 27 of the Police Force Act (Cap 78, 1970 Ed) and the Police Regulations but by the procedure set out in the Public Service (Disciplinary Proceedings) Regulations 1970; (4) while art 135(2) of the Malaysian Constitution applied to all members of the Police Force, the new article 78(3) provided by the Constitution (Amendment) Act 1970 was applicable only to police officers of the rank of Inspector and above. The clear implication is that art 135(2) has been repealed impliedly and such a provision is no longer applicable to subordinate police officers like the plaintiffs.

Wong Kim Sang & Anor v Attorney General 1982 High Court, Singapore (Kulasekaram J).

The plaintiff in this action sought for a declaration that his purported dismissal from the Singapore Police Force was ultra vires, null, void and inoperative, and that he was still a corporal and entitled to be remunerated as such. It was argued on his behalf, inter alia, that: (1) he was not permitted to be represented by an agent at the disciplinary inquiry; (2) he was not given a reasonable opportunity of being heard before he was dismissed; (3) an Assistant Commissioner of Police had no power to dismiss him. It was contended that only the Commissioner had the power to dismiss the plaintiff. Counsel for the defendant submitted that under s 4(1) of the Police Force Ordinance 1958, an Assistant Commissioner of Police had the power to dismiss the plaintiff.

Held: (1) reg 7 of the Police Regulations 1959 is silent on the question whether subordinate officers can be represented by anyone at an inquiry. On the authority of Enderby Town Football Club Ltd v The Football Association Ltd [1971] 1 All ER 215, the chairman of the inquiry had a discretion whether or not to allow the plaintiff to be represented by someone at the inquiry. But as the plaintiff on his own admission never raised the matter, the question of an exercise of discretion never arose; (2) the plaintiff was given a reasonable opportunity of being heard before he was dismissed. There had been no contravention of art 135(2) of the Constitution of Malaysia; (3) s 4(1) of the Police Force Ordinance 1958 did not confer on the Commissioner the power to delegate any of his powers. The effect of s 4(1) is that any act which may be done by the Commissioner may, subject to orders and directions, be done by an Assistant Commissioner of Police. The right of the Commissioner to give orders and directions is controlled by s 54 of the Police Force Ordinance 1958, which provides, inter alia, that the Commissioner may make such orders not inconsistent with the provisions of the ordinance as he may think expedient. Therefore, s 4(1) of the ordinance conferred the power on the Assistant Commissioner of Police to dismiss the plaintiff from the police force.

Sithambaran v Attorney General 1972 High Court, Singapore (Tan Ah Tah J).

The appellant who was a police officer had been detained under an order issued by the Minister of Home Affairs. While he was being detained he received a letter from the Inspector-General of Police asking him to show cause why he should not be dismissed from the police force. The appellant sent a written reply. Eventually he was dismissed from the police force and he sought a declaration that his dismissal from the police force was void. Abdul Hamid J dismissed his claim ([1973] 2 MLJ 181) and an appeal to the Federal Court was dismissed ([1974] 1 MLJ 138). The appellant appealed with leave of the Federal Court to the Yang di-Pertuan Agong, and the appeal was referred to the Privy Council. The grounds of appeal were: (a) instead of being dealt with under the Public Officers (Conduct and Discipline) (General Orders, Chapter D) Regulations 1969 he should have been dealt with in accordance with the procedure prescribed in the Police (Conduct and Discipline) (Junior Police Officers and Constables) Regulations 1970; and (b) contrary to natural justice and reg 27 of the Chapter D Regulations, he was not afforded a reasonable opportunity of being heard before he was dismissed.

Held, dismissing the appeal: (1) even if the appellant could have been dealt with under the Police Regulations 1970, that would not prevent his being dealt with under the Chapter D Regulations 1969; (2) reg 27 of the Chapter D Regulations is not to be interpreted as imposing an obligation to hear an officer orally; (3) in the circumstances, the plea by the appellant that there has been a failure of natural justice must be rejected.

Najar Singh v Government of Malaysia & Anor [1976] 1 MLJ 203 Privy Council Appeal from Malaysia (Lord Wilberforce, Lord Morris of Borth-y-Gest, Viscount Dilhorne, Lord Hailsham of St Marylebone and Lord Fraser of Tullybelton).

The appellant, a former probationary inspector of the Singapore Police, was dismissed by the Commissioner of Police after he was found guilty by a board of two charges of assaulting a person under police custody. He appealed to the Public Service Commission which confirmed the Commissioner's decision. Instead of applying for an order of certiorari, the appellant commenced an action in the High Court seeking a declaration that his dismissal from the police force was null and void and for consequential relief. The appellant's case is based on two main grounds: (1) The proceedings of the board were conducted in breach of the provisions of the Police Regulations and/or in breach of the rules of natural justice and he was deprived of his constitutional right under art 110(3) of the Singapore Constitution which provides that no public officer shall be dismissed without being given a reasonable opportunity of being heard. The appellant also alleged that the Chairman of the board was biased against him. (2) The appellant claimed that the evidence before the board was not capable in law of warranting the findings that he was guilty of the two charges of assault and that the findings were so arbitrary and capricious that no reasonable person could have come to such findings on the evidence before the board.

Held, dismissing the appeal with costs: (1) the board's findings of fact are not open to review by the court in the exercise of its supervisory powers except on the principles laid down in Edwards v Bairstow [1956] AC 14. There was sufficient evidence for the board to come to its finding that the appellant was guilty of both charges; (2) the board had given the appellant the opportunity to be heard and that it had acted fairly towards him in carrying out its decision-making process. All the complaints of the appellant against the board and its Chairman were on the evidence in the High Court properly rejected by the learned trial judge.

Leong Kum Fatt v Attorney General 1984 Court of Appeal, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Thean JJ).

This was an appeal from the judgment of Rajah J in which the learned judge held (see [1981] 2 MLJ 220) that the dismissal of the respondent from the police force was null and void and that the respondent was still an inspector in the police force and was entitled to be remunerated as such. The learned judge held that the respondent was not given a reasonable opportunity of being heard before he was dismissed and was accordingly denied his constitutional rights as a police officer under art 110(3) of the Constitution.

Held, allowing the appeal: the learned trial judge had erred in holding that the requirements of art 110(3) of the Constitution had not been complied with. He had failed to give weight to the letter of the Acting Permanent Secretary and had misunderstood the decision in Jacob v Attorney General [1970] 2 MLJ 133. The respondent had been informed at the earliest stage that a range of punishments, including dismissal, was under consideration. Although he did not avail himself of the opportunity, the respondent was nevertheless afforded the opportunity of being heard on the contemplated dismissal.

Attorney General, Singapore v Lee Keng Kee 1982 Court of Appeal, Singapore (Wee Chong Jin CJ, Sinnathuray and Lai Kew Chai JJ).

The plaintiff (appellant in this appeal), an inspector in the Royal Federation of Malaya Police Force, was first appointed on probation in 1951 and permanently appointed to the rank of inspector on 1 June 1953. On 7 July 1958, he was dismissed by the Commissioner of Police. Having exhausted his departmental rights of appeal, he commenced these proceedings on 1 October 1959. He asked for a declaration and other consequential reliefs stating that his purported dismissal on 7 July 1958 was void and inoperative and of no effect and that he was still a member of the said police force because (a) the dismissal had been effected by an authority subordinate to that which at the time of dismissal had power to appoint a member of the police force of equal rank and that this was contrary to art 135(1) of the Constitution, and (b) it was effected without him being given a reasonable opportunity of being heard (at the board of inquiry held by the police force) and that this was contrary to art 135(2) of the Constitution and natural justice. In the High Court ([1960] MLJ 115), Rigby J held that art 144(1) was to be read with art 135(1) at the material time and that the power to appoint and consequently the power to dismiss officers of his rank was vested in the Police Service Commission and that the Commissioner of Police was an authority subordinate to the Police Service Commission and as such he had no power to dismiss him. He also held that even if the Commissioner had power to dismiss the plaintiff his dismissal as actually effected was contrary to natural justice and in breach of the Constitution because the plaintiff was not afforded a reasonable opportunity of being heard. The learned trial judge granted the declaration that the purported dismissal was void, inoperative and of no effect and that he was still a member of the said police force. The government appealed to the Court of Appeal ([1961] MLJ 121) which by a majority (Thomson CJ and Hill JA, with Neal J dissenting) allowed the appeal and held that the plaintiff was validly dismissed. From this judgment the plaintiff appealed to the Privy Council.

Held: (1) therefore under art 135(1) it was the authority to dismiss him. The Commissioner of Police was without such authority. The dismissal was void; (2) the words 'subject to the provisions of any existing law' in art 144(1) meant only that the Police Service Commission shall operate pursuant to existing laws which are not in conflict with the Constitution. In case of conflict between existing law and the Constitution, the latter must prevail and as such it is necessary for the court to modify the existing law under the authority of art 162. The Police Service Commission was the authority to appoint an officer of the appellant's rank;the right to be heard carries with it the right of the accused to know the case made against him, the evidence given, and the statements made affecting him, and he must be given a fair opportunity to correct or contradict them. The judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not inquire whether the evidence or representations did work to his prejudice. The court will not go into the likelihood of prejudice. The risk of it is enough. Applying these principles, the applicant was not given a reasonable opportunity of being heard. Judgment of the Court of Appeal [1961] MLJ 121 set aside.

Surinder Singh Kanda v Government of the Federation of Malaya [1962] MLJ 169 Privy Council Appeal from Malaysia (Lord Denning, Lord Hodson and Lord Devlin).

[Annotation: See case comment at (1961) 3 Mal LR 112 (Court of Appeal decision); and (1963) 5 Mal LR 160 (Privy Council decision).]

The plaintiff in this case was an inspector in the police force. By a letter dated 6 April 1977, the Acting Permanent Secretary of the Ministry of Home Affairs informed him that disciplinary proceedings under reg 4 of the Public Service (Disciplinary Proceedings) Regulations 1970 had been commenced against him on the three charges stated therein. On 26 April 1977, the plaintiff submitted to the Public Service Commission his exculpatory statement, denying all the said three charges. The commission not finding the exculpatory statement satisfactory, appointed a committee of inquiry under the said reg 4. Thereafter correspondence ensued between the chairman of the committee and the plaintiff regarding the procedural aspects of the pending inquiry. On 6, 8 and 9 September 1977, the plaintiff appeared by counsel before the committee of inquiry. On 7 December 1977, the plaintiff received a letter from the Acting Permanent Secretary, Ministry of Home Affairs, stating that he had been dismissed from the service with effect from the day following the date the said letter was received by him. The said letter was silent on the plaintiff's guilt on the said charges. On 24 May 1978, the plaintiff's solicitors inquired of the Permanent Secretary the charges on which the plaintiff had been found guilty. A reply was received saying that the plaintiff had been found guilty on two of the said charges. The plaintiff commenced the present action and contended, inter alia, that the proceedings before the committee of inquiry were conducted in breach of the regulations and were contrary to the rules of natural justice thereby rendering any finding or decision based on the said proceedings null and void. He also contended that the Public Service Commission had contravened the provisions of art 78(3) of the Constitution of Singapore (art 110(3) of the Reprint Ed) by not giving him a reasonable opportunity of being heard before he was dismissed from the police force. The present court also found that (1) the committee had no power or authority to deal with, nor did it invite submissions on punishment; (2) no submissions were made by the plaintiff to the committee as to punishment; (3) there was no invitation by the Public Service Commission to the plaintiff either to address them on punishment or to show cause why he should not be dismissed.

Held, allowing the plaintiff's application: (1) a police inspector's tenure of office is governed by the Police Force Act (Cap 78, 1970 Ed). He falls under a class of persons 'holding office where there must be ÒsomethingÓ against him to warrant his dismissal'. In this class of cases, an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation; (2) what art 110(3) of the Singapore Constitution (Reprint) does for an inspector of police is that it entrenches in the Constitution the right of being heard before dismissal or reduction which he had previously enjoyed under the Police Force Act; (3) it is settled law that both in Malaysia and Singapore the phrase 'of being heard' does not mean an actual hearing in the way the plaintiff was afforded a hearing when he was answering the three charges. The said art 110(3) would have been satisfied had the public officer been afforded an opportunity to present his views on punishment to the Public Service Commission; (4) as the opportunity to be heard had not been afforded to the plaintiff at the inquiry stage then that opportunity should have been provided sometime between the termination of the inquiry and the imposition of the punishment or penalty. The opportunity not having been so provided, the rule of fairness was broken and any punishment or penalty imposed in such circumstances is against the rules of natural justice; (5) the purported dismissal of the plaintiff in this case was null and void and must be set aside. Obiter: '... if the PSC does not wish to delegate both its powers of inquiry and of punishment to a committee then it should take appropriate steps to comply with the provisions of art 110(3) of the present Constitution. In the circumstances similar to the instant case...the PSC would avoid contravention of the article if they were either to write to the public officer concerned asking him what he has to say on punishment, or, to invite him to show cause why a certain punishment such as dismissal, should not be imposed in respect of the charge or charges on which he had been found guilty.'

Lee Keng Kee v The Attorney General, Singapore 1980 High Court, Singapore (Rajah J).

The plaintiff, a senior cleansing inspector, was dismissed from the public service on 27 September 1965. His dismissal was the final act in a disciplinary action first initiated in June 1963. He was requested to state in writing on or before 4 July 1963 the grounds upon which he relied to exculpate himself on the alleged charges. A committee was appointed by the Public Service Commission to inquire into the matter. The plaintiff was notified to appear to give evidence in person. The plaintiff's application to the committee for permission to be represented by an advocate and solicitor was refused. His application for representation by an officer of the public service was also refused. The committee conducted the entire proceedings without the assistance of any one acting on behalf of the government or of the plaintiff. Subsequently, the committee in accordance with the Public Service (Disciplinary Proceedings) Regulations 1962, submitted its report to the Public Service Commission. This report stated that the committee was of the opinion that three of the four charges were well founded but there was no evidence to support the final charge. The Public Service Commission acting in accordance with the 1962 Regulations advised the Yang di-Pertuan Negara to dismiss the plaintiff from the public service. The advice was approved by the Yang di-Pertuan Negara and it was decided to dismiss the plaintiff, but for reasons which had not been disclosed to the court, that decision was not implemented and was never communicated to the plaintiff up to the time when the 1962 regulations were revoked and replaced by the Public Service (Disciplinary Proceedings) (Procedure) Rules 1964. The question to be decided was whether or not the plaintiff had been validly dismissed. The plaintiff claimed that 'his purported dismissal by the Public Service Commission was illegal, ultra vires and invalid on the following grounds: (i) the Public Service Commission had no power to dismiss the plaintiff under the said rules since the commission's power in relation to the said disciplinary proceedings had been exhausted by reason of action taken under the said regulations, (ii) there was no basis upon which any reasonable person or body of persons could come to the conclusion that the plaintiff was guilty of the allegations made against him, (iii) the said committee acted in violation of art 135(2) of the Malaysian Constitution, (iv) in any event the Public Service Commission had no power either under the Constitution or under any other written law to dismiss to plaintiff'.

Held: (1) the High Court in the exercise of its supervisory jurisdiction over inferior tribunals would not interfere merely on the ground of insufficiency of evidence; (2) a right to question the witnesses brought against a man is not required by natural justice and the principles or rules or requirements of natural justice are, apart from impartiality, those elementary and essential principles of fairness contained in the passages from De Verteuil v Knaggs [1918] AC 179, and Byrne v Kinematograph Renters Society Ltd [1958] 2 All ER 579; [1958] 1 WLR 762. Therefore, in this case, the committee of inquiry had not denied the plaintiff a reasonable opportunity of being heard merely because it had refused the plaintiff's request to be represented before it by an advocate and solicitor; (3)(i) having regard to the letter of dismissal dated 27 September 1965, the Public Service Commission had acted under r 4(14)(a) of the 1964 Rules and was entitled to so act by virtue of r 14, the whole purpose of and the proper interpretation of the latter rule being to enable disciplinary proceedings commenced under the 1962 regulations but not completed before the 1964 rules came into force to be lawfully continued to a conclusion under the 1964 rules without the necessity for fresh disciplinary proceedings having to be commenced; (ii) the Public Service Commission is, under the Constitution of Singapore, an independent authority, independent of executive control, and art 75(1) of the Constitution confers on the Public Service Commission the power to appoint and to exercise disciplinary control over public officers. A power to appoint must necessarily imply a power to dismiss unless the power of dismissal is expressly vested in some other person or authority. A power to exercise disciplinary control enables that power to be exercised in the form of dismissal, unless the power of dismissal is expressly vested in some other person or authority.

VC Jacob v Attorney General 1969 High Court, Singapore (Wee Chong Jin CJ).