The courts of the Colony have no power to give a decree of nullity of marriage based on impotence unless the parties are domiciled in the Colony, or unless the case can be brought under the Indian and Colonial Divorce Jurisdiction Acts 1926-1940.

Pickup v Pickup [1946] MLJ 35 High Court, Straits Settlements (McElwaine CJ).

[Annotation: See note in [1946] MLJ xxxviii.]

Before the court could grant the petition for divorce it required to be satisfied that it had jurisdiction to do so. The domicile of a married woman is that of her husband while the marriage subsists, even though the parties may be living apart.

Charnley v Charnley & Betty [1960] MLJ 29 High Court, Penang (Rigby J).

A, a wealthy Norwegian shipowner, died in 1982. In September 1983 the county tax committee for the area in which A had lived decided to raise a supplementary retrospective tax assessment against his estate on the ground that he had failed to declare a large part of his assets. The undeclared assets were alleged to include the assets of a Panamanian company, P, the shares of which formed part of the assets of a charitable foundation ('the Trust') founded in 1976. It was alleged that A was in control of the trust and accordingly the beneficial owner of P. R were persons connected with the Trust and with P. In November 1983 the estate brought an action in Norway to have the assessment set aside. A request was made for the examination of R. A letter of request from the Norwegian courts was issued requesting assistance in the examination of R. This led to the first proceedings, in which the Court of Appeal refused the request on the ground that it was a 'fishing' expedition. A second request was made, which was also refused by the Court of Appeal, this time on the ground of lack of jurisdiction. It was stated that the request could be entertained only if the Norwegian proceedings were 'proceedings in any civil or commercial matter' within the meaning of the Evidence (Proceedings in Other Jurisdictions) Act 1975. It was held that fiscal matters, being matters of public law, were excluded from the definition of 'civil or commercial' proceedings. The State of Norway appealed to the House of Lords.

Held, allowing the appeal: (1) the words 'civil or commercial matters' have to be construed according to the way the classification is made by the law of the requesting state. On the evidence before the court of first instance, the proceedings in Norway would be classified as proceedings in a civil matter; (2) the words should be given their ordinary meaning, so that proceedings in any civil matter should include all proceedings other than criminal proceedings, and proceedings in any commercial matter should be treated as falling within proceedings in civil matters. The expression should not be read as excluding proceedings in a fiscal matter; (3) as for the argument that the courts would not enforce the revenue law of a foreign state, that rule of policy is limited to cases of direct or indirect enforcement of foreign revenue laws. The present case was not concerned with the enforcement of such laws. Norway was not seeking to exercise extra-territorially a sovereign authority. It was merely seeking the assistance of the British courts in obtaining evidence which would be used for the enforcement of revenue laws of Norway in Norway itself. The appeal was therefore allowed.

Re State of Norway's Applications (Nos 1 & 2) [1989] 1 All ER 745 House of Lords, England (Lords Keith, Brandon, Griffiths, Goff and Lowry).

[Annotation: The provisions in question are almost identical to ss 2, 3 and 4 of the Evidence (Civil Proceedings in Other Jurisdictions) Act (Cap 98) [Sing]. In Malaysia, see O 66 of the Rules of the High Court 1980.]

A generally indorsed writ can be served on the chairman of a foreign company while on a temporary visit to Singapore although the company had neither an office nor an agent in Singapore and although the chairman had no control of the management of the company business in Singapore.

B Atmaram & Sons v Essa Industries Ltd 1965 High Court, Singapore (Chua J).

This was an application by Elite Wood Products (Australia) Pty Ltd and Peter Bazos ('the applicants') for an order of certiorari to quash the authorization of the Minister of Law ('the Minister') given in writing ('the authorization') in exercise of his power under s 43(1) of the Extradition Act 1968 ('the 1968 Act'). Section 43 allowed the Minister to authorize a magistrate to take evidence for the purpose of a criminal matter pending in a court of a foreign state. The authorization was directed to the senior district judge, authorizing him or such other district judge or magistrate that he might nominate to take the evidence of certain persons and to receive certain documents as evidence (cumulatively 'the evidence') pursuant to a request from the Attorney General of Australia. This evidence was required for the prosecution in Australia of the applicants for certain offences. The senior district judge did not take the evidence himself but appointed another district judge to take the evidence. The applicants challenged the validity of the authorization on the grounds that under s 43, the Minister did not have the power to make the authorization; alternatively, that he had exceeded his power by delegating it to the senior district judge. The applicants argued that Australia is not a 'foreign State' as defined and moreover, there is no extradition treaty between Singapore and Australia. Furthermore, since Australia had been declared a Commonwealth country for the purposes of Part IV, it could not be a 'foreign State' under the same Act. The 1968 Act makes a clear division between Commonwealth countries and a 'foreign State' in all its relevant provisions and these provisions, except for s 43, use both expressions whenever it is intended that they apply to both groups of territories. The legislative history of the 1968 Act and s 43 supported these arguments. The senior state counsel argued that to apply the definition of 'foreign State' to s 43(1) would lead to absurdity and thus should not be done. If s 43(1) did not allow Singapore to render assistance to Commonwealth countries but only non-Commonwealth countries, it would result in absurdity as more stringent procedures would apply to Commonwealth countries than to non-Commonwealth countries. Given the legislative history and the purpose for which s 43 was enacted, the words 'foreign State' must be given its plain and ordinary meaning to refer to any sovereign state other than Singapore.

Held, allowing the application for order of certiorari: (1) the contentions of the applicants are simple and straightforward and involve no assumption whatever as to the intention of Parliament in enacting s 43 of the Extradition Act 1968. They merely require the court to give effect to the plain words thereof while the contentions of senior state counsel require the court to say that Parliament did not mean what it said in s 43; (2) there is nothing in s 43 which remotely suggests that the expression 'foreign State' as used therein has a meaning other than the defined meaning. The result of giving the expression its defined meaning does not result in any absurdity as generally understood by the courts. An absurdity is a result which is manifestly inconsistent with the terms or defeats the object of the section or the statute, or a result which is manifestly nonsensical; (3) giving the expression its defined meaning only leads to a result which is not absurd but, in the instant case, merely inconvenient to the Commonwealth of Australia. The argument that Singapore did not intend to deprive Commonwealth countries of the benefit of s 43 does not stand up to scrutiny; (4) the argument that there is an extradition treaty between Singapore and Australia, and therefore Australia is a foreign state, has no merit. Since Singapore's agreement to the scheme is not binding in the contractual sense, there was no binding agreement. Even if there were an agreement, it would not be an agreement equivalent to a treaty since it did not create obligations under international law as treaties would; (5) the maxim delegatus non potest delegare applied to the delegation of the Minister of the power under s 43 of the 1968 Act. Administrative efficiency or convenience is not a valid reason in law for the Minister or any decision-making body in whom a statutory power is vested to delegate such power; (6) also, s 43(1) of the Act 'does not authorize the taking of evidence but a magistrate to take the evidence' [sic]. Under the Interpretation Act (Cap 1, 1985 Ed), a power to appoint or name a person to have and to exercise any power may be effected by either appointing that person by name or by his office; (7) here, the senior district judge had nominated another district judge to take the evidence. The Minister accordingly did delegate his power to make the appointment, which is not permitted by law; (8) for the above reasons, the authorization was bad in law on both grounds alleged by the applicants. The application was allowed with costs and the authorization quashed.

Re Letter of Request from the Court of New South Wales for the Prosecution of Peter Bazos (Deposition Proceedings) [1989] SLR 591 High Court, Singapore (Chan Sek Keong J).

[Annotation: Affirmed on appeal. See [1992] 2 SLR 280.]

In this case the parties were married in Bombay, India. The father was a Malaysian citizen and the mother an Indian citizen. The father left India in 1974 but the mother and the two infant daughters remained and lived in India. They came over to Malaysia in 1978. In 1980 the marriage broke down and the parties entered into a deed of separation by which the custody of the infants was given to the father. The mother returned to India and obtained a dissolution of the marriage. The court in India awarded custody of the infants to the mother. The father applied for custody of the infants in the High Court at Kuala Lumpur but was unsuccessful as the learned judge held that he was estopped from making the application as the decision of the court in India was conclusive as against him and also because on the merits he had not shown any change of circumstances to reopen the custody order granted by the Indian court. The father appealed.

Held: (1) in a case like this the infants' welfare is of paramount consideration and the court in whose jurisdiction the infants happen to be should give effect to the foreign judgment without further inquiry only when it is in the best interest of the infants that the court should not look beyond the circumstances in which the foreign jurisdiction was invoked; (2) although the courts in Malaysia must take into consideration the order of a foreign court of competent jurisdiction, they are not bound to give effect to it if this would not be for the infants' benefit; (3) in this case the learned judge erred in the exercise of his discretion as the determination arose from an error of law; (4) the learned judge was also wrong in law in coming to the conclusion that on the merits the father could not succeed. Change of circumstances may be brought into the picture to reverse a decision of the court, as a custody order is not final and conclusive. If any change has taken place in the circumstances of the parties which warrants a reconsideration of the matter, the court is not bound by a former order, but will use its discretion with respect to the altered conditions, always bearing in mind the fact that the welfare and happiness of the infants are the paramount consideration; (5) in such a case there should be comprehensive information, that is, information not only dealing with the merit or otherwise of the parents involved in the dispute, but also information related to the infants. Only after a hearing in which all the aspects of the case had been gone into would the court be able to arrive at a firm finding as to what was for the benefit of the infants; (6) in this case the proceedings must be remitted for a rehearing before another judge and pending further order the custody of the infants should remain with the father.

Mahabir Prasad v Mahabir Prasad [1981] 2 MLJ 326 Federal Court, Kuala Lumpur (Raja Azlan Shah Ag LP, Wan Suleiman and Salleh Abas FJJ).

A judgment or decree pronounced by the court of a foreign country will be treated and acted upon here as final, notwithstanding any irregularity of procedure under the local law, provided the foreign court had jurisdiction over the subject matter and the person brought before it, and the proceedings do not offend against natural justice.

Anthinarayana Mudaliar v Ajit Singh [1953] MLJ 229 High Court, Penang (Spenser-Wilkinson J).

Where plaintiffs commenced proceedings in a suit in a firm name and in their writ gave an address in a foreign country only and made no statement that they were carrying on business in the Colony, the onus is upon the plaintiffs to show that they were carrying on business within the Colony at the date of the writ.

Leonard Rosenthal & Fräres (SIC) v Syed Mohamed Alsagoff [1929] SSLR 113 High Court, Straits Settlements (Murison CJ).

If, at the time of accrual of cause of action, a foreign firm has no place of business within the colony and none of its partners resides within the jurisdiction, such a firm cannot be sued although it employs a local agent. Principles in Singleton v Roberts & Co 70 LT 687, Grant v Anderson (1892) 1 QB 108, and Okura & Co v Forsbacha Jernverks Aktiebolag [1914] 1 KB 715 applied. Service effected on a company of local agents, who have lost personal control or management of their principals' business as a result of the termination of their authority, must be set aside.

Chung Thye Pin v Lewis Lazarus & Sons [1932] MLJ 73 High Court, Straits Settlements (Prichard J).

Order 48A r 1 of the Rules of the Supreme Court 1957 provides in effect that two or more persons claiming as co-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 have 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 but should sue in the name of the co-partners.

Syarikat Nip Kui Cheong Timber Contractor v Safety Life & General Insurance Co Sdn Bhd [1975] 2 MLJ 115 High Court, Kuala Lumpur (Hashim Yeop A Sani J).

A judgment of a foreign court, obtained in default of appearance against a defendant, cannot be enforced by action in the court of this Colony, where the defendant although served with the writ of summons whilst temporarily present in the foreign country on business was not a subject of, nor resident in such foreign country; there was no duty cast on the defendant to obey the judgment.

RMS Veerappa Chitty v MPL Mootappa Chitty [1893] 2 SSLR 12 High Court, Straits Settlements (Bosner CJ).

An office copy of a decree of a court in the Colony is a public document under s 82 of the Evidence Ordinance without any proof of the seal authenticating it. Proof that a defendant was not born in the Colony and was not resident in the Colony at the time an action was instituted there does not rebut the presumption in explanation vi of s 7 of the Civil Procedure Code that the court in the Colony had jurisdiction to try the suit unless it is also shown that the defendant is not a natural born British subject.

Muthucarupan Chetty v Chan Chin Aik [1908] 1 FMSLR 29 High Court, Federated Malay States (Belfield ACJC).

An order to register a judgment under the provisions of s 3 of Ordinance No 185 (Reciprocal Enforcement of Judgments) is substantially defective if it fails to comply with r 6 of the rules made under the ordinance, and fails to state a time within which the judgment debtor may apply to set aside the registration. The defect cannot be cured by a note added by the judgment creditor's solicitor supplementing the deficiency.

Velautham Chettyar v Sayampanathan [1929] SSLR 98 High Court, Straits Settlements (Murison CJ).

An order of a court in the Federated Malay States directing trustees to convey immovable property situated in the Colony is not an assurance by which the land is affected within s 5(1) of the Ordinance No 148 (Registration of Deeds) and it cannot be registered thereunder.

Loke Wan Wye v Registrar of Deeds [1929] SSLR 234 High Court, Straits Settlements (Murison CJ).

A foreign judgment is conclusive as to any matter adjudicated upon and cannot be impeached for any error of fact or law in an action based on it, apart from special grounds. A foreign judgment creates a new and independant obligation, distinct from the original cause of action, and the plaintiff may be on a better footing, in enforcing it, than if he were suing on the original contract. In a suit upon foreign judgment it is assumed, unless there is proof to the contrary, that the foreign law is similar to the law of the forum. (The nature of a right of an action on a foreign judgment and the grounds on which such an action can be resisted discussed. Special grounds on which a foreign judgment is examinable discussed.)

Ralli & Anor v Angullia [1917] 15 SSLR 33 Court of Appeal, Straits Settlements (Woodward, Sproule and Edmonds JJ).

An order of the Deputy Controller of Labour, Ipoh, under s 98 of the FMS Labour Code 1923, is not a final and conclusive order productive of a res judicata between the parties thereto and therefore cannot be sued on in the courts of the colony as a foreign judgment.

Muttiah v Chung Kiam Ho [1933] MLJ 239 High Court, Straits Settlements (Mills J).

D was arrested in the US and charged with fraud. He was released on bail, having entered into an 'appearance bond'. D subsequently jumped bail. The US government obtained default judgment in the US against D for the amount of the bond plus interest. They attempted to enforce the judgment in England. D appealed to the Court of Appeal.

Held, allowing the appeal: (1) the consideration whether a claim sought to be enforced is one which involves the assertion of foreign sovereignty is to be determined by the law of the forum; (2) the fact that in the US the appearance bond could be enforced in civil proceedings was not determinative. It was held that the proceedings were penal in nature. The claim could not therefore be enforced.

United States of America v Inkley [1988] 3 All ER 144 Court of Appeal, England (Purchas LJ and Heilbron J).

In this case, the judgment creditors, the Bank of India, an Indian bank with a branch in the city of London, carried on the business of an international bank, including the handling of documentary credits and the provision of finance for exports. The first judgment debtors, Trans Continental Commodity Merchants Ltd ('TCCM') traded in edible oils and other commodities and sought banking facilities in London with the bank. When TCCM became a customer of the bank, JN Patel, the second judgment debtor, executed a guarantee dated 13 March 1975, in respect of TCCM's liabilities to the bank. Thereafter the bank handled some 30 foreign exchange transactions, 12 of which were not satisfactorily performed by TCCM, as they failed to deliver the dollars to the bank on the due dates. The bank sued TCCM and Patel, claiming damages from TCCM for breach of contract and claiming a total of £186,000 from Patel under his guarantee. In the result the bank obtained judgment against TCCM for damages to be assessed. Bingham J held Patel liable under the guarantee which had been 'deliberately drawn in the widest possible language so as to cover any liability of the company to the bank'. The English Court of Appeal dismissed Patel's appeal. Patel applied by originating summons to the Singapore High Court to set aside the registration under the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 24) of a judgment of the High Court of Justice, Queen's Bench Division, dated 22 October 1981, and an order of the Court of Appeal dated 24 May 1983. He contended that the said judgment and the cause of action on which it was given and the agreement or agreements from which the cause of action arose were an infringement of s 2(b) of art VIII of the Bretton Woods agreement and were also infringements of ss 4(2), 9(1) and 36(1) of the Malaysian Exchange Control Act 1953. Registration of the said judgment was tantamount to enforcing a judgment rooted in illegality.

Held, dismissing the application with costs: (1) the court cannot give judgment on contentious questions of fact which had not been raised in the courts in London; (2) if Patel had in fact created TCCM for the purpose of circumventing the Bretton Woods agreement and the Malaysian Exchange Control Act, he must not be allowed to profit from his own wrongdoing at the expense of an innocent party; (3) it is just and convenient that the judgment of the High Court of Judicature, Queen's Bench Division, dated 22 October 1981, and the order of the Court of Appeal dated 24 May 1983, should be enforced in Singapore.

Bank of India v Trans Continental Commodity Merchants Ltd & Anor [1986] SLR 212 High Court, Singapore (Abdul Wahab Ghows J).

The courts of the Colony will refuse to enforce or give effect to a judgment obtained in a foreign court if any of the conditions contained in s 3(2) of the Reciprocal Enforcement of Judgments Ordinance (Cap 46) are present in the case before the court. The court will decline to act as a Court of Appeal trying an issue as to whether the decision of a judge of a foreign court was correct in law. Semble: if none of these conditions are present the court will give effect to a judgment obtained in a foreign court. Obiter: a judgment of a foreign court obtained in default of appearance will not be enforced in the courts of the Colony when the defendant at the time the suit was commenced was not a subject of nor resident in the country in which the judgment was obtained.

Murugappa Chettiar v Krishnappa Chettiar & Ors [1940] MLJ 200 High Court, Straits Settlements (Gordon-Smith Ag JA).

Tatung Electronics (S) Pte Ltd v Binatone International Ltd [1991] SLR 204 Court of Appeal, Singapore (Yong Pung How CJ, Chua and Karthigesu JJ).

See CONTRACT, , Vol 3.

The plaintiff obtained judgment against the defendant in the court of Johore for $199.33 and costs, making a total of $205.33. Subsequently he commenced an action on the summary side of the Supreme Court here on the judgment.

Held: the court, on its summary side, had jurisdiction to entertain the case. A judgment of the Supreme Court is a judgment which will be recognized by the court here. The court of Johore has jurisdiction to entertain a case where a defendant has been served during his temporary presence in Johore.

Kader Nina Merican v Kader Meydin [1876] 1 SSLR 3 High Court, Straits Settlements (Sidgreaves CJ).

A judgment against a defendant in a foreign court not followed by satisfaction, is no defence to an action brought on the original cause of action. The plaintiffs sued the defendant B, in the Supreme Court of Johore and recovered judgment against him but did not obtain satisfaction of the judgment. Subsequently having discovered that the defendant A was a partner with B, they commenced this action in Singapore, alleging the original cause of action.

Held: the judgment in Johore was no bar to the action.

Lyon v Meyer & Anor [1891] 1 SSLR 18 High Court, Straits Settlements (Goldney J).

A judgment of a foreign court of competent jurisdiction obtained in default of appearance against the defendants who were ordinarily resident in the foreign country, can be registered in the Supreme Court of Johore under the Judgments (Reciprocity) Enactment of 1922. Per Sproule J: A judgment holder is entitled under the enactment and rules to a provisional order for registration of his judgment as a matter of course and the onus is shifted to the judgment debtor to assail the registration later. The words 'the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court' and the words 'did not appear....' appearing in cl (c) of s 3(ii) of the enactment should be read conjunctively and not disjunctively. Per Terrell J: when once the fact is established that the foreign court has jurisdiction to try and determine the original action, it is immaterial to consider whether the original writ was served by substituted service or whether appearance was entered or not.

Ho Hong Bank Ltd v Ho Kai Neo [1932] MLJ 76 Court of Appeal, Johore (Sproule and Terrell JJ).

Sun-Line (Management) Ltd (judgment creditors) is a company incorporated in Hong Hong and Canpotex Shipping Services Ltd (judgment debtors) is a company incorporated in Canada. The parties entered into, in Hong Kong, a charterparty agreement, cl 37 of which reads as follows: 'Any dispute of law or fact arising under this charterparty shall be referred to arbitration. Such arbitration must commence within one (1) year of final discharge or from the date of cancellation if the voyage is not performed. Unless otherwise agreed, arbitration shall take place in London in the following manner and be subject to English law. One arbitrator is to be appointed by each of the parties hereto and a third by the two so chosen. Their decision or that of any two of them shall be final and for the purpose of enforcing any award, this agreement may be made a rule of the court. The arbitrators shall be commercial men conversant with shipping practice.' Disputes arose between the parties as to what monies were payable on freight and demurrage under the charterparty. The judgment creditors did not proceed to arbitration. Instead they proceeded to litigate and obtained a default judgment against the judgment debtors on 20 March 1985, in the High Court, England. On 7 February 1986, the judgment creditors obtained in Singapore an ex parte order that the default judgment be registered as a judgment of the Singapore High Court. The judgment debtors apply to set aside the registration of the default judgment.

Held, allowing the application: (1) the issue for decision is whether or not on the construction of the said cl 37 the judgment debtors by agreeing to arbitration taking place in London according to English law, had agreed to submit themselves to the jurisdiction of the English courts; (2) under the said cl 37, both parties could at any time as between themselves have changed the venue of the arbitration and that the only agreement between the parties under the said clause was the submission by either party to arbitration in London according to English law and nothing more. It was not part of the agreement express or implied that legal proceedings could be commenced by either party in the English courts to enforce claims arising under the charterparty; (3) the judgment creditors abandoned their rights of arbitration under the said cl 37. Once this happened the judgment creditors had no other rights accruing to them under the said cl 37. In the result the judgment debtors had not under the said cl 37 submitted themselves to the jurisdiction of the English courts, and so could only be sued either in Hong Kong, where the charterparty was signed, or in Canada, where they are resident and carry on business.

Sun-Line (Management) Ltd v Canpotex Shipping Services Ltd [1986] SLR 259 High Court, Singapore (Rajah J).

The mere presence of a defendant in a country at a time when an obligation is incurred does not of itself give the courts jurisdiction over him in respect of such obligation. The words 'being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court' in s 3(ii)(b) of the Reciprocal Enforcement of Judgments Enactment 1342 (Kedah) do not relate to the time at which the contract was entered into but to the date on which the proceedings were instituted in the original court.

Tunku Abaidah & Anor v Tan Boon Hoe [1935] MLJ 214 Court of Appeal, Federated Malay States (Sir Walter Huggard CJ (Straits Settlements).

Re Rawang Tin Mining Co Ltd and the Chartered Bank of India, Australia and China [1890] 4 Ky 570 High Court, Straits Settlements (O'Malley CJ).

See COMPANIES AND CORPORATIONS, Vol 3, para 873.

The appellants, by a 'letter of guarantee' in writing dated 24 May 1984, jointly and severally guaranteed the repayment of a loan, which the respondents ('MBF') had agreed to grant to Sun Hun Perumahan Sdn Bhd ('SH'). The loan to SH was evidenced by a detailed agreement in writing dated 29 May 1984. MBF commenced proceedings against the appellants in the High Court of Malaya at Kuala Lumpur, claiming that SH had defaulted in the repayment of the loan and the payment of interest. Summary judgment was entered for MBF on 13 April 1988. The appellants filed a notice of appeal against the judgment and had also applied for a stay of execution of the judgment but these were later withdrawn and not proceeded with. MBF applied for the judgment to be registered under the provisions of the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264) ('the Act'). The appellants appealed against an order of the High Court refusing to set aside the registration of the judgment. They argued that it was a fundamental principle of law that the liability of a guarantor was secondary and arose only when there had been a default by the borrower under his agreement with the lender. Since the borrower, SH, had themselves commenced action seeking certain declarations and remedies against MBF for breaches under the loan agreement, the judgment was not to be registered in Singapore to enable it to be enforced until these actions had been finally determined by the Malaysian courts. They further argued that the judgment was vague and ambiguous.

Held, dismissing the appeal: (1) the court has a discretion not to register the judgment or, having registered it, to set aside the registration on the application of the judgment debtor on the 'just or convenient' ground or for 'some other sufficient reason'; (2) the appellants' argument premised above was specious. The terms of the letter of guarantee expressly provided that there was no necessity for MBF to take any steps or proceedings against SH before enforcing the guarantee against the appellants; (3) the question of whether or not SH had made any default in the payment of the moneys due and payable to MBF under the loan agreement was a matter for the High Court in Kuala Lumpur and not for this court to decide on an application to set aside the registration of the judgment. It would not be just and/or convenient for the Singapore courts to sit on appeal against the judgment pronounced by the High Court in Kuala Lumpur which was the court competent to exercise jurisdiction over the parties; (4) the appellants had preserved their right to challenge the judgment and to obtain a stay but chose not to pursue the matter before the Malaysian courts; (5) on the face of the judgment, that is, in the form it is before the court, an ambiguity as to the amount of interest for which judgment was given was certainly apparent. However, there was no ambiguity or vagueness in the judgment as to the specified sums for which judgment was given. Being of the view that the judgment was severable in the sense that certain parts of the judgment could be clearly identified and separated from the uncertain parts, the court came to the conclusion that there was no reason why the judgment should not be set aside, thus enabling MBF to enforce so much of the judgment which could not be disputed or impugned before the Singapore courts.

Yong Tet Miaw & Anor v MBF Finance Bhd [1992] 2 SLR 761 Court of Appeal, Singapore (Lai Kew Chai, Warren LH Khoo and Karthigesu JJ).

This was an application to set aside the registration of a judgment of the High Court in England which was obtained after leave had been given to enforce an arbitrator's award. The judgment debtors alleged that they had not agreed to a term providing for arbitration and for acceptance of the jurisdiction of the English courts.

Held: (1) on the facts there was a contract between the parties which included the provisions for arbitration and the jurisdiction of the English courts and there was material before the High Court in England justifying the conclusion that leave should be granted to enforce the arbitrator's award as a judgment of the English High Court; (2) in all the circumstances of the case there was nothing to show that it would not be just and convenient for the English judgment to be enforced in Singapore and there were therefore no sufficient grounds for setting aside the registration of the English judgment.

Koninklijke Bunge NV v Sinitrada Co Ltd 1972 High Court, Singapore (Winslow J).

When a statement of claim is endorsed upon a specially endorsed writ in respect of the amount due upon a foreign judgment, the claim should be expressed in Straits Settlements currency; and it should show the amount in Straits Settlements currency which is the equivalent of the amount of the foreign currency due on the foreign judgment, calculated as on the date when the foreign judgment was obtained.

Oversea Chinese Banking Corp Ltd v Firm of Yaik Joo Ann [1936] MLJ 110 High Court, Straits Settlements (Terrell J).

English law does not recognize the doctrine of specification and consequently ownership in crude oil would not be extinguished by process of refining; and as art 606 of the Netherlands East Indies Civil Code, which embodies the doctrine of specification, is irreconcilable with the Hague Regulations, which form part of the Netherlands East Indies law, the latter prevails, so that a belligerent occupant could not therefore avail himself of art 606.

NV De Bataafsche Petroleum & Ors v The War Damage Commission [1956] MLJ 155 Court of Appeal, Singapore (Whyatt CJ, Mathew CJ (FM).

[Annotation: The principle on the construction of foreign statutes laid down by Lord Greene in Rouyer Guillet & Co v Rouyer Guillet & Co Ltd [1949] 1 All ER 244 followed.]

The courts of the Federated Malay States will respect the provisions of s 47 of the Siam Mining Act 1919, which provides, inter alia, that: 'No mortgage or charge of any kind on a paratanabat shall be valid unless previously sanctioned by the Royal Department of Mines'. Accordingly, a creditor company, which accepted a debenture from a debtor company whereby the latter agreed to charge mining land held under Siamese pratanabats, when no permission had been obtained from the Royal Department of Mines under s 47 of the Siam Mining Act 1919, will not be entitled to enforce in or through the courts of the Federated Malay States an equitable charge against such pratanabats.

In the Matter of the Companies Enactment 1917 and In the Matter of Huey Yet Tin Dredging Ltd [1934] MLJ 34 High Court, Federated Malay States (Howes J).

The court is not entitled to take judicial notice of Hindu law and in the absence of expert evidence or arguments based on authoritative decisions as to the rules of intestate succession cannot decide whether on the death of the plaintiff's husband, his estate devolved on the plaintiff or, as is contended, on three surviving brothers, the co-partners.

Sivagami Achi v Ramanathan Chettiar [1959] MLJ 221 High Court, Kuala Lumpur (Ong J).

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

See CONSTITUTIONAL LAW, Vol 3, para 1233.

Per Salleh Abas FJ: 'It is a general principle of law that any transaction taking place outside the jurisdiction can only be enforced in the local courts if they are not contrary to the local law and regulations. Under the continental system the priority of lex loci over lex fori is based on the doctrine of odre public or jus cogens under which any domestic law designed to protect public welfare and morals must prevail over an inconsistent foreign rule. In the English legal system, foreign law is recognized only if it is not repugnant to the distinctive policy of English law, be it statute or common law. This principle as regards Malaysian law of contracts can be found embodied in s 24 of the Contracts Act 1950 (Act 136). (See also Cheshire's Private International Law: 9th Ed, pp 134-139).'

Ngui Mui Khin & Anor v Gillespie Bros & Co Ltd [1980] 2 MLJ 9 Federal Court, Johore Bahru (Raja Azlan Shah CJ (Malaya).

The appellant, Kho Leng Guan, lived for some years with his mother and brother and maintained a joint family establishment. The mother died in 1930 and the two brothers continued to live together. In October 1936, they had a quarrel and separated and the respondent brought an action against his brother on the ground that by Chinese custom he was entitled to a share in the family property.

Held, reversing the decision of the Resident's Court, First Division: this was not a case in which, in the absence of an express agreement between the parties to that effect, foreign law or custom should apply.

Kho Leng Guan v Kho Eng Guan 1928 Supreme Court, Sarawak

The plaintiffs were foreign companies carrying on business in London and New York. The two defendants were companies incorporated in Malaysia and carrying on business in Malaysia. The plaintiffs claimed that the defendants were indebted to them in the sum of $10,448,139 plus a further sum of more than £748,719 if the price of tin is valued below £6,500 per metric ton. On 25 November 1985, the first defendant company wrote a letter to the first plaintiff admitting the debt. On the same date, the first defendant wrote to the first plaintiff asking the letter not to commence legal proceedings against it for a period of 21 days from the date of the letter. The letter further stated that within the said period of 21 days, the first defendant would pledge in favour of the plaintiffs all the issued shared capital of its subsidiary company, namely, the second defendant. In addition the first defendant would procure the creation of a first legal fixed and floating charge over all the assets of the second defendant in favour of the plaintiffs as security for the payment of the said debt. The defendants failed to comply with their undertaking. The plaintiffs commenced an action in London against the first defendant and its associate companies and obtained a Mareva order restraining them from dissipating their assets up to maximum limit of £3,700,000. On 11 January 1986, the plaintiffs filed a writ here against the defendants and obtained an injunction. The injunction restrained the first defendant from disposing of or creating any charges, liens, pledge or any other encumbrances over the issued and paid-up capital of the second defendant. It also restrained the second defendant disposing of or creating any charges, liens, pledge or any other encumbrances over all the assets of the second defendant both movable and immovable. In the present case, the two defendants applied for an order of court dissolving the injunction granted against them.

Held: (1) the present proceedings before this court were an abuse of the process of the court and should be stayed, and the injunction ordered against the first defendant be dissolved; (2) the plaintiffs' undertaking as to damages could not be enforced as they had no assets within jurisdiction. All the plaintiffs were foreign companies resident abroad. If the plaintiffs did not proceed at the trial, the first defendant would suffer damages which the plaintiffs could not compensate. The balance of convenience should be decided in favour of the first defendant; (3) the court will only lift the corporate veil of a company if the justice of the case so demands. In the instant case there was no justification for the court to lift the corporate veil of the second defendant. (The present case was distinguished from Jones v Lipman [1962] 1 All ER 442); (4) since the second defendant was a separate entity from the first defendant, the undertaking given by the first defendant did not bind the second defendant. The plaintiffs had, therefore, no cause of action against the second defendant. The injunction granted against the second defendant must be dissolved.

JH Rayner (Mincing Lane) Ltd & Ors v Manilal & Sons (M) Sdn Bhd & Anor [1987] 1 MLJ 312 High Court, Kuala Lumpur (Zakaria Yatim J).

Disputes arose in respect of three transactions. The first defendant started proceedings in London. The plaintiffs, as defendants in London, challenged the jurisdiction of the court in London by applying to set aside service. The plaintiffs then instituted action in Malaysia in which the first defendant entered an unconditional appearance and filed defence. Two months after beginning the Malaysian action the plaintiffs made an application to restrain the first defendant from continuing with the London proceedings. All the relevant meetings relating to the transaction in dispute took place in Malaysia. All except one of the witnesses for the first defendant and the plaintiffs live and work in Malaysia. Other parties were not yet properly joined and it was unlikely that they would have any witnesses. In respect of the third transaction the parties apparently agreed to be bound by the ISDA master agreement, the schedule of which stated that the governing jurisdiction was the the United Kingdom courts. However, neither the ISDA master agreement nor the schedule were signed.

Held, granting the application: (1) the court had jurisdiction to restrain a party from proceeding in a foreign court on the ground that the foreign proceedings would be vexatious and oppressive; (2) it was not necessary for the foreign court to first say that they had jurisdiction before this application could be considered; (3) no one by his private stipulation could oust the jurisdiction of the courts in a matter that properly belonged to them. The competing considerations that had to be weighed in the balance when deciding whether to give effect to a forum selection clause or to ignore it were matters pre-eminently within the province of the trial judge; (4) since the ISDA master agreement and the schedule had never been signed it could not be argued that the parties must resort to United Kingdom courts; (5) the forum should be where the substance of the tort was received and acted upon. The separate claims in contract and in tort in different jurisdictions should not be segregated. The fact that the second, third and fourth defendants were not yet proper parties in this suit was also quite irrelevant; (6) the notion of vexation and oppression should not and could not be restricted by definition as they varied from case to case. If all the factors were considered in its totality in the instant case, it could be said that it would be vexatious and oppressive to proceed in the United Kingdom courts; (7) though an injunction should not be made available to a party who sleep on his rights, there was in the circumstances of this case no inordinate delay especially since the plaintiffs were at the time attending to the United Kingdom suit.

Berjaya Industrial Bhd & Anor v Public Bank (L) Ltd & Ors [1996] 5 MLJ 389 High Court, Kuala Lumpur (Abdul Malek J).

The first defendant filed a suit against the plaintiffs and the fourth defendant in the UK ('the UK suit') for breach of contract on 24 January 1995. For the same transactions, the plaintiffs also instituted an action against the four defendants in Malaysia on 2 March 1995 ('the KL suit'). On 2 May 1995, two months after the filing of the writ in the KL suit, the plaintiffs applied for injunctions restraining the first defendant from further proceeding with their action in the UK suit and from taking any legal proceedings against them in any jurisdiction other than in Malaysia. The plaintiffs contended that all the transactions in dispute were based on similar considerations and that the relevant meetings had been held in the second plaintiff's office in Kuala Lumpur and that the executives of the second and third defendants had travelled from Singapore and Hong Kong respectively to Kuala Lumpur for the meetings. Letters, faxes and telephone calls had also been sent and made to Kuala Lumpur. They also stated that the first defendant is licensed under the Offshore Banking Act 1990 and is located in Malaysia. The first plaintiff is a Malaysian company listed on the Kuala Lumpur Stock Exchange. The second plaintiff, although incorporated in the Cayman Islands, has its correspondent office in Kuala Lumpur. All the directors of the second plaintiff are Malaysians living and working in Malaysia and all pre-contractual negotiations had taken place in Kuala Lumpur.

Held, allowing the plaintiffs' application: (1) there had been no inordinate delay on the part of the plaintiff in filing this application, as the plaintiffs were at the same time rather involved in attending to the UK suit; (2) the forum should be where the substance of the tort was received and acted upon. Separate claims in contract and in tort in different jurisdictions should not be segregated. The court has jurisdiction to restrain a party from proceeding in a foreign court if foreign proceedings would be vexatious and oppressive. It is also not necessary for the foreign court to first say that they have jurisdiction before an application to restrain such foreign proceedings can be considered; (3) the first defendant had not stated the purpose nor furnished the reason as to why they had filed the matter in the United Kingdom in the first place. Hence, taking into account the witnesses' convenience and time, travel and hotel expenses, and legal costs of the case if the matter was heard in the United Kingdom and not in Malaysia, considering that the dispute involves the same transactions and an identical set of facts and witnesses, there cannot be two sets of judicial proceedings in different jurisdictions on the same subject matter between the same parties as this would give rise to multiplicity of proceedings and possible conflicting judgments. It would be vexatious and oppressive to proceed in the United Kingdom courts if all the factors are considered in its totality. The natural and appropriate forum is the Malaysian courts.

Berjaya Industrial Bhd & Anor v Public Bank (L) Ltd & Ors [1996] 5 MLJ 389 High Court, Kuala Lumpur (Abdul Malek J).

The plaintiff filed a claim against the defendants in Singapore. He pursued it with vigour for some time, with little success. He then filed a similar action in Indonesia and applied to discontinue the Singapore action. At that stage, the defendants applied for an injunction to prohibit him from continuing with the Indonesian proceedings. The question before the court was whether he should be so restrained. Discovery had not taken place in these proceedings.

Held, dismissing the defendants' application: (1) for this reason it has often been said that the power must be exercised with caution; (2) this is especially so when there is some uncertainty over the circumstances in which the power should be exercised; (3) in Societe Aerospatiale [1987] 1 AC 871, four basic principles were identified as follows: Firstly, the jurisdiction is to be exercised when the 'ends of justice' require it. Secondly, where the court decides to grant an injunction restraining proceedings in a foreign court, its order is directed not against the foreign court but against the parties so proceeding or threatening to proceed. Thirdly, that an injunction will only be issued restraining a party who is amenable to the jurisdiction of the court, against whom an injunction will be effective remedy; (4) the preponderance of judicial authority is that the circumstances for intervention are not closed and courts will act whenever it is just to do so, and so the court accepted it to be the correct position; (5) in the light of the authorities, it is clear that a court's jurisdiction to make a restraining order is not limited to situations where the parties to be restrained are physically within its jurisdiction. The plaintiff's bank account with the defendants was in Singapore and he had filed, and pursued his claim against the defendants here since 1988. He submitted himself and his claim to the jurisdiction of the courts in Singapore in seeking his remedy. He could not say that there was no sufficient connection or that he was not within the jurisdiction when it came to the question whether the courts in Singapore could entertain the application to restrain him from pursuing the Indonesian action. This application should not be turned down on this ground, and should be considered on its merits; (6) the test to be followed, put shortly, is whether the foreign proceedings are so vexatious or oppressive and justice requires that the plaintiff be restrained from proceeding with them. In so determining, the court should consider the injustice each party may suffer; (7) the age of the Singapore proceedings is a neutral factor. The plaintiff had pursued his claim diligently through seeking a summary judgment and leave to obtain deposition evidence. There was no evidence of any lack of good faith on his part in pursuing the claim; (8) the preparatory work done was not entirely wasted if the claim was proceeded with in Indonesia. Even if the work were wasted, it could be compensated with costs, and this was something to be considered in the application to discontinue the Singapore action; (9) there are obvious comity problems inherent in the exercise of the power to restrain foreign proceedings;when the plaintiff filed this claim in Singapore, he had not acted unreasonably. Singapore was an appropriate forum for the claim since the account was maintained in Singapore. After filing the claim, the Plaintiff applied for summary judgment. When he failed, he prepared for the trial by applying to take the three Indonesian witnesses' evidence by deposition. At that stage, the difficulties in pursuing the matter further in Singa-pore became apparent Ð he could not compel the three Indonesian witnesses to come to Singapore to give evidence, and he could not take their evidence by deposition.

Djoni Widjaja v Bank of America National Trust & Savings Association [1993] 3 SLR 678 High Court, Singapore (Kan Ting Chiu JC).

In this case, a helicopter had crashed near Kuala Belait in Brunei Darussalam and all the people on board were killed. Among those killed was Yong Joo San, a successful businessman with interests in Brunei and Malaysia. The helicopter was manufactured by the appellants (SNIAS), a French company in the ownership of the French state. The helicopter was owned by Bristow and Commonwealth Shipping Company and was operated and serviced by Bristow Malaysia and under contract to Sarawak Shell Bhd. Proceedings were started by Yong Joo San's widow, Lee Kui Jak, on her own behalf as widow and (with her husband's brother) as administrator of her husband's estate. Proceedings were instituted in Brunei against Bristow Malaysia and SNIAS. Proceedings were also commenced in Texas against (a) SNIAS and two associated American companies; (b) Bristow Malaysia and two United States associated American companies, and (c) Sarawak Shell and an associated American company. The appellants (SNIAS) attempted to obtain dismissal of the actions in Texas but failed. They applied in Brunei Darussalam for an injunction to restrain the plaintiffs from continuing the Texas proceedings. The application was refused in the High Court and in the Court of Appeal. The appellants appealed.

Held: (1) in a case such as the present where a remedy for a particular wrong is available both in Brunei and in a foreign court, the Brunei court will generally only restrain the plaintiff from pursuing proceedings in the foreign court if such pursuit would be vexatious or oppressive. This presupposes that, as a general rule, the Brunei court must conclude that it provides the natural forum for the trial of the action, and further since the court is concerned with the ends of justice, that account must be taken not only of injustice to the defendant if the plaintiff is allowed to pursue the foreign proceedings but also of injustice to the plaintiff if he is not allowed to do so; (2) just as in cases of stay of proceedings, the parallel problem of advantages to the plaintiff in the domestic forum, which is prima facie inappropriate, can likewise often be solved by granting a stay upon terms; (3) in this case if the question had arisen shortly after the commencement of the proceedings by the plaintiffs in Brunei, there were strong connecting factors with Brunei as a forum; (4) the matters relied upon by the plaintiffs are not so much connecting factors with Texas which now render Texas the natural forum as advantages available to the plaintiffs in Texas of which they submit, it would be unjust to deprive them. In any event these points have been effectively neutralized by the undertakings given on behalf of SNIAS; (5) the Court of Appeal in Brunei in concluding that Texas had replaced Brunei as the natural forum had taken into account matters which they ought not to have taken into account. The natural forum for the trial of the action remains, as it always has been, the courts of Brunei; (6) and in the context of the present case, that means that the Texas proceedings must be shown in the circumstances to be vexatious or oppressive; (7) it can no longer be suggested that the Texas proceedings are vexatious or oppressive on the ground that the plaintiffs are seeking in an inappropriate forum to impose a strict liability or liability for punitive damages which would not be available in the natural forum. These points have been effectively neutralized by the plaintiff's undertaking that neither of these will be pursued and by their further undertaking that they will not invoke jury trial which coupled with the effect of the contingency fee system might lead to a substantial enhancement of an award of damages; (8) and that if held liable to the plaintiffs in the Texas court, they may have to bring a separate action in Brunei against Bristow Malaysia in which they have to establish their own liability to the plaintiffs before they can be entitled to claim contribution from Bristow Malaysia, with all the attendant difficulties which this could involve, including the possibility of inconsistent conclusions on the issue of liability; (9) for the plaintiffs to be permitted to proceed in a forum, Texas, other than the natural forum, Brunei, with that consequence, could indeed lead to serious injustice to SNIAS, and the plaintiffs' conduct in continuing with their proceedings in Texas in these circumstances should properly be described as oppressive. Furthermore no objection to the grant of an injunction to restrain the plaintiffs from continuing with those proceedings can be made by them on the basis of injustice to them, having regard to the undertakings given by SNIAS. It follows that an injunction should be granted; (10) the court will not therefore grant an injunction if by doing so it will deprive the plaintiff of advantages in the foreign forum of which it would be unjust to deprive him. That problem can often be overcome by appropriate undertakings given by the defendant or by granting an injunction upon appropriate terms;the mere fact that the courts of Brunei provide the natural forum for the action is not enough of itself to justify the grant of an injunction. An injunction will only be granted to prevent injustice;in this case it appears that the appellants (SNIAS) are in the unenviable position that if the plaintiffs are not restrained from continuing their proceedings in Texas, SNIAS may well be unable to claim over against Bristow Malaysia (who are contesting the jurisdiction of the Texas courts) in those proceedings;the appeal should therefore be allowed and an injunction ought to be granted restraining the plaintiffs-respondents from further proceeding with their action against the appellants in the Texas court, either by themselves or by any other person on their behalf, such an injunction to be granted on terms.

Societe Nationale Industrielle Aerospatiale v Lee Kui Jak & Ors [1987] 2 MLJ 397 Privy Council Appeal from Brunei (Lord Keith of Kinkel, Lord Griffiths, Lord Mackay of Clashfern, Lord Goff of Chieveley and Sir John Megaw).

During the Japanese occupation the Sultan of Johore applied to a Japanese constituted court to set aside a settlement of land in Singapore; the court found in his favour. After the re-occupation the respondents, claiming to be aggrieved by this order, applied to the High Court of Singapore under s 3 of the Japanese Judgments and Civil Proceedings Ordinance to set aside the decree, alternatively to appeal against it. The Sultan applied for a stay of the proceedings on the ground that he was a sovereign ruler. The summons-in-chambers which was adjourned into open court for argument in which it was sought to set aside an originating summons on the ground that the court had no jurisdiction over the appellant who is a sovereign ruler was heard by Gordon-Smith J, whose judgment is reported in [1949] MLJ 187. The Sultan appealed to the Court of Appeal and the appeal was dismissed. The decision of the Court of Appeal is reported in [1950] MLJ 3. On appeal to the Privy Council,

Held: (1) the Secretary of State having certified the Sultan is a foreign sovereign the matter must be considered conclusive; (2) nevertheless, as he had himself instituted proceedings in the Japanese court and the present one was in the nature of an appeal, he having waived his immunity could not object to being made respondent, his original submission bound him to accept the jurisdiction on appeal. The present proceedings were to determine whether the Japanese court was right or wrong; (3) it was not necessary to determine whether the immunity of a sovereign who had waived it extended to a case involving title to immovables within the jurisdiction of the court but their Lordships 'do not consider that there has been finally established in England' (and hence in Singapore) 'any absolute rule that a foreign independent sovereign cannot be impleaded in our courts in any circumstances'.

Sultan of Johore v Tungku Abubakar & Ors [1952] MLJ 115 Privy Council Appeal from Singapore (Viscount Simon, Lord Porter, Lord Oaksey, Lord Radcliff and Sir Alfred Bucknill).

This was an application to set aside a writ which was issued in the name of the Netherlands Indies Government. It was argued that the Netherlands Indies Government was not a legal entity and was therefore not competent to sue in the High Court of the Colony of Singapore.

Held: that the evidence in this case showed that the plaintiff was a juristic person by the law of the Netherlands Indies and that the plaintiff was the person who was designated to sue by the law of the Netherlands Indies and therefore the plaintiff was the person competent to sue and the person who should sue.

Allied Co v Netherlands Indies Government [1948] MLJ 64 Court of Appeal, Singapore (Murray-Aynsley CJ (Singapore).

In consideration of the plaintiff releasing his claim on the Sultan of Acheen, the defendants made a promissory note in favour of the plaintiff. There were no signatures to the note except the chops or seals of the names of the makers. The note was also unstamped.

Held: (1) there was sufficient consideration for the defendants' promise; (2) the affixing of chops to a promissory note, in lieu of signatures, is a sufficient signature of the note.

Lim Guan Teet v Shaik Ahamad Bashaib & Anor [1882] 1 Ky 536 High Court, Straits Settlements (Wood J).

Re Letter of Request from the Court of New South Wales for the Prosecution of Peter Bazos (Deposition Proceedings) [1989] SLR 591 High Court, Singapore (Chan Sek Keong J).

See CONFLICT OF LAWS, Vol 3, para 972.

The validity of a will disposing of immovable property, must be decided by the law of the country where the property is situated, and it makes no difference whether the property is leasehold, and not freehold.

Sheriffa Fatimah v Syed Allwee [1883] 2 Ky Ecc 31 Court of Appeal, Straits Settlements (Ford and Wood JJ).

Chong Sin Yew died intestate in Penang on 22 August 1919, leaving immovable property in Kedah of considerable value. The Kedah Administration of Estates Enactment provides that 'the duties of an administrator to whom letters of administration have been granted under this Enactment are: (iii) to distribute the residue of the estate (if any) to the person entitled thereto according to the religion of the deceased'. It was conceded by all parties that Chong Sin Yew was a Buddhist Taoist and or Confucianist and that none of these religions provided for the devolution of property on death. It was accepted that Chong Sin Yew was at the time of his death domiciled in Penang.

Held: in the absence of any law in Kedah dealing with the devolution of the immovable property in Kedah of a Chinese upon an intestacy, the court would be guided by the law of the intestate's domicile.

Ooi Siew Hong v Ooi Kim Lan & Ors [1923] 3 FMSLR 244 Court of Appeal, Federated Malay States (Sproule, Barrett-Lennard and Brown JJ).

Leong Chek Yeng Tong v Chinese Commercial Bank Ltd [1922] 15 SSLR 246 Court of Appeal, Straits Settlements (Sproule ACJ, Whitley and Brown JJ).

See CONFLICT OF LAWS, Vol 3, para 1035.

The devolution of the immovable property of a deceased person is governed by the law of the state in which the property is situated. The distribution of the movable property of a deceased person depends on the law of his domicile. The validity of the will and the distribution of the property both immovable and movable of a deceased's person, who was a British subject and Muslim Indian having a domicile of origin in Hong Kong and who acquired a domicile of choice in the Federated Malay States, is governed by Muslim law as administered in the Federated Malay States. Under Muslim law a testator has the power to dispose of not more than one-third of the property belonging to him at the time of death and that the residue of such property must descend in fixed proportions to those declared by Muslim law to be his heirs, unless the heirs consent to a deviation from this rule.

Shaik Abdul Latif v Shaik Elias Bux [1915] 1 FMSLR 204 Court of Appeal, Federated Malay States (Sir T Braddell CJC, Edmonds and Innes JJC).

A testator made a will in Malacca, where he died leaving immovable property.

Held: as immovable property was governed by the law of the place where it was situated, the succession of this property, was governed by the English law, which was then in force.

Ee Hoon Soon v Chin Chay Sam [1889] 1 SLJ 147 High Court, Straits Settlements (Ford CJ).

The first four respondents were partners in a Singapore firm and were owed money by the firm of Tai Woo Ann Kee of Singapore. They brought a suit against (1) Png Keat Sin, (2) Kor Lai Choon, (3) Wan Weng (the appellant) alleging that the three defendants carried on business partnership under the chop of Ann Kiat in Kuala Lumpur and under the chop of Tai Woo Ann Kee in Singapore. The goods of Ann Kiat were attached before judgment. Before the first hearing of the suit a receiving order was made in Singapore against the firm of Tai Woo Ann Kee and the first two defendants and one Tung Seng Chun were adjudicated bankrupt. On a preliminary objection by the defendants the suit was stayed and CJ Saunders, Official Assignee, Singapore, applied to be made and was made a party. At the trial judgment was given for the plaintiff with costs. It was contended on behalf of the appellant: (a) that the receiving order in Singapore barred the suit by the first four plaintiffs and that there was no cause of action by the Official Assignee against the appellant; (b) that the plaintiffs could not succeed unless it was proved that the appellant was a partner in Tai Woo Ann Kee.

Held, dismissing the appeal that: (a) the first four plaintiffs were not debarred by the receiving order from maintaining the suit and that the Official Assignee being interested on behalf of the creditors in the property attached in the suit was entitled to join in the suit to secure payment to himself of moneys realized by the sale of the property; (b) to establish the liability of the appellant it was sufficient to prove that Ann Kiat in which he was admittedly a partner was carrying on business in partnership with Tai Woo Ann Kee.

Wan Weng v Too Boon Chiar & Ors [1916] 1 FMSLR 279 Court of Appeal, Federated Malay States (Sir T Braddell CJC and Farrer-Manby JC).

The vessel Andres Bonifacio was arrested in Admiralty in Rem Suit No 254/89 on 17 October 1989 and released on 20 October 1989 upon the defendants providing bail bonds in all three actions. In each suit the claim was for sums due under a charterparty and/or damages for breach of a charterparty. In the first two suits, Far East Oil Tanker SA, the owners of the Feoso Ambassador 2, sued the respondents as charterers of the Feoso Ambassador 2. In the third suit, Feoso Ambassador SA, as owners of the Feoso Ambassador, sued the respondents as charterers of the Feoso Ambassador. On 2 November 1989 the respondents filed a summons-in-chambers in each of the three in rem suits claiming, inter alia, that the writ of summons issued in Admiralty in Rem Suit No 256/89 and all subsequent steps taken by the appellants be set aside on the basis that the respondents as the beneficial owners of the Andres Bonifacio were not the persons liable in personam to the appellants in respect of the appellants' claims either when the causes of action arose or on the dates the actions were brought by the appellants for the purposes of s 4(4) of the High Court (Admiralty Jurisdiction) Act (Cap 123) ('the Act'). These summonses-in-chambers were heard together with a motion in the in rem Suit No 254 of 1989 claiming wrongful arrest in view of a praecipe for caveat against arrest; the motion was not relevant to this appeal. Throughout the proceedings, it was common ground that (i) the appellants' claims were within the High Court's admiralty jurisdiction; (ii) the ships in connection with which the claims arose in the in rem Suit Nos 254 and 255 of 1989 were the Feoso Ambassador 2 and in the in rem Suit No 256 of 1989 the Feoso Ambassador; (iii) PNOC were the 'charterers' under s 4(4) of the Act and (iv) the 'action was brought' when the writ was issued, ie 3 June 1989. Hence, the only question that arose was whether PNOC was on the date on which the writs were issued, the beneficial owner of all the shares in the Andres Bonifacio, thereby entitling the appellants to invoke the in rem jurisdiction of the court under s 4(4) of the Act. The learned trial judge held that it was not. Furthermore, even though POCI was a wholly-owned subsidiary of PNOC, that was not a reason for holding that PNOC were the owners of the vessel. The companies were two distinct legal entities and shareholders were not owners of the assets of the company: see The Evpo Agnic [1988] 2 Lloyd's Rep 411, 413.

Held, dismissing the appeal: (1) the determination by the court of its own jurisdiction in rem depended on Singapore law as the lex fori; (2) in the present case, whether there was beneficial ownership and whether there was a link to a foreign jurisdiction would depend on the lex fori, Singapore law. This was only right since the appellants had come to arrest a ship here and it was surely right that the court would not allow it to do so unless it was beneficially owned as understood under Singapore law. It was not inconceivable that some jurisdictions might not have a concept of beneficial ownership similar to the Singaporean concept; (3) in determining who is a 'beneficial owner' the court should be concerned to identify a person who, like the beneficiary of a trust, is the person who ultimately enjoys all the benefits, privileges and advantages as well as the burdens, costs and disadvantages that are characteristic of ownership; (4) in this case, the court of appeal found no reason to disturb the learned judge's finding that PNOC held the legal title of the vessel for POCI. The accounts revealed that POCI had assumed all liabilities in relation to the vessel. There was ample evidence from which to find a constructive trust, the basis of the trust being some promise or common intention of the parties and subsequent acts by the promisee referable to the common intention; (5) the present case did not turn upon the question of burden of proof. Although the evidence could have been better, sufficient evidence was placed before the court. The appellants had only adduced evidence about the coastguard registration and the attempted sale of the vessel. In contrast, the respondents had adduced evidence of what had happened over a period of nine years. As a result the learned judge concluded not only that the respondents had failed to show that PNOC were the beneficial owners but that POCI were the beneficial owners; (6) there must be special circumstances existing before lifting the corporate veil, such as the presence of a facade or sham set up to deceive the appellants. One could not lift the corporate veil just because a company made subsidiaries in order to avoid future liabilities (see Slade LJ's judgment at p 1026 in Adams v Cape Industries [1991] 1 All ER 929). Hence, the appellants' suggestion of an intention to evade debts was insufficient and was in any case not pursued in both courts; (7) the accounts were the most positive statement a court would expect to see of the realities surrounding a company's transactions; (8) although the appeal was by way of rehearing, nevertheless, since the evidence only comprised affidavit evidence, the appellate court was in the same position as the judge in looking at the evidence; (9) the concept of beneficial ownership in the context of s 4(4)(b) of the Act was originally introduced to allow for the English institution of the trust.

The 'Andres Bonifacio'; Far East Oil Tanker SA v Owners of the Ship or Vessel 'Andres Bonifacio' and other appeals [1993] 3 SLR 521 Court of Appeal, Singapore (Lai Kew Chai, Goh Joon Seng and Warren LH Khoo JJ).

The plaintiffs were bankers incorporated in Italy and operating a branch in Singapore. By an agreement with a company ('CTS'), the plaintiffs granted letters of credit and trust receipt facilities to CTS. Two of the letters of credit were for valuable leather, and CTS converted the relevant three bills of lading into three trust receipts. They took delivery of the goods but failed to pay the plaintiffs. The goods in the three trust receipts were shipped to Kuala Lumpur and came into the possession of the two defendants. On 21 October 1992, the plaintiffs obtained an ex parte injunction order, restraining the defendants whether by their directors, servants or agents from transferring, charging, pledging, selling, disposing of, parting with possession of, or otherwise howsoever dealing with the goods, the proceeds of sale thereof or any property derived from such proceeds of sale. They were also directed to disclose the precise location of the goods. The defendants applied, upon a certificate of urgency, to set aside the injunction. It was submitted that the plaintiffs' activities in Malaysia were illegal as they did not possess a valid banking licence as required by s 3 of the Banking Act 1973. Further, since their agreement was with CTS, the proper forum for the dispute should be the Singapore courts if the claim was based on breach of the said agreement. At the outset, the plaintiffs' counsel raised a preliminary objection to the fact that the defendants, having failed to comply with one of the orders of the injunction, were in contempt of court and should not be heard.

Held, dismissing the application: (1) if there was a breach of the agreement, the proper forum would be the Singapore courts, but if it was a claim for goods currently in Malaysia, the proper forum was the Malaysian High Court; (2) it may be true that CTS may have committed some breach of the agreement, but the court is more concerned with the fact that the goods are now in Malaysia and the plaintiffs, as owners, are worried that the goods might be dissipated, rendering it impossible to trace them; (3) it follows that it does not matter whether the plaintiffs had a banking licence in Malaysia and whether the relevant documents were stamped here since the court is not concerned with the breach of agreement by CTS; (4) there was a serious question to be tried and the balance of convenience lay in favour of the plaintiffs. The defendants had not produced any evidence to explain how the goods are in their possession or whether they are the owners thereof. The plaintiffs had shown that the goods in the defendants' possession are identical to those in their documents; (5) the rule that a party in contempt cannot be heard or take proceedings in the same cause until he has purged his contempt applies only where a writ of attachment has been issued or where an order for committal has been made. The rule is inapplicable to an application to purge the contempt, or to the bringing of an appeal with a view to setting aside the order upon which the alleged contempt is founded. The preliminary objection is therefore overruled. The reason that a party is allowed to be heard in these latter cases is that the object of the further application is to clear the very contempt complained of. On the other hand, the rule does not prima facie operate where the party in contempt seeks to invoke the aid of the court in the same cause upon some other issue than the issue of contempt itself.

Instituto Bancario San Paolo Di Torino Spa v Colour Touch Sdn Bhd & Anor Civil Suit No D5-22-1410-92 High Court, Kuala Lumpur (Abdul Malek J).

The court can have no jurisdiction in a case where the cause of action arose abroad and the defendant is also abroad. A vessel having certain goods of the plaintiff on board, was wrecked off a foreign country where the defendant took possession of them and sent the same to Penang. The defendant himself was born in Penang but had for sometime past ceased to reside in Penang. In an action of trover against him for the goods, in which the plaintiff proceeded by sequestration and the action was heard ex parte,

Held: the defendant being abroad and the cause of action having arisen abroad the court had no jurisdiction to deal with it.

Khu Poh v Wan Mat [1864] SLR Leic 247 Supreme Court of Judicature of Prince of Wales' Island, Singapore and Malacca (Sir PB Maxwell R).

A plea of autrefois acquit by a foreign court, is bad, if the party prosecuting in the foreign court is not the same party prosecuting here. Query: as to the right of foreign tribunals to determine an offence committed beyond their dominions.

R v Slayman & Ors [1870] 2 Ky Cr 80 High Court, Straits Settlements (Maxwell CJ).

The defendants who were resident in Penang, having obtained two judgments in the court of Kulim (Kedah) against one V, seized certain moveable property in execution which was claimed by the plaintiif T, who, instead of prosecuting interpleader proceedings at Kulim, instituted an action in this court against the defendants for a return of the property and damages, alleging that they personally directed and assisted the bailiff of the Kedah court in effecting such seizure. A preliminary point being taken, that the court should not exercise jurisdiction, (a) on the ground that by so doing, it would not be acting according to the comity of nations and would be acting with discourtesy to the Kedah court, and (b) on the ground of inconvenience.

Held: (1) this court having jurisdiction, would not under the circumstances be acting either against the comity of nations, or with discourtesy to the Kedah court by exercising such jurisdiction; (2) the parties suffered no inconvenience by the court so doing.

Tankam and Shina Thamby v RMKA Mootoopalany Chetty & Anor [1899] 6 SSLR 11 High Court, Straits Settlements (Law J).

The words in the Charter of 1826 defining the civil jurisdiction of the court over 'all pleas the causes of which shall or may thereafter arise against any person who shall be resident within the Settlement mean resident at the time of action brought, and not at time the cause of action arose. Where therefore the defendant and plaintiff entered into a contract for the sale of certain chests of opium, at Sambas, in Borneo, where they were both resident at the time, but after the defendant had committed a breach there, they both came to this Settlement, where the plaintiff sued the defendant.

Held: this court had jurisdiction to entertain the suit. Where a foreign prince sues in the courts of this Colony a person resident here, the court, in compelling the defendant to answer, will couple with the order, that the foreign prince will submit to the jurisdiction, in case of a cross-action, so that the remedies may be mutual.

Sultan Omar Akamoden v Nakodah Mahomed Cassim [1841] 1 Ky 37 Court of Judicature of Prince of Wales' Island, Singapore and Malacca (Norris R).

A foreign sovereign prince, who remains in this country for a protracted time, is entitled to no greater exemption from the jurisdiction of the courts of this Colony than his ambassador would have been; and if he engages in mercantile transactions, such as borrowing money in his private capacity on a promissory note, he is liable to be sued thereon in such courts, and cannot claim exemption on the ground of his being a sovereign prince.

Abdul Wahab bin Mohomat Ali v Sultan Alli Iskandar Shah (Sultan of Johore) [1843] 1 Ky 298 Court of Judicature of Prince of Wales' Island, Singapore and Malacca (Norris R).

A foreign sovereign although a natural born subject by our peculiar law cannot be sued in our courts if he has not acted or done anything by which it might be inferred that he acted as a subject. Query: Can a person be considered a subject after he has been recognized as an independent sovereign. Semble: In a suit against such a person it is not necessary to state in the declaration or bill, that he is amenable to the court's jurisdiction, as this is a matter that should come from the other side; and if the plea does not say he is a sovereign and as such is exempt from the jurisdiction of this court it must be presumed that he is not one.

Nairne v Rajah of Quedah [1861] 1 Ky 145 Court of Judicature of Prince of Wales' Island, Singapore and Malacca (Maxwell R).

The English courts have no jurisdiction over an independent foreign sovereign, unless he submits to the jurisdiction. Such submission cannot take place until the jurisdiction is invoked. Therefore, the fact that a foreign sovereign has been residing in this country, and has entered into a contract here, under an assumed name, as if a private individual, does not amount to a submission to the jurisdiction, or render him liable to be sued for breach of such contract. A certificate from the Foreign or Colonial Office, as the case may be, is conclusive as to the status of such a sovereign.

Mighell v Sultan of Johore [1894] 1 QB 149 Court of Appeal, England (Lord Esher MR, Lopes and Kay LJJ).

The Supreme Court has jurisdiction to try an action for damages for breach of a contract to grant a concession of land in a foreign country, if the defendant has property in the Colony although not residing therein. No suit will lie in the Supreme Court of this Colony either for specific performance, or for damages, against a foreign sovereign, for breach of an agreement entered into by him in his capacity as sovereign of that state.

Smith v Sultan of Kedah [1906] 10 SSLR 1 High Court, Straits Settlements (Law J).

Eng Liat Kiang v Eng Bak Hern & Ors [1995] 1 SLR 577 High Court, Singapore (Judith Prakash JC).

See CONFLICT OF LAWS, Vol 3, para 1031.

This was an appeal against the senior assistant registrar's decision refusing an application for summary judgment. At the appeal, the defendant submitted that this court had no jurisdiction to adjudicate the case as the cause of action arose in Singapore. The plaintiffs were stockbrokers and the defendant had employed them to purchase and sell stocks on his behalf. The whole transaction was said to have taken place in Singapore. It was also submitted that all tradings between the parties were subject to the rules, bye-laws and regulations of the Stock Exchange of Singapore. The plaintiffs argued that it was too late in the day for the defendant to rely on the doctrine of forum non conveniens as the plaintiffs had chosen to file their claim in the Malaysian courts and submitted to the jurisdiction of the Malaysian courts.

Held: (1) (e) the discussion of Lord Goff in The Spiliada [1986] 3 All ER 843 of relevant 'connecting factors' and 'a legitimate or juridical advantage' provides valuable assistance in determining whether the forum chosen is clearly inappropriate. The onus is on the defendant to show that the forum is so inappropriate for the determination of proceedings that their continuation would be vexatious and oppressive; (2) in this case, although the plaintiffs claimed that this issue pertaining to the doctrine of forum non conveniens had not been raised at all before the senior assistant registrar and that it was an afterthought, it was found that the defendant had deposed in an affidavit at that stage that the claim should be filed in Singapore, thus the plaintiffs should not now complain of being caught by surprise. However, the plaintiffs were now statute-barred to file this case in Singapore and, in the circumstances, it would be unjust to insist that the plaintiffs seek their remedy in Singapore as demanded by the defendant. In any case, the parties had now agreed that this matter should be set down for trial; (3) it would be ideal to catalogue the principles of forum non conveniens in the following way, though this attempt can never be exhaustive Ð (a) if the plaintiff is entitled to commence his action in Malaysia, the court in applying the doctrine of forum non conveniens will order a stay provided the defendant satisfies the court that there is some other forum which is more appropriate; (b) if the plaintiff is desirous of commencing his action in a Malaysian court and the Malaysian court has jurisdiction to entertain that action, then that action will be allowed to proceed in the Malaysian court provided that it would be unjust to confine the plaintiff to seek his remedy elsewhere; (c) in the context of the burden resting on the defendant seeking a stay of proceedings, such burden is ordinarily satisfied if the court concludes that there is some other available forum which prima facie is clearly more appropriate for the trial of the action; (d) in the context of a situation under O 11 r 1 of the Rules of the High Court 1980, the burden of proof rests on the plaintiff seeking service of a notice of a writ out of jurisdiction to persuade the court that Malaysia is the appropriate forum for the trial of the action;(obiter) in an O 14 judgment, although a judge who sits to try the case cannot say positively that there is no triable issue but nevertheless he is left in a real doubt about the defendant's good faith, and would like to protect the plaintiff, then if there is no grave hardship to the defendant, the defendant may be made to pay money into court.

Grand Orient Securities Pte v Lim Tiam Lock Civil Suit No 23Ð76Ð88 High Court, Johor Bahru (Abdul Malik Ishak J).

The defendant, a company incorporated in Malaysia, appointed the plaintiff, a merchant bank incorporated in Singapore, to advise and represent it in a scheme for the reverse takeover of a Malaysian public listed company. The plaintiff brought this action for fees due in respect of the appointment and obtained leave to serve the writ on the defendant in Malaysia. The defendant applied to set aside the writ and the order granting leave, and to stay the action on the ground that Malaysia was a more appropriate forum for the action to be tried. The assistant registrar dismissed the applications. The defendant appealed.

Held, allowing the defendant's appeal to stay the action: (1) as the defendant had accepted service through its solicitors in Singapore, it had submitted to the court's jurisdiction and could not challenge the order granting leave to serve the writ out of jurisdiction. The appeal against the dismissal of the application to set aside the grant of leave was, therefore, misconceived; (2) for applications to stay, the burden was on the defendant to show that the court should exercise its discretion to order a stay. The defendant was required to show not only that the forum in which the action was commenced was not the natural or appropriate forum, but that there was another forum which was clearly or distinctly more appropriate. In determining that, a court would look for the forum with which the action had the most real and substantial connection in terms of convenience or expense, availability of witnesses, the law governing the transaction and the places where the parties resided or carried on business. If the court found that there was another forum more appropriate than that where the action was instituted, the court would normally grant a stay unless there were circumstances militating against a stay; (3) the fact that a refusal of leave to serve out of the jurisdiction or a stay of the action might deprive the plaintiff of a legitimate personal or juridical advantage would not, as a rule, deter the court from granting a stay or refusing leave if it was satisfied that substantial justice would be done in the appropriate forum; (4) several factors indicated that Malaysia was a more appropriate forum for the trial of the action. The governing law of the appointment of the plaintiff was Malaysian law, the plaintiff's work was done largely in Malaysia and the negotiations and research for the takeover scheme were largely done in Malaysia. No compelling countervailing reasons had been made out to show why Singapore would be a more appropriate forum. In particular, it was not shown that the progress of the action in Malaysia would be excessively delayed or that a trial in Malaysia would deprive the plaintiff of substantial justice.

NM Rothschild & Sons (S) Pte Ltd v Plaza Rakyat Sdn Bhd [1995] 3 SLR 374 High Court, Singapore (Kan Ting Chiu J).

The plaintiff was the father of the first and second defendants and husband of the third defendant. The parties had interests in various companies and properties both in and outside Singapore. The first defendant filed petitions to wind up two companies in which the parties were interested. The plaintiff was a respondent in both petitions. The plaintiff filed this action claiming, inter alia, a declaration that the first defendant held on trust for him various properties registered in the first defendant's name, viz shares in four companies which were incorporated in Singapore, Malaysia and Hong Kong; a house in Singapore and various pieces of land in West Malaysia. The first defendant filed a notice of motion praying that those claims in the proceedings which related to or arose out of shares in companies incorporated in and immovable properties situated in Malaysia be stayed on the ground that the court in Singapore had no jurisdiction in relation to claims for immovable properties in foreign lands, and alternatively, on the basis of forum non conveniens.

Held, allowing the first defendant's application: (1) a Singapore court's jurisdiction to hear disputes between parties who were alleged to be in an equitable relationship to one another in connection with foreign immovable property is beyond question. This jurisdiction would, however, not be exercised if there was anything in Singapore law which made it impossible or illegal for the declaration as to the interest in such property prayed for to be issued; (2) although there was some force in the argument that the court should not issue a decree which could not be enforced, it was clear that the reliefs which the plaintiff had asked for in relation to Malaysian land had been drafted too widely. This was merely a matter of pleading and could be easily dealt with by the plaintiff seeking an amendment. The problems with the reliefs sought as raised by the first defendant were not impediments to the exercise of the court's jurisdiction; (3) where the plaintiff has, as in this case, founded jurisdiction here as of right in accordance with Singapore law, the defendant's burden is not just to show that Singapore is not the natural or appropriate forum for the trial but to establish that there is another available forum which is clearly more appropriate than the Singapore court. The natural forum was the forum with which the action had the most substantial connections; (4) the place of residence of the parties was one of the factors to be taken into account when deciding with which forum the action had the most connection but it was not the only factor. It might be natural for a Singapore citizen to look to Singapore courts to resolve his legal problems but the jurisdiction of a Singapore court was not based on the residence and citizenship of the plaintiff. The connecting factors here were overwhelmingly with Malaysia which, accordingly, was the most appropriate forum; (5) two main factors connecting the land with Malaysia were lex situs and lex causae. Lex situs caused the land to fall automatically within the jurisdiction of the Malaysian court which was competent to adjudicate on all questions relating to their legal title and possession. The law governing the creation and existence of the trust, if any, over the lands was Malaysian law. Thirdly, as a matter of enforcement, the plaintiff was far more likely to achieve the aim of his action for a declaration of trust if such declaration was ordered by the Malaysian court which could act in rem in that it will be registrable against the properties themselves. Further, the evidence on how the lands were acquired by the first defendant and how the proceeds of sale were dealt were in Malaysia and in the hands of the Malaysian company; (6) in respect of the shares, the first factor connecting them with Malaysia was their situs. Malaysian law governed their creation, validity and how they might be transferred. The law governing the creation of a trust over Malaysian shares must be Malaysian law. The defences raised by the first defendant required evidence which were in Malaysia. The resolution of the plaintiff's claims was an exercise of the equitable jurisdiction of the forum and was a matter of public policy, which should be decided by the Malaysian courts; (7) great weight must be given to the location of the land and the undesirability of a Singapore court deciding issues of Malaysian law which would impact on the ownership of land in Malaysia. A Singapore court's decision on foreign law would be treated as a question of fact for the purposes of appeal whereas a question of foreign law decided by a court of the foreign country concerned was appealable to the appropriate appellate court of the country. It was therefore more satisfactory for the law of a foreign country to be treated by the courts of that country; (8) justice between the parties would not be jeopardized if the plaintiff was required to maintain his claims to the ownership of these shares and these pieces of land in the jurisdiction in which they were sited and to the laws of which he would, as such owner, be subject.

Eng Liat Kiang v Eng Bak Hern & Ors [1995] 1 SLR 577 High Court, Singapore (Judith Prakash JC).

The appellant, an international banking corporation with a branch in Singapore, and the respondents entered into two agreements in respect of foreign exchange transactions whereby the appellant was to assist the respondents in their dealings which were carried out in Singapore, London and New York. The agreements contained clauses whereby the parties had agreed to be bound by the laws of Singapore and be subject to its courts. The respondents obtained leave of court to issue and serve a notice of writ out of jurisdiction alleging that the appellant had acted in fraudulent breach of a fiduciary duty owed to them by giving them false and misleading information and claimed special damages of US$10.55m, general damages of US$10m and costs. The appellant applied to discharge the order granting leave to issue and serve the notice of writ out of jurisdiction and to set aside the writ and service thereof on the grounds, inter alia, that: (i) the Malaysian courts had no jurisdiction over the matter as the alleged torts had been committed outside the jurisdiction; (ii) it was expressly agreed in the agreements that all disputes were to be determined in accordance with the laws of Singapore and by its courts; and (iii) Singapore was the more proper forum as all the witnesses were from there or elsewhere but not from Malaysia. The application was dismissed (see [1994] 2 MLJ 687) and the appellant has appealed.

Held, allowing the appeal: (1) the trial judge had correctly held that the tort of fraudulent and negligent misrepresentation when made by the telephone or telex was committed at the place where the message was received and acted on, and not the place from which it was sent. Therefore, the High Court had jurisdiction to entertain the claim; (2) however, even if there is such jurisdiction, at common law, the court has still the discretion to decide whether to deal with it on the doctrine of forum non conveniens, which means the suitability or appropriateness of the relevant jurisdiction and not convenience; (3) where a defendant applies for a stay of proceedings, he must satisfy the court that some other forum is more appropriate, but where a plaintiff applies for leave to issue and serve a notice of writ out of jurisdiction under O 11 r 1 of the Rules of the High Court 1980 ('the RHC'), then the plaintiff must satisfy the court that the Malaysian court is the most appropriate forum to try the action. In the instant case, the burden lay on the respondents to show that Malaysia was the most appropriate forum. In any event, it is obligatory for the court to consider whether it would be unjust to a plaintiff to confine him to remedies elsewhere; (4) the Malaysian court was not precluded from exercising its discretion whether to hear the case merely because of the foreign jurisdiction clauses specifying the laws and courts of Singapore. However, those clauses militated against the respondents' argument that the Malaysian court was the most appropriate forum. Furthermore, all the respondents' securities were deposited with the appellant in Singapore and London and the main witnesses for the appellants were residents outside Malaysia. The respondents had, therefore, failed to satisfy the court that it was the most appropriate forum to try the action; (5) (obiter) had there been no choice of the Singapore courts in the clauses, but only the choice of Singapore law, that would not have amounted to a submission to the jurisdiction of the Singapore courts.

American Express Bank Ltd v Mohamed Toufic Al-Ozeir & Anor [1995] 1 MLJ 160 Supreme Court, Kuala Lumpur (Peh Swee Chin, Wan Yahya and Mohamed Dzaiddin FCJJ).

A supply of necessaries to a ship in Singapore gives a maritime lien on the ship, inasmuch as s 10 of the Vice-Admiralty Court Act of 1863 (26 Vict c 24) differs from s 5 of the High Court of Admiralty Act of 1861, (24 Vict c 10) in that it refers to 'the time of the necessaries being supplied', and not to 'the time of the institution of the cause'. Whatever is fit and proper for the service in which a vessel is engaged Ð whatever the owner of that vessel, as a prudent man, would have ordered, if present at the time, comes within the term 'necessaries'. The Riga 3 LR A & E 516 has not altered the law on this subject, and is a binding authority on this court. Where a creditor takes a promissory note or other negotiable security from his debtor or a stranger on account of his claim, it is simply a question of evidence as to what was the intention of the parties as to the note being a satisfaction of the claim, or not, but prima facie it is to be taken as given in satisfaction of the claim until it appears that the note remains unpaid in the possession of the creditor without any laches on his part. The discounting of the note by the creditor at his bankers, and the taking up of it at maturity when unpaid by ther makers, provided it is still in the possession of the creditor, does not prevent his original claim reviving. Bunney v Poyntz 4B & Ad 568 and Miles v Gorton 2 C & M 504; 2 LJ (NS) Ex 155 compared and distinguished. A collateral personal liability for necessaries, does not release the liability of the ship, if the lien otherwise attaches. Whether there be laches on the part of the suppliers of necessaries or not, so as to cause them to lose their lien is entirely a question of evidence. Where the suppliers of necessaries to a ship completed their supply by the end of March 1882 and allowed the ship (a periodical foreign trader betweem this Colony and foreign ports) to leave the Colony, by which means she made several voyages backwards and forwards; and eventually on 22 June 1882, took promissory notes on account of their claim, payable three months after date and in the following July, the ship having left this Colony for the last ime to a foreign port, she was there seized and sold under the orders of a judicial tribunal at that port; and after she had been purchased by third parties, returned to this Colony on their account, in the December following.

Held: there was no such laches, or want of diligence on the part of the suppliers to cause them to lose their lien.

The 'Chow Phya', ex parte Simons & Ors [1874] 2 Ky Ad 19 High Court, Straits Settlements (Sidgreaves CJ).

The respondent company was incorporated on 1 September 1982 and had its registered office in Kuching, Sarawak. The petitioner alleged that the respondent was indebted to the petitioner in the sum of M$107,357.66 for the price of goods sold and delivered. On 5 September 1988, the petitioner served on the respondent the statutory notice pursuant to s 218 of the Companies Act 1965 (Act 125) but no payment was received. Hence the petitioner filed the petition to wind up.

Held, striking out the petition: (1) the issue of which High Court has jurisdiction over a matter is determined by s 23 of the Courts of Judicature Act 1964 (Act 91). It is clear that the respondent, residing in Kuching, would come under s 23(1)(b) of the Courts of Judicature Act 1964; (2) while matters can be heard in any court of the courts of Malaya, it was not the intention of the Legislature for any court in Malaya to assume jurisdiction of a matter arising in or which should be filed in a Borneo court. Since the respondent is residing in Kuching, the matter should really be filed in the Borneo High Court, in particular Kuching; (3) from the point of view of convenience, Kuching would be more convenient, with the respondent residing there and the witnesses being there.

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

The courts of the state will not exercise jurisdiction in personam in matters relating to land out of the state in the absence of special circumstances such as a contract between the parties, privity between the parties, or some personal obligation moving directly from one to the other.

Leong Chek Yeng Tong v Chinese Commercial Bank Ltd & Anor [1922] 15 SSLR 246 Court of Appeal, Straits Settlements (Sproule ACJ, Whitley and Brown JJ).

This was an appeal from the decision of the Court of Appeal of Singapore reported in [1978] 1 MLJ 189. The ship 'Halcyon Isle' was arrested by the appellants, mortgagees of the vessel on 5 September 1974 in Singapore. The ship was subsequently sold on 5 March 1975 and the proceeds were paid into court. There were in all 13 claims, in regard to the priority of payments to the several claimants against the said funds. The respondents claimed priority of payment before 'BTI' Mortgagee's claim No 12. The respondents' claim was for $237,011 with interest for repairs executed, materials supplied and services rendered to the vessel 'Halcyon Isle' at their repair yard at Brooklyn, New York during March 1974 pursuant to a contract with the owners. The respondents contended that their claim for repairs done to the said vessel under the laws of the United States of America carried a maritime lien on the vessel and hence over the said fund and they were entitled to priority of payment on their claim over the appellants' claim which was merely that of a mortgagee of the vessel. The appellants, the mortgagees, moved the High Court to determine the priority of payments to the several claimants against the proceeds of sale of the ship. The respondents, the ship-repairers, had earlier applied for a declaration that they were entitled to a maritime lien in respect of their claim. The High Court heard the appellants' motion and the adjourned motion of the respondents for a declaration at the same time and dismissed the respondents' claim for the declaration they sought and held that the appellants as mortgagees were entitled to rank before the respondents as ship-repairers to payment of the proceeds of sale ([1977] 1 MLJ 145). The respondents appealed and on appeal to the Court of Appeal the sole question was whether or not in a Singapore court the claim of the respondents as ship-repairers for repairs executed in New York has priority as against the proceeds of sale of the ship over the claim of the appellant as mortgagees of the ship. The Court of Appeal allowing both appeals held that having ascertained that under American law a person who furnished in America repairs to a ship acquired a valid maritime lien on the ship, a Singapore court, applying Singapore remedies, would rank a claimant who had a valid maritime lien, which was in its nature a substantive right in the ship, above a claimant who had a mortgage over the ship. The appellants appealed.

Held, by a majority allowing the appeal: (1) in principle the question as to the right to proceed in rem against a ship as well as priorities in the distribution between competing claimants of the proceeds of its sale in an action in rem in the High Court of Singapore, fell to be determined by the lex fori as if the events that gave rise to the claim had occurred in Singapore; (2) the English authorities support the principle that, in the application of the English rules of conflict of laws, maritime claims are classified as giving rise to maritime liens which are enforceable in actions in rem in English courts where and only where the events on which the claim is filed would have given rise to a maritime lien in English law, if these events had occurred within the jurisdiction of the English court; (3) in principle, in accordance with long established English authorities and consistently with international comity as evidenced by the wide acceptance of the International Convention of 1952 on the Arrest of Sea-going Ships, the question whether or not in the instant case the respondent (the Necessaries Men) are entitled to priority over the appellants (the Mortgagees) in the proceeds of sale of the 'Halcyon Isle' depends on whether or not if the repairs to the ship had been done in Singapore the repairer would have been entitled under the law of Singapore to a maritime lien on the 'Halcyon Isle' for the price of them. As the answer to that question is that they are not, the appellants as mortgagees were entitled to priority.

The 'Halcyon Isle'; Bankers Trust International Ltd v Todd Shipyards Corp 1980 Privy Council Appeal from Singapore (Lord Diplock, Lord Salmon, Lord Elwyn-Jones, Lord Scarman and Lord Lane).

Under the Treaty of Pangkor, by which the Trans-Krian District was ceded to the British and formed part of Province Wellesley, this court has jurisdiction to try a person for an offence relating to land in that district, although such offence was committed before the Treaty and cession, but came to light only subsequently.

R v Abdul Latib & Anor [1876] 2 Ky Co 91 High Court, Straits Settlements (Ford J).

Where a theft is committed by a foreigner in a foreign territory, there is no jurisdiction in the courts of this Colony to try him, although the stolen property may have been brought within the jurisdiction.

R v Poh Lam Tengah [1854] 2 Ky Cr 74 Court of Judicature of Prince of Wales' Island, Singapore and Malacca (Jeffcott R).

On the trial of a prisoner charged with having committed murder in a foreign territory, an order of the government, under Act 1 of 1849, must first be obtained, before the court can act, otherwise the trial would be illegal.

R v Eman [1861] SLR Leic 147 Court of Judicature of Prince of Wales' Island, Singapore and Malacca (Sir PB Maxwell R).

An order for the trial of a prisoner, under Act 1 of 1849, ss 4 and 9, is sufficient if signed by the Colonial Secretary and is admissible in evidence to shew jurisdiction.

R v Im Kim Leong & Ors [1877] 2 Ky Cr 94 High Court, Straits Settlements (Ford J).

By ss 30 and 31 of Ordinance V of 1870, the Supreme Court has jurisdiction to try a person, even a foreigner, for an offence committed abroad, and which is either completed, or the consequences of which ensue within the jurisdiction. These sections apply to all cases, and generally to the Supreme Court, and are not limited to the late divisions of the court, or to an offence committed in one division and completed, or the consequences of which ensue, in another.

R v Wee Huat [1881] 2 Ky Cr 103 High Court, Straits Settlements (Wood J).

The criminal courts of the Colony have no jurisdiction to take cognizance of a charge against a foreign subject of wilfully failing to perform, in foreign territory, a contract entered into in the Colony, or of a subsequent refusal, in the Colony, to return to the scene of such labour.

Attorney General v Wong Yew [1906] 10 SSLR 44 High Court, Straits Settlements (GG Seth, Third Magistrate).

A magistrate for the state of Negri Sembilan has no jurisdiction to try an offence committed in Selangor. The Criminal Procedure Code 1903, being a state enactment, s 332 refers only to a wrong local area within the same state.

Ong Tian Sang v Public Prosecutor [1922] 3 FMSLR 117 High Court, Federated Malay States (Branch JC).

The sessions court has no jurisdiction to try the offence of bigamy committed outside the Federation.

Public Prosecutor v Nai Prasit [1961] MLJ 62 High Court, Kuala Lumpur (Thomson CJ).

The prosecutor was in a boat coming down the Juru River. When he had got to the mouth of the river, just where it adjoined the sea, he was attacked by the prisoners, who came from the direction of the sea; they took possession of his boat and contents, and compelled him by threats to remain in his boat and row away to sea towards the Kurau river. After going some distance up the latter river, they attempted to murder him, when he jumped over board, and swam for the shore which he safely reached, and then came overland to Penang.

Held: (1) the prisoners were guilty of robbery, and the offence was completed at the Juru River, so as to give this court jurisdiction to try them on the common law side; (2) the acts of the prisoners in compelling the prosecutor to remain in his boat and row towards the Kurau River did not alter the offence, or deprive this court of such jurisdiction, although possibly, the prisoners might also have been liable to be tried in the Admiralty Court for piracy.

R v Lebby Cundoo & Anor [1813] 2 Ky Cr 6 Court of Judicature of Prince of Wales' Island, Singapore and Malacca (Stanley R).

An indictment for murder stated that the crime was committed 'on the high seas, to wit, on the Krian river', the court, on motion to quash the indictment.

Held:

R v Mat Erat [1872] 2 Ky Cr 86 High Court, Straits Settlements (Hackett J).

A magistrate has no jurisdiction to try a foreigner for an assault on the high seas on board a foreign ship. The words 'any person' and 'wheresoever committed' in Statute 12 and 13 Vic C 96 s 1, though general in its terms apply only to offences committed by British subjects, or on board British ships. The statute merely confers on the criminal courts of common law the jurisdiction formerly possessed by the Admiralty, but no more; the jurisdiction of the Admiralty was limited as above.

Hass v Choo Chye Hock [1882] 3 Ky 152 High Court, Straits Settlements (Wood J).

The accused were convicted of rioting upon the high seas, but there was no evidence that they were British subjects or that the ship was a British ship.

Held: the conviction was bad, and must be quashed.

R v Low Chok & Ors [1893] 1 SSLR 145 High Court, Straits Settlements (Bosner CJ).

A magistrate has power to hold a preliminary enquiry into an offence committed on the high seas within the meaning of s 50 of the Courts Enactment 1918. The Territorial Jurisdiction Act does not extend to the Federated Malay States. 'State' is defined to include islands and adjacent waters. The court must take the law as they find it expressed in the enactments. It is not the duty of a judge or magistrate to consider whether the law so set forth is contrary to international law or not.

Public Prosecutor v Wah Ah Jee [1919] 2 FMSLR 193 High Court, Federated Malay States (Earnshaw CJ).

The High Court in Borneo is a creature of statute and was brought into being by the provisions of art 121 of the Constitution of Malaysia. The Courts of Judicature Act 1964 (Act 91) regulates the jurisdiction and powers of that court and thus anything that conflicts with the plain words of that Act cannot stand. The words contained in s 22(1)(a) of the said Act are plain, and they mean that an offence committed outside the states of Sarawak and Sabah is not triable by the High Court in Borneo. In this case, as part of the conspiracy took place in Sarawak the High Court in Borneo had jurisdiction to try the case.

Public Prosecutor v Chew Shaw Chin & Ors [1967] 2 MLJ 3 High Court, Miri (Williams J).

A was a Malaysian working in Singapore. He contracted a marriage with a woman in Malaysia at a time when his prior customary marriage (also entered into in Malaysia) was still subsisting. A was charged with bigamy. He pleaded guilty.

Held, quashing the conviction upon revision: (1) s 9 of the Criminal Procedure Code (Cap 68) gives to Singapore courts the jurisdiction to try acts that amount to offences under Singapore law; (2) however, s 494 of the Penal Code (Cap 224) (the section that creates the offence of bigamy) has no extra-territorial application. Therefore, a bigamous marriage taking place abroad is not an offence punishable under that section. Thus, A's conviction was wrong and accordingly was quashed.

Public Prosecutor v Pong Tek Yin [1990] SLR 575 High Court, Singapore (Thean J).

The first plaintiff is a bank incorporated in Malaysia. The second plaintiff (BMF) is a company incorporated in Hong Kong and is a wholly-owned subsidiary of the bank. BMF is resident outside the Schedule Territories within the meaning of the Exchange Control Act 1953. The second defendant, Dato Mohd Hashim Shamsudin (Hashim), was at the material times a director of the bank and BMF and was thus in a fiduciary relationship with the bank and BMF, owing them fiduciary duties. The first defendant (Lorrain) was the chairman of the BMF Board, with the third defendant, Dr Rais Saniman (Rais), as alternate director. The fourth defendant, Ibrahim Jaafar (Ibrahim), was the general manager of BMF. The plaintiffs averred that the management of BMF was in the complete control of the four defendants at all material times. The defendants knew or ought to have known that by the end of October 1982, the Carrian group of companies was experiencing grave liquidity problems. On 22 November 1982, the board of directors of the bank at a meeting attended by Lorrain and Hashim resolved that a supervisory committee be appointed to oversee the lending activities of BMF, with express instruction that no further loan applications were to be approved by BMF without the consent of the supervisory committee, of which Hashim and Rais were appointed members. Ibrahim knew at the material time of the appointment of this committee and its terms of reference. On 5 January 1983, the supervisory committee rejected the application of Carrian Nominee Ltd (CNL) for a loan of US$40 million. The plaintiffs averred that by a telex message on 4 February 1983, George Tan informed Ibrahim that Hashim had told George Tan that funds relating to the US$40 million loan had been made available to the bank for payment out by BMF in Hong Kong and requested its release. On or about 4 February 1983, and before the execution of any loan documentation, the defendants, jointly and/or severally, caused BMF to release US$38.5 million belonging to the bank and/or BMF to the Bank of Communications, Hong Kong (BOC), as BMF's agent for payment on to CNL or its agent. Similarly, a further sum of US$1.5 million was released. BMF issued writs against CNL and George Tan to recover the sum of US$40 million but with no chance of recovery, CNL being insolvent. Consequently, the bank and BMF have suffered loss or damage in the sum of US$40 million and interest thereon. This the plaintiffs claim was the result of the breach of the fiduciary duties of the defendants to the bank and BMF. Alternatively, the defendants made false representations that the loan was made to BOC, and not to CNL. Hashim made an application to the court, which ordered the following preliminary issues be decided first: '(a) whether the law applicable to the substantive matters in issue in these proceedings is the laws of Hong Kong or the laws of Malaysia or both? (b) whether, under the relevant law so found to be applicable, (i) Bank Bumiputra Malaysia Bhd, by virtue of its holding the majority of the shares in Bumiputra Malaysia Finance Ltd, a company incorporated in Hong Kong, can maintain an action for alleged wrong done or for alleged damage caused to the property of Bumiputra Malaysia Finance Ltd? and (ii) by reason of the matters set out in para 33A of the amended defence of the second defendant, can the plaintiffs maintain the present action?'

Held: (1) the law applicable to the substantive matters in issue in these proceedings is the law of Malaysia; (2) (i) the bank, by virtue of its holding the majority shares in BMF cannot maintain an action against Hashim for alleged wrong done or for alleged damage caused to the property of BMF. This is the position in Malaysia. It is also the position in Hong Kong. The question is irrelevant and meaningless. The bank is not suing Hashim on the basis that it holds all the shares in the BMF; (ii) the plaintiffs can maintain the present action notwithstanding the matters raised in para 33A of the amended statement of defence of Hashim.

Bank Bumiputra Malaysia Bhd & Anor v Lorrain Esme Osman & Ors [1987] 1 MLJ 502 High Court, Kuala Lumpur (Zakaria Yatim J).

Cantrans Services (1965) Ltd v Clifford [1974] 1 MLJ 141 Federal Court, Kuala Lumpur (Azmi LP, Ali and Ong Hock Sim FJJ).

See CONFLICT OF LAWS, Vol 3, para 946.

On 20 June 1986, the plaintiffs obtained leave to issue a writ of summons against the defendant and to serve notice of the said writ on him at an address in Kuala Lumpur, Malaysia. The notice of the writ was served on the defendant personally on 30 July 1986 by a process server employed by a firm of solicitors practising in Kuala Lumpur. On 2 September 1986, the defendant applied to set aside the service of the notice of the writ for non-compliance with O 11 r 5 and/or O 11 r 6 of the Rules of the Supreme Court 1970. On 30 January 1987, the senior assistant registrar made an order setting aside the said service. The plaintiff appealed against the said order.

Held, dismissing the appeal: (1) r 5(1) does not expressly say that such personal service may be effected by a private arrangement between the plaintiff and his agent in the country where service is to be effected; (2) the service of a writ is an exercise in judicial power. The judicial power of a state can only be exercised within the territorial limits of the state over which the courts have jurisdiction; (3) or (b) through a Singapore consular authority in that country, except where service through such an authority is contrary to the law of that country; (4) the expression 'may' as used in O 11 r 5(8) and r 6(2) connotes permission and not discretion. Without these rules, service of process outside the jurisdication would not be possible; (5) r 6(2) of O 11 of the 1970 Rules provides for service (a) through the government of that country where that government is willing to effect service;by effecting services of the notice of the writ without complying with r 5(8) or r 6(2) of O 11, the plaintiff had in fact disregarded the legal basis upon which the judicial power in Singapore may be exercised in Malaysia. That must render the purported service a nullity.

Ong & Co Pte Ltd v Carl YL Chow [1987] SLR 304 High Court, Singapore (Chan Sek Keong JC).

See civil procedure, para IX [43].

Kishinchand Tiloomal Bhojwani v Sunil Kishinchand Bhojwani & Anor [1997] 2 SLR 682 High Court, Singapore (S Rajendran J).

The barge 'L2600' carrying a cargo of Ramin logs and towed by the tug 'Jeddy X' was grounded in Indonesian waters. The cargo was found to be damaged by sea water. The plaintiffs/respondents as the owners or the persons entitled to the delivery of the said cargo comprised in the two bills of lading commenced an admiralty action in rem No 305 of 1975 against the owners of the barge 'L2600' as first defendants and against the owners of vessels 'Jeddy IV', 'Jeddy VII', 'Jeddy X', 'Jeddy XI' and 'Jeddy XII' as second defendants and the present appellants in personam, as third defendants as the persons who issued the two bills of lading for damages and loss suffered by them. Only the third defendants/appellants have so far been served. They entered a conditional appearance and applied to have the writ set aside or alternatively for a stay of action on the ground that the two bills of lading had provided that 'all actions under this contract shall be brought before the court at Djakarta'. The application was first heard by the deputy registrar who dismissed the application with costs. The appellants' appeal against the said decision was dismissed by the learned judge. The appellants appealed against the said order.

Held, dismissing the appeal: (1) where a plaintiff sues in Singapore in breach of an agreement to submit their disputes to a foreign court, and the defendant applies for a stay, the Singapore court, assuming the claim to be otherwise within its jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not. The plaintiff must show exceptional circumstances amounting to strong cause for him to succeed in resisting an application for a stay by the defendant; (2) in this case as all the evidence on the issues in the action is in Singapore or readily available here while little or no material evidence is situated in Indonesia the respondents have shown strong cause to refuse a stay of proceedings.

Amerco Timbers Pte Ltd v Chatsworth Timber Corp Pte Ltd 1975 Court of Appeal, Singapore (Wee Chong Jin CJ, Kulasekaram and Choor Singh JJ).

D are the owner of the vessel the 'Vishva Apurva' which carried cargo belonging to P under bills of lading. The cargo was to be discharged in India. Enroute to India, the 'Vishva Apurva' sank in a collision with the Greek ship the 'Dias' on or about 6 August 1987. To enforce their claim for the loss of the cargo P commenced an action in rem against the D's ship, the 'Kalidas' and caused the 'Kalidas' to be arrested on 5 August 1988. P contended that the 'Vishua Apurva' sank because she was unseaworthy in that she was improperly manned, equipped or supplied and that D had failed to exercise due diligence to make her seaworthy. Before the judge-in-chambers, D contended that P's claim ought to be stayed in view of cl 17 of the bills of lading which provided, inter alia, that any dispute arising out of the contract was to be governed by the law of India and determined by the Indian courts. D also contended that all the evidence as to the seaworthiness of the 'Vishva Apurva' was not available in Singapore and that none of the parties to P's action had any real connection with Singapore.

Held: dismissing D's appeal: (1) the court has a wide discretion in deciding whether to allow the action to proceed or to uphold the foreign jurisdiction clause and stay the action; (2) there is a prima facie case for a stay of proceedings brought in breach of an exclusive foreign jurisdiction clause but the court has a discretion to refuse an application for a stay of the proceedings if the facts and circumstances of the case are so exceptional as to amount to a strong cause not to a grant a stay; (3) the burden lies on P to show the strong cause. P have discharged this burden; (4) if the action were to proceed in the Indian court, there will be considerable delay before the matter comes to trial; (5) the fact that the Singapore proceedings have been under way for a substantial time and the parties have incurred substantial costs and are ready for trial, is a strong factor for refusing D's application for a stay; (6) the abolition of party and party costs in India means that the success of P in monetary terms would be substantially diminished. This is clearly a juridical disadvantage to P; (7) D's unreasonable delay in applying for a stay of P's action in rem is a factor which the court is entitled to take into account in deciding whether or not there should be a stay; (8) D would not be put to any inconvenience or extra expense if P are permitted to proceed with their action in Singapore; (9) there appears to be some doubt as to what law would be applied by the India court; (10) on the facts and evidence, D have no genuine desire for trial in India.

The 'Vishva Apurva'; Owners of Cargo Lately Laden on Board the Ship or Vessel 'Vishva Apurva' v Owners and other Persons Interested in the Ship or Vessel 'Kalidas' [1991] SLR 475 High Court, Singapore (Chua J).

[Annotation: Reversed on appeal. See [1992] 2 SLR 175.]

The appellants were a state shipping corporation incorporated under the Indian Companies Act 1956, with its registered office at Bombay. They owned the vessel 'Vishva Apurva' ('the VA'). On or about 6 August 1987, the VA was collided into by a Greek ship 'Dias', causing her to sink with her entire cargo. The bills of lading were issued by the appellants containing an exclusive Indian jurisdiction clause. On 5 August 1988, the respondents commenced three admiralty actions in rem in Singapore, claiming damages for loss of cargo shipped under 11 bills of lading for discharge at four Indian ports. Subsequently, the appellants' sister ship, 'Kalidas', sailed into Singapore and was arrested on 11 January 1989. The appellants applied to stay the Singapore proceedings on 20 July 1989. On 6 February 1990, the application was dismissed and the appeal against dismissal was also dismissed by Chua J on 15 October 1990. The appellants appealed.

Held, allowing the appeal: (1) in this application, the court was not being asked to decide whether Singapore or India was the most convenient forum but why the respondents should be allowed to be relieved of their contractual obligation to bring their action in India. The burden is on the respondents to show that they have strong grounds, ie the circumstances must be exceptional; (2) the recoverability of costs should not be regarded as a material factor in this case; (3) Chua J was of the view that delay in applying for a stay was a material factor. It is the court's view that delay by the appellants is a factor in favour of the respondents only if it amounts to a waiver of the appellants' rights under the exclusive jurisdiction clause. In this case, there was no waiver. The respondents had never been led to believe that the appellants would not apply for a stay; (4) Chua J found that a trial in Singapore would not inconvenience the appellants as all the witnesses and the documents could be brought to Singapore. This was the wrong approach to adopt as, equally, the respondents would also not be inconvenienced for the same reason if the disputes were litigated in Bombay. It was for the respondents to show that they would be so greatly inconvenienced in this respect if they had to try their claims in India and it would be unjust to them to have to do that; (5) the fact that the appellants had brought an action against the 'Dias' in Singapore was irrelevant; (6) any uncertainty under the law of India as to amount of damages recoverable by the respondents in accordance with whether the Hague Rules (lower damages) or the Hague-Visby Rules (higher damages) were applicable did not constitute a legitimate basis for allowing the respondents to be relieved of their obligations under the exclusive jurisdiction clause; (7) on the evidence, the finding that India was not the closest connection was wrong. The cargo was being carried to Indian ports on an Indian ship by Indian shipowners under contracts of carriage governed by Indian law. Even if India were not the country that had the closest connection with the claims, Singapore was certainly not that country. The disputes had nothing whatever to do with Singapore; (8) the finding that the appellants had no desire to litigate in India was contrary to the evidence. The appellants were defending some nine suits brought in Bombay by the majority of the cargo claimants. It could not be said that they were not active in proceeding in India; (9) the delay in trial would appear to be the only factor which could be said to favour a trial in Singapore if the evidence adduced by the respondents as to the magnitude of the delay was conclusive. Having regard to the conflicting evidence before the court, the respondents have not made out a sufficiently cogent case that there was excessive delay. Nor is the court satisfied that this ought to be a decisive factor in this case. There was no suggestion whatever that the Indian consignees did not know that the goods were being shipped on one of the defendants' vessels. That being the case, they must be deemed to have assumed the risk of any delay in the trial of any actions in the chosen forum; (10) the most important factor was that the governing law of the bills of lading was the law of India. There was some uncertainty as to whether the Hague Rules or the Hague- Visby Rules were applicable or what the effect of cl 17 of the bill of lading was. The Indian courts would be trying those actions and declaring what the law of India as regards these issues would be. In these circumstances, it would be most undesirable that a Singapore court should do the same; (11) full recognition should be accorded to exclusive jurisdiction clauses which are freely negotiated between the parties and which are unaffected by 'fraud, undue influence or overwhelming bargaining power'; (12) the respondents had failed to discharge the burden of showing that it was unfair, unjust or unreasonable for the court to hold them to their obligations under the relevant bills of lading.

The 'Vishva Apurva'; Owners of and Other Persons Interested in the Ship or Vessel 'Kalidas' v Owners of Cargo Lately Laden on Board the Ship or Vessel 'Vishva Apurva' [1992] 2 SLR 175 Court of Appeal, Singapore (LP Thean, Chan Sek Keong and Warren LH Khoo JJ).

D were carriers and P were cargo owners. D issued a clean bill of lading acknowledging shipment of certain machinery for P. When the machinery was unloaded it was found to be damaged. It was specifically provided in the bill of lading that the governing law was Japanese and that any action against the carrier would be commenced in the Tokyo District Court. P nevertheless brought an action in rem against the ship in Singapore. D applied for a stay of action, which was granted by the registrar on terms. P appealed. They contended, inter alia, that the Japanese procedure was prejudicial to them. They also raised the point that they had commenced an action against D's agents in Singapore and that a multiplicity of jurisdictions was to be avoided.

Held, dismissing the appeal: (1) the court has a wide discretion to decide whether to hear an action notwithstanding the existence of a foreign jurisdiction clause; (2) in the absence of local law, s 5 of the Civil Law Act makes English law applicable; (3) prima facie, effect should be given to a foreign jurisdiction clause. The court may however refuse an application for a stay of action if the facts and circumstances of the case are so exceptional as to amount to strong cause warranting such a refusal. The burden of establishing such cause is on the plaintiff; (4) if the parties have chosen to submit their disputes to the exclusive jurisdiction of a foreign court, neither party can in the ordinary case complain of the procedure of that court. P's argument that the Japanese procedure was unfairly prejudicial to them was therefore rejected; (5) while the existence of more than one action in different jurisdictions could be a relevant factor in refusing a stay, in the instant case P themselves had commenced the multiple actions in Singapore and could not advance this as a factor in justification of the refusal to grant a stay; (6) as P was unable to satisfy the court that exceptional circumstances existed, the stay of action was granted.

The 'Asian Plutus' [1990] SLR 543 High Court, Singapore (Yong Pung How J).

This is an appeal against a decision dismissing the defendants' appeal to strike out the plaintiff's action for forum non conveniens, which was refused by the learned assistant registrar. The plaintiff is a resident of Tawau, Sabah and was a businessman and managing director of a group of companies known as the 'Hiew Fook Group of Companies' which had business dealings in the region. The defendants publish the business newspaper The Asian Wall Street Journal which circulates within the jurisdiction of the present court, and in the region including Japan, Korea, Taiwan and the United Kingdom. In the issue of The Asian Wall Street Journal dated 16 February 1988, an article was published under the title: 'Big Debts Left After Sabah Tycoon's Fall'. The plaintiff's claim is that in their actual and ordinary meaning, the words meant and were understood to mean that the plaintiff had organized, directed and otherwise caused and/or permitted and connived at the campaign of terror involving brutal beating, arson and threats of violence against his creditors and those of the Hiew Fook Group of Companies or representatives of such creditors seeking repayment of debts. The publication of the words are actionable under the laws of Singapore and the plaintiff, being gravely injured in his credit and reputation, has been brought into public hatred and contempt. The plaintiff's claim is for damages for libel, injunction to restrain the defendants from further publishing the words referred to earlier or in other words similarly defamatory of the plaintiff. The plaintiff was ordered to furnish S$40,000 as security for costs on 30 January 1989 failing which further proceedings would be stayed. The defendants clearly accepted the jurisdiction of the present court and made it clear to the plaintiff that this jurisdiction was acceptable. On 2 June 1989, the defendants applied for an order that the plaintiff's action be dismissed for having defaulted in complying with the order of court of 30 January 1989 and for the defendants to enter judgment for the costs of action. On 17 July 1989, the plaintiff was ordered to furnish security by way of a banker's guarantee failing which the action would be dismissed. The usual applications thereafter followed and the matter was set down for trial. On 17 June 1992, a notice for further directions was filed by the defendants applying for the action to be struck out on the ground that the present court was not the proper or convenient forum for the action. The plaintiff was also asked to provide a further security of S$750,000 and for the proceedings to be stayed until further security is given.

Held, dismissing the appeal: (1) where in an action for libel the plaintiff pleads that the defendants 'falsely and maliciously published' as in this case, the words complained of, he need not in his statement of claim give particulars of the facts on which he relies in support of the allegation of malice, notwithstanding O 18 r 12(1)(b) of the Rules of the Supreme Court 1970; (2) but where there is a lawful excuse as, for example, an occasion of qualified privilege by which the existence of 'malice in law' is rebutted the onus is thrown upon the plaintiff of proving 'malice in fact' or 'express malice', and the plaintiff must serve a reply pleading malice and giving particulars of the facts and matters from which the malice is to be inferred; (3) and (c) if the court is so satisfied it should grant the application unless the plaintiff can discharge the burden of proof, which then passes to him, of showing that there are special circumstances by reason of which justice requires that the trial should take place in Singapore. The plaintiff has founded jurisdiction as of right in accordance with the laws of Singapore. It gives the plaintiff an advantage in the sense that this court will not lightly disturb the jurisdiction so established; (4) the burden resting on the defendants is not to show that Singapore is not the natural or inappropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than Singapore to ensure that appropriate regard is paid to the fact that jurisdiction has been founded in Singapore as of right and that there is a further advantage that, on a subject where comity is of importance, that there will be a broad consensus among major common law jurisdictions; (5) the burden is on the plaintiff to show clearly that Singapore is the appropriate forum; (6) the application on the ground of forum non conveniens was made after four years. During the period, the defendants did not at any time suggest that the plaintiff's complaint should be tried elsewhere than in Singapore. This court's jurisdiction was accepted and the defendants participated in the proceedings and conducted themselves as if they intended to contest the plaintiff's claim on the merits; (7) the claim of the defendants that the plaintiff had an insignificant connection in Singapore and no significant reputation either personal or commercial in Singapore is rejected. The newspaper may have a small circulation but it is read by people to whom the plaintiff's reputation in business dealings matter. The plaintiff's reputation in Sabah would be greater, but the plaintiff's has a reputation in Singapore; (8) the defendants did not make out a prima facie case for striking out or for granting a stay of the action on the ground that there would be problems over witnesses; (9) an unconditional appearance is a submission to the jurisdiction and the defendants therefore waived any objection to the validity of the order granting leave to issue and serve the writ out of the jurisdiction or to the validity of the service; (10) the law to apply in considering whether to grant a stay or strike out the action on the grounds of forum non conveniens is not disputed and is found in Spiliada Maritime Corp v Cansulex. The principles can be summarized as follows: (a) it is for the applicants for a stay to satisfy the court that another forum is prima facie the most natural and appropriate forum for the trial of the action; (b) the applicants must show that Malaysia is the forum with which the action has the most real and substantial connection, or, as it is sometimes put, the most connecting factors;the question as to which is the appropriate court or 'forum conveniens' is a matter to be considered by the court in exercising its discretion under O 11 (O 11 was amended by S278/93 wef 1 July 1993), but that does not affect the discretion. The order forms a practically complete code of the circumstances in which the process of the court may be served outside the jurisdiction and the procedure to be adopted. The test is in essence one of whether the interests of justice are best served here or abroad by objective standards. The same test applies when an application is made to stay proceedings, already begun, in this case in 1988.

Datuk Hiew Min Yong v Dow Jones Publishing Co (Asia) Inc Suit No 1158 of 1988 High Court, Singapore (KS Rajah JC).

The appellants were the defendants in an action brought by the plaintiffs Ñ respondents in the magistrate's court at Penang. The plaintiffs' claim was for damages for breach of contract by the defendants as carriers for reward of a cargo of cotton from Karachi to Penang by their vessel. The bill of lading provided that any dispute arising under it shall be decided in the country where the carrier has his principal place of business. The principal place of business of the defendants, the carriers, was in Singapore. The learned magistrate had dismissed the claim as he held he had no jurisdiction to determine the claim. On appeal, Arulanandom J held that this was a proper case where the discretion of the court should have been exercised in favour of the plaintiffs. The appellants appealed to the Federal Court.

Held, dismissing the appeal: (1) it would seem abundantly clear from the authorities that where a cause of action in respect of any dispute in relation to a contract arises and is therefore properly within its jurisdiction, the court has a discretion whether or not to adjudicate upon the claim in the action even where the parties have agreed to refer such dispute to a foreign court and that the question of the proper law of jurisdiction is quite separate from the question of the proper law of contract to be applied; (2) in this case the learned judge had exercised his discretion in accordance with the established and recognized principles.

Globus Shipping & Trading Co (Pte) Ltd v Taiping Textiles Bhd [1976] 2 MLJ 154 Federal Court, Penang (Gill CJ (Malaya).

American Express International Banking Corp v Tan Loon Swan [1992] 1 MLJ 727 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

See CONFLICT OF LAWS, Vol 3, para 944.

There are three parties involved in the present proceedings: the plaintiffs and defendants in the proceedings that are pending before the Superior Court of California, and a witness in those proceedings, Jack Goh Jak Kwang from Singapore ('Jack Goh'). The registrar of the Supreme Court had received a letter of request dated 11 December 1986 from a judge of the Superior Court of California, County of Los Angeles, for international judicial assistance pursuant to The Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. The letter of request asked for the taking of evidence here of Jack Goh touching on the matter in dispute in those proceedings. Pursuant to O 66 r 3 of the Rules of the Supreme Court 1970, the registrar forwared the letter of request to the Attorney General, who on 14 August 1987, also pursuant to r 3, took out this originating summons ex parte, and an order was made appointing the registrar or his deputy as the examiner for the purpose of taking the evidence of Jack Goh. The order was made pursuant to s 4 of the Evidence (Civil Proceedings In Other Jurisdictions) Act (Cap 98, 1985 Ed) ('the Act'). Pursuant to the order, Jack Goh attended before the examiner. In the course of his evidence before the examiner, Jack Goh refused to answer some of the questions put to him claiming privilege against self-incrimination under the Constitution of the United States of America, Fifth Amendment. The letter of request contained the words, in para 16, 'Privilege against self-incrimination; attorney-client privilege'. The examination was not concluded. The plaintiffs brought a motion before the Superior Court of California, County of Los Angeles ('the requesting court'), to seek a ruling on Jack Goh's refusal to answer the questions or, in the alternative, for an amendment or clarification of the letter of request and, presumably, para 16 thereof. The plaintiffs took out Summons-in-Chambers No 4688 of 1988, and applied for an order that Jack Goh do attend before the examiner to be examined pursuant to the order made and for him to be compelled to answer the questions put to him at the previous examination. The application was opposed by the defendants and Jack Goh. A preliminary objection was raised both by the defendants and Jack Goh. They claimed that the application, which was expressed to be made under O 66 r 2(3), was wrong. The order obtained by the Attorney General was obtained under s 4 of the Act and O 66 r 3. There was no application by any party 'duly authorized to make the application' on behalf of the requesting court under O 66 r 2, and hence, the application by the plaintiffs could not be made under r 2(3). The main and substantive objection by the defendants and Jack Goh to the plaintiffs' application was that by reason of s 5 of the Act, the court could not compel Jack Goh to give any evidence before the examiner which he could not be compelled to give in civil proceedings in the country or territory in which the requesting court exercised jurisdiction. Furthermore, the judge of the requesting court had already ruled that Jack Goh would be entitled to claim the privilege against self-incrimination with respect to the questions asked. The plaintiffs argued that since Singapore had O 39 r 10 which applies, under which the examiner in this case can act and proceed to record the evidence of Jack Goh, his objection and grounds thereof, and the court can direct Jack Goh to answer those questions on which he claimed privilege against self-incrimination, the court could order Jack Goh to answer the questions.

Held, dismissing the plaintiffs' application: (1) the preliminary objection had no merit. The plaintiffs were plainly an interested party and procedurally might make this application; (2) even though the application was procedurally defective, the court would have no difficulty in curing the defects and making the necessary order asked for if the application was sustainable in law; (3) the objection to the letter rogatory was well-founded and was a complete answer to this application. Firstly, the letter of request by para 16 supported the claim of privilege against self-incrimination made by Jack Goh. The statement fell squarely within para (a) of s 5(2) of the Act. Secondly, the court in California had ruled that Jack Goh would be entitled to the protection against self-incrimination under the Constitution of the United States of America, Fifth Amendment.

Staravia Ltd v Consolidated Aeronautics Corp & Ors [1989] SLR 883 High Court, Singapore (LP Thean J).

The petitioner and the respondent went through a form of marriage before a Registrar of Marriages for Selangor in accordance with the provisions of the Christian Marriage Enactment on 25 February 1950. At the time of solemnization the petitioner was a Christian domiciled in England while the respondent was a Muslim and domiciled in Selangor. The petitioner petitioned that the marriage be declared void ab initio on the ground that at the date of its solemnization he was a Christian and the respondent was a Muslim and therefore by reason of her personal law was incapable of inter-marrying with him.

Held: in the exercise of its jurisdiction under the Divorce Ordinance the court must determine the validity of the marriage according to the law of the husband's domicile, which was English law. So determined, the marriage was valid.

Martin v Umi Kelsom [1963] MLJ 1 High Court, Kuala Lumpur (Thomson CJ).

This was an appeal by the husband against the judgment of the magistrate ordering maintenance to be paid by him to the respondent with effect from 1 June 1970 under s 60(1)(c) of the Women's Charter (Cap 47, 1970 Ed) for neglecting to provide maintenance for her as his wife. The appellant contended that although he married her in Tellicherry, India in 1966, he had obtained a divorce from her in the Court of the Munsif at Tellicherry on 2 January 1970. The issue before the magistrate was whether she was still the wife of the appellant and whether he had neglected to maintain her and the magistrate decided that the respondent was still married to the appellant and that the divorce granted by the Court of the Munsif could not be recognized in Singapore. The magistrate found that the appellant was domiciled in Singapore on the relevant date.

Held, dismissing the appeal: (1) the mere fact that a marriage was celebrated in Tellicherry would not be sufficient to create a real and substantial connexion between the appellant and Tellicherry; (2) by virtue of s 80 of the Women's Charter jurisdiction with regard to the dissolution of such marriage as in this case rested with the High Court of Singapore. The court in Singapore therefore could not recognize the purported Indian divorce; (3) in the circumstances there was no ground to interfere with the magistrate's order for maintenance.

Sivarajan v Sivarajan 1972 Court of Appeal, Singapore (Winslow J).

The petitioner and the respondent went through a form of marriage before a Registrar of Marriages for Selangor in accordance with the provisions of the Christian Marriage Enactment on 25 February 1950. At the time of solemnization, the petitioner was a Christian domiciled in England while the respondent was a Muslim and domiciled in Selangor. The petitioner petitioned that the marriage be declared void ab initio on the ground that at the date of its solemnization, he was a Christian and the respondent was a Muslim and therefore by reason of her personal law was incapable of inter-marrying with him.

Held: in the exercise of its jurisdiction under the Divorce Ordinance the court must determine the validity of the marriage according to the law of the husband's domicile, which was English law. So determined, the marriage was valid.

Martin v Umi Kelsom [1963] MLJ 1 High Court, Kuala Lumpur (Thomson CJ).

In this case, the trial judge held that the court had jurisdiction to make the declaration asked for: that the marriage between MA and MH was invalid; that after considering all the circumstances the custody of the infant should be given to the mother. On appeal the Court of Appeal

Held, inter alia: (1) as the female infant in this case was domiciled in Holland and as there was no evidence that the domicile of MA was Singapore, the law of Holland would be applicable to determine the validity of the marriage; (2) as the marriage would be void by the law of Holland, the appellant had not shown that there was a valid marriage between him and the female infant and therefore the custody of the infant was rightly given to her parents.

Re Maria Hertogh [1951] MLJ 164 Court of Appeal, Singapore (Foster-Sutton CJ, Wilkinson and Wilson JJ).

The parties were married in Penang in accordance with the provisions of the Straits Settlements Christian Marriage Ordinance 1940 and thereafter set up their matrimonial home and lived in Perak. It appeared on the facts that since October 1950 the respondent had deserted the petitioner without cause. The petitioner applied for dissolution of the marriage. The question was considered as to whether the court had power to give the petitioner the decree because of s 4(1)(a) of the Divorce Ordinance 1952 which read: 'Nothing herein shall authorize the court to make any decree of dissolution of marriage except: (a) where the marriage between the parties was contracted under a law providing that or in contemplation of which marriage is monogamous.....'

Held: (1) a Chinese domiciled in Perak can validly enter into a monogamous form of marriage; (2) although the Christian Marriage Ordinance 1940 does not expressly provide that a marriage under it is monogamous, it is a law enabling the parties to enter into a marriage which they contemplate or intend shall be monogamous; (3) therefore a Chinese married under that ordinance can apply for dissolution of marriage under the Divorce Ordinance 1952. Apart from any question of capacity but otherwise irrespective of the law of their domicile parties may voluntarily agree to contract and then proceed to contract a marriage of any sort which is recognized by law of the locus contractus and thereby confer each upon the other the status which the law of the locus contractus confers upon the parties to such a sort of marriage. The fact that a man's personal law permits him to enter into polygamous unions does not necessarily mean that he cannot contract one which at any rate at its inception is monogamous; nor does the fact that his personal law restricts him to a monogamous union prevent him from entering into a polygamous union provided the law of the locus actus permits it. He can do anything the law does not prohibit. So long as he does nothing that the law of the locus actus forbids he can agree to confer and can confer upon his wife the status of a monogamous wife or that of a polygamous wife.

Dorothy Yee Yeng Nam v Lee Fah Fooi [1956] MLJ 257 High Court, Ipoh (Thomson J).

On the occasion of the marriage in Singapore of two Jews a marriage document in the Hebru language called Ketouba was prepared and signed by the bride and bridegroom and witnesses. Some years later the bridegroom died.

Held: (1) if the Ketouba was meant to be effective it required stamping as on a settlement and in the absence of stamping it was inadmissible in evidence; (2) the principles applicable to the meaning and effect of the Ketouba must be stated as a matter of foreign law which could only be decided by evidence adduced for the purpose in the particular case before the court.

Re M Meyer, deceased [1938] MLJ 190 High Court, Straits Settlements (Terrell J).

The appellant, a Chinese Buddhist, married the deceased, a Nattakottai Chettiar and a Hindu, according to Hindu rites at a temple in Malacca in 1943. After the marriage they lived as husband and wife at Malacca and they had three children. The respondent claimed to be the son of the deceased by his first wife. According to the respondent the deceased married his mother in India in 1925 and there were two children by the marriage Ð the respondent and his sister. The respondent alleged that the deceased had been to India three times after the war and had told them that he had taken a woman in Malaya but was not married to her. The respondent accordingly applied for letters of administration to the estate of the deceased and the applicant lodged a caveat. The matter then went up before Gill J who held that the appellant was not the lawful widow and her children not the lawful children of the deceased as some of the essential items of a marriage ceremony had not been complied with when the appellant married the deceased. On appeal,

Held: (1) as the deceased was a Hindu and the appellant a Chinese Buddhist the law which governed the marriage between them was not Hindu law but the law of Malacca in 1943; (2) there was a marriage according to Hindu customs and although there was an imperfect marriage ceremony that did not affect the validity of the marriage as it was performed during the Japanese occupation; (3) the consent of the first wife even if it was essential for the validity of such marriage could be inferred for the circumstances of the case.

Chua Mui Nee v Palaniappan [1967] 1 MLJ 270 Federal Court, Kuala Lumpur (Barakbah LP, Azmi CJ and Raja Azlan Shah J).

Ong Cheng Neo v Yap Kwan Seng [1897] SSLR Supp 1 Judicial Commissioner's Court, Federated Malay States (Jackson JC).

See CONFLICT OF LAWS, Vol 3, para 1091.

Shaik Abdul Latif v Shaik Elias Bux [1915] 1 FMSLR 204 Court of Appeal, Federated Malay States (Sir T Braddel CJC, Edmonds and Innes JJC).

See CONFLICT OF LAWS, Vol 3, para 1051.

By s 68 of the Ordinance No 103 (Stamps) it is provided that: '(1) In the case of every person dying after the first day of February 1908 there shall, in the cases set out in Art 1 of Sch A, be levied and paid upon the principal value ascertained as hereinafter provided of all property which passes on the death of such person a stamp duty called 'estate duty' at the graduated rates mentioned in that article.' A testator who was a foreign subject domiciled in the Straits Settlements at the date of his death in Singapore left in addition to immovable and movable property in Singapore valuable assets outside Singapore. The Commissioner of Stamps in determining the value of the deceased's estate for purposes of stamp duty included the value of his immovable property situated abroad. The question at issue before the Privy Council was whether estate duty is leviable under the Stamps Ordinance on the deceased's movable property situated in a foreign country.

Held, by the Privy Council, reversing the decision of Terrell J of the first instance as unanimously confirmed by the Court of Appeal (Murison CJ, Sproule SPJ and Thorne J): on the true construction of s 68(1) of the ordinance, the words 'all property' included foreign movables of persons dying domiciled in Singapore. The Court of Appeal has power to allow an appeal to His Majesty in Council in a matter under s 80 of the Ordinace No 103 (Stamps). The decision against which the Commissioner of Stamps appealed in this case, not being an award of an administrative character but a judgment made by a court in a civil case within the meaning of the Colonial Charter of 1855 and a final judgment within the meaning of s 1154 of the Civil Procedure Code, the Court of Appeal was wrong in refusing leave to appeal to the Privy Council.

Commissioner of Stamps, Straits Settlements v Oei Tjong Swan [1933] MLJ 107 Privy Council Appeal from Singapore (Lord Blanesburgh, Lord Russell of Killowen and Lord Macmillan).

A share in the proceeds of sale of residue is movable property even though such residue consists principally of immovable property which though held on trust for sale has not yet been sold. Where the person entitled to such share dies intestate domiciled in a foreign country, the share devolves according to the lex domicilli. An infant having a foreign domicile may give a good discharge for his share to the administrator of the estate, if according to the law of his domicile he is of full age. An advancement out of capital of a female infant's share for the purpose of her intended marriage authorized.

Re Abdul Salam, deceased; Abdul Razak v Kasi Mohamed Shirazil Anwar [1938] MLJ 83 High Court, Straits Settlements (Terrell J).

Jewellery was consigned by R Esmerian, Inc (RE Inc) and Rima Investors Corporation (Rima) to Corvina Securities Inc (Corvina), who consigned them to Wolfers Trading AG (Wolfers). Wolfers, in turn, consigned the jewellery, together with their own jewellery and those from Totah & Horowitz to one Fakhreddin, who was the first defendant. All the consignments were with the view that the jewellery would be sold to wealthy customers in the Middle East. The consignment from Wolfers to Fakhreddin was governed by Swiss law and the jewellery were handed to Fakhreddin on behalf of Wolfers in Geneva. The jewellery were misappropriated by Fakhreddin, who sold them to Diamond Centre Pte Ltd (Diamond Centre) and its director Teo, who were the second and third defendants (the defendants). Ralph Esmerian (Esmerian) of RE Inc and one Guillaume of Corvina traced some of the jewellery to Singapore and found them in Diamond Centre's premises. The jewellery recovered were referred to below as the Wolfers sapphire ring, the Esmerian ruby ring, diamonds from the Esmerian blue and canary diamond earrings, the Esmerian sapphires and the Rima emerald earrings. Corvina was required by Rima to buy the Rima emerald earrings. RE Inc and Corvina then sued the defendants in separate suits, which were consolidated, for conversion. RE Inc also alleged that jewellery handed by the defendants to one Reza, who had also consigned goods to Fakhreddin, actually belonged to RE Inc because it could be shown that part of them did not belong to Reza. RE Inc contended that the defendants were constructive trustees of them. The defendants claimed that the recovered jewellery were purchased by them in good faith from Fakhreddin, who was a mercantile agent in possession of them with the consent of the owners. They also argued that under Swiss law, they obtained good title to the jewellery. The trial judge found that the defendants had not shown they purchased the jewels in good faith. The trial judge found, inter alia, that the jewels were bought at a substantial undervalue and that the invoices given by Fakhreddin were irregular. He was of the view that Teo was not a credible witness. He also held that under Swiss law, property had not passed to the defendants, though he did not appear to hold that Swiss law was applicable. However, he dismissed the constructive trust claim on the ground that the description of the items was not adequate to identify the jewels handed to Reza as part of the missing Esmerian jewellery. The defendants appealed. RE Inc cross-appealed against the trial judge's decision on its constructive trust claim.

Held, dismissing both the appeal and the cross-appeal: (1) Swiss law was not applicable at all. The jewellery were in Singapore when Fakhreddin sold them to Teo. The lex situs was Singapore law. Swiss law was only relevant if it was shown that under Swiss law, Fakhreddin had acquired the goods in Switzerland, before he purported to sell them in Singapore to Teo. On the facts, property had not passed to Fakhreddin while the goods were in Switzerland; (2) although the Rima emerald earrings did not appear to have been bought at a substantial undervalue, this purchase must be viewed in the light of all the other transactions. On the facts, the overall picture was one of substantial undervalue; (3) the fact that Fakhreddin brought high-priced goods to a place like Singapore where there is a limited market for them, to sell at a lower price than what he could have got elsewhere, would have put any prudent businessman on notice. It was inconceivable that Teo, being in the jewellery trade, and according to him, doing substantial business, would not have known that the prices commanded by such items in other more established markets would be much higher than what he paid for them. In purchasing the jewellery, he was at best taking a calculated business risk; (4) there were irregularities in the invoices given by Fakhreddin for the jewellery. Nevertheless, on the facts, the court was not persuaded that these irregularities by themselves would necessarily have put a purchaser on notice; (5) although when jewellery were consigned, laboratory certificates were not necessary, the expert evidence was that when jewellery of this quality were sold to retail customers, it was expected that they would ask for laboratory certificates. Teo was not a consignee, but a purchaser with a view to selling to retail customers. There was no reason not to ask for a certificate. It was a reasonable inference that certificates were not important to him because the jewellery were offered at a very low price; (6) furthermore, Teo was supplied with a copy of the laboratory certificate when he purchased the Wolfers sapphire ring. The evidence was that where a copy of the laboratory certificate was shown to a potential buyer, it was expected that the original was delivered upon purchase. According to Teo, he asked for the original certificate. The failure by Fakhreddin to deliver the original ought to have put Teo on notice; (7) there was little merit in the argument that Teo trusted Fakhreddin. Trust in the jewellery business was built up over a period of years. The transactions in which the defendants bought the jewellery took place within a matter of months from the time Fakhreddin met Teo; (8) on the facts, the trial judge was entitled to come to the conclusion that Teo was not a credible witness. Teo's testimony was full of contradictions and he shifted his ground often. The court agreed with the trial judge's finding; (9) the defence of bona fide purchase from a mercantile agent under s 2(1) of the Factors Act was based entirely on Teo's evidence. This evidence was found not to be credible. This by itself, would have been fatal to the defendants' case; (10) there was no credible evidence that jewellery in Fakhreddin's hands must come from either Reza or RE Inc. On the evidence, it was impossible to hold that the jewellery handed over to Reza, but not part of Reza's consignment, must be part of the Esmerian jewellery.

Diamond Centre Pte Ltd & Anor v R Esmerian, Inc & Anor and another appeal [1996] 3 SLR 377 Court of Appeal, Singapore (M Karthigesu and LP Thean JJA, Lai Kew Chai J).

Re Abdul Salam, deceased; Abdul Razak v Kasi Mohamed Shirazil Anwar [1938] MLJ 83 High Court, Straits Settlements (Terrell J).

See CONFLICT OF LAWS, Vol 3, para 1074.

See contract, para II [51].

Las Vegas Hilton Corporation t/a Las Vegas Hilton v Khoo Teng Hock Sunny [1997] 1 SLR 341 High Court, Singapore (Chao Hick Tin J).

By a contract of carriage contained in three bills of lading dated 27 June 1978, the defendants contracted to carry on board the 'Epar' 349 pallets of oil well drilling muds duly delivered to the defendants in good order and condition at Singapore and from thence to Belawan, Indonesia. The present action arose as a result of the plaintiffs' claim against the defendants for damage done to 53 pallets of the said cargo. The defendants entered an unconditional appearance and contended, inter alia, that all further proceedings be stayed on the grounds that Indonesia was the more convenient forum and that the plaintiffs had agreed to submit all disputes arising from the said agreement for determination to the Court of Djakarta. The defendants relied on cl 17 of the bills of lading which states, 'Any claim for loss, damage or short delivery or otherwise, arising out of this bill of lading shall be dealt with, at the option of Pelayaran Nasional Indonesia in the court (Pengadilan Negeri) of Djakarta, to the exclusion of proceedings in any other court'. It was not disputed that if effect were given to the exclusive choice of jurisdiction clause and the claim was disputed in the court in Djakarta the maximum liability of the carrier to the shippers would be limited to a much smaller sum than what they would be liable to in Singapore under the Hague-Visby Rules.

Held, dismissing the defendants' application: (1) art X r 1(a) and (b) of the Hague-Visby Rules apply to all bills of lading issued in Singapore; (2) when a dispute arises between the parties as to their respective legal rights and duties under the contract and the dispute is one concerning the negligence, fault or failure of the carrier which they are unable to resolve by agreement and the carrier seeks to bring the exclusive jurisdiction clause into operation and to rely upon it and it is shown or accepted that the court in Djakarta Ð the chosen exclusive jurisdiction Ð would apply domestic substantive law which would result in limiting the carrier's liability to a lower sum than that to which he would be subjected under art IV r 5(a) in Singapore, then art III r 8 will come into play and the exclusive jurisdiction clause will be treated as if of no effect.

The 'Epar'; The 'Epar', Owners of Cargo Laden on v The 'Epar', Owners of [1985] 2 MLJ 3 High Court, Singapore (Kulasekaram J).

On 8 January 1975, the plaintiffs, whose address was in Colombo, Lanka, claimed against the owners of the ship 'Carl Offersen' damages for short-delivery of cargo on board the said ship for carriage from Karachi to Colombo. The writ was served on the said ship and the ship was arrested in Singapore. The ship was released on 17 January 1975 on the defendants providing security for the plaintiffs' claim in the sum of US$1,750,000. On 18 January 1975 the defendants entered conditional appearance. On 30 January 1975 the defendants filed a motion for, inter alia, the writ to be set aside on the grounds that the court had no jurisdiction or that all further proceedings be stayed. The 'Carl Offersen' was registered at Denmark and was owned by a company in Denmark. The proper law of the contracts contained in the Bills of Lading was Danish law. The plaintiffs were faced with a time bar in Denmark.

Held: (1) the court had a discretion whether to grant a stay or not, but should exercise that discretion by granting a stay unless the plaintiffs could show strong cause why the action should continue; (2) in this case there was no evidence at all relating to the likely issues of fact which was in Singapore. The disputes between the plaintiffs and the defendants were not in any way connected with Singapore or Singapore law. The court would therefore exercise its discretion by granting a stay.

The 'Carl Offersen'; Weaving Supplies Corp & Ors v The 'Carl Offersen' Owners 1978 High Court, Singapore (Chua J).

In Suit No 281 of 1980 by a writ of summons issued on 26 January 1980, the first plaintiff, a company incorporated in Hong Kong, commenced proceedings against four defendants for damages and for conspiracy in or about August 1975 and thereafter in relation to the affairs of the plaintiffs and against the second defendant for a declaration that he held certain shares in a certain company as constructive trustees for the plaintiffs and for other consequential orders. On 23 July 1980 the action against the first and fourth defendants was discontinued and the writ of summons was amended to include Mosbert Holdings Ltd (in liquidation), a company incorporated in Hong Kong, as second plaintiff and Liew Choon Kee & CK Lim as first and second defendants respectively. The plaintiffs claimed against the defendants damages under two heads: (1) US$350,000 being the amount awarded to the defendant in the California proceedings, which the plaintiffs alleged represents a loss to them due to the fraud practised on the California Court by the defendants and (2) the costs incurred by the plaintiffs in the California proceedings amounting to HK$4,173,142.21. Both defendants filed separate summonses stating that the plaintiffs' statement of claim disclosed no reasonable cause of action against the defendants, was frivolous and vexatious and was an abuse of the process of the court. The defendants also contended in the alternative, under the inherent jurisdiction of the court, that this action against the defendants be dismissed on the ground of res judicata, the issues in this action having been determined and adjudicated upon in the United States District Court for the Northern District of California in an action.

Held: as the plaintiffs could not be allowed to run their claim for US$350,000 in tandem both in California and in Singapore, clearly the Singapore action must be stayed; (2) a stay of the proceedings in Singapore would therefore be ordered until the action run in California 'has been litigated to a finish' in the American courts.

Mosbert Acceptance Ltd & Anor v Liew Choon Kee & Anor 1982 High Court, Singapore (Rajah J).

In this case, the plaintiff claimed damages for an alleged libel contained in an article in the Daily Mail. On 7 September 1948 the plaintiff caused a writ to be issued in London claiming damages against the second and third defendants, the publishers and the editor of the Daily Mail respectively. Subsequently, the plaintiff took out a summons to add the first defendant as a defendant but no further proceedings have been taken on the London suit. On 18 March 1949 the plaintiff caused a writ claiming damages for the said libel from the first defendant to be issued in Singapore and this was served on the first defendant. On 24 June 1949 the plaintiff applied in the Singapore suit to add the second and third defendants as co-defendants, and further applied for service of the writ out of jurisdiction. An order to that effect was made. The second and third defendants applied by summons-in-chambers for an order to discharge the order authorizing service out of jurisdiction on the ground that the discretion given by O XI r 1(f) of the Rules of the Supreme Court was wrongly exercised. The defendants also applied by motion for an order that all further proceedings in the action be stayed.

Held: (1) the plaintiff in this case is a resident in and belongs to Singapore and as the statements complained of relates to events in Singapore or Malaya, the court was justified in allowing service of the writ out of jurisdiction; (2) the issues of fact in this case could only be tried efficiently in Singapore or Malaya and that this was another ground for allowing service of the writ out of jurisdiction; (3) that a stay of proceedings will only be ordered in special circumstances and as there were no special circumstances in this case, the plaintiff should be permitted to continue the proceedings on his undertaking to discontinue the London proceedings.

Loke Wan Tho v Lachie McDonald & Ors [1949] MLJ 293 High Court, Singapore (Murray-Aynsley CJ).

These two actions arose out of an air crash which occurred on 28 April 1981 at Pekan Baru, North Sumatra, Indonesia. The plaintiff in the first suit, A, was a passenger on that aircraft which belonged to and was operated by the defendants. As a result of the crash the plaintiff suffered personal injuries. The plaintiffs in the second suit, B, were the employers of A and six other employees on that flight, of whom three died and three were injured. At the relevant time A was engaged by B to work as an electrician on board a barge which was anchored in the Straits of Malacca in North Sumatra. A, like all other employees, had to be transported to the barge from Singapore. They would board the defendants' aircraft which would take them to Pekan Baru. The defendants are an Indonesian company with their registered office and principal place of business at Jakarta. By virtue of the aircraft charter agreement ('the charter agreement') entered into between the defendants and another Indonesian oil company, H, the defendants agreed to charter to H an aircraft for flights for the route 'Seletar Ð Pekan Baru Ð Seletar'. The charter agreement was executed by the defendants and H in Jakarta. B was the contractor of H for the purposes of drilling for oil and gas off North Sumatra. It was part of their agreement that H would make arrangements for the transportation of the employees of B from Singapore to the barge and return. A claimed for damages and loss on account of the injuries he suffered as a result of the air crash. B were claiming for indemnity from the defendants for the loss they might suffer on account of the death of or injuries suffered by their employees. Leave was obtained to serve the writs on the defendants out of jurisdiction. The defendants applied to set aside the writs; alternatively they asked that all further proceedings be stayed. As both appeals raised identical issues, it was agreed by both counsel that the court's decision in the first suit would apply to the second suit. There are two main issues in this appeal. One, have the Singapore courts the jurisdiction to hear the claim? Two, if the answer to the first is in the affirmative, should the Singapore courts decline to hear the case on the principles of forum non conveniens.

Held, dismissing the appeals: (1) jurisdiction could quite clearly be founded on the fourth limb of art 28(1) of the Warsaw Convention of which both Singapore and Indonesia are signatories. The flight on the sector Seletar/Pekan Baru is clearly an international carriage within the meaning of art 1 of the Convention; (2) it is clearly the intention of the parties that each passenger would make a round trip and it is clear that in the case of a return ticket or round trip, it is always regarded from the outset as a single operation, where the place of departure will also be the place of destination. Accordingly the place of destination of the flight which the plaintiff took on that fateful day was Singapore. Thus, the High Court here has jurisdiction over the claim; (3) on the issue of forum non conveniens, the first three limbs of art 28(1) of the Warsaw Convention would confer upon the courts in Indonesia that jurisdiction. From the facts, it is clear that the whole transaction has more real and substantial connections with Indonesia than with Singapore; (4) A's presence in Singapore was only temporary and he had no connection with Singapore other than the fact that he boarded the aircraft here. No evidence was tendered to show that there would be any personal or juridical advantages in proceeding in Singapore; (5) on the plaintiff's con-tention that his action would now be time-barred in Indonesia, there was nothing before the court to show that the plaintiff had acted reasonably in not commencing proceedings in Indonesia. On the facts, there is plainly no basis whatsoever for the court to exercise its discretion in favour of the plaintiff. The plaintiff has not discharged the burden of showing that there are special circumstances by reason of which the trial of this action should nevertheless take place in Singapore.

Brinkerhoff Maritime Drilling Corp & Anor v PT Airfast Services Indonesia [1992] 2 SLR 776 Court of Appeal, Singapore (Yong Pung How CJ, LP Thean and Chao Hick Tin JJ).

The appellant was the father of the respondent. The parties had interests in various companies and properties in Singapore and abroad. The respondent filed a petition to wind up a Singapore company and a similar petition in Malaysia to wind up a Malaysian company. The appellant was one of the respondents in both petitions. The appellant subsequently filed an action in the High Court claiming, inter alia, a declaration that the respondents held on trust for him shares in four companies incorporated in Singapore, Malaysia and Hong Kong and various parcels of land in Malaysia. The respondent filed a notice of motion for an order that the claims relating to the shares in the Malaysian companies and the land situated in Malaysia be stayed on the ground that the Singapore court had no jurisdiction in relation to foreign immovable properties, and alternatively, on the basis of forum non conveniens. The trial judge allowed the respondent's application on the alternative ground. (See [1995] 1 SLR 577.) The appellant appealed.

Held, dismissing the appeal: (1) the Singapore court did not have jurisdiction to entertain proceedings concerned with foreign immovable properties except where the action was based on an equity between the parties. The appellant's claim in relation to the land was based on an express or resulting trust, and it came within the exception, and the court, therefore, had jurisdiction to hear the claim; (2) [1986] 3 All ER 843 had been approved by the Singapore Court of Appeal and there was no reason to depart from it. The underlying basis in this test was whether the local court was clearly an appropriate forum or not and whether there was another forum which was distinctly and clearly more appropriate; (3) on the issue of forum non conveniens, two approaches were possible, namely, the Spiliada test as propounded by the House of Lords and the test laid down by the High Court of Australia in Oceanic Sun Lines (1988) 165 CLR 197. The approach in The Spiliada [1987] AC 460;the respondent had discharged the burden of showing that Singapore was not the appropriate forum and that the Malaysian court was clearly the more appropriate forum for the trial involving the Malaysian properties.

Eng Liat Kiang v Eng Bak Hern [1995] 3 SLR 97 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

This was an application by the first defendant for an order that a writ of summons should be set aside. The action concerned a partnership business, which the first defendant contended was situated in Kelantan. The writ of summons had been served on the first defendant in Singapore.

Held, (1) to succeed in the application the first defendant must show that: (a) no injustice would be done to the plaintiff by having the action tried in Kelantan, and (b) the defendant would be subject to such injustice in defending the action in Singapore as would amount to vexation and oppression; (2) as the defendant had failed to show that he would be subjected to such injustice as would amount to vexation and oppression in defending the action the application must be dismissed.

Chua Toh Hua & Anor v Lee Cheng Giam & Anor [1949] MLJ 33 High Court, Singapore (Brown J).

The plaintiffs were a company incorporated in Singapore and at the material time carried on the business of a stockbroker in Singapore. The plaintiffs were under receivership and a winding-up petition was pending against them. The defendants, a company incorporated in Malaysia, were and are still carrying on, the business of a stockbroker at Kuala Lumpur. On 26 July 1985, the plaintiffs and the defendants entered into a contract whereby the plaintiffs agreed to sell and the defendants agreed to purchase 1,500,000 shares in Sigma International Ltd at S$2.90 per share. On 28 January 1986 the plaintiffs informed the defendants that they would deliver 90,000 shares out of the 1,500,000 shares and they requested for payments of a sum of $261,000. On 29 January 1986, the plaintiffs delivered the said 90,000 shares but the defendants refused to take delivery and pay the said sum of $261,000. The plaintiffs alleged that they were ready and willing to deliver the balance of 1,410,000 shares due under the contract and that the defendants had declined to accept delivery and pay for the whole of the 1,500,000 shares and had thereby repudiated the said contract. The plaintiffs therefore initiated the present proceedings ('Singapore action') against the defendants claiming damages for breach of contract. However before the Singapore action commenced the defendants had already initiated proceedings at Kuala Lumpur ('Malaysian action'). Upon service of the notice of the writ of summons in the Singapore action on the defendants, they entered a conditional appearance and on 19 March 1986 took out an application by way of summons-in-chambers for an order, inter alia, that all further proceedings in the Singapore action be stayed under the inherent jurisdiction of the court on the ground that there is pending the Malaysian action concerning the same subject matter. The application was heard by the assistant registrar who dismissed it with costs. The plaintiffs appealed.

Held, dismissing the appeal: on the evidence available a stay ought not to be granted.

Lin Securities (Pte) v OSK & Partners Sdn Bhd [1987] SLR 242 High Court, Singapore (Thean J).

In considering the propriety of entertaining proceedings in the courts of the state when such proceedings concern a partnership carrying on business both in the Federated Malay States and the state, the determining factor is the comparative advantage in furtherance of justice to all parties.

Ong Kin Hong v Ong Cho Tek & Ors [1935] MLJ 142 High Court, Straits Settlements (Mills J).

The plaintiffs claimed S$1,935,837.53 for repairs executed by them to the motor vessel Sauvereal at the port of Rotterdam in 1968 and early 1969. On 21 May 1969, the ship's agents, a French company (hereinafter called STTM), commenced legal proceedings against the plaintiffs in Paris seeking cancellation of the plaintiff's repair invoices, a declaration that the amounts claimed in the invoices were not due, and claiming general damages of one million French francs for alleged negligent repair. The plaintiffs filed a defence to this claim alleging that STTM's claim was not admissible since STTM was a mere agent, and that the Paris court had no jurisdiction. The plaintiffs also counterclaimed in the Paris proceedings for the costs of the repairs. On 18 March 1970, the plaintiffs commenced proceedings in Rotterdam against the owners of the ship, and against the charterers at the time the repairs were carried out, and also against a company which had succeeded the said charterers, claiming the costs of the repairs. On 23 March 1970, the charterers and the owners applied to intervene in the Paris proceedings, to which the plaintiffs objected, contending that the Paris court had no jurisdiction, and that these proceedings should be stayed having regard, inter alia, to the concurrent Rotterdam proceedings. There was no further development in the Rotterdam proceedings, but on 8 December 1971, the Paris court delivered judgment stating that the claim of the agents STTM was admissible in the Paris proceedings, granting the charterers and the owners permission to join in the Paris proceedings, and declining to stay the Paris proceedings on the ground that there were other proceedings pending in Rotterdam. On the main issue of whether the repairs were properly carried out, the Paris court made no finding but referred the matter to an expert. The plaintiffs appealed against the judgment of the Paris court. On 28 December 1971, the plaintiffs arrested the motor vessel Sauvereal in Singapore. The defendants applied by motion to set aside the writ and all subsequent proceedings on the grounds that the arrest of the vessel was undertaken mala fide and was an abuse of the process of the court. The defendants contended that the affidavit to lead the warrant of arrest was misleading in that it made no reference at all to the Paris and Rotterdam proceedings.

Held, dismissing the motion: (1) a stay would not be granted because the proceedings were not vexatious. The institution of an action in Singapore was not vexatious simply because a similar action was pending in another country. However, if bail had been furnished in another country, it would be vexatious to arrest a ship in this country for the same cause of action; (2) convenience in such matters as the calling of witnesses was not a dominant factor, though it was one which might assume some importance when other things were equal. A mere balance of convenience was not a sufficient ground for depriving a plaintiff of his right to obtain security by prosecuting an action in rem in this court and arresting the res; (3) the motion must accordingly be dismissed with costs, and the plaintiffs would be restrained from prosecuting the Rotterdam proceedings against the owners.

Dok-En Werf-Maatschappij Wilton-Fijenoord NV v Owners of the Motor Vessel 'Sauvereal' 1972 High Court, Singapore (Chua J).

The plaintiffs were a Malaysian bank. The three defendants were at the time directors of a Malaysian company known as Sim Lim Co (M) Bhd. The defendants were a customer of the plaintiffs and by an agreement dated 22 January 1980, the plaintiffs granted the defendants an overdraft facility of RM1m. This amount was subsequently reduced to RM350,000. The three defendants executed two continuing letters of guarantee on 28 January 1980 agreeing to guarantee, severally and jointly, the payment on demand of all the advances made by the plaintiffs to the company. The plaintiffs by their Singapore solicitors made a demand for payment by a letter dated 22 January 1994 to the three defendants for the outstanding amounts due from the company. No payment was received. The plaintiffs started an action against all three defendants and four others in Malaysia but the action was subsequently withdrawn. The plaintiffs then started another action against all three defendants in Singapore. The defendants filed two applications by summons in chambers for an order to stay the proceedings begun in Singapore. Both applications were heard together. The assistant registrar dismissed the applications. The defendants appealed.

Held, allowing the appeal: (1) (ii) are there circumstances which for reasons of justice, require that a stay should nevertheless not be granted. The onus of proof is on the defendants for stage (i) of the inquiry while for stage (ii) the burden is on the plaintiffs; (2) athough it was conceded that a Singapore court had jurisdiction over the defendants under s 16(1)(a)(i) of the Supreme Court of Judicature Act, what had to be determined was whether the relevant factors decided otherwise; (3) convenience ipso facto was not the sole criterion. The court had to consider with what forum the issues had the closest connection, and not simply weigh factors without reference to the likely issues; (4) (vi) the plaintiffs' claim had no connection whatsoever let alone any real and substantial connection with Singapore; (5) a two-stage inquiry is involved in the determining process: (i) is there another forum having competent jurisdiction to try the case suitably for the interests of all parties and for the ends of justice. If the answer is yes, then prima facie the court should grant a stay;applying the guidelines set out in The Spiliada [1986] 3 All ER 843 and endorsed by the Court of Appeal in Brinkerhoff's case [1992] 2 SLR 776, justice would be better served if the plaintiffs' claim was tried by a Malaysian court. The factual matrix all point to Malaysia and Kuala Lumpur in particular as the most appropriate to try the case. The factors include (i) the principal debtor was a Malaysian company; (ii) the facility was granted and the account opened thereon operated, in Malaysia; (iii) the guarantee was executed in Malaysia; (iv) the principal debtor defaulted on the facility in Kuala Lumpur and therefore the cause of action against the defendants as guarantors arose in Malaysia; (v) in the absence of an express choice of law in the facility and in the guarantee, it was reasonable to infer that Malaysian law would be the proper law for both documents. The law of contract is governed by the Contracts Act 1950 and the plaintiffs would have to discharge the burden of proving the Malaysian law as a fact with regards to the Contracts Act 1950 if they pursued their claim in Singapore;this court was not bound to follow the decision in Suit No 333/92 as each court had to exercise its own discretion based on the particular facts of the case. Further, as the court was not able to ascertain the ratio decidendi of the judgment, the court was not bound to follow it.

Perwira Habib Bank Malaysia Bhd v Soon Peng Yam & Ors [1995] 1 SLR 783 High Court, Singapore (Lai Siu Chiu J).

JH Rayner (Mincing Lane) Ltd v Teck Hock & Co (Pte) Ltd & Ors [1989] SLR 1174 High Court, Singapore (Chao Hick Tin JC).

See CONFLICT OF LAWS, Vol 3, para 1099.

The plaintiff is a Malaysian firm holding a licence for the extraction of sand and coral stones off Sabah. The defendant resides and carries on business in Brunei as a trading firm. A dispute arose between the parties regarding the concession area to be worked by the defendant and the plaintiff instituted an action against him. The defendant then filed the present application for a stay of the plaintiff's action on the ground of forum non conveniens.

Held, allowing the application for stay on terms: (1) the court in this sort of case looks first to see what factors there are which connect the case with another forum. If, on the basis of that inquiry, the court concludes that there is another available forum which, on the face of it, is clearly more appropriate for the trial of the action, it will ordinarily grant a stay, unless there are circumstances by reason of which justice requires that a stay nevertheless should not be granted. This principle is applicable whether or not there are other relevant proceedings already pending in the alternative forum; (2) the Brunei court ought, in my judgment, to accept the most recent guidance given by the House of Lords as to how the discretion to grant a stay in a case such as this ought to be exercised. It would be most unsatisfactory in these circumstances if the principles were held to be different in Brunei from the principles applicable in England without some good reason for so holding; (3) all the defendant's witnesses reside in Sabah and some of them are Sabah government officials. The fact that the defendant, against whom any judgment in Sabah will have to be enforced, resides and carries on business in Brunei is an important factor militating against a stay but it is not a decisive factor. The defendant has satisfied the court that Sabah is the natural and more appropriate forum for the trial of the plaintiff's claim; (4) the facts in favour of the defendant's application to stay the plaintiff's action are: the plaintiff comes from Sabah; the agreement was made in Sabah and fell to be performed in Sabah so that the law of Sabah would seem to be the proper law of the contract; there will have to be an inquiry at the trial as to the area of land off Sabah;however, it would not be just to grant a stay except on terms. Justice will be done if but only if the defendant is prepared to pay the plaintiff's costs incurred down to the grant of the stay.

Syarikat Bumiputra Kimanis v Tan Kok Voon [1988] 3 MLJ 315 High Court, Bandar Seri Begawan (Godfrey J).

The plaintiffs are a company incorporated in India and carrying on business in Calcutta. The defendants are a company incorporated in Singapore. In September 1992, the plaintiffs agreed to sell the defendants two million hessian sugar bags cif Odessa, Russia. Payment was by a bill of exchange drawn on the defendants payable to the Vysya Bank Ltd. The bill was dishonoured by non-payment when the same was presented by the plaintiffs for payment. The defendants contended that the goods delivered did not conform to specifications and were unmerchantable. The plaintiffs commenced an action in Singapore on 16 October 1993, claiming under the bill and, alternatively claiming the price of goods sold and delivered pursuant to the sale contract. The defendants, however, had commenced a suit in India in June 1993 against the plaintiffs and Vysya Bank as defendants, claiming damages for loss of profit from a sub-sale and an indemnity against the claim of their sub-purchaser. The defendants also sought to avoid the bill of exchange on the grounds of total failure of consideration and fraud. The writ in the Indian action was not served on the plaintiffs until 10 January 1994. The defendants did not file a defence to the Singapore action. Instead, they took out an application to stay the plaintiffs' action, on the grounds that the governing law of the transaction was Indian law, that the transaction took place in India and the witnesses were in India, and that there was lis alibi pendens. The learned assistant registrar made an order staying all proceedings with liberty to apply to lift the stay if proceedings in India were discontinued without determination of the merits or a permanent stay of the proceedings was granted by the High Court in Calcutta. The plaintiffs appealed.

Held, allowing the appeal: (1) the basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that another forum is the appropriate forum for the trial of the action. In this context, 'appropriate' means that a trial in that forum will be more suitable for the interests of all the parties and the interests of justice; (2) whilst initially the defendants had the burden of persuading the court to grant a stay, once the court was satisfied that there was another available forum which was, prima facie, the appropriate forum for the trial of the action, the burden shifted to the plaintiffs to show the existence of special circumstances justifying a trial here. However, where the plaintiffs have, as in this case, founded jurisdiction as of right in accordance with Singapore law, the defendants' burden was not just to show that Singapore was not the natural or appropriate forum for the trial but to establish that there was another available forum which was clearly or distinctly more appropriate than the Singapore court; (3) the assistant registrar was correct in his conclusion that Indian law was the proper law of the sale contract; (4) the law governing the acceptance contract was Singapore law. The acceptor was a Singapore company, the acceptor signed the bill of exchange in Singapore and the bill of exchange was presented for payment and dishonoured in Singapore. Section 72(b) of the Bills of Exchange Act (Cap 23 provided that the interpretation of the acceptance of a bill of exchange was determined by the law of the place where such contract was made. Accordingly, the effect of s 72(b) was that in Singapore the law of the place where the contract of acceptance was made would govern the enforcement of the bill; (5) the governing law issue was a neutral one. On the one hand, Singapore law governed a substantial portion of the case. On the other hand, since no significant difference had been shown by the defendants to exist between Indian law and Singapore law on the sale of goods, no real advantage would be gained by the defendants in having the action heard in India simply because the Indian sale of goods law had to be applied. It was also significant that one of the things which the defendants sought to do in India was to avoid the bill of exchange on the ground of fraud or total failure of consideration. Whether this could be done was a Singapore law issue which would be better decided by the Singapore court; (6) the location of the evidence needed to be adduced was also neutral in that there was no preponderance of evidence located either in Singapore or in India. The defendants' case both in relation to the defence and to the counterclaim depended on evidence located in Russia and Singapore. If specific Indian evidence on which they wished to rely existed, it was up to the defendants to disclose it since they were the party propounding this as a factor pointing to India as an appropriate forum. They had not done so. The plain statement that 'the said transaction took place in India' was not sufficient to discharge the onus of proof on the defendants since it was only partially correct, the transaction relating to the acceptance contract having taken place in Singapore. Further, the defendants' main witness resided in Singapore; (7) following de Dempierre v de Dempierre [1988] 1 AC 92, evidence of pending action in the alternative forum may be relevant to the inquiry depending on the circumstances. It may be of no relevance if the action was commenced for the purpose of demonstrating the existence of a competent jurisdiction, or the proceedings had not passed the stage of the initiating process. But if genuine proceedings have been started and have developed to the stage where they have had some impact upon the dispute, this may be a relevant factor to be taken into account; (8) in this case, the Indian action was defensive in nature and the course of events indicated that there was no true desire on the part of the defendants to litigate in India. Whilst the court must always be concerned to try and avoid complications that arise when there are concurrent proceedings in different jurisdictions involving the same parties and similar issues, in this particular case, the existence of the Indian proceedings was not a positive factor making the Indian court the more appropriate court to adjudicate the dispute.

The Hooghly Mills Co Ltd v Seltron Pte Ltd [1995] 1 SLR 773 High Court, Singapore (Judith Prakash JC).

[Annotation: The defendants' appeal to the Court of Appeal vide CA 136/94 was dismissed (Karthigesu and LP Thean JJA and Chao Hick Tin J).]

Lorrain Esme Osman (Lorrain) is a defendant in both these civil suits filed by the plaintiffs, Bank Bumiputra Malaysia Bhd (the bank) and its wholly owned subsidiary company Bumiputra Malaysia Finance Ltd (BMF), which was incorporated in Hong Kong. In his two similar applications, he seeks orders of the court to strike out the writs of summons and statements of claim in both suits on the ground that each of the statements of claim discloses no reasonable cause of action and/or is vexatious and/or is an abuse of the process of the court. Alternatively, he asks the court to stay all proceedings in respect of both civil suits on the ground that the courts of Hong Kong are the natural forum and/or forum conveniens before which the actions should be tried and the continuance of the actions before the High Court of Malaya would be vexatious and/or an abuse of the process of the court. In Civil Suit C 438 of 1985, Lorrain also asks the court that, if it does not strike out or stay the action, the following questions or issues should be tried before all other questions or issues in the action, namely: (a) Whether the law applicable to the substantive matters in issue in these proceedings is that of Hong Kong or Malaysia or both? (b) Whether under the relevant law so found to be applicable: (i) the first plaintiff (the bank) by virtue of its holding the majority of the shares in the second plaintiff (BMF), a company incorporated in Hong Kong, can maintain an action for alleged wrong done or for alleged damage caused to the property of BMF; and (ii) by reason of the matters set out in paras 56, 58 and 59 of Lorrain's statement of defence, can the plaintiffs maintain the present action in Civil Suit C 438. These questions were raised in an earlier application by the second defendant in the same Civil Suit C 438 of 1985, in which the court ruled that the law applicable was the law of Malaysia (see [1987] 1 MLJ 502). It was contended on behalf of the plaintiffs that Lorrain's applications in both civil suits to strike out the writs and statements of claim and for stay of proceedings were not made promptly. The plaintiffs have reasonable causes of action founded on his breach of his fiduciary duty as a director in both suits which should be tried in Malaysia and not in Hong Kong.

Held, dismissing both applications with costs: (1) the applications to strike out the writs and statements of claim and for stay of proceedings in both suits were dismissed; (2) the law applicable to the substantive matters in issue in these two proceedings is the law of Malaysia; (3) in respect of Civil Suit C 438, the plaintiffs could maintain the present action. The doctrine of merger does not apply.

Bank Bumiputra Malaysia Bhd & Anor v Lorrain Esme Osman; Bank Bumiputra Malaysia Bhd & Anor v Lorrain Esme Osman & Ors [1987] 2 MLJ 633 High Court, Kuala Lumpur (Zakaria Yatim J).

The succession to an intestate's estate, both movable and immovable, in the Federated Malay States, is determined by the law of the country in which he was domiciled, subject however to the qualification that no succession or distribution, contrary to the public policy of the state, will be permitted. The Muslim law is a personal law, founded on religion, and gives rights only to those who acknowledge Islam.

Ong Cheng Neo v Yap Kwan Seng [1897] SSLR Supp 1 Judicial Commissioner's Court, Federated Malay States (Jackson JC).

Ee Hoon Soon v Chin Chay Sam [1889] 1 SLJ 147 High Court, Straits Settlements (Ford CJ).

See CONFLICT OF LAWS, Vol 3, para 1016.

Shaik Abdul Latif v Shaik Elias Bux [1915] 1 FMSLR 204 Court of Appeal, Federated Malay States (Sir T Braddell CJC, Edmonds JC and Innes JC).

See CONFLICT OF LAWS, Vol 3, para 1015.

Ooi Siew Hong v Ooi Kim Lan & Ors [1923] 3 FMSLR 244 Court of Appeal, Federated Malay States (Sproule, Barrett-Lennard and Brown JJ).

See CONFLICT OF LAWS, Vol 3, para 1013.

Probate may be granted of the will of a person domiciled abroad upon proof that it is a valid will according to the law of domicile and that there are assets within the jurisdiction; and it is not necessary that it should be first proved in the court of the domicile.

Meyappa Chetty v Supramaniam Chetty [1916] 1 AC 603 Privy Council Appeal from Singapore (Earl Loreburn, Lord Atkinson, Lord Parker of Waddington and Lord Sumner).

So far as concern immovable property in the Colony the will of an Arab Muslim is revoked by his subsequent marriage and is thereafter inoperative at least to that extent.

Re Shaik Abubakar bin Mohamed Lajam, deceased [1935] MLJ 137 High Court, Straits Settlements (Shaw CJ).

Re State of Norway's Applications (Nos 1 & 2) [1989] 1 All ER 745 House of Lords, England (Lords Keith, Brandon, Griffiths, Goff and Lowry).

See CONFLICT OF LAWS, Vol 3, para 970.

Tengku Aishah bte Sultan Haji Ahmad Shah & Ors v Wardley Ltd Civil Suit No D2-22-1914-89 High Court, Kuala Lumpur (Siti Norma Yaakob J).

See COMPANIES AND CORPORATIONS, Vol 3, para 945.

P sold 502 tonnes of coffee beans to D1, ownership to remain with P until payment. P alleged that D1 had fraudulently obtained the goods from the ship in Singapore without their consent and knowledge and had sold the goods to D3, and American company. P obtained leave to serve notice out of jurisdiction on D3, which entered a conditional appearance and then sought to have service set aside. It was admitted by D3 that D1 had sold them the goods, but it was alleged that the contract of sale was not FOB Singapore but ex-dock Oakland, California. The registrar refused to set aside service. D3 appealed. P's application for service out of jurisdiction was based, inter alia, on RSC O 11 r 1(h) (action founded on a tort committed within jurisdiction) and r 1(j) (the party being served is a proper party to an action properly commenced in Singapore).

Held, dismissing the appeal: (1) a person who is not the owner of goods and who conveys them to another without the consent or authority of the owner commits conversion and the person to whom the goods are conveyed obtains no better title to them and may also be liable in conversion. However, a mere contract for sale, without a transfer of possession is not conversion; (2) the conversion alleged by P took place in Singapore and not in California. The court was satisfied from the documents that, notwithstanding D3's contention, the contract of sale between D1 and D3 was FOB Singapore. Accordingly, delivery of the goods to D3 occurred in Singapore at the time that they were shipped; (3) service outside jurisdiction was also justified on the ground that D3 were a proper party to the action brought against D1. The test was whether D3 would have been proper parties if they had been within jurisdiction; (4) D3's submission on forum non conveniens was rejected. In an application for service outside jurisdiction, the burden is on the plaintiff to show that Singapore is the proper forum for the trial of the action. The principal events relating to the subject matter occurred in Singapore. The main witnesses were in Singapore. In the absence of evidence that the court of any third country was the more appropriate forum to adjudicate the dispute, the plea of forum non conveniens failed.

JH Rayner (Mincing Lane) Ltd v Teck Hock & Co (Pte) Ltd & Ors [1990] 2 MLJ 142 High Court, Singapore (Chao Hick Tin JC).

In this case, the respondent had sued the appellants for damages for injuries sustained in the course of employment arising from an alleged unsafe system of work. The accident took place in Samarinda, Kalimantan, Indonesia. Judgment was given for the respondent and the appellants appealed.

Held: (1) an action for tort will only lie in Malaysia for a wrong alleged to be committed in a country outside Malaysia if two conditions are fulfilled. First, the wrong must be of such a character that it would have been actionable if it had been committed in Malaysia. Secondly, it must not have been justifiable by the law of the country where it was committed; (2) in this case while there was no doubt that the wrong done to the respondent was actionable in Malaysia, there was doubt whether an actionable wrong to Indonesian law had been committed in Indonesia; (3) the onus of proof that the wrong was actionable in the foreign country was on the plaintiff and as the respondent, who was the plaintiff in the action, had led no evidence on the point, the appeal must be allowed and the claim dismissed.

Chan Kwon Fong & Anor v Chan Wah [1977] 1 MLJ 232 Federal Court, Kuala Lumpur (Ali Ag CJ (Malaya).

This was an application for the construction of an indenture made 26 October 1894 between one Lim Loh, the vendor, one Tan Yeok Nee (hereinafter called the settlor) and Tan Yeok Nee and Tan Tee Kah (hereinafter called the trustees) whereby certain lease-hold properties in Singapore were conveyed to the trustees (the purchase money being provided by the settlor) to hold upon the following trusts: (1) Upon trust during the life of the settlor to allow him to receive the rents income and profits of the properties and after paying thereout the outgoings payable in respect of the premises and the expenses of keeping the buildings in repair to apply the balance of such rents in such manner as he in his absolute discretion should think fit for the maintenance and upkeep of or otherwise in connection with the joss house or temple known as Tok Kheng Tong erected by the settlor in the village of Saleng Tan near Swatow in the Empire of China. (2) After the death of the settlor upon trust during the period following namely during the life of Her Majesty Queen Victoria and the lives of her children, grandchildren and great-grandchildren now in being and during the lives and life of the survivors and survivor of them and the period of 21 years after the death of such survivor to receive the rents and profits (and after provisions for the usual powers to manage, etc) to remit the residue of such rents once a year to the person for the time being having charge of the said temple or joss house to be applied by such person for the maintenance and upkeep of the temple or joss house and for due performance therein of the ceremonies known among the Chinese as sin chew kee sin in memory of the settlor and of his relatives or others whose sin chew may from time to time be kept in the said temple or joss house. (3) And after the expiration of the said period the trustees to hold the premises for the settler, his executors, administrators or assigns. Provided that during his life the settlor should have the right to exercise the statutory power of appointing new trustees of the indenture. During his lifetime the settlor in exercise of the power of appointment appointed two other persons to be trustees in his place and subsequently other trustees were appointed, with the result that the first and second defendants become trustees of the indenture. The settlor died on 21 May 1902 and by his will he directed that his residuary estate should be divided among his ten named grandsons with the provision that on the youngest of the said grandsons attaining the age of 21 years the residuary estate should be converted into money and divided among them. The plaintiff in this case was one of the named grandchildren and as such entitled to a share in the residuary estate. The third defendant was the sole surviving executor of the will. The plaintiff applied by summons for the determination inter alia of the following questions: (1) Whether according to the construction of the above named indenture the trusts to apply the rents income and profits of the properties therein described and the period therein mentioned to apply such rents income and profits for the maintenance and upkeep of or otherwise in connection with the joss house or temple known as Tok Kheng Tong and for the purpose therein of sin chew kee sin ceremony were void for repugnancy. (2) Whether according to the true construction of the said indenture the settlor was absolutely and beneficially entitled to the properties described therein. (3) Whether the period of limitation mentioned in the said indenture was void for remoteness. (4) Whether the trusts mentioned in para 1 were enforceable.

Held: (1) the trusts were not void for repungnancy as the intention of the settlor in creating the third trust was not to give an absolute interest in the property to the settlor, but was to make a disposition of the property to take effect at the expiration of the limited and consecutive periods for which the first and second trusts were created; (2) there was a valid trust of the income of the property for a charitable purpose, namely, the upkeep of a temple, during the life of the testator, and that the first trust was not invalid merely because the settlor had an absolute discretion to apply the income as he should think fit for the maintenance of or otherwise in connection with the temple; (3) although the trust for the second period contained a charitable gift made conditional upon a future event that event was a certain one, namely, the death of the settlor, and that therefore it was not void for remoteness; (4) as the trusts were impressed upon leasehold property in the Colony, the validity of the trusts must be determined by the laws of the Colony; (5) the trust for the second period was partly charitable and partly non-charitable and that in such cases, where the property impressed with the trust is certain, the trust does not fail but the court will in default of appointment by the trustees, apportion the fund between the charitable and the non-charitable objects equally; (6) there was no evidence of any practical difficulty in making the apportionment in this case and that therefore the trust was prima facie enforceable.

Tan Chin Ngoh v Tan Chin Teat [1946] MLJ 159 High Court, Singapore (Worley J).

Between 25 October and 13 November 1989, U, an employee of the plaintiffs, fraudulently caused several sums belonging to the plaintiffs amounting to US$536,000 to be transferred by telegraphic transfer from the plaintiffs' Manila branch to the joint account of U and her husband with the plaintiffs at their New York branch. On or about 17 November U instructed the plaintiffs' New York branch to make a telegraphic transfer of US$515,000 from her New York joint account to the Singapore branch of the plaintiffs to await her collection of the funds in Singapore. She collected a substantial part of the funds by means of separate demand drafts, one of which was for the sum of US$200,000. This draft was used to establish an Asian Currency Unit ('ACU') account with the defendants in U's name. On discovering the fraud, the plaintiffs commenced proceedings against U and her husband in Singapore High Court Suit No 2293 and obtained a Mareva injunction freezing, inter alia, U's ACU account with the defendants. Subsequent events led to the plaintiffs issuing garnishee proceedings against the defendants. The defendants resisted the garnishee proceedings on various grounds. The defendants contended, inter alia, that the orders obtained by the plaintiffs were not binding on them as they were not parties to the orders nor did the orders specifically direct the defendants to make payment to the plaintiffs. The issues of this case were (a) what law governs the plaintiffs' claim to the moneys ('the conflicts issue') and (b) what the rights of the plaintiffs are against the defendants under the governing law ('the substantive issue').

Held, allowing the application: (1) the proper law of the obligation to restore the benefit of an enrichment is the law of the country where the ultimate enrichment occurred. On the facts, the ultimate enrichment of U occurred in Singapore because U would have the right to demand from the defendants payment of her ACU deposit in cash in Singapore, regardless of where the defendants themselves choose to maintain their United States dollar funds or credits; (2) alternatively, it may be said that Singapore is the place of immediate enrichment since enrichment of U could not have occurred until the plaintiffs actually lost the moneys. What happened between Manila and New York were merely inter-branch book entries and the enrichment of U occurred only when the plaintiffs actually lost the moneys, namely, when U received the drafts in Singapore. On this analysis, there would in fact be no conflict of laws issue, as both the misappropriation and enrichment took place in Singapore. In any event, the court was bound to apply Singapore law as neither party adduced any evidence of New York law; (3) U and her husband were clearly constructive trustees of the moneys misappropriated. The plaintiffs had a proprietary entitlement to the moneys in the ACU account; (4) and (c) the defendants did not provide any valuable consideration for the payment of the moneys into the ACU account; (5) on the facts, equitable tracing was available because: (a) there was a fiduciary relationship between the plaintiffs and U; (b) the moneys in the ACU account with the defendants were clearly identifiable proceeds of misappropriation arising from U's breach of fiduciary duty;the doctrine of election only arises where remedies are alternative in that they involve the assertion of inconsistent rights that produce benefits for a plaintiff which are different in kind and which would, if given cumulatively, provide him with more than his recoverable loss. In such a case, the plaintiff may sue both the fraudster for money had and received (which is a personal claim) as well as the innocent third party recipient for a tracing order (which is a proprietary claim). On the facts, the plaintiffs had not made an election of alternative remedies resulting in non-availability of the proprietary claim as the personal claim against U and her husband in Suit No 2293 of 1989 was not inconsistent with their proprietary claim against the defendants.

Hongkong and Shanghai Banking Corp Ltd v United Overseas Bank Ltd [1992] 2 SLR 495 High Court, Singapore (Michael Hwang JC).

The respondents, an Indonesian State Enterprise, undertook major economic development projects at the direction of the Government of the Republic of Indonesia, including the development of an industrial complex for steel-making and related industries in Cilegon, Indonesia. Siemens AG ('Siemens') and Klockner Industrie Analagen GmbH ('Klockner') respectively contracted to provide the power generation equipment and to build and equip the water supply system of the project. General Hj Achmad Thahir ('General Thahir') was employed by the respondents as the general assistant to the President-Director of the respondents. At the date of his death on 23 July 1976, there stood as having been deposited with the Singapore branch of The Sumitomo Bank Ltd ('the bank') 17 separate and discrete Asian Currency Unit ('ACU') deposits denominated in Deutschmarks, in the names of 'Mr HA Thahir and/or Mrs KR Thahir', amounting in aggregate to DM53,972,374.12. There were also two other separate and discrete ACU deposits denominated in US dollars in the sums of US$593,249.31 and US$608,959.42 respectively; both these deposits were also in the same joint names. Mrs KR Thahir is Mrs Kartika Ratna Thahir, the appellant ('the appellant'). There were three claimants to the 19 deposits: the appellant, the respondents and Abubakar Thahir and Ibrahim Thahir, both appointed to represent the estate of General Thahir. At the hearing of the originating summons taken out by the bank for interpleader reliefs in the face of the competing claims, Lai Kew Chai J decided, inter alia, that (see [1993] 1 SLR 735): (i) the respondents had proven that the 17 ACU deposits denominated in Deutschmarks were bribes which Siemens and Klockner had paid to General Thahir; (ii) the respondents had failed to discharge their legal and evidential burden of proof and had no claim to the two ACU deposits denominated in US dollars; (iii) Singapore law governed the respondents' claims at law and in equity; (iv) the claim at law is for money had and received and such claim arose in the place of receipt, ie Singapore; (v) for the claim in equity, General Thahir held the bribes and all interest earned as constructive trustee for the respondents and the appellant, being hand in glove with General Thahir in his dishonest schemes, also became a constructive trustee when she became a joint account holder and when the legal title vested in her solely upon the death of General Thahir. The trial judge also held that the bank was to hold the two US dollar deposits pending, among other things, the outcome of the trial between the appellant and the representatives of the estate of General Thahir as to who is entitled to that sum. The appellant appealed whilst the respondents filed a respondents' notice against the trial judge's decision on the two ACU deposits denominated in US dollars. The Court of Appeal had to consider four issues: (i) whether, in order to succeed on the amended first issue in the interpleader proceedings, it is essential that the respondents have a proprietary claim to the ACU deposits; (ii) whether the ACU deposits denominated in Deutschmarks were bribes which Siemens and Klockner had paid General Thahir, and if so whether the appellant was privy to the receipt of those bribes; (iii) whether, as a matter of conflict of laws, the respondents' claim is governed by Singapore law or Indonesian law or both; and (iv) whether under the relevant governing law, the respondents have a proprietary claim to the ACU deposits and interest. As a preliminary point, the Court of Appeal had to consider the appellant's motion to strike out the respondents' notice.

Held, allowing the motion and dismissing the appeal: (1) the respondents' notice is in the nature of a cross-appeal against the judge's decision on the two US dollar deposits. This cross-appeal, if successful, would affect the interest of the estate of General Thahir in the two deposits as the bank was to hold the two US dollar deposits pending, among other things, the outcome of the trial between the appellant and the representatives of the estate of General Thahir as to who is entitled to that sum. A proper party to the cross-appeal was therefore not before the Court of Appeal and on that ground the cross-appeal could not proceed and be maintained. The respondents' notice was accordingly struck out; (2) as regards the first issue on the appeal proper, a party's claim adverse to the claim of another party to a fund, in respect of which interpleader relief is sought, must be one relating specifically to the fund and must be a proprietary claim to the fund as opposed to a personal claim against the other party. Accordingly, in order to succeed, the respondents had to show that they have a proprietary claim to the moneys under the system of law that governs the claim; (3) the second issue raised several questions of fact. The trial judge's finding that the ACU deposits denominated in Deutschmarks were bribes which Siemens and Klockner had paid General Thahir was arrived at after a detailed examination of the evidence before him. It was not possible to see how the trial judge could have arrived at any other conclusion. Similarly, there was ample evidence before the trial judge for him to draw the inference that the appellant had knowledge of and participated in her husband's schemes to receive the bribes. In the face of all the evidence, the appellant had not come forward to give any evidence to the contrary; (4) following Mahesan v Malaysia Government Officers' Co-operative Housing Society [1979] AC 374, the basis of the common law claim for the recovery of bribes against a bribed agent lay in the fact that equity regarded the giving of a bribe as a constructive fraud on the part of the giver, and the receipt of the bribe by the bribed agent was similarly a constructive fraud on the latter's part. The principal's remedies against the briber and the bribed agent have no contractual origin or connection. As the obligation to restore the bribes does not arise in connection with any contract, following r 201(2)(c) in Dicey & Morris on The Conflict of Laws, the proper law of the obligation to restore the benefit of an enrichment obtained at another person's expense is governed by the law of the country where the enrichment occurs. Accordingly, Singapore law governed the common law claim; (5) the claim in equity to recover bribes does not arise in connection with any contract whatsoever. It falls squarely within r 201(2)(c) in Dicey & Morris on The Conflict of Laws and is governed by Singapore law; (6) having regard to the extent of General Thahir's duties and responsibilities, the trial judge's conclusion that General Thahir was a fiduciary and that he owed to the respondents fiduciary duties was inevitable; (7) it is only a personal claim; (8) the respondents' claim to the ACU deposits in equity is irresistible and is clearly a proprietary claim. General Thahir held all the 17 ACU deposits denominated in Deutschmarks on a constructive trust for the respondents. The appellant by reason of her complicity and involvement in the transfer of the deposits to the account in the joint names of General Thahir and herself also became a constructive trustee, and when she became the sole owner of the deposits she continued to hold them on a constructive trust for the respondents; (9) the respondents' claim for money had and received is not a proprietary claim;the appellant's argument that in order to succeed the respondents must establish that the moneys paid to General Thahir were received secretly without the knowledge or consent of the principal is wholly untenable. Whilst the legal burden of proving that the 17 ACU deposits represented the bribes paid to General Thahir by Siemens and Klockner and the appellant's involvement and complicity in the receipt of these bribes rests with the respondents, the burden of proving that the moneys were paid to General Thahir with the knowledge or consent of the respondents lies with the appellant.

Kartika Ratna Thahir v PT Pertambangan Minyak dan Gas Bumi Negara (Pertamina) [1994] 3 SLR 257 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

This was an appeal against the conviction of the first and second appellants under s 6(a) of the Prevention of Corruption Ordinance 1960. It was alleged that the first appellant who was a police constable obtained $100 as an inducement for showing favour in relation to his principal's affairs by refusing to take police action against one C who was riding a motor cycle for an offence against the Motor Vehicles (Third Party Risks and Compensation) Ordinance 1960. However, the prosecution proved that at the material time there was an insurance policy in force covering the use of the motor cycle. It was argued on behalf of the first appellant that (a) as there was in fact no offence to report the first appellant was not acting in relation to the affairs of his principal by representing that C committed an offence against the law; (b) as the first appellant was at all material times employed by the government of Malaysia he was not liable under the Prevention of Corruption Ordinance 1960 as the word 'government' in that ordinance means the government of Singapore. As regards the second appellant the learned district judge said that on the evidence he preferred to believe the prosecution and accordingly found him guilty.

Held: (1) he shall be guilty notwithstanding that such favour was not in relation to his principal's affairs; (2) the Prevention of Corruption Ordinance 1960 should be construed, after Malaysia Day, with such modifications and adaptations as may be necessary to bring it into conformity with the Constitution of the State of Singapore and the Malaysia Act and therefore the word 'government' must be construed to mean not only the government of Singapore but also the government of Malaysia and the Prevention of Corruption Ordinance applied to the first appellant; (3) s 9(1) of the Prevention of Corruption Ordinance 1960 provides that where in proceedings for an offence under s 6(a) it is proved that an agent had corruptly obtained any gratification having reason to believe or suspect that it was offered as an inducement for showing any favour to any person in relation to his principal's affairs, he will be guilty notwithstanding that such favour was not in relation to his principal's affairs;the learned district judge was wrong in deciding the case against the second appellant because although the district judge believed the prosecution and did not believe the second appellant he should have considered the further question whether, even if he did not believe the second appellant, his evidence raised a reasonable doubt as to his guilt.

Vincent Koh & Anor v Public Prosecutor [1965] 2 MLJ 270 High Court, Singapore (Ambrose J).

This was an appeal from the decision of the Federal Court, reported in [1968] 1 MLJ 119. On 22 July 1963, the appellant was appointed Chief Minister of Sarawak and so acted as leader of the majority party in the Council Negri. On 16 June 1966, the Governor, acting on representations said to have been made to him by the majority in the Council that they had lost confidence in their Chief Minister, requested the appellant to resign. Upon his non-compliance the Governor, on 17 June 1966, purported to dismiss him together with other members of the Supreme Council and appointed Penghulu Tawi Sli as Chief Minister. Action being brought in the High Court at Kuching, Harley Ag CJ, on 7 September 1966, declared the dismissal of the appellant void ([1966] 2 MLJ 187). On 14 September 1966, His Majesty the Yang di-Pertuan Agong proclaimed a state of emergency in Sarawak. On 19 September 1966, the Federal Parliament passed the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 (Act 68/1966), amending clauses (5) and (6) in art 150 of the Federal Constitution by inserting after 'this Constitution' the words 'or in the Constitution of the State of Sarawak' and providing further that, notwithstanding anything in the state Constitution, the Governor may summon the Council Negri, suspend standing orders and issue directions binding on the Speaker. Pursuant thereto, the Governor on 23 September 1966 summoned a meeting of the Council Negri, which passed a vote of no confidence in the appellant; he was then dismissed the following day. In his second action in the High Court at Kuching, the appellant claimed: (a) the proclamation of a state of emergency, being made on the advice of the Federal Cabinet, was null and void in that it was not made bona fide but in fraudem legis, and (b) the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 was on that account null and void. It was submitted on behalf of the appellant: (a) the proclamation of emergency was ultra vires and invalid, and that the Emergency (Federal Constitution and Constitution of Sarawak) Act 1936, which was founded on it, accordingly fell within it in its entirety; (b) even if the proclamation of emergency was valid, ss 3, 4 and 5 of the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 purported to amend the Constitution of Sarawak in a manner which had been committed by art 41 of the Constitution of Sarawak to the Legislature of Sarawak and was, therefore, beyond the powers of the Federal Parliament to enact.

Held, dismissing the appeal: (1) the onus was on the appellant to show that the proclamation of emergency was in fraudem legis as alleged by him or otherwise unauthorized by the relevant legislation and in this case the appellant had failed to discharge the onus on him; (2) art 150 of the Federal Constitution gave power to the Federal Parliament to amend or modify the Constitution of Sarawak temporarily if Parliament thought such a step was required by reason of the emergency. In the circumstances the Federal Parliament had power to enact the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 and therefore the appeal must be dismissed. The issue of justiciability of the proclamation was left open as it was not necessary to decide it in this case; (3) The word 'emergency' used in art 150 cannot be confined to the unlawful use of force in any of its manifestations. An 'emergency' within the meaning of art 150 must not only be grave but such as to threaten the security or economic life of the Federation or any part of it. A state of emergency can cover a very wide range of situations and cannot be exactly defined. It is not for the courts to criticise or comment upon the steps taken by the government of Malaysia. Nevertheless, there was a constitutional crisis which threatened a breakdown of stable government and on the facts, the government did not act in any way mala fide.

Stephen Kalong Ningkan v Government of Malaysia [1968] 2 MLJ 238 Privy Council Appeal from Malaysia (Lord McDermott, Lord Hodson, Lord Upjohn, Lord Donovan and Lord Pearson).

On 22 July 1963, the petitioner was appointed Chief Minister of Sarawak and so acted as leader of the majority party in the Council Negri. On 16 June 1966 the Governor, acting on representations said to have been made to him by the majority in the Council that they had lost confidence in their Chief Minister, requested the petitioner to resign. Upon his non-compliance, the Governor, on 17 June 1966, purported to dismiss him together with other members of the Supreme Council and appointed Penghulu Tawi Sli as Chief Minister. Action being brought in the High Court at Kuching, Harley Ag CJ, on 7 September 1966, declared the dismissal of the petitioner void ([1966] 2 MLJ 187). On 14 September 1966, His Majesty the Yang di-Pertuan Agong proclaimed a state of emergency in Sarawak. On 19 September 1966, the Federal Parliament passed the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966, amending clauses (5) and (6) in art 150 of the Federal Constitution by inserting after 'this Constitution' the words 'or in the Constitution of the State of Sarawak' and providing further that, notwithstanding anything in the state Constitution, the Governor may summon the Council Negeri, suspend standing orders and issue directions binding on the Speaker. Pursuant thereto, the Governor, on 23 September 1966, summoned a meeting of the Council Negri, which passed a vote of no confidence in the petitioner; he was then dismissed the following day. In his second action in the High Court at Kuching, the petitioner claimed (a) that the proclamation of a state of emergency, being made on the advice of the Federal Cabinet, was null and void in that it was not made bona fide but in fraudem legis, and (b) that the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966, was on that account null and void. On 2 December 1966, Pike CJ (Borneo) holding, inter alia, that an action to declare a federal law invalid required leave of a judge of the Federal Court before commencement of proceedings, by virtue of art 4 of the Federal Constitution, ordered certain paragraphs in the statement of claim struck out ([1967] 1 MLJ 46). On 20 February 1967, leave was given by the Lord President for institution of proceedings against the government of the Federation of Malaysia for a declaration that the said Act was invalid and/or that ss 3, 4 and 5 thereof were invalid as being ultra vires the federal government. In his petition the petitioner alleged that no grave emergency had arisen in the State of Sarawak which could not be effectively dealt with under the previous proclamation of emergency made on 7 September 1964, that the Federal Cabinet well knew that no such emergency existed 'whereby the security or economic life of Sarawak was threatened'; that the proclamation was in fraudem legis in that it was made not to deal with grave emergency whereby the security or economic life of Sarawak was threatened but for the purpose of removing the petitioner from his lawful position as Chief Minister of Sarawak, and that the amendment of clauses (5) and (6) of art 150 of the Federal Constitution were null and void as ultra vires the Parliament and contrary, not only to art 150 and art 161E(2) of the Federal Constitution, but also the entrenched provisions in art 41 of the Sarawak Constitution and relevant provisions in the Malaysia Act 1963 (Act 26, 1963).

Held (by Barakbah LP and Azmi CJ (Malaya), Ong Hock Thye FJ dissenting): (1) it is incumbent on the court to assume that the government was acting in the best interests of the state and to permit no evidence to be adduced otherwise; (2) the Yang di-Pertuan Agong alone could decide whether a state of emergency, whereby the security or economic life of the Federation was threatened, existed; (3) the circumstances which bring about a state of emergency are non-justiciable. Per Ong Hock Thye FJ: (1) the plea in fraudem legis was made solely against the Cabinet, upon whose advice the Yang di-Pertuan Agong, as a constitutional ruler, was bound to act, by virtue of art 40(1) of the Federal Constitution, (2) Cabinet responsibility for advising a proclamation of emergency was publicly admitted and never disclaimed; (3) the constitutional position of the Governor-General of India under the Government of India Act 1935, was neither comparable with nor similar to that of the Malaysian Cabinet; (4) art 150 of the Federal Constitution, by specifically providing that the emergency must be one 'whereby the security or economic life of the Federation or of any part thereof is threatened' does not confer on the Cabinet an untrammelled discretion to cause an emergency to be declared at their mere whim and fancy; (5) the plea raising the question of bona fides involves a question of fact which must be faced; (6) the crucial question here is whether the proclamation was made (a) not to deal with a grave emergency threatening the security of Sarawak, but (b) for the purpose of removing the Chief Minister from office; (7) even if the finding of fact as to (b) is in the affirmative, such objective was not necessarily incompatible with a genuine concern felt by the Cabinet as regards the security situation in Sarawak; (8) political instability could possibly have serious repercussions on the security of the state; (9) on the evidence, which included statements by the Deputy Prime Minister and the Minister for Home Affairs on communist activities in Sarawak, it was impossible to say that the Cabinet advice to His Majesty was not prompted by bona fide considerations of security; (10) for this reason the petitioner had failed to make out a case for holding that the proclamation of emergency was made in fraudem legis; (11) as to the invalidity of ss 3, 4 and 5 of the amending Act of 1966, it may be stated, briefly, that the overriding consideration of an emergency which justifies an amendment of the Federal Constitution must no less justify an amendment of the state Constitution, so far as may be strictly necessary. The petition was accordingly dismissed: no order being made as to costs: see r 52 of the Federal Court (Original and Consultative Jurisdiction) (Transitional) Rules 1963.

Stephen Kalong Ningkan v Government of Malaysia [1968] 1 MLJ 119 Federal Court, Kuala Lumpur (Barakbah LP, Azmi CJ (Malaya).

[Annotation: The Federal Court's decision was affirmed by the Privy Council Ð see [1968] 2 MLJ 238.]

A was detained under the Internal Security Act for one year with effect from 20 June 1987. She was released when the order was suspended, but re-detained subsequently. A then applied for a writ of habeas corpus. The Court of Appeal reversed the High Court's decision dismissing her application and ordered her release (see Chng Suan Tze v Minister of Home Affairs [1989] 1 MLJ 69). She was re-detained under a new order the same day. Parliament later made amendments to the Constitution of the Republic of Singapore and to the ISA to restrict challenges to detention orders. A again applied to the High Court for a writ of habeas corpus, arguing inter alia that the amendments were ineffective.

Held, dismissing the application: (1) the purpose of s 8B(1) of the ISA is to affirm the law as laid down in Lee Mau Seng v Minister of Home Affairs [1971] 2 MLJ 137. The High Court there decided that the sufficiency and relevancy of the considerations upon which the executive detained a person under s 8(1) of the ISA were matters for the subjective satisfaction of the President acting in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet ('the subjective test'). The court also held that 'mala fides' or bad faith is not a justiciable issue in the context of the ISA; (2) s 8B(1) of the ISA clearly laid down that the subjective test applies to the exercise of powers pursuant to ss 8 and 10 of the ISA and s 8B(2) provides that there is to be judicial review only in regard to any question relating to compliance with any procedural requirement of the ISA governing such act or decision; (3) the burden of proof was on A to prove that her detention was unlawful as the respondents had produced a valid detention order and evidence of the subjective satisfaction of the President acting on the advice of the Cabinet; (4) the scheme under the ISA was that Parliament has left to the Cabinet and the President acting in accordance with the advice of the Cabinet to determine whether it is necessary in the interests of national security to detain a person. Parliament has not sought in the ISA to define activities which are prejudicial to national security. It is for the executive to determine as matter of policy and judgment whether certain activities are prejudicial to national security. In this case the executive had acted upon its jurisdiction conferred by Parliament; (5) to allow the court to investigate into the good faith or otherwise of the President who was to act in accordance with the advice of the Cabinet in arriving at his satisfaction would be inconsistent with the scheme intended by Parliament. The amendments did therefore deprive A of the right to effective judicial review of the legality, rationality and constitutionality of her detention; (6) the courts have no power to impose limitations on Parliament's power to amend the Constitution.

Teo Soh Lung v Minister of Home Affairs & Ors (No 2) [1989] SLR 499 High Court, Singapore (Chua J).

[Annotation: Affirmed on appeal. See [1990] SLR 40; [1990] 2 MLJ 129.]

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).

See CONSTITUTIONAL LAW, Vol 3, para 1286.

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

See CONSTITUTIONAL LAW, Vol 3, para 1333.

The respondent was tried and convicted of the offence of voluntarily causing hurt to the appellant. The magistrate gave him a conditional discharge for one year. Not satisfied with what she considered to be a manifestly inadequate sentence, the appellant (who originally brought the private summons against the respondent) filed a notice of appeal under s 247(1) of the Criminal Procedure Code (Cap 68, 1985 Ed) ('the code'). At the commencement of the hearing of the appeal, the Deputy Public Prosecutor appeared and submitted that the notice of appeal should be rejected and that the Public Prosecutor was intervening to withdraw the appeal. The Public Prosecutor relied on art 35(8) of the Constitution for his submission, adding that s 247(1) of the code should be read with s 336(1). The appellant, on the other hand, contended that on a reading of s 247(1), the appellant, being a 'party' to the criminal matter below, should not only have the right of appeal but a right of audience either by herself in person or by counsel.

Held, dismissing the appeal: the Public Prosecutor under s 336(1) of the Criminal Procedure Code has 'the control and direction of ... proceedings under the Criminal Procedure Code and since the appeal before the court is a proceeding under the Criminal Procedure Code, the Public Prosecutor could properly in his discretion intervene and withdraw the appeal. His discretion is entrenched in art 35(8) of the Constitution.

Hawa bte Mohamed Hussain v CJ Miranda [1988] SLR 720 High Court, Singapore (Lai Kew Chai J).

Johnson Tan Han Seng v Public Prosecutor; Soon Seng Sia Heng v Public Prosecutor; Public Prosecutor v Chea Soon Hoong; Teh Cheng Poh v Public Prosecutor [1977] 2 MLJ 66 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah and Wan Suleiman FJJ).

See CONSTITUTIONAL LAW, Vol 3, para 1194.

In this case, the accused was charged with offences under s 57 of the Internal Security Act 1960 (Act 82). At the end of the prosecution case, the learned trial judge called on the accused for his defence and after hearing his defence he found that he had not raised any reasonable doubts on the truth of the prosecution's case. Counsel for the accused requested the court to amend the charges to charges under the Firearms (Increased Penalties) Act 1971 (Act 37) and the Arms Act 1960 (Act 206).

Held: (1) as the law stands it must be left to the discretion of the Attorney General in his capacity as Public Prosecutor to decide what charges to bring against anyone found in possession of firearms or ammunition and in the exercise of his discretion and in good faith, never to charge any person under s 57(1) of the Internal Security Act whose case does not come within the legislative intent and purpose of that Act; (2) in this case, the court was satisfied beyond reasonable doubt that the accused was guilty of the offences charged and convicted him accordingly.

Public Prosecutor v Lee Tin Bau [1986] 1 MLJ 388 High Court, Selangor (Gunn Chit Tuan J).

According to art 145 of the Federal Constitution, only the Attorney General has the power to institute, conduct or discontinue any proceedings for an offence. Until he makes up his mind the courts have to wait. Magistrates, therefore, have no business to usurp the functions of the Attorney General. If the police are slow, complaints should be made to the Attorney General who in the final analysis is answerable to Parliament.

Public Prosecutor v Hettiarachigae LS Perera [1977] 1 MLJ 12 High Court, Kuala Lumpur (Harun J).

In this case, the applicant was convicted on his plea of guilty to a charge of accepting a bribe under s 4(1)(a) of the Prevention of Corruption Act 1961 (Act 57). The giver of the bribe was arrested with the applicant but the case against him was withdrawn and he was acquitted and discharged. The applicant appealed against his conviction but he did not proceed with the appeal. The trial court also made an order for the payment of a penalty of the amount of the bribe to the government. The applicant applied for revision and submitted that the charges and penalties imposed were illegal.

Held: (1) the power to withdraw a charge is exercisable by the Public Prosecutor and the court cannot question the exercise of this power; (2) the applicant has not shown that the Public Prosecutor had acted unlawfully in withdrawing the charge against the giver of the bribe and had deprived the applicant of his right or equality before the law.

Poh Cho Ching v Public Prosecutor [1982] 1 MLJ 86 High Court, Malacca (Wan Yahya J).

A1 was charged with an offence in the magistrate's court for participating in an assembly in a public place without a licence from the police. A2 was charged with an offence for convening an assembly in a public place without a licence from the police. Both offences were punishable under the Police Act 1967 and were alleged to have been committed on 30 August 1984. The prosecution initially applied for warrants of arrest of A1 and A2 which were issued by the magistrate. These warrants were, however, set aside by the High Court in October 1985. The prosecution preferred charges against A1 and A2 in March 1987. The case was mentioned before the magistrate's court in April 1987 and they indicated that they would raise a preliminary objection on grounds of oppression and prejudice. In June 1987, however, A1 withdrew his preliminary objection. The case was postponed twice at A1's request because A1 was engaged in the High Court for another matter. In November 1987, the magistrate's court was informed that both A1 and A2 were detained under the Internal Security Act 1960. The court then postponed the case sine die. In December 1988 after both A1 and A2 were released, the prosecution informed the court that they would proceed with the case. At the hearing in July 1989, A1 raised again the same preliminary objection. A1 argued that the prosecution was oppressive and repugnant to good administration of justice. A1 also contended that the court had a general and inherent power to protect its process from abuse and that power includes a power to strike out proceedings to safeguard an accused from oppression or prejudice. The magistrate dismissed A's preliminary objection. A then applied for the matter to be revised by the High Court. The High Court found no merit in A's submissions and remitted the matter back to the magistrate's court. A then referred the following question of law to the Supreme Court: 'Whether the court has a general inherent power to protect its process from abuse to safeguard an accused person from oppression or prejudice by striking out frivolous proceedings.'

Held, answering the question in the negative: (1) the question referred is ambiguous. As to the word 'court' in the question, it is not specified which particular court is meant. The question referred to 'striking out' only and omittedÊother prerogative remedies. It is also unclear at what stage A expected the court to exercise general inherent powers. The question is hardly of any public importance; (2) the discretion vested in the Attorney General under art 145(3) of the Federal Constitution 'to institute, conduct or discontinue' any criminal proceedings, is unfettered and cannot be challenged and substituted by that of the court; (3) according to s 5 of the Criminal Procedure Code (FMS Cap 6), English law relating to criminal procedure can only be applied when there does not exist any special provision on the matter either in the Code or any other existing law. Since s 173 of the Code stipulates the whole procedure in summary trials in the subordinate courts, English law is therefore inapplicable; (4) the phrase 'all such evidence' in s 173(c) of the Code is to be given a broad interpretation to include not only evidence which is available to the prosecution at the time of hearing but also to include evidence which can be produced at the continued hearing on a future occasion; (5) under s 173(g) of the Code, the court may discharge but not acquit the accused if the court considers the charge to be groundless. The only circumstances under which an accused can be acquitted are those stated in s 173(f) of the Code and when the prosecution offers no further evidence. There is no provision in the Code for striking out proceedings or acquittal without hearing all evidence the prosecution has the capacity to offer; (6) if an accused feels that the charge and consequent proceedings are illegal on the face of the record, he may apply to the High Court to quash the charge and the proceedings. This inherent jurisdiction doctrine is not applicable in the subordinate courts. The High Court may invoke such prerogative powers when there is a miscarriage of justice. The court has and will not abdicate its responsibility to act as a watchdog within constitutional limits to ensure that any authority does not act ultra vires; (7) the inherent power cannot be invoked to override an express provision of law or when there is another remedy available. Where the legislature has provided a particular mode of action or has vested an authority with powers to act in a particular manner and has prescribed the conditions limiting the scope of such action, the court cannot act outside those powers and conditions; (8) in this case the pro-secution did not contribute to the delay. There is no evidence that the prosecution acted in a spirit of harassment against A at all. The court has no power to interfere with the Attorney General's discretion to proceed the case against A.

Karpal Singh & Anor v Public Prosecutor [1991] 2 MLJ 544 Supreme Court, Kuala Lumpur (Abdul Hamid Omar LP, Ajaib Singh and Jemuri Serjan SCJJ).

These were appeals against the dismissal by a President and a magistrate of applications made by respective counsel at the commencement of hearing. The application was that the President or magistrate should disqualify himself from proceeding with the case on the grounds that he belonged to a service in which the Attorney General is said to be the head of the service. Since the Attorney General is also the Public Prosecutor and has supervision and control of these judicial officers it was alleged that there was a likelihood of bias.

Held, dismissing the appeals: (1) in the present appeals, the dismissal of the application to disqualify did not finally dispose of the rights of the accused person and the order was not a proper matter for appeal under s 307(i) of the Criminal Procedure Code (FMS Cap 6); (2) if bias is alleged (other than pecuniary or proprietary bias) then there must be proved a real likelihood of bias and that reasonable suspicion of bias is insufficient. Thus, bare allegations (as done in the present case) are insufficient. A fortiori bare allegations before hearing had hardly commenced; (3) there is nothing in law to say that the Attorney General is the head of the service. In fact he cannot be by virtue of art 138 of the Constitution. Thus looking at the legal and administrative framework governing the service, the facts here did not warrant a conclusion of a real likelihood of bias.

Maleb bin Su v Public Prosecutor; Cheak Yoke Thong v Public Prosecutor [1984] 1 MLJ 311 High Court, Seremban (Hashim Yeop A Sani FJ).

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

See CONSTITUTIONAL LAW, Vol 3, para 1432.

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

See CONSTITUTIONAL LAW, Vol 3, para 1119.

The appellant who was resident in the Federation on Merdeka Day made an application for registration as a citizen of the Federation of Malaya. His date of birth was stated in the application as 1910. The application was approved and a certificate issued on 20 February 1958. On 31 May 1961, the appellant wrote to the registration officer enclosing his citizenship certificate and identity card requesting his date of birth on the citizenship certificate to be amended to 10 May 1915. Evidence was adduced by the prosecution at the trial to show that the first identity card issued to the appellant showed his date of birth as 1910 but that the date of birth on the third identity card issued to him in 1960 was altered to 10 May 1915. The appellant's evidence in reply was that he came to Malaya in 1929 and that he could not read or understand English or Tamil although he could sign his name in Tamil. His application for an identity card and for federal citizenship were prepared by a clerk and a petition writer respectively and that the latter had used his identity card to complete the application form for citizenship. Later on obtaining his birth certificate from India he had his date on his identity card altered to 10 May 1915 and he made an application for alteration of his date of birth on his citizenship certificate. The appellant was convicted by a magistrate's court for an offence under s 16 of the Second Schedule of the Federal Constitution. On appeal the main question for decision was whether the appellant knowingly made a false statement in relation to his date of birth with the intention of inducing the registration authority to grant him a citizenship certificate.

Held: (1) the evidence of the appellant was not challenged in any way and there was nothing inherently improbable in his story to suggest that it was not true; (2) it must not only be proved that the statement was false but also that it was consciously made and known to be false. Therefore, although the appellant was conscious of the statement which he made in his application he genuinely believed that the date disclosed therein was his correct date of birth and he did not know at the date of his application that his statement was false. As the learned magistrate failed to consider this point the conviction should be set aside.

Sinniah Sokkan v Public Prosecutor [1963] MLJ 249 High Court, Kuala Lumpur (Gill J).

This was an application to set aside an order of banishment made against the applicant. The applicant was born in Kedah and his mother held a certificate of citizenship of the Federation issued under art 16 of the Federal Constitution. Article 16 of the Federal Constitution entitles any person of or above the age of 18 years who was born in the Federation before Merdeka Day to be registered, upon application to the federal government, as a citizen, if he satisfies certain conditions set out therein. Under s 4(c) of the Kedah Nationality Enactment 1371, 'a person born before, on or after the prescribed date in the state one of whose parents was born in the Federation of Malaya' is a subject of the Ruler by operation of law.

Held: as the applicant was born in Kedah and as it must be taken from the certificate of citizenship given to her that his mother was born in the Federation, the applicant was a citizen of the Federation by operation of law and therefore the order of banishment made against the applicant must be set aside. Per Ong Hock Sim J: 'Having heard that this applicant was in custody with the shadow of a banishment order over his head since November 1966 (I have also learnt that he willingly granted a divorce to his wife so that she would not be left stranded and unprovided for, as he had entertained little hope of being released), I hope what I say here today will bring to the attention of the authorities dealing with banishment the primary duty to satisfy themselves of, and to make full inquiry into, the status of a person before taking action under the Banishment Ordinance.'

Kung Aik v Public Prosecutor [1970] 2 MLJ 174 High Court, Penang (Ong Hock Sim J).

A citizen of Singapore who becomes a Malaysian citizen by operation of law under art 14 of the Constitution of Malaysia is not banishable.

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

In this case the applicant had applied by motion for an order of certiorari to remove into the court and quash the respondent's order of deprivation of his citizenship. The respondent subsequently brought an application by way of summons-in-chambers to set aside the motion. It was submitted for the respondent (a) that the provisions in the Schedule to the Federal Constitution that the decision of the Federal Government thereunder shall not be subject to appeal or review in any court, precluded an application for a prerogative order or indeed any form of judicial proceeding; (2) that the respondent in making an order of deprivation of citizenship was performing only an administrative or ministerial act and that therefore his order is not amenable to certiorari.

Held: (1) the ouster provision in the Schedule to the Federal Constitution did not preclude the court from entertaining the application for an order of certiorari. Whether grounds for an order can be established and whether the application for certiorari will succeed, are matters which can be decided at the hearing of the substantive motion itself; (2) the respondent in this case was in fact acting at the very least at one stage in the process in a quasi-judicial capacity in making an order of deprivation of citizenship and not performing a purely ministerial or administrative act. In any event, the respondent was under the constitutional provision determining the rights of individuals and was also under a duty to act fairly. Orders therefore made by the respondent under art 24(2) of the Constitution are amenable to the prerogative order of certiorari; (3) the application for certiorari is therefore not precluded in this case but whether it can avail the applicant will have to be determined on the grounds and merits of the application.

Mak Sik Kwong v Minister of Home Affairs, Malaysia [1975] 2 MLJ 168 High Court, Ipoh (Abdoolcader J).

The prohibition does not lie against the Committee of Inquiry established under s 22 of the Singapore Citizenship Ordinance 1957 because the Committee merely conducts factual investigations on behalf of the minister in an advisory capacity and the duties of the Committee are not in any relevant sense judicial or quasi-judicial but purely ministerial. As the functions of the minister in carrying out the provisions of the Singapore Citizenship Ordinance and in making his final decision to deprive a person of his citizenship are fundamentally administrative, an order of prohibition does not lie against the minister. The minister is answerable to the legislature but his actions cannot be controlled by the courts.

Re Chua Ho Ann [1963] MLJ 193 High Court, Singapore (Buttrose J).

In this case, the applicant applied by motion for an order of certiorari to quash the order made by the respondent under art 24(2) of the Federal Constitution depriving the applicant of his citizenship of Malaysia on the ground that he had voluntarily claimed and exercised rights in a foreign country, being rights accorded exclusively to its citizens. The two main grounds of the application were that: (a) the respondent in depriving the applicant of his citizenship had acted in excess of or without jurisdiction, that is to say, ultra vires the powers given to him under the Constitution; and (b) the respondent has so acted in breach of the rules of natural justice.

Held: (1) in this case, even if the respondent had wrongly taken into account the applicant's entry into China in 1956 which he was precluded from doing by virtue of the provisions of art 28(3), there was ample other evidence to justify the respondent's satisfaction that the applicant resided and attended educational institutions in China after Merdeka Day until well into 1958 and was permitted to leave that country in October 1958 and thereby voluntarily claimed and exercised in China rights accorded exclusively to its citizens and available to him under the law of that country; (2) there was no excess or lack of jurisdiction when the respondent made the order of deprivation, let alone a manifest defect of jurisdiction which would justify the court in issuing an order of certiorari; (3) for the purposes of the exercise of his powers in making an order of deprivation under art 24(2) of the Federal Constitution it is open to the respondent to take into consideration relevant confidential information such as intelligence reports and the like without disclosure to the citizen where such disclosure would be prejudicial to the public or national interest; (4) the applicant was only entitled to his rights within the ambit of the specific constitutional provision in art 27 of the Federal Constitution and these rights had been accorded to him; (5) in the circumstances, the motion for certiorari must be dismissed.

Mak Sik Kwong v Minister of Home Affairs, Malaysia (No 2) [1975] 2 MLJ 175 High Court, Ipoh (Abdoolcader J).

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: (a) deliberately misrepresented and inverted the government education policy in a manner calculated to excite disaffection against the Yang di-Pertuan Agong and the government of the Federation; and (b) made 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 the 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 para (a) of art 25(1).

Held, (per Thomson CJ [1962] MLJ 159): (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 Rules 1960 provides that the minister may appoint a Registrar-General of 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; (2) Held: 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) 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) 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; 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.

Lim Lian Geok v Minister of the Interior, Federation of Malaya [1964] MLJ 158 Privy Council Appeal from Malaysia (Lord Cohen, Lord Evershed, Lord Morris of Borth-Y-Gest, Lord Hodson and Lord Donovan).

In this case, the applicant sought to set aside an expulsion order made against him on the ground that he was a citizen of Malaysia. The applicant was a citizen by operation of law but the order of deprivation had been made against him under art 24(2) of the Constitution on the ground that he 'has voluntarily claimed and exercised in a foreign country, namely Communist China, rights available to him under the law of that country, being rights accorded exclusively to its citizens'. It was argued on behalf of the applicant that the order of deprivation of citizenship was contrary to art 28(3) of the Constitution as the acts relied on as being done by him were done before Merdeka Day.

Held: the onus was on the applicant to show that he is a citizen and he has not discharged that onus as he had not set aside the order of deprivation of citizenship. Obiter: although the decision of the federal government under Part III of the Second Schedule of the Constitution is not subject to appeal or review in any court, this does not preclude the subject from recourse to the courts for the determination of his rights. Judicial review by means of certiorari cannot be taken away by implication. Officials and ministers must be compelled to observe the law, and it is essential that bureaucracy must be kept in its place.

Re Soon Chi Hiang [1969] 1 MLJ 218 High Court, Kuala Lumpur (Raja Azlan Shah J).

This was an application by way of motion for an order to set aside (i) an expulsion order and (ii) an order of deprivation of citizenship served on the applicant. The respondent submitted that by reason of s 2 of part III of the Second Schedule of the Constitution of Malaysia, a decision of the federal government under Part III of the Constitution should not be subject to appeal or review in any court.

Held, dismissing the application: the application was not in proper form. The application should have been for an order of certiorari to quash the two orders made by the government.

Soon Kok Leong v Minister of Interior, Malaysia [1968] 2 MLJ 88 High Court, Seremban (Ismail Khan J).

The respondent had been charged with making a false statement in his declaration for citizenship but he was acquitted as the learned magistrate held that the declaration 'was not in the form required of a statutory declaration'. The Public Prosecutor appealed.

Held, allowing the appeal: in this case there was no necessity to repeat a set formula of declaration. The respondent was charged with making a false statement and the officers were not required to take and receive the declarations but merely required to witness the signature of the applicant upon the prescribed form. In the circumstances, the order of acquittal and discharge must be set aside and retrial ordered.

Public Prosecutor v Ramasami [1970] 2 MLJ 71 High Court, Alor Star (Wan Suleiman J).

The respondent had applied for citizenship by naturalization and in his application he made a declaration that he had not been convicted or found guilty by any court of a criminal offence. In fact he had a number of previous convictions. He was charged with making a false declaration. The learned magistrate acquitted the respondent as he was not satisfied that the contents of the declaration had been fully interpreted to the respondent. He also held that the proof of the previous convictions of the respondent had not been properly adduced.

Held: (1) it was sufficient for the prosecution in this case to prove that a declaration had been made and that the particulars in such declaration were untrue or incorrect; (2) under the 1962 and 1964 rules, the applicant has to be of good character and has to declare his previous convictions, if any. But this does not mean that a person previously convicted could not claim to be presently of good character if, from his previous conviction, he has reformed and has lived the life of a good responsible citizen. The new1964 rules are designed to place before the relevant authorities all the facts relating to the applicant so that the government may properly exercise its discretion whether to grant the applicant citizenship or not; (3) as a copy of the list of previous convictions had been supplied to the magistrate, the report of the previous convictions was properly admitted in evidence; (4) for the above reasons the acquittal and discharge could not stand and therefore a retrial ordered.

Public Prosecutor v Munusamy [1967] 1 MLJ 238 High Court, Ipoh (Chang Min Tat J).

The applicant sought to set aside the banishment order made against him on 15 February 1969, on the ground that under s 5(1) of the Banishment Ordinance 1959, a banishment order could only be made in respect of any person not being a citizen of the Federation. The applicant was a citizen by operation of law. By reason of the order of deprivation made on 3 June 1968 and gazetted on 20 June 1968, the applicant ceased to be a citizen.

Held: the applicant could not avail himself of s 5 of the Banishment Ordinance.

Liew Shin Lai v Minister of Home Affairs [1970] 2 MLJ 7 High Court, Penang (Ong Hock Sim J).

The applicant, an Indian national, married a Malaysian citizen and when she came to Malaysia she was given an entry permit. She lived with her husband in Malaysia until 1960 and in that year she was given the status of a permanent resident and issued with a red identity card. In November 1970, she surrendered her red identity card and returned to India. In 1977, her husband applied to the immigration authority to bring back the applicant. He was advised that the applicant could enter on a social visit pass on an Indian passport valid for a year. The applicant therefore came to Malaysia in May 1979 and was issued with a social visit pass which was extended from time to time up to 28 May 1979. On the expiry of the visit pass the immigration authority issued a special pass to enable the applicant to make the necessary arrangement to leave the country. The special pass was periodically extended until 3 September 1979 but on that day her travel documents were impounded and she was removed to prison with a view to deportation. The applicant applied for habeas corpus to secure her release. The questions that arose were (i) whether the applicant was lawfully detained and (ii) what is the alleged right or entitlement of the applicant as the wife of a citizen under art 15 of the Federal Constitution and the effect of certain provisions of the Immigration Act 1959/63 (Act 155) and Immigration Regulations on her.

Held: (1) the order of removal under s 33(1) of the Immigration Act and the order of detention issued against the applicant in this case were not illegal and therefore the detention of the applicant was not unlawful; (2) the applicant was not entitled as of right to an entry permit to enter or remain in Malaysia by reason solely of the fact that her husband is a citizen.

Re Meenal w/o Muniyandi [1980] 2 MLJ 299 High Court, Kuala Lumpur (Hashim Yeop A Sani J).

The plaintiff in this case was born on 8 May 1951 in Singapore. His father was a citizen of Singapore but his mother was a citizen of India. When the plaintiff was almost two years old he was taken to India, travelling on his mother's passport. He lived in India from 1953 to February 1981. He schooled in India. He finished schooling in 1972. He said that he could not return to Singapore because he had to look after his sickly paternal grandmother and mother. The plaintiff travelled to Singapore on an Indian passport. He explained that he had to do so, that he had no choice, because earlier he was denied one when he called at the Singapore High Commission in New Delhi, India, where he was turned away. As he was refused a Singapore passport, he applied for and obtained an Indian passport. In his application he had falsely mentioned that his birth place was Budhipind Hoshiarpur in order to obtain the Indian passport to travel to Singapore. His passport had been returned to the Indian High Commission in Singapore and they had impounded it. In March 1981, the plaintiff's solicitors applied on his behalf for a certificate of status under sub-regs (1), (2) and (3) of reg 3 of the Immigration Regulations 1972. The plaintiff's solicitors wrote to the Registrar of Citizens and explained that the plaintiff had gone to India to study after which he had to look after his mother and grandmother. The plaintiff had returned to Singapore and had 'obtained an Indian passport purely for the purpose of his travel to Singapore'. In May 1982, the Minister for Home Affairs declared that in the circumstances the plaintiff had ceased to be a citizen of Singapore under the then art 134(3) of the Constitution of Singapore. The declaration was made on the ground that the plaintiff had since 15 November 1980 voluntarily claimed and exercised rights available to himself under the law of India, such rights being rights not available to other Commonwealth citizens. The plaintiff failed in his appeal to the Minister for Home Affairs and he commenced the present actions. He sought declarations to the effect that (a) the cessation of his citizenship was null and void; (b) he was a citizen of Singapore; and (c) he was permitted to remain in Singapore under art 13 of the Constitution. The issue was whether the Singapore High Commission in New Delhi, India, had refused the plaintiff's application for a passport and that therefore he was compelled to obtain the Indian passport in order to travel to Singapore to stake his claim to citizenship in Singapore.

Held, dismissing the application: (1) by obtaining and travelling on his Indian passport, the plaintiff had voluntarily claimed and exercised the rights of a citizen of India; (2) where there are overlapping powers the choice of proceeding under one of the other statutory or constitutional provision is plainly a matter of Executive discretion and that the exercise of such discretion is not justiciable unless bad faith is shown; (3) the scope of judicial review does not extend to this court purporting to act in an appellate capacity and assessing the sufficiency of the evidence before the Minister for Home Affairs. He had acted within his jurisdiction and it was not for this court to substitute its views on what should be the effect of the evidence before him.

Mohan Singh v Attorney General [1987] SLR 398 High Court, Singapore (Lai Kew Chai J).

The plaintiff in this case was born in Singapore on 15 October 1952. He attended a primary school in Singapore. His parents, who were born outside Singapore and came to Singapore in the forties, were British subjects and became Singapore citizens by registration in 1958, after the passing of the Singapore Citizenship Ordinance 1957. By s 4 of the said ordinance, the plaintiff became a citizen of Singapore by birth. In 1964 Singapore was part of Malaysia. The plaintiff and the whole family applied for and were granted in Singapore Malaysian provisional passports which were valid for one year. The family left for India and arrived there on 19 March 1964. The plaintiff continued his education at Chidambaram. In March 1970, the plaintiff completed his secondary school education. He then applied for a Singapore passport from the Malaysian High Commission in Madras but his application was rejected on 11 April 1970, and he was advised to apply for a certificate of status instead. The plaintiff's secondary school leaving certificate described him as an Indian national. On 7 May 1975, the plaintiff obtained an Indian passport by representing to the authorities in India that he was born in India. The plaintiff entered Singapore on his Indian passport in the same year and remained in Singapore for a period of three months during which period he did not make any application or inquiries regarding his Singapore citizenship or Singapore passport. On 13 March 1976, the plaintiff applied for a certificate of status through a local sponsor, his brother Henry, without revealing that he possessed and had already travelled on an Indian passport. The application was rejected on 17 May 1976. The plaintiff entered Singapore again on his Indian passport in 1981 and on 23 June 1981, his brother Henry applied for permanent residence on his behalf. His use of the Indian passport in 1975 was referred to the Registrar of Citizens and the Minister of Home Affairs on being satisfied that he had exercised rights in India within the scope of art 134(3) of the Constitution of Singapore and having considered the plaintiff's representation, terminated his Singapore citizenship by a declaration on 13 March 1982. The plaintiff sought a declaration that: (i) the show cause notice dated 28 September 1981 issued to the plaintiff was null and void and of no effect; (ii) the declaration as to the cessation of citizenship under the provision of art 134(3) of the Constitution of the Republic of Singapore by the minister dated 13 March 1982 in respect of the plaintiff is null and void and of no effect; (iii) the plaintiff was a citizen of Singapore and that the Comptroller of Immigration be directed to issue to the plaintiff a certificate of status to that effect; (iv) as citizen the plaintiff was entitled to remain in Singapore and could not be excluded therefrom under art 13 of the Constitution of the Republic of Singapore.

Held, dismissing the plaintiff's claim: (1) the Constitution provides for two parallel methods of taking away citizenship for exercising foreign citizenship rights, namely, termination Ð art 134 and deprivation Ð art 135. The authorities show that where similar powers are conferred on an authority the discretion rests with the authority to determine which power to exercise; (2) the statement that the plaintiff is an Indian citizen in his Indian passport is not a mere declaration. His whole conduct from 1964 onwards is consistent with that of an Indian citizen, exercising the rights of an Indian citizen; (3) it is clear that the plaintiff did voluntarily claim and exercise rights of a citizen of India within the meaning of art 134(3); (4) on the facts of the present case, the government had not acted unreasonably and had acted on good grounds.

J Annathurai v Attorney General [1987] SLR 375 High Court, Singapore (Chua J).

The applicant applied by originating summons for a declaration to the effect that the public statement made by the Sultan of Selangor and reported in the English newspapers that he would not pardon anyone who has been sentenced to the mandatory death sentence for drug trafficking in Selangor is in violation of art 42 of the Federal Constitution. The Sultan applied for an order to strike out the originating summons on the grounds that: (a) the originating summons discloses no reasonable cause of action in that the issue raised therein is not justiciable; (b) the originating summons is barred by reason of the provisions of art 181(2) of the Federal Constitution; (c) the plaintiff has no locus standi to maintain the proceedings he has brought; and (d) the originating summons is scandalous, frivolous and/or abuse of the process of the court.

Held: (1) and fourthly, that the plaintiff lacks the necessary locus standi to maintain these proceedings; (2) since the declaration sought is as to the future and it relates to theoretical issues, it is embarrassing and can serve no good purpose; (3) the court has no jurisdiction to entertain the originating summons for reasons, first, that it raises an issue concerning the process of clemency which is not justiciable; secondly, that it does not relate to specific facts or events or if it does, these facts or events are hypothetical; thirdly, art 181(2) of the Federal Constitution operates to bar the plaintiff's claim;this is a plain and obvious case where the court in the exercise of its jurisdiction should strike out the originating summons as being one which is frivolous and vexatious and an abuse of the process of the court.

Karpal Singh v Sultan of Selangor [1988] 1 MLJ 64 High Court, Kuala Lumpur (Abdul Hamid CJ (Malaya).

A, the father of X, applied to the High Court for habeas corpus for X who was in the custody of D, the maternal grandmother of X. X's mother had died and all the parties were Muslims. D raised a preliminary objection that the High Court had no jurisdiction to entertain A's application and instead the court of a Kadi Besar constituted under s 39 of the Administration of Muslim Law Enactment 1959 (Penang) had the exclusive jurisdiction in matters relating to the custody of Muslim children.

Held, dismissing the preliminary objection: (1) although s 40(3)(b) of the 1959 Enactment confers general civil jurisdiction on the court of a Kadi Besar to determine the guardianship or custody of Muslim infants, such jurisdiction is not exclusive. Furthermore the very wide terms of ss 23 and 24 of the Courts of Judicature Act 1964 read together with s 4 of the 1964 Act gives the High Court overriding jurisdiction in all civil proceedings in any civil cause arising within its local jurisdiction subject only to the limitation imposed by the Federal Constitution; (2) the repeal of the Guardianship of Infants (Adoption) Act 1961 (Penang) by the Statute Law Revision Enactment 1965 (Penang) which rendered the Guardianship of Infants Act 1961 inapplicable to Muslims in Penang does not affect the question of jurisdiction. The repeal only affects the law to be administered by the High Court when exercising such jurisdiction. Accordingly during the period 1961 to 1965 the law administered by the High Court when exercising such jurisdiction was to be found in the Guardianship of Infants Act 1961. Prior to and after that period, the law to be administered by the High Court would be s 27 of the Civil Law Act 1956; (3) art 121(1A) of the Constitution came into force only on 10 June 1988 and not at the date of the commencement of the 1964 Act. Accordingly by virtue of s 4 of the 1964 Act, ss 23 and 24 of the 1964 Act would still prevail to confer jurisdiction on the High Court; (4) 'law' in art 4(1) of the Constitution means federal law consisting of ordinary law enacted in the ordinary way and not Acts of Parliament affecting the Constitution. Section 4 of the 1964 Act is a provision affecting the Constitution because its effect is to render ineffective amendments to the Constitution pertaining to the jurisdiction of the High Court made after the date of its commencement unless made with retrospective effect.

Shahamin Faizul Kung bin Abdullah v Asma bte Haji Junus [1991] 3 MLJ 327 High Court, Penang (Edgar Joseph Jr J).

The appellant had been convicted of the offence of unlawful possession of ammunition and sentenced to death (see [1977] 2 MLJ 261). He was tried in accordance with the Essential (Security Cases) Regulations 1975, which were held to be invalid in Teh Cheng Poh v PP [1979] 1 MLJ 50 but were subsequently validated by the Emergency (Essential Powers) Act 1979 (Act 216). In the appeal by the appellant it was argued that (a) any Act of Parliament which amends the Constitution, as is allowed by art 159 of the Constitution, is valid only if consistent with the Constitution and that any provision in it which is so inconsistent, is to the extent of the inconsistency, void; (b) even if the amendments made by Parliament in accordance with art 159 may be inconsistent with the existing provisions of the Constitution, the court should read into the Constitution implied limitations on the power of Parliament to destroy the basic structure of the Constitution; (c) even if the Emergency (Essential Powers) Act 1979 is valid, ss 2(4), 9(3) and 12 thereof are void as they destroy the basic structure of the Constitution.

Held: (1) only the latter must be consistent with the Constitution; (2) Parliament may amend the Constitution in any way they think fit, provided that they comply with all the conditions precedent and subsequent regarding manner and form prescribed by the Constitution itself; (3) considering the differences in the making of the Indian Constitution and the Malaysian Constitution, it cannot be said that the Federal Parliament's power to amend the Constitution is limited in the same way as the Indian Parliament's power to amend the Indian Constitution. In any case, it is unnecessary in this case to decide whether or not Parliament's power of constitutional amendment extends to destroying the basic structure of the Constitution; (4) Parliament has power to make constitutional amendments that are inconsistent with the Constitution. In construing art 4(1) and art 159, the rule of harmonious construction requires the court to give effect to both provisions. As such, Acts made by Parliament, complying with the conditions set out in art 159, are valid even if inconsistent with the Constitution. A distinction should be drawn between Acts affecting the Constitution and ordinary laws enacted in the ordinary way;the Emergency (Essential Powers) Act 1979 is constitutional. Whatever the features of the basic structure of the Constitution may be, none of the constitutional amendments complained of and none of the impugned provisions of the Act have destroyed the basic structure of the Constitution.

Phang Chin Hock v Public Prosecutor [1980] 1 MLJ 70 Federal Court, Kuala Lumpur (Suffian LP, Wan Suleiman and Syed Othman FJJ).

[Annotation: See also [1980] 1 MLJ 213.]

In this case, the accused was charged with the offence of unlawful possession of ammunition, an offence under the Internal Security Act 1960 (Act 82). It was argued as a preliminary point that the amendments made to arts 149 and 150 of the Federal Constitution by the Constitution (Amendment) Act 1960 were invalid as being contrary to the Constitution and therefore as a result the Internal Security Act 1960 and the proclamation of emergency on 15 May 1969 have both lapsed.

Held: (1) art 159 of the Federal Constitution clearly allows the Constitution to be amended by federal law. The Constitution (Amendment) Act 1960 was passed pursuant to and in accordance with the provisions of the Constitution and is therefore valid; (2) on the facts it had been proved beyond reasonable doubt that the accused had possession of the ammunition and no doubts had been cast as to the prosecution case by the defence story.

Public Prosecutor v Phung Chin Hock [1977] 2 MLJ 261 High Court, Kuala Lumpur (Abdul Hamid J).

[Annotation: See the decisions of the Federal Court in [1980] 1 MLJ 70 and 213.]

The plaintiff was a member of the Supreme Council of UMNO and an elected representative of the State Constituency of Usukan. When the Sabah Constitution was amended with the addition of art 18(2)(d), this affected him when he resigned from USNO to join UMNO. His seat was vacated. He was readmitted to the State Legislative Assembly when he contested a by-election as a Barisan Nasional representative and won. He subsequently filed an application in court for a declaration that art 18(2) was invalid, null and void as it was ultra vires art 10(1)(c) of the Federal Constitution. The defendants' application to strike out the plaintiff's application was dismissed. Their appeal to the High Court was transmitted to the Supreme Court who decided in favour of the plaintiff. The defendants now applied for an order to 'stay or dismiss the plaintiff's action' under O 18 r 19 of the Rules of the High Court 1980 on the ground that (a) the plaintiff had no locus standi to commence the action; (b) there was no reasonable cause of action against the defendants; (c) the plaintiff's action being not based on any existing fact or dispute was premature, theoretical and academic; (d) the plaintiff had commenced this action prematurely before the impugned provision was brought into force; and (e) it was frivolous, vexatious and an abuse of the process of the court. Subsequent to the action, a letter with a supplementary affidavit was received in connection with the defendants' application. The affidavit also contained a photocopy of a newspaper report from the local media. The admissibility of this document also posed an issue.

Held, allowing the application: (1) the plaintiff was a State Assemblyman and so was a party directly affected by the operation of the article. He therefore had locus standi to commence the action; (2) should the plaintiff be expelled, he would have no choice but to go through the hassle of another by-election. There was also the coalition between USNO and the party in power, PBS, bringing about the consequential expulsion of USNO from Barisan Nasional. The plaintiff was therefore put under stress and uncertainty. In reality therefore, the impasse was a controversy and the plaintiff had an interest to protect; (3) five State Assemblymen from USNO had joined UMNO and it was anticipated that other USNO State Assemblymen would follow suit in the future. Although these facts did not concern the plaintiff as no action could be taken by the State Legislative Assembly against the plaintiff under the impugned provision, and it was not for the plaintiff to take action on the behalf of the five, the plaintiff's position as UMNO Deputy Liaison Chairman compelled him to seek a declaration and he had sufficient reason to do so. Besides, courts now seldom refuse to make orders on grounds that it is premature to consider the question; (4) should the State Legislative Assembly decide to implement art 18(2)(e), not only the plaintiff but others similarly situated would be affected. The plaintiff's question therefore involved questions of constitutionality and the decision would be of public importance. It was also in the defendants' interests to know early as regards what they could or might do in the exercise of the powers they considered theirs. The court was therefore unable to say that there was no reasonable cause of action; (5) the plaintiff's action was also not frivolous or vexatious when he said he was in a corner and feared what might hit him. A judicial discretion might be used in determining this. It would have been an abuse of the process of the court if the plaintiff raised matters which he could or should have litigated in the earlier action but as art 18(2)(e) was a new one and not in existence then, this action could not be ruled out on the ground of abuse; (6) the Sabah Legislative Assembly was serious when it enacted art 18(2)(e). That being so, by art 71(4) of the Federal Constitution and item 11(3) of the Eighth Schedule, the Bill became law on 30 December 1992 when it was assented to by the Yang Di-Pertua Negeri on the same day. It was therefore in existence when the plaintiff filed his application on 13 February 1993; (7) an application under O 18 r 19 must specify what order is being sought and what is being attacked, that is whether the whole pleadings or parts thereof, and if so, the alleged offending part must be clearly specified. This had not been done. The defendants had asked that the pleadings action be stayed or dismissed. This was like blowing hot and cold. Also, it is only in plain and obvious cases that recourse can be had to the summary process under this rule or where the answer is on the face of it 'obviously unsustainable'. It was not clear that the present action could be dismissed as the plaintiff's claim seemed to be on some foundation and the defendants' arguments had not demolished it. The defendants' application therefore did not comply with the technical requirements of the rule; (8) as the validity of the yet-to-be-gazetted provisions is a justiciable issue between the parties to this action, and an important one, although the defendants' application was not precise and could be dismissed, a benefit of the doubt would be given to the defendants and their application construed as one for 'staying these proceedings'. This was on condition that a case be stated to the Supreme Court as soon as the questions could be framed; (9) the court will not read or consider documents pertaining to any court case which come after the completion of the application or the action. Introduction of documents must be in the proper way in compliance with the Rules of the High Court.

Tun Datuk Haji Mustapha bin Datuk Harun v State Legislative Assembly of Sabah & Anor [1993] 1 MLJ 26 High Court, Kota Kinabalu (Syed Ahmad Idid J).

In these cases, the appellants had been charged and convicted of the offences of murder and of trafficking in drugs (see [1980] 1 MLJ 49) respectively. They were sentenced to death. At the end of the prosecution case in each of the cases the presiding judge addressed the accused and called upon him or her to give evidence; each of the accused, after consulting counsel, gave evidence on his or her behalf. The appeals of the appellants to the Court of Criminal Appeal were dismissed. Special leave was given to appeal to raise the question whether the Criminal Procedure Code (Amendment) Act 1976, which introduced the new procedure, was inconsistent with the Constitution. It was argued that the amendments were contrary to the fundamental rule of natural justice, the privilege against self-incrimination.

Held: (1) s 195(3) of the Criminal Procedure Code makes it clear that the accused has a legal right to refuse to give evidence at his trial. The accused is not compelled in law to give evidence on his own behalf; (2) the inferences that the court may draw from the failure to testify are not enlarged by the amendments to the Code. They are limited as they always have been to such inferences as appear to the decider of fact to be proper in the particular case having regard to all the circumstances; (3) the amendments to the Criminal Procedure Code made by the Criminal Procedure Code (Amendment) Act 1976 are consistent with the Constitution of Singapore and are valid. Semble: at the end of the prosecution's case what has to be decided is a question of law only. As decider of law, the judge must consider whether there is some evidence (not inherently incredible) which if he were to accept as accurate, would establish each essential element in the alleged offence. If such evidence as respects any of those essential elements is lacking, then and then only, is he justified in finding that 'no case against the accused has been made out which if unrebutted would warrant his conviction' within the meaning of s 188(1) of the Criminal Procedure Code. Where he has not so found he must call upon the accused to enter upon his defence, and as decider of fact he must keep an open mind as to the accuracy of any of the prosecution's witnesses until the defence has tendered such evidence, if any, by the accused or other witnesses as it may want to call and counsel on both sides have addressed to the judge such arguments and comments on the evidence as they may wish to advance.

Haw Tua Tau v Public Prosecutor; Tan Ah Tee v Public Prosecutor; Low Hong Eng v Public Prosecutor 1980 Privy Council Appeal from Singapore (Lord Diplock, Lord Fraser of Tulleybelton, Lord Scarman, Lord Roskill and Sir Ninian Stephen).

This was an appeal from the decision of Abdul Hamid J ([1975] 2 MLJ 262) in which it was decided that as the Chief Police Officer had not been delegated with power to appoint but merely with the power to dismiss, the purported dismissal of the respondent by the Chief Police Officer was in violation of art 135(1) of the Federal Constitution and therefore void. The government of Malaysia appealed. Before the hearing of the appeal art 135(1) of the Federal Constitution had been amended to provide that it shall not apply where power to dismiss had been delegated to an authority and the amendment was given retrospective effect from 31 August 1957. Notice that the appellant would rely on the amendment had been given to the respondent's counsel. It was argued for the respondent that the amendment could not be applied to this case.

Held: (1) the amendment to art 135(1) can be made with retrospective effect and therefore the Chief Police Officer must be deemed to have power to dismiss the respondent; (2) appeals to the Federal Court are by way of rehearing and the Federal Court is authorized to make such order on appeal as ought to be made according to the law at the date of the appeal.

Government of Malaysia v Zainal bin Hashim [1977] 2 MLJ 254 Federal Court, Kuala Lumpur (Suffian LP, Lee Hun Hoe CJ (Borneo).

[Annotation: The decision of the Federal Court was affirmed by the Privy Council in [1979] 2 MLJ 276.]

In this case, the appellant had pleaded guilty to a charge of an offence of assault under s 353 of the Penal Code and he was discharged conditionally upon his entering into a bond for a period of two years. The Chief Police Officer did not apply for a copy of the notes of evidence as laid down in the Public Officers (Conduct and Discipline) (General Orders, Chapter D) Regulations 1969 but wrote to the appellant stating that action to dismiss him was intended to be taken and asking him to make representations. The appellant submitted representations but he was dismissed without being given an oral hearing. The appellant brought an action for a declaration that his dismissal was void and inoperative on the ground that as the Chief Police Officer had no power to appoint constables, dismissal of a constable by him contravened art 135(1) of the Federal Constitution. Abdul Hamid J in the High Court found in favour of the appellant Ð see [1975] 2 MLJ 262. Subsequently the Federal Constitution was amended, by adding a proviso that cl (1) of art 135 shall not apply to a case where a member of the public services was dismissed or reduced in rank by an authority in pursuance of a power delegated to it by a commission and it was provided that the proviso 'shall be deemed to have been an integral part of this clause as from Merdeka Day'. The government of Malaysia appealed to the Federal Court and the Federal Court held that the proviso operated to validate the appellant's dismissal Ð see [1977] 2 MLJ 254. The appellant appealed from the decision.

Held, dismissing the appeal: (1) in this case the Legislature clearly intended to give retrospective effect to the amendment and to secure that no action started after Merdeka Day, whether proceeding or not started when the amendment was made, should succeed on the ground that the power to dismiss had not been exercised by someone with power to appoint. It made no difference that the action started had got to the stage of judgment being given and was under appeal when the amendment was made. The Federal Court therefore rightly allowed the appeal from the High Court on this ground; (2) the word 'authority' in art 135(1) and in the added proviso includes a person; (3) the right to be heard given by art 135(2) does not require that the person concerned be given an oral hearing and it could not be argued that the failure to give the appellant an oral hearing was a denial of natural justice; (4) although there was a failure to comply with the procedure laid down in the regulations in this case, it did not appear that compliance with it would in this case have served any useful purpose and non-compliance did not therefore render the dismissal invalid.

Zainal bin Hashim v Government of Malaysia [1979] 2 MLJ 276 Privy Council Appeal from Malaysia (Lord Wilberforce, Viscount Dilhorne, Lord Edmund-Davies, Lord Russell of Killowen and Lord Keith of Kinkel).

The question referred to the Federal Court in this case was: 'Whether in view of the incorporation of the State of Singapore in the independent State of Malaysia the Fugitive Offenders Act 1881, and in particular Part II thereof is applicable in Singapore.'

Held: the Order in Council of 1918 and ss 13 to 19 of the Fugitive Offenders Act are still part of the law of Singapore in relation to Hong Kong notwithstanding the incorporation of Singapore in Malaysia.

Public Prosecutor v Anthony Wee Boon Chye & Anor [1965] 1 MLJ 189 Federal Court, Singapore (Thomson LP, Barakbah CJ (Malaya).

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

See CONSTITUTIONAL LAW, Vol 3, para 1414.

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

See CONSTITUTIONAL LAW, Vol 3, para 1256.

The courts of the state have no jurisdiction to interpret the written Constitution of the state or to construe the meaning or intent of any particular article or part thereof. Nor is it competent for the courts to say that an enactment of the Legislature, duly passed by the Council of State and assented to by the Ruler, is ultra vires the Constitution. The Legislature is the sole authority which can decide whether what it does is ultra vires or not. Per Poyser CJ: '... The Constitution of Johore is not a rigid constitution. It is in the nature of an enactment which can at any time be amended or varied, and therefore has the force of law. In view of its terms I have no hesitation in coming to the conclusion that this court has no power to pronounce on the validity or invalidity of any enactment passed by the Council of State and assented to by the Sultan, any more than the English courts could pronounce an Act of Parliament to be invalid. To hold otherwise would be to ignore the sovereignty of the Sultan and the Legislature and to treat enactments of the Johore Legislature as the English courts treat byelaws....'

Anchom v Public Prosecutor; Hussin v Public Prosecutor [1940] MLJ 22 Court of Appeal, Johore (Sir Percy McElwaine CJ (SS).

In this case, the learned judge at Johore Bahru referred the following question to the Federal Court under s 48 of the Courts of Judicature Act 1964 (Act 91): 'Are the provisions of the Restricted Residence Enactment (Cap 39) authorizing the detention and/or the deprivation of liberty of movement contrary to the provisions of the Federal Constitution and void?' The applicant in this case had been arrested and detained by the order of the Mentri Besar of Johore under the Restricted Residence Enactment, a pre-Merdeka statute, in exercise of the powers purported to be delegated to him by the Minister of Interior and Justice. It was argued in this case that the enactment has no provision: (i) for informing the person concerned of the grounds of his arrest and detention; (ii) for presenting him before a magistrate or for an inquiry at which the detained person could meet the allegations against him; (iii) for review; (iv) for limitation of the period of detention. Because of these reasons it was submitted that the provisions of the enactment were inconsistent with the provisions of arts 5 and 9 of the Constitution.

Held: (1) the Restricted Residence Enactment is a law relating to public security and therefore its provisions are not inconsistent with art 9 of the Constitution; (2) the Constitution distinguishes between pre-Merdeka laws and post-Merdeka laws. Article 4(1) provides that any post-Merdeka law which is inconsistent with the Constitution shall, to the extent of the inconsistency, be void. Article 162 on the other hand provides that any pre-Merdeka law such as the enactment shall continue in force on and after Merdeka Day. That is so even if it is inconsistent with the Constitution. It may, however, be repealed by the appropriate legislature. Until so repealed it may be modified without going to Parliament, simply by order of his Majesty within a period of two years, beginning with Merdeka Day for the purpose of bringing its provisions into accord with the Constitution; (3) despite such inconsistency with the Constitution the enactment is in force, but it must be applied with such adaptations as may be necessary to bring it into accord with the Constitution; (4) the provisions of cll (3) and (4) of art 5 of the Constitution must therefore be read into the provisions of the Restricted Residence Enactment; (5) the enactment does not have provisions similar to those of cll (3) and (4) of art 5 of the Constitution but this does not make it unconstitutional;the delegation by the minister of his powers under the enactment is a valid one and the Mentri Besar can therefore validly exercise all the powers and duties of the minister under s 2 of the enactment.

Assa Singh v Mentri Besar, Johore [1969] 2 MLJ 30 Federal Court, Kuala Lumpur (Azmi LP, Ong Hock Thye CJ (Malaya).

The defendants were alleged to have committed breaches of certain byelaws by carrying on a restaurant business without a licence being issued by the Pesurohjaya. In respect of these breaches they were twice prosecuted, convicted and fined. In spite of these convictions they have persisted in carrying on their restaurant business without a licence. To restrain them from further committing these breaches the Attorney General at and by the relation of the Pesurohjaya commenced this action claiming, inter alia, a perpetual injunction restraining the defendants from using, causing or permitting the mezzanine floor to be used as a restaurant without the licence of the Pesurohjaya. In this application the defendants sought to set aside the specially endorsed writ on the grounds that the Attorney General (1) had no power and was not competent to act as plaintiff at the relation of the Pesurohjaya, and (2) was not the proper person to institute the proceedings. The defendants relied on art 145 of the Constitution for the first limb of their objection, and on the second limb they contended that for the consent of the relator to be valid it must be filed at the time of the filing of the writ. In the instant case the writ was filed on 18 February 1967 but the consent of the relator was filed on 29 March 1967. It was also contended that since the Pesurohjaya is a corporation sole, his consent must be under seal.

Held: (1) the Attorney General can bring a relator action to remedy a public wrong; (2) it goes to the root of the matter for without it the nominal plaintiff has no locus standi; (3) in order to give validity to the use of the relator's name in an action his prior written consent to act as such must be filed at or before issue of the writ. Such consent is a condition precedent to the right to use the relator's name;as the Pesurohjaya is a corporation sole he must use his seal in the prescribed manner when giving his consent, the absence of which makes it inoperative and of no effect; the application should therefore be allowed with costs.

Attorney General at and by the relation of Pesurohjaya Ibu Kota, Kuala Lumpur v Wan Kam Fong & Ors [1967] 2 MLJ 72 High Court, Kuala Lumpur (Raja Azlan Shah J).

Datuk (Datu) Amir Kahar bin Tun Datu Haji Mustapha v Tun Mohd Said bin Keruak Yang di-Pertua Negeri Sabah & Ors [1995] 1 MLJ 169 High Court, Kota Kinabalu (Abdul Kadir Sulaiman J).

See CONSTITUTIONAL LAW, Vol 3, para 1206.

Sng Hung Meng v Public Utilities Board 1965 Federal Court, Singapore (Wee Chong Jin CJ (Singapore).

See CONSTITUTIONAL LAW, Vol 3, para 1150.

Sng Hung Meng v Public Utilities Board [1966] 2 MLJ 25 Federal Court, Singapore (Wee Chong Jin CJ (Singapore).

See CONSTITUTIONAL LAW, Vol 3, para 1150.

The plaintiff/appellant herein, on 17 November 1965, issued a specially indorsed writ for $11,900 over-time pay against the defendants. The mandatory part of the writ was in the form 'The Honourable Dato' Wee Chong Jin, PMN, Chief Justice of Singapore in the name and on behalf of His Majesty the Yang di-Pertuan Agong'. Singapore had become independent on 9 August 1965. The defendants/respondents herein applied for the writ to be set aside on the ground of irregularity and on the ground, inter alia, that the writ was issued in the name of the Yang di-Pertuan Agong and not in the name of the Yang di-Pertuan Negara, the head of state in Singapore. In the court below, Chua J held that the writ of summons should have been issued in the name of the Yang di-Pertuan Negara, the head of state of Singapore, and as the writ in this case was issued in the name of a foreign sovereign, it was null and void. On appeal to the Federal Court it was contended that the learned trial judge was wrong and submitted that the writ was properly issued in the name of the Yang di-Pertuan Agong but if not, the mistake amounted to a mere irregularity curable by an amendment.

Held: (1) s 6 of the Constitution of Malaysia (Singapore Amendment) Act 1965 has completely divested all sovereignty, jurisdiction, power and authority, executive or otherwise vested in the Yang di-Pertuan Agong of Malaysia in respect of Singapore, ie the totality of all his powers, sovereign or otherwise in respect of Singapore and vested them in the Yang di-Pertuan Negara of Singapore; (2) a writ of summons issued out of the High Court of Singapore in the name of a sovereign of a foreign country commanding the appearance of a person before the High Court of Singapore is a bad writ amounting to a nullity unless there is a clear enactment by the Legislature of Singapore enabling a writ of summons to be so issued; (3) until the Legislature of Sinapore after 9 August 1965 specifically enacts that this particular power vests in someone other than the Yang di-Pertuan Negara of Singapore, all writs of summons issued out of the High Court of Singapore must be issued in the name of the Yang di-Pertuan Negara of Singapore;therefore the writ of summons in the present case was not a mere irregularity but was a nullity. The issue of a writ in the name of a foreign sovereign is an error fundamental to the whole proceedings.

Sng Hung Meng v Public Utilities Board 1965 Federal Court, Singapore (Wee Chong Jin CJ (Singapore).

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

See CONSTITUTIONAL LAW, Vol 3, para 1438.

On 14 February 1989 the respondent filed a suit in the Kuala Lumpur High Court claiming damages for assault and battery from her husband, the appellant ('the action'). The respondent alleged that the appellant had battered her during the course of their marriage. Both parties were Muslims. On 3 March 1989 the respondent petitioned for divorce in the syariah court. The respondent made a statutory declaration on 12 April 1989 wherein she renounced Islam. Subsequently, the kathi reported that the respondent had retracted her renunciation of Islam. The respondent obtained an ex parte interlocutory injunction restraining the appellant from, inter alia, assaulting and harassing her. The appellant applied to the High Court, firstly, to set aside the injunction and, secondly, to strike out the action. The High Court dismissed both applications and the appellant appealed to the Supreme Court. The High Court held, firstly, that it had jurisdiction to hear the action under s 23 of the Courts of Judicature Act 1964. The High Court also decided that s 9(2) of the Married Women Act 1957 did not prohibit the respondent from instituting the action because the action was grounded on criminal offences committed against her. Section 9(2) of the 1957 Act provides, inter alia, that no husband or wife is entitled to sue the other in tort. The respondent firstly contended that since the Constitution (Amendment) Act 1988 which inserted art 121(1A) into the Federal Constitution was not retrospective in effect, art 121(1A) of the Constitution was in conflict with ss 23 and 24 of the 1964 Act. Accordingly, the respondent asserted that ss 23 and 24 of the 1964 Act which conferred jurisdiction on the High Court would prevail over art 121(1A) of the Constitution by virtue of s 4 of the 1964 Act. The respondent finally argued that she was no longer a Muslim based on the criterion of general reputation under s 5 of the Islamic Family Law (Federal Territory) Act 1984 and accordingly, the syariah court had no jurisdiction to hear the action.

Held, allowing the appeal: (1) the root of the respondent's claim related to the conduct of the appellant as a husband during the course of a Muslim marriage. In fact and in law the alleged assault and battery by the appellant constituted matrimonial offence or misconduct which might entitle the respondent to a dissolution of her marriage under s 52(1)(h)(i) of the 1984 Act; (2) once the parties had submitted to the jurisdiction of the syariah court and once the syariah court had taken cognizance of the matrimonial cause, it would be an abuse of process under O 18 r 19(1)(d) of the Rules of the High Court 1980 for the respondent to go to the High Court and complain over the same misconduct. Accordingly, the action should be struck out on the ground of prejudice and unfairness to the appellant in the proceedings pending against him in the syariah court ; (3) art 121(1A) of the Constitution expressly excludes the jurisdiction of the High Court in respect of any matter within the jurisdiction of the syariah court. Accordingly, any jurisdiction vested by law in the syariah court is exclusively within the jurisdiction of that court; (4) when there is a challenge to jurisdiction, the correct approach is first to see whether the syariah court has jurisdiction and not whether the state legislature has power to enact the law conferring jurisdiction on the syariah court. The validity of a state law can only be questioned in a separate proceeding under art 4(3) of the Constitution; (5) since s 45(3)(b) of the Administration of Muslim Law Enactment 1952 [Selangor] confers jurisdiction on the Kuala Lumpur syariah court to hear and determine all actions relating to marriage or divorce in which all the parties profess the Muslim religion, the High Court's specific jurisdiction under s 24 of the Courts of Judicature Act 1964 on the subject matter of matrimonial causes is excluded by virtue of art 121(1A) of the Constitution; (6) the principle of interpretation of statutes demands that a general provision cannot override a specific one. Accordingly, the High Court cannot invoke its general civil jurisdiction under s 23 of the 1964 Act to revive a specific jurisdiction under s 24 of the 1964 Act which has been excluded by art 121(1A) of the Constitution; (7) the alleged act of cruelty by the appellant was amply covered by s 127 of the 1984 Act. Section 107(1) of the 1984 Act also provides power to the syariah court to make a restraining order against the appellant pending the divorce proceedings; (8) on the construction of arts 4(1) and 159 of the Constitution, Acts of Parliament affecting the Constitution are those which amend the Constitution through the legislative process under art 159 of the Constitution. The 1988 Act is an Act of Parliament which affects the Constitution but not the 1964 Act which is an ordinary law enacted not under art 159 of the Constitution but enacted in the ordinary way; (9) if s 4 of the 1964 Act is intended to affect the Constitution by rendering ineffective amendment to the Constitution enacted under art 159 of the Constitution, then, to that extent, s 4 of the 1964 Act is ineffective under art 4(1) of the Constitution because federal law enacted in the ordinary way cannot override the Constitution as amended from time to time; (10) the intention of Parliament in s 4 of the 1964 Act is to exclude the Constitution or any Act of Parliament enacted under art 159 of the Constitution which amends the Constitution. Accordingly, s 4 of the 1964 Act is not applicable to the 1988 Act and cannot prevail over art 121(1A) of the Constitution; (11) from the very beginning, the makers of the Constitution clearly intended that Muslims should be governed by Islamic personal and family law as evident from item 1 of the State List of the Ninth Schedule to the Constitution. Wh tion has done is to grant exclusive jurisdiction to the syariah courts in the administration of Islamic personal and family law so as to prevent conflicting jurisdictions between the civil courts and the syariah courts; (12) ther e was no evidence on the test of general reputation to suggest that the respondent had effectively renounced her Islamic faith and had thereby committed apostasy. In determining whether a Muslim has renounced Islam, the only forum qualified to answer this question is the syariah court. In any event, the evidence showed that both parties were Muslims when the action was adjudicated in the High Court; (13) the rule that a married couple cannot sue each other in tort is derived from English common law where it is held that marital status makes the husband and wife one person in law and therefore a suit by one against the other is like suing oneself; (14) in this case the cause of action is in tort notwithstanding that the cause of action had arisen from criminal offences committed in the course of a subsisting marriage. As the respondent's allegations were not related to the protection or security of the respondent's property, the respondent was barred by s 9(2) of the 1957 Act from suing the appellant in tort. On this ground also the action should have been struck out.

Mohd Habibullah bin Mahmood v Faridah bte Dato' Talib [1992] 2 MLJ 793 Supreme Court, Malaysia (Harun Hashim, Mohamed Azmi and Gunn Chit Tuan SCJJ).

Enough has been said to show that an order for winding-up made under s 295 against the respondent company probably could not by its nature have full force and effect throughout Malaysia. Section 73(1) of the Malaysia Act 1963 (Act 26/1963) (which was also the Act by which cl (3) of art 121 of the Constitution was enacted) provides that existing laws are to be construed as if the Malaysia Act had not been passed. An order for winding-up under s 295 would, before Malaysia Day, have normally been confined in its effect to assets within the jurisdiction of the Supreme Court of Singapore and it seems the more reasonable view, therefore, to conclude that this is still the position.

Tong Aik (Far East) Ltd v Eastern Minerals & Trading (1959) Ltd [1965] 2 MLJ 149 Federal Court, Singapore (Barakbah CJ (Malaya).

See COMPANIES AND CORPORATIONS, Vol 3, para 210.

In this case, the appellant applied by motion for leave to appeal to the Yang di-Pertuan Agong against the judgment of the Federal Court (see [1980] 1 MLJ 70) dismissing his appeal against conviction for an offence under s 57(1)(b) of the Internal Security Act 1960 (Act 82). It was argued that s 13 of the Courts of Judicature (Amendment) Act 1976, which abolished appeals in criminal cases to the Yang di-Pertuan Agong, was invalid because the Conference of Rulers had not given its consent under art 38(4) of the Federal Constitution.

Held: (1) appeals to the Yang di-Pertuan Agong come within the item of 'civil and criminal procedure and administration of justice' which is in the Federal List and therefore the Yang di-Pertuan Agong may on the advice of the Cabinet abolish any or all such appeals; (2) the appeal in this case was not pending at the date of the coming into force of the Courts of Judicature (Amendment) Act 1976 and therefore the motion must be dismissed.

Phang Chin Hock v Public Prosecutor (No 2) [1980] 1 MLJ 213 Federal Court, Kuala Lumpur (Raja Azlan Shah Ag LP, Chang Min Tat and Ibrahim Manan FJJ).

[Annotation: See AJ Harding's 'Death of A Doctrine (Phang Chin Hock v PP)' at (1979) 21 Mal LR 365.]

This was an appeal against sentence. The respondent had been convicted on charges of causing hurt. The learned President of the Sessions Court had made an order binding him over under s 173A of the Criminal Procedure Code, having taken into consideration that the respondent was a prince of the Ruling House of Johore.

Held: normally an appellate court is reluctant to interfere with a sentence imposed by a lower court. But it is bound to do so whenever it feels that justice does not appear to have been done. In this case, the sentence imposed by the lower court did not reflect the gravity of the offences and therefore the sentence must be set aside and a more suitable sentence imposed on the respondent.

Public Prosecutor v Tengku Mahmood Iskandar & Anor [1973] 1 MLJ 128 High Court, Johore Bahru (Raja Azlan Shah J).

The advocate and solicitor in this case was defending an accused person charged with an offence under the Corrosive and Explosive Substances and Offensive Weapons Ordinance, 1958 (Ord 43/1958). The record of the proceeedings before the President of the Sessions Court showed that the advocate was 'shouting and behaving in a manner which is most unexpected'. The advocate made an application for the case to be heard before another president. The advocate said that if this application was not granted he would apply to be discharged from further acting for the accused. The president then allowed the application for the discharge of the advocate. The advocate then made the following remarks in court: 'If you say this (referring to the President's ruling), outside the court, I will take on (sic) you certainly'. The President of the Sessions Court then ruled that the advocate had committed contempt of court and committed the advocate to two days imprisonment. On exercise of criminal revision;

Held: (1) there is no doubt that the words uttered by the advocate constituted insulting and contumacious behaviour in outrageous and provocative language tantamount to a deliberate challenge to the authority of the learned president and was clearly a gross contempt in the face of the court; (2) the power given to sessions and magistrate's courts to take cognisance of any contempt of court and award punishment therefore in para 26 of the Third Schedule to the Subordinate Courts Act 1948 (Act 92) is to be exercised in such extent and in such manner as may be prescribed by Rules of Court. There are rules of court in this context which statutorily embodies and enacts the principles of showing cause; (3) the learned president, perhaps understandably acting in the heat of the moment immediately committed the advocate to imprisonment for two days, without distinctly stating the specific offences charged against the advocate and without giving him an opportunity of answering the charge. This was in breach of the rules of natural justice and in utter disregard of O XXXVIII r 1 of the Subordinate Courts Rule, 1950 or at least the principle underlining it. The order of committal was therefore unsustainable in law and invalid. Per Abdoolcader J: '... it is the duty of counsel appearing before them (presidents and magistrates) to act fearlessly and with all the force and vigour at their disposal in the interest of the cause they represent but wholly within the bounds of propriety and courtesy in the discharge of their duties as officers of the court. Counsel appearing before these courts must equally remember that in the discharge of their duties they must judiciously use the right and privilege of appearing as such in these courts and not abuse it, and that their conduct must at all times accord with that decorum and dignity....'

Re Kumaraendran, an Advocate & Solicitor [1975] 2 MLJ 45 High Court, Ipoh (Abdoolcader J).

This was an application by the applicant for an order to set aside the ex parte order of the Supreme Court granting leave to the respondents to commence committal proceedings for contempt and the notice of motion pursuant to the said leave. The objections raised may be classified under two headings, viz procedural and substantive. On procedural objections, the following are a summary of the alleged principal defects: (1) the motion does not state that it has been issued pursuant to leave granted on 4 July 1985, (2) no statement was before the court on the date when leave was granted, (3) the original documents in the ex parte application including the affidavit in support were not served on the advocate, (4) the leave has lapsed under O 52 r 3(2) of the Rules of the High Court 1980, and (5) there was non-observance of r 71(3) of the Rules of the Supreme Court 1980. On substantive objections, the three defects alleged are: (1) the complainants have no locus standi, (2) there was an adjudication on 4 July 1985 and the order granting leave was a nullity for the reasons set out in the affidavit, and (3) the charge has not been sufficiently particularized.

Held: (1) there is a distinction in principle between cases where there have been non-observance of some safeguards laid down in O 52, Rules of the High Court, in the interest of the alleged contemnor and a mere technical irregularity. Whilst the former is fatal, the latter is not; (2) the alleged procedural defects no (1) and (3) are of such a nature that they are mere technical irregularities. As regards (2), (4) and (5) the objections are not well-founded; (3) having regard to the practice of the court, the words 'entered for hearing' in O 52 r 3(2) of the Rules of the High Court also mean the filing of the notice of the motion. In the circumstances, the leave has not lapsed since the motion was filed within 14 days after leave was granted; (4) the general provision in r 71(3) of the Rules of the Supreme Court regarding filing of application does not apply in view of the specific provisions in O 52 of the Rules of the High Court read with r 4 of the Rules of the Supreme Court; (5) the jurisdiction of the court to deal with contempt of itself is conferred by the Constitution. Until different rules are made under s 16 of the Courts of Judicature Act 1964 (Act 91), the procedure for contempt proceedings in the Supreme Court is governed by O 52 of the Rules of the High Court read with r 4 of the Rules of the Supreme Court. In addition the court can adopt summary contempt procedure on its own motion in cases where it is urgent and imperative to act immediately against contumelious conduct committed during its proceedings. When the contempt is not committed in the face of the court, the contempt proceedings can be initiated by motion either by the Attorney General or any party with a sufficient interest in the matter. In this case, the complainants as the successful parties in the two civil appeals from which the present contempt proceeding arose and their solicitors have sufficient interest in the matter to give them locus standi; (6) there is no merit in the allegation that the order granting leave is null and void because the Lord President who subsequently presided at the hearing of the application for leave had earlier complained to the Bar Council and made known His Lordship's views of the merits of the case. Having regard to the prominence given by the Constitution on the court's power to deal with contempt of itself, and in the light of the special nature of the contempt proceeding and having regard to all the circumstances of the case, there could not be any bias or likelihood of bias; (7) having regard to the contents of the letters by the appellant himself to the appellate judges which he referred to in the statement and exhibited in the verifying affidavit, this was sufficient for the advocate to know what the alleged contempt is against him and to enable him to meet the charge and prepare his defence.

Arthur Lee Meng Kwang v Faber Merlin Malaysia Bhd & Ors [1986] 2 MLJ 193 Supreme Court, Kuala Lumpur (Mohamed Azmi, Syed Agil Barakbah and Wan Hamzah SCJJ).

R was an advocate and solicitor of ten years standing. At an election rally, R had said that when persons had a case against the government of Singapore, they would have to appear before judges in the subordinate courts who were employed by the government. R then went on to say that justice was not seen to be done in Singapore, because the judges were employed by the government. A took out an application for an order of committal for contempt against R.

Held, finding R in contempt of court, fining him $8,000 and ordering him to pay the costs of the application: what R had said amounted to gross contempt of court. R, a practising lawyer, had scandalized the whole of the Subordinate Courts.

Attorney General v P Gopalan Nair Originating Motion 88 High Court, Singapore (Sinnathuray J).

A 'khidmiggar' or table servant to a military officer stationed at the settlement in time of peace is not a 'camp follower', and is not subject to military law, nor liable to be tried by court-martial. No man is subject to military jurisdiction, but an officer, soldier, or sepoy, or someone connected with the army; nor is any offence cognizable by the military tribunal, or within its jurisdiction, but some act which is a breach of military duty, or a neglect of military discipline: and no military person is liable to punishment for breach of military law or discipline, except in consequence of a trial, and the sentence of a court-martial. By the Charter of 1807, not only was the English criminal law extended to this colony, but civil injuries are to be redressed according to English law, and that even as regards offences or wrongs committed or done before the Charter.

Kamoo v Basset [1808] 1 Ky 1 Court of Judicature of Prince of Wales' Island, Singapore and Malacca (Stanley R).

The applicant had been charged with an offence under s 18(1) of the Public Service Tribunal Act 1977 (Act 186), for making a communication to the press in regard to proceedings of the tribunal. He was acquitted in the magistrate's court but on appeal by the Public Prosecutor, the appellate judge ordered the defence to be called on an amended charge. The applicant thereupon applied to the High Court to refer two questions of law to the Federal Court but his application was refused and he applied to the Federal Court. The questions proposed to be referred were: (1) What ingredients must the respondent prove to establish a prima facie case in a prosecution against a defendant on a charge under s 18(1) of the Public Service Tribunal Act 1977 read with para 7 of the Schedule to the said Act? (2) In a prosecution under s 18(1) of the Public Service Tribunal Act 1977, is it sufficient for the respondent to establish that a defendant is a public officer within the meaning of the said Act by leading evidence to show that he (the defendant) is a member of a trade union consisting of government servants?

Held: (1) it is not sufficient that the question raised is a question of law. It must be a question of law of public interest; (2) the proper test for determining whether a question of law raised in the appeal is of public interest would be whether it directly and substantially affects the rights of the parties and if so whether it is an open question in the sense that it is not finally settled by this court or the Privy Council or is not free from difficulty or calls for discussion of alternative views; (3) the court must consistently decline to receive and answer questions which though they might be questions of law are nevertheless not questions of law of public interest, in the sense that a necessity arises for the determination of the questions having regard to the uncertain or conflicting state of the law on the subject; (4) in this case, the application would be dismissed so that the case can continue in the magistrate's court.

A Ragunathan v Pendakwa Raya [1982] 1 MLJ 139 Federal Court, Kuala Lumpur (Raja Azlan Shah Ag LP, Salleh Abas and Abdul Hamid FJJ).

After having been convicted by the Sessions Court, Alor Star, and sentenced, the present applicant appealed to the High Court. His appeal was dismissed. The applicant then applied to the High Court under s 66 of the Courts of Judicature Act 1964 (Act 91) that a question of law of public interest concerning his appeal be reserved for decision of the Federal Court. The application was refused. Against that refusal the applicant appealed to the Federal Court. The preliminary question the Federal Court had to consider was whether an appeal lies against that refusal or whether any appeal lies at all.

Held: the decision of the High Court in exercise of its discretion under s 66 of the Courts of Judicature Act must be regarded as final and the Federal Court has no jurisdiction to review it.

Gurbachan Singh v Public Prosecutor [1967] 2 MLJ 220 Federal Court, Penang (Barakbah LP, Azmi CJ (Malaya).

This was a reference by the High Court under s 48(4) of the Courts of Judicature Act 1964 (Act 91), on the following questions: (1) whether the Federal Territory is an integral part of Malaysia; and (2) whether the High Court in Malaya sitting in the Federal Territory is lawfully constituted.

Held: (1) the Constitution (Amendment) (No 2) Act 1973 was for the purposes of art 2(a) of the Federal Constitution a law admitting to the Federation the Federal Territory by s 4 thereof which vests the Federation with sovereignty and all power and jurisdiction over, in and in respect of the Federal Territory which was established by the Act as art 1(4) of the Federal Constitution specifically states; (2) the answer to the second question is clearly provided for in the provisions of s 6(1) of the Constitution (Amendment) (No 2) Act 1973 (Act A206) (as amended by the Constitution (Amendment) (No 2) Act 1976) which prescribes that any written law existing and in force in the Federal Territory shall continue to be in force therein until repealed, amended or replaced by laws passed by Parliament; (3) art 2(a) of the Federal Constitution read in the light of the definition of state in art 159(6), the Constitution (Amendment) (No 2) Act 1973 and the provisions of art 1 of the Constitution, considered together and in that order, clearly manifest the position that the High Court in Malaya has jurisdiction in the Federal Territory; (4) the answer to the two questions presented for determination must be an emphatic 'aye'.

Hen Chean Seng & Anor v Public Prosecutor [1983] 1 MLJ 297 Federal Court, Kuala Lumpur (Raja Azlan Shah LP, George Seah FJ and Abdoolcader J).

In this case, the respondent was originally charged for trafficking in dangerous drugs and the case was fixed for hearing before the sessions court. In the meantime, the Dangerous Drugs Act 1952 (Act 234) was amended to abolish the sentence of life imprisonment for trafficking under s 39B of the Dangerous Drugs Act. The Public Prosecutor thereupon made a requisition under s 41A of the Dangerous Drugs Act 1952 for the case to be tried in the High Court. The case was then transferred to the High Court. Counsel for the respondent made an oral application for the case to be sent down to the sessions court and the learned judge of the High Court made an order accordingly. The Public Prosecutor appealed.

Held: (1) the learned judge in this case had erred in law in that he had no power to transfer the case from the High Court down to the sessions court for trial; (2) as long as the case was still before a subordinate court and the trial had not yet commenced the Public Prosecutor by virtue of the power vested in him under s 41A of the Dangerous Drugs Act 1952, and also under art 145(3) of the Federal Constitution, may choose the forum for trial; (3) in this case, the Public Prosecutor had made a requisition under s 41A of the Act for the case to be transferred from the sessions court to the High Court and therefore the order of the learned judge must be set aside and the case remitted to the High Court for trial.

Public Prosecutor v Cheah Cheng Eng [1986] 2 MLJ 39 Supreme Court, Penang (Abdul Hamid CJ (Malaya).

The applicant at all material times was a citizen of Singapore by birth and was gainfully employed as a butcher earning $900 pm. In July 1984, he married his wife who in September 1984 entered Singapore and was allowed to remain in Singapore on a pass issued under reg 14(3) of the Immigration Act 1972, renewable at the expiry of every month. The pass was renewed until October the following year when she was given a written notice on 4 October 1985 to leave Singapore by 20 October 1985. Her solicitors appealed to the Minister for Home Affairs to grant her 'further extension to remain in Singapore for a period deemed appropriate under the circumstances hereinbefore stated'. Those circumstances were that the applicant's wife was in an advanced stage of pregnancy, that the applicant for reasons of having to perform national reservist training was unable to accompany her on a flight to India and to help arrange for her stay in India and that, in any case, she could not for medical reasons undertake the air journey to India. The Ministry of Home Affairs replied that the applicant's wife would 'be allowed to stay here on compassionate grounds until she (had) delivered her child'. However, the ministry made it clear that thereafter, 'no further extension of stay would be granted'. A daughter was born to the couple in December 1985. The Controller of Immigration refused any further extension of the stay. The applicant then sought from the High Court in exercise of its supervisory jurisdiction an order of mandamus directed to the Controller of Immigration requiring him to review his decision made in the exercise of his statutory discretion in refusing the written requests of the applicant's wife, an Indian national and holder of an Indian passport, for a long term social visit or a special pass to remain in Singapore till she was granted permanent residence. In the alternative, the applicant sought a declaration 'that the applicant's wife is entitled to remain in Singapore on a social visit pass for two years in order not to deprive her of an opportunity to apply for permanent residence as a spouse of a citizen of Singapore under art 123(2) of the Constitution of Singapore.

Held, dismissing the application: (1) the High Court in its supervisory capacity cannot substitute its own views for those of the tribunal or officer which or who had been statutorily entrusted to make the decision; (2) the fact that a foreigner is not a member of the prohibited classes or an undesirable immigrant under the immigration legislation does not make the person automatically eligible for entry and/or residence in the republic; (3) in the exercise of the High Court's supervisory jurisdiction over inferior tribunals including administrative officers exercising judicial or quasi judicial functions under a statute or subsidiary legislation, the High Court is supervising and not reviewing;there is no conflict between art 123(2) of the Constitution and the Immigration Act. There is no basis for the argument that the Constitution permits a foreign woman who is married to a Singapore citizen to stay here for at least two years so that she can apply for citizenship.

Re Mohamed Saleem Ismail [1987] SLR 369 High Court, Singapore (Lai Kew Chai J).

Rule 211 of the British Consular Court in Bangkok requires the Consul to exercise a discretion as to whether he will file or not a power of attorney given by a suitor in the court to a barrister to appear for him as counsel in a cause, and his exercising that discretion, and filing or refusing to file the power of attorney, is not merely a ministerial act. The law to be deduced from the existing authorities on the subject is that upon grounds of general public convenience, a judge is not liable in the form of an action for damages for acts done, or words spoken in his judicial capacity, unless such acts or words are done or uttered without jurisdiction, and with knowledge of such want of jurisdiction. The principle also covers things omitted to be done. An amendment which will amount to a different state of facts from those in the statement of claim, and discloses a new cause of action (fresh facts being, admittedly, intended to be inserted without reference to the plaintiff who is out of the jurisdiction) will not be allowed.

Mitchel v French [1888] 4 Ky 437 High Court, Straits Settlements (Ford CJ).

In this case, the respondent had been charged in the sessions court at Kuala Lumpur on two charges of criminal breach of trust to which he claimed trial. When his case was mentioned again in the sessions court, the Deputy Public Prosecutor tendered a certificate issued by the Public Prosecutor under s 418A of the Criminal Procedure Code (FMS Cap 6) requiring the case to be removed to the High Court and this was promptly complied with. The respondent was then formally arraigned in the High Court at Kuala Lumpur when objection was taken on his behalf to the transfer of the case from the sessions court on a challenge mounted against the constitutional validity of s 418A of the Criminal Procedure Code on the basis that it infringes arts 121(1) and 5(1) of the Federal Constitution. Zakaria Yatim J in a reserved decision held s 418A to be unconstitutional and void in that it is inconsistent with art 121(1) of the Federal Constitution and that the certificate issued by the Public Prosecutor thereunder was accordingly invalid and of no effect and ordered the case to be remitted to the sessions court for trial. He indicated that it was therefore unnecessary to consider the question of the validity of s 418A of the code in relation to art 5(1) of the Federal Constitution. The Public Prosecutor appealed.

Held (by a majority, Salleh Abas LP and Hashim Yeop A Sani SCJ dissenting): (1) the term 'judicial power' used in art 121(1) means the power to which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until the court, which has the power to give a binding and authoritative decision, is called upon to take action; (2) in the context of criminal law, the court possesses the judicial power to try a person for an offence committed by him and to pass sentence against him if he is found guilty. Judicial power includes: (a) the power to accept a plea of guilty after the charge has been explained to the accused and he understood it; (b) the power to allow or refuse a plea to be retracted and that power must be exercised judicially; (c) the power to grant or refuse bail to an accused person; (d) the power to grant or refuse a postponement; and (e) the power to transfer any proceedings to any other court or to or from any subordinate court. Section 418A of the Criminal Procedure Code is unconstitutional and void as being an infringement of the provisions of art 121(1) of the Federal Constitution and that the doctrine of prospective overruling would be applied so as not to give retrospective effect to the declaration made with the result that all proceedings of convictions and acquittals which had taken place under the section prior to the date of the judgment in this matter would remain undisturbed and not be affected.

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 respondents had been charged for an offence under the Dangerous Drugs Ordinance 1952 and tried before a judge and jury. The jury unanimously returned a verdict of not guilty and the respondents were acquitted. The Public Prosecutor then appealed against the acquittal. The respondents argued that the Federal Court had no jurisdiction to entertain an appeal against acquittal since it would contravene art 7(2) of the Malaysian Constitution.

Held: (1) on the contrary it impliedly allows a court to order the retrial of a person who has been acquitted; (2) the Federal Court had jurisdiction to entertain the appeal. Article 7(2) of the Constitution does not prohibit appeals against acquittals;the verdict in this case depended entirely on the weight to be given to the conflicting versions from the evidence and as there was nothing wrong in the summing-up, the appeal should be dismissed.

Public Prosecutor v Ooi Khai Chin & Anor [1979] 1 MLJ 112 Federal Court, Kuala Lumpur (Suffian LP, Gill CJ (Malaya).

The plaintiff claimed damages for wrongful arrest against an inspector of police and the government. It was contended by the Senior Federal Counsel for the defendants that the High Court had no jurisdiction to go into the merits of the case as the pleadings disclosed that an issue under art 5(1) of the Federal Constitution would arise in the suit.

Held: (1) the combined effect of art 128(2) of the Federal Constitution and s 48(1) of the Courts of Judicature Act 1964 (Act 91) is that if in any proceedings in the High Court any constitutional question arises, the judge of the High Court trying the case may either try it himself and determine that question or without deciding and determining the question stay the proceedings and refer the question for the decision of the Federal Court; (2) in this case, the preliminary objection as to lack of jurisdiction of the court must be dismissed with costs.

Hashim bin Saud v Yahaya bin Hashim & Anor [1973] 2 MLJ 85 High Court, Alor Star (Sharma J).

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).

See CONSTITUTIONAL LAW, Vol 3, para 1396.

In this case, the applicants had been convicted on their pleas of guilty of the offence of armed robbery of a motor car and other articles and sentenced to two years imprisonment and one stroke of the rattan each. The sentences of whipping were duly carried out. Subsequently the learned judge of the High Court acting in revision enhanced the sentence of imprisonment on each applicant to five years and the sentence of whipping to five strokes. The applicants applied to the Supreme Court to determine (a) whether the High Court had the power to increase the strokes after the sentence of whipping imposed by the magistrate's court had already been executed and (b) whether it was their right to be given time to engage counsel to defend them.

Held: (1) the High Court's power sitting in revision is discretionary and it must, therefore, be exercised judicially and within the limits and in the spirit of the legislation; (2) the Criminal Procedure Code (FMS Cap 6) clearly prohibits whipping to be executed in instalments and, therefore, in the circumstances it was clearly improper for the learned judge to exercise his revisionary power to impose additional strokes of whipping; (3) a judge should use the power of revision to increase a sentence only in exceptional cases. The power of revision is to be used sparingly and should remain a discretionary power to be exercised primarily for the purpose of correcting a miscarriage of justice; (4) the answer to the first question must, therefore, be in the negative and the additional whipping imposed by the learned judge on each of the applicants must be quashed; (5) the record did not show that the applicants had applied for an adjournment to engage counsel and, therefore, the court did not propose to answer the second question; (6) there is adequate protection for the accused in the law and such provisions are consistent with the fundamental liberty as enshrined in the Constitution that a person arrested be allowed to consult and be defended by a legal practitioner of his choice.

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

The applicant in this case was convicted under s 379, Penal Code, which conviction was affirmed by the High Court on appeal, and his sentence varied from one of ten months' imprisonment to a fine of $2,000. He contended that the appellate court determined there were misdirections on points of law by the lower court. The question posed was, therefore, whether the appellate court could, in view of s 316(b) of the Criminal Procedure Code disagree to alter the finding or quash the conviction or order a retrial because of the history of the case. It was also argued that the direct result of the sentence would be to disqualify the applicant from continuing to be a member of the Dewan Negeri. This, he argued, contravened art 19 of the Sarawak Constitution. The applicant sought to have the above questions of law referred to the Federal Court under s 66(1) of the Courts of Judicature Act 1964 (Act 91).

Held: questions of law which may be referred to the Federal Court under s 66 of the Courts of Judicature Act should not be questions that are of personal interest only to the accused or the Public Prosecutor. The questions should be of public interest so that references are not used as an indirect way of appealing against matters that under the law have been finally determined by the High Court; (2) it is within the power exercisable by an appellate court under s 316(b)(ii) of the Criminal Procedure Code not to order a retrial by reason of a misdirection, depending on the evidence and circumstances in each case, particularly when such misdirection was not fundamental; (3) the applicant was not automatically disqualified and did not cease to be a member of the Dewan Negeri upon his conviction. A question in the council had to be raised on such disqualification before the Dewan Negeri could take a decision to disqualify him and determine his tenure of seat; (4) the court in an appropriate case, is empowered to impose a sentence that would disqualify a person from membership of Parliament or State Legislature without contravening art 53 of the Federal Constitution or art 19 of the Sarawak Constitution; (5) an award of different sentence for the same offence according to the circumstances of each case does not infringe the principle of equality before law.

Michael Ben Anak Panggi v Public Prosecutor [1979] 2 MLJ 65 High Court, Kuching (Yusoff J).

In this case, the plaintiff applied for an interlocutory injunction to restrain the Legislative Assembly of Sabah from sitting because he claimed the Yang di-Pertuan Negeri had exercised his powers of summoning the sitting following the advice of a person or cabinet which the plaintiff said had not been validly appointed and that at that sitting the defendants will carry out acts which they are not legally authorized to do.

Held: the court had no jurisdiction to grant the injunction and moreover there were no merits in the application. The court in the exercise of its discretion would refuse the application.

Tun Datu Haji Mustapha bin Datu Harun v Legislative Assembly of State of Sabah & Ors [1986] 2 MLJ 388 High Court, Kota Kinabalu (Abu Mansor J).

In this case the complaint of a member of the Dewan Undangan Negeri, Sarawak, had been referred to the Committee of Privileges for alleged breach of privileges in respect of a speech by the appellant at a sitting of the Dewan. The appellant applied for an order of prohibition to restrain the respondents, the members of the Committee of Privileges, from proceeding with the inquiry. The application for leave to issue the writ was refused in the High Court and the appellant appealed.

Held: originally the writ of prohibition was directed to courts of inferior jurisdiction and the writ was normally used to control lower courts acting in excess of their jurisdiction or in contravention of law. However, it was later extended by the superior court to statutory bodies exercising such legal jurisdiction when they were brought into existence by Acts of Parliament. The same principle would apply to any person or body of persons conferred with such jurisdiction by any enactment passed by a State Legislature. However, it is plain that the Committee of Privileges of the Dewan Undangan Negeri, Sarawak, is not such a body of persons and, therefore, their proceedings when acting as an investigating body are not amenable to an order of prohibition and the learned judge was right in refusing the application under O 53 r 1 of the Rules of the High Court 1980.

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

In this case, the plaintiff had applied for declarations: (i) the decision of the Registrar of Citizens, Malaysia, in rejecting the application of the plaintiff as a citizen is invalid; (ii) the reasons given by the Registrar of Citizens for rejecting the plaintiff's application are bad in law and inconsistent with the provisions of art 15(2) of the Constitution of Malaysia; and (iii) the plaintiff is eligible for registration as a citizen of Malaysia under art 15(2) or art 15A of the Constitution of Malaysia. The defendants made preliminary objections to the proceedings by the plaintiff on three grounds: (1) the decision of the government is final; (2) the applicant has not exhausted her statutory remedies; and (3) the form of application before the court is not proper.

Held: (1) the court in exercise of its inherent supervisory jurisdiction has the general power to award declaratory judgments in order to ensure that statutory tribunals whether judicial or administrative made their determinination in accordance with the law. This remedy is available in any case where a statutory tribunal has acted without or in excess of jurisdiction or in breach of the rules of natural justice. The remedy is not excluded by the fact that any determination is by statute made final; (2) the court has jurisdiction to entertain an action for declaration to correct an error of law in the proceedings before a tribunal and to declare such proceedings invalid or a nullity, and such jurisdiction cannot be excluded or taken away from the subjects except by clear words; (3) in an action for a declaratory judgment, the plaintiff has to establish her title to sue. She has to establish that she has an immediate personal interest in the subject-matter of the proceedings and in claiming a declaration which relates to legal right, all that she has to establish is that she has some legitimate expectation of such right or interest; (4) in a proper case the court is not precluded by reason of the 'ouster provision' only, to entertain a claim for a declaration that an individual is a citizen but whether the court would entertain a claim for a declaration that the plaintiff is eligible for registration as a citizen under a relevant provision of the Federal Constitution, as it was sought in this case, involves different consideration and the court should also construe other provisions of the law relating to citizenship to determine the effect of such declaration; (5) as in this case the plaintiff had not exhausted the alternative remedy of an appeal to the minister, the claim for the declarations should be dismissed.

Kuluwante v Government of Malaysia & Anor [1978] 1 MLJ 92 High Court, Kuching (Yusoff J).

Re Application of Tan Oon & Ors; Tan Oon & Ors v Pemungut Hasil Tanah, Kuantan [1985] 2 MLJ 67 High Court, Kuantan (George J).

See CONSTITUTIONAL LAW, Vol 3, para 1482.

In this case, the accused had been convicted on appeal in the High Court on a charge of criminal breach of trust contrary to s 409 of the Penal Code (Cap 45). An application was made to the learned judge of the High Court for certain questions of law of public interest to be referred to the Federal Court but the application was dismissed. The accused thereupon applied for special leave to appeal from the decision of the learned judge. The issue was whether an appeal lay from the decision of a High Court judge dismissing an application of a person to reserve for the question of the Federal Court a question of public interest which had arisen in the course of an appeal by that person.

Held, dismissing the application: a person cannot appeal from the decision of a High Court judge dismissing his application under s 66 of the Courts of Judicature Act 1964 (Act 91).

Kulasingam v Public Prosecutor [1978] 2 MLJ 243 Federal Court, Kuala Lumpur (Suffian LP, Gill CJ (Malaya).

Mohd Habibullah bin Mahmood v Faridah bte Dato' Talib [1992] 2 MLJ 793 Supreme Court, Malaysia (Harun Hashim, Mohd Azmi and Gunn Chit Tuan SCJJ).

See CONSTITUTIONAL LAW, Vol 3, para 1152.

The respondent in these cases had applied to the court for declarations that his appointment as Chief Minister of Sabah by the first appellant was valid and that the subsequent revocation of his appointment and the appointment of Datuk Joseph Pairin Kitingan (the second appellant) as Chief Minister were ultra vires and therefore null and void. The appellants had raised a preliminary objection that the court had no jurisdiction to hear the action and grant the declaratory reliefs sought. The High Court overruled the objection and the appellants appealed.

Held: justiciable issues do in fact arise for judicial determination in this case and the matter falls within the jurisdiction of the court for adjudication. The mere fact that a litigant seeks to protect a political right does not mean it presents a political question. The primary issues before the court concern the appointment and revocation of the Chief Minister, and these are legal and justiciable questions clearly within the competence of judicial consideration and determination.

Tan Datuk Haji Mohamed Adnan Robert v Tun Datu Haji Mustapha bin Datu Harun; Datuk Joseph Pairin Kitingan v Tun Datu Mustapha bin Datu Harun [1987] 1 MLJ 471 Supreme Court, Kuala Lumpur (Abdul Hamid CJ (Malaya).

In this case, the applicant applied ex parte for leave to commence proceedings in the Supreme Court against the Attorney General for declarations: a) insofar as O 66 of the Rules of the High Court 1980 makes provision for the obtaining of evidence in Malaysia for foreign courts in criminal proceedings, it is invalid; b) all examinations carried out pursuant to the order of the Chief Justice, Malaysia made on 16 December 1985 under O 66 of the Rules of the High Court on the application to the High Court by one Simon Elliott Stone on behalf of the Attorney General, Hong Kong, in relation to proceedings in the Supreme Court of Hong Kong between the Attorney General of Hong Kong and Lorrain Esme Osman and others, are invalid. Subsequently the Attorney General of Hong Kong and the government of Malaysia were included as interveners and the Attorney General of Malaysia ceased to be the respondent and was substituted by the government of Malaysia. The proceedings then proceeded inter partes. It was argued that (a) a decision of the Supreme Court in its appellate role does not bind the Supreme Court sitting in its constitutional role; (b) the court was not bound by the decision of the Supreme Court in Lye Thai Sang & Anor v Faber Merlin (M) Sdn Bhd & Ors [1985] 2 MLJ 380; (c) the majority decision of the Supreme Court in Data Hashim Shamsuddin v Attorney General, Hong Kong [1986] 2 MLJ 112 was wrong.

Held: (1) the Supreme Court sitting in its constitutional role is bound by its previous decision Ð there is no other interpretation of s 69(4) of the Courts of Judicature Act; (2) the court is unable to hold that the majority decision of the Supreme Court in Dato Mohammed Hashim Shamsuddin v Attorney General, Hong Kong is wrong and therefore that an arguable case has been shown.

Lorrain Esme Osman v Attorney General of Malaysia [1986] 2 MLJ 288 Supreme Court, Kuala Lumpur (Wan Suleiman SCJ).

In this case, the applicants applied by motion for an order or orders that the judgment of the Supreme Court in the civil appeals in which they were respondents be reviewed. The judgment of the Supreme Court is reported at [1985] 2 MLJ 380.

Held: where an appeal has been heard and disposed of by the Supreme Court, the Supreme Court has no power to review the case, that is, to reopen, rehear and re-examine its decision for whatever purpose. The only exception where there can be a rehearing is only to the extent provided by s 49 of the Courts of Judicature Act 1964 (Act 91).

Lye Thai Sang & Anor v Faber Merlin (M) Sdn Bhd & Ors [1986] 1 MLJ 166 Supreme Court, Kuala Lumpur (Abdul Hamid CJ (Malaya).

The transmission of pending cases to the High Court is not in violation of art 7(1) of the Constitution, as the punishment for which the accused is liable remains the same as it was before the amendments. The death penalty is not mandatory for cases under the Dangerous Drugs Act 1952 (Act 234), but only discretionary.

Savrimuthu v Public Prosecutor [1987] 2 MLJ 173 Supreme Court, Kuala Lumpur (Salleh Abas LP, Abdul Hamid CJ (Malaya).

A1 and A2 were convicted of trafficking in a controlled drug and sentenced to death under s 38(4) of the Mauritius Dangerous Drugs Act 1986 ('the Act'). Section 28 of the Act made it an offence to be in possession and/or to traffick in certain controlled drugs. Section 28(8) also gave the Director of Public Prosecutions ('the DPP') the discretion to select which court accused persons may be tried. In respect of A1 and A2 the DPP ordered that they be tried before a judge without jury. Under s 38(4) of the Act, where a person was convicted of trafficking before a judge without jury, the death sentence was mandatory. A1 and A2 appealed on the grounds that s 38(4) was unconstitutional.

Held, allowing the appeal on sentence only: (1) the plain intention of Parliament was that the DPP should have a discretion to be exercised according to his view of the seriousness of the case, as to which of the three tribunals mentioned in s 28 was appropriate to try it; (2) there was clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty was the statement of a general rule, which was one of the characteristics of legislation. This was wholly different from the selection of a penalty to be imposed in a particular case. The legislature did not prescribe the penalty to be imposed in an individual citizen's case, it stated the general rule. The application of that rule was for the courts; (3) a discretion in the prosecuting authority to prosecute for a more serious offence rather than for a less serious one was not open to any constitutional objection; (4) the vice of the present case was that the DPP's discretion to prosecute importation with an allegation of trafficking either in a court which must impose the death penalty on conviction with the requisite finding or in a court which can only impose a fine and imprisonment enabled him in substance to select the penalty to be imposed in a particular case; (5) s 38(4) of the Act was therefore invalid; (6) A1 and A2's appeals against convictions were not vulnerable to attack on constitutional or other grounds. The sentences of death, however, having been imposed under an invalid enactment, must be set aside, and the case remitted to the Supreme Court of Mauritius to substitute such sentences, within the limits of s 38(3) of the Act as were appropriate.

Mohammed Mukhtar Ali & Anor v R Privy Council Appeal Nos 4 and 5 of 1989 Privy Council Appeal from Mauritius (Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Oliver of Aylmerton, Lord Jauncey of Tullichettle and Lord Lowry).

In this case, the appellant was charged under s 213 of the Penal Code (Cap 103, 1970 Ed) with eight charges of obtaining restitution in consideration of the concealment of the offence of criminal breach of trust committed by his assistant; and one charge of attempting to obtain such restitution. He was convicted in the district court and fines totalling $30,000 were imposed on him. The appellant appealed.

Held: (1) s 213 of the Penal Code does not require the actual concealment of an offence or the screening of any person from legal punishment or the actual forbearing of taking any proceedings. It is sufficient if an illegal gratification is received in consideration of a promise to conceal an offence or screen any person from legal punishment or desist from taking any proceedings; (2) in this case the evidence showed that the restitution referred to in the first eight charges was accepted in consideration of concealing the offences of the assistant and the appellant was therefore rightly convicted on these charges; (3) in regard to the ninth charge on the evidence there was no question of concealing the offence and the conviction on this charge must therefore be set aside; (4) by virtue of the amendments to s 17 of the Criminal Procedure Code (Cap 113, 1970 Ed) , a district court can impose on a person convicted at one trial of any two or more distinct offences fines totalling more than $10,000. The power of the court should not be confused with the 'punishment prescribed for an offence'. Thus, the enhancement of the district court's power of punishment was not contrary to art 7(1) of the Federal Constitution; (5) in this case, the learned district judge had not given sufficient consideration to the matters favourable to the appellant and in the circumstances, the fines should be reduced to $1,500 on each charge.

Harry Lee Wee v Public Prosecutor 1980 High Court, Singapore (Choor Singh J).

In this case, the respondents were first charged on 9 November 1976 but the case against them had been postponed no less than 12 times since then to the date when the magistrate ordered acquittal in their favour on 19 January 1984. The learned Deputy Public Prosecutor asked for revision of the decision but the application was turned down. The Supreme Court granted leave to have the following question of law of public interest determined: 'In view of art 145(3) of the Federal Constitution and s 173(c) and (f) of the Criminal Procedure Code, whether it is right for a Magistrate in a summary trial to acquit and discharge an accused person without hearing any evidence for the prosecution.'

Held: in a summary trial paras (c) and (f) of s 173 of the Criminal Procedure Code (FMS Cap 6) do not empower the court to order a discharge amounting to an acquittal of an accused person without hearing evidence of the prosecution in support of its case.

Public Prosecutor v Zainuddin & Anor [1986] 2 MLJ 100 Supreme Court, Kuala Lumpur (Salleh Abas LP, Seah and Syed Agil Barakbah SCJJ).

In this case, on a charge under s 39(B)(1)(a) of the Dangerous Drugs Ordinance 1952, the jury returned a majority verdict of five to two of not guilty. The accused was acquitted. The Public Prosecutor appealed to the Federal Court and reliance was placed on the recent amendment to s 50 of the Courts of Judicature Act 1964 (Act 91).

Held, dismissing the appeal: (1) by virtue of s 229 of the Criminal Procedure Code, the court or judge has no discretion but to accept the jury's verdict; (2) the Federal Court has no power to quash an acquittal in such circumstances. Article 7(2) of the Federal Constitution was referred to.

Public Prosecutor v Tai Chai Geok [1978] 1 MLJ 166 Federal Court, Kuala Lumpur (Gill Ag LP, Ong Hock Sim Ag CJ (Malaya).

The respondents in this case were charged with offences under the Dangerous Drugs Ordinance 1952 and after preliminary inquiries were held, they were committed to stand trial at the High Court. When the cases came up before the High Court the learned judge made orders transferring the cases for trial in the special sessions court. The Public Prosecutor applied for the trials in the sessions court to be stayed and for the learned judge to refer certain questions to the Federal Court by which in effect the Federal Court was asked to give a ruling whether the learned judge had power to transfer these cases to the subordinate court and, if so, whether he properly exercised that power.

Held: (1) the transfer of the cases from the High Court to the special sessions court was not proper in the circumstances; (2) the power of a judge of the High Court to transfer a case under s 25(2) of the Courts of Judicature Act 1964 (Act 91) and item 12 of its Schedule was subject to the discretion of the Attorney General under art 145(3) of the Federal Constitution to choose the forum in which persons charged under s 39B(1)(a) of the Dangerous Drugs Ordinance were to be tried; the power conferred under art 145(3) on the Attorney General would override the power of the High Court to transfer so that the judge had no power to transfer such cases as the present on his own motion for trial in a subordinate court.

Public Prosecutor v Lim Shui Wang & Ors [1979] 1 MLJ 65 Federal Court, Kuala Lumpur (Suffian LP, Gill CJ (Malaya).

In these cases, the accused were originally charged in the sessions court. The cases were transferred to the High Court on certificates issued by the Public Prosecutor under the provisions of s 418A of the Criminal Procedure Code (FMS Cap 6). Counsel for the accused contended that s 418A of the Criminal Procedure Code violated art 8(1) of the Federal Constitution and was therefore void and unconstitutional.

Held: (1) art 8(1) of the Federal Constitution permits reasonable classification founded on intelligible differentia having a rational relation or nexus with the policy or object sought to be achieved by the statute or statutory provision in question. In this case, s 418A of the Criminal Procedure Code conferred discretionary power on the authority without laying down any policy or disclosing any tangible or intelligible purpose and thus conferred unguided and arbitrary powers enabling the authority to discriminate; (2) while the Public Prosecutor has power under art 145(3) of the Federal Constitution, exercisable to his discretion, to institute conduct or discontinue any proceedings, the Public Prosecutor cannot in the exercise of his discretionary powers discriminate at will and infringe the provisions of art 8(1) as judicially determined in the matter of clarification, differentia and nexus; (3) in this case the accused have been prejudiced, as if they are tried in the High Court, the High Court has greater powers of punishment than the sessions court; (4) s 418A of the Criminal Procedure Code as it is worded and as it stands is therefore unconstitutional and void by virtue of the provisions of art 8(1) of the Federal Constitution and equally so the certificates issued by the Public Prosecutor thereunder for the transfer of the cases to the High Court. The transfer effected thereby is accordingly of no effect; (5) it is open to the Public Prosecutor to apply for the transfer of the cases to the High Court under s 417 of the Criminal Procedure Code and such application will then be considered on its merits.

Public Prosecutor v Datuk Harun bin Haji Idris & Ors [1976] 2 MLJ 116 High Court, Kuala Lumpur (Abdoolcader J).

In this case, the accused was originally charged for sedition in the sessions court. The case was transferred to the High Court on certificates issued by the Public Prosecutor under the provisions of s 418A of the Criminal Procedure Code (FMS Cap 6). Counsel for the accused contended that: (a) s 418A of the Criminal Procedure Code violated art 8(1) of the Federal Constitution and was therefore void and unconstitutional; (b) by transferring the case from the subordinate court to the High Court the accused had been deprived of the benefit of a preliminary inquiry; and (c) by transferring the case from the subordinate court to the High Court the accused lost the right of appeal.

Held: (1) s 418A of the Criminal Procedure Code is a valid law and it does not violate the provisions of art 8(1) of the Federal Constitution; (2) the requirement as to the holding of a preliminary inquiry was specifically excluded when the Public Prosecutor invoked his powers under s 418A. All criminal trials which are heard in the subordinate courts are summary trials, that is to say they are heard and determined by the court without holding a preliminary inquiry. The accused in this case had therefore not lost the benefit of a preliminary inquiry and he stood in no worse a position than any other person accused before the subordinate court; (3) in this case the accused did not lose his right of appeal. As a matter of fact he was placed in an advantageous position for he could appeal to the Federal Court if he was convicted in the High Court whereas if his appeal from the lower court decision failed in the High Court that would be the end of the matter unless a certificate was issued by the High Court or by the Public Prosecutor on a point of law for the determination of the Federal Court; (4) s 418A does not in any way discriminate against a particular offender or a particular offence. The section embraces all who appear before the subordinate courts charged with criminal offences.

Public Prosecutor v Oh Keng Seng [1976] 2 MLJ 125 High Court, Seremban (Ajaib Singh J).

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

See CONSTITUTIONAL LAW, Vol 3, para 1423.

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

See CONSTITUTIONAL LAW, Vol 3, para 1432.

In this case, the respondent, one of the two candidates in the Kelantan State Elections for the constituency of Bukit Tuku, had filed an election petition challenging the validity of the election of the other candidate, Zakaria bin Botok. Before the election petition could be heard the said Zakaria bin Botok died on 31 March 1987. The chairman of the Election Commission then announced that nominations for the Bukit Tuku by-election as a result of the death of the said Zakaria bin Botok would be held on 18 April 1987, and if there was a contest, polling would be held on 27 April 1987. The respondent filed a suit against the Election Commission asking for a declaration that the Election Commission cannot lawfully call for the nominations with a view to holding the by-election before the finalization of the hearing of the election petition. The respondent also applied for an interim injunction to restrain the Election Commission from calling for nominations with a view to holding the said by-election. The learned judge granted the application with liberty to apply. The Election Commission applied to discharge the interim injunction but the application was refused by the learned judge. The Election Commission appealed.

Held: (1) the court must bear in mind that the Election Commission was performing its constitutional functions under the law. The election process is prescribed under the Constitution. The Election Commission is given a vital role in this democratic process. The Constitution also provides that any matter which has the effect of vitiating an election should be brought up before an appropriate forum; (2) art XLVI (5) of the Constitution of the State of Kelantan requires that a casual vacancy shall be filled within sixty days from the date on which it occurs. Therefore, it is a clear intention of the Legislature that the by-election should be concluded according to the time-frame prescribed; (3) the court should therefore decline to exercise its jurisdiction so as not to hinder the democratic process.

Election Commission, Malaysia v Abdul Fatah bin Haji Haron [1987] 2 MLJ 716 Supreme Court, Kuala Lumpur (Mohamed Azmi, Hashim Yeop A Sani and Wan Hamzah SCJJ).

The appellant sought to appeal from the decision of the election judge ([1970] 2 MLJ 15) against the finding that he was guilty of corrupt practice and against the award of costs against him.

Held, dismissing the appeal: the final order of an election judge is unappealable and therefore the Federal Court had no jurisdiction to entertain the appeal.

Tunku Abdullah v Ali Amberan [1971] 1 MLJ 25 Federal Court, Kuala Lumpur (Azmi LP, Suffian and Gill FJJ).

This was an appeal from the decision of the Federal Court ([1965] 2 MLJ 162) which reversed the decision of Ismail Khan J ([1964] MLJ 456). The appellant was the successful candidate in an election to the Dewan Ra'ayat held on 25 April 1964. The result of the election was duly published in the gazette on 11 June 1964 and 29 June 1964, within the required 21 days, the respondent presented to the Registrar of the High Court an election petition claiming that the appellant's election was invalid on the ground that he was disqualified in that he was not at the time a citizen of Malaysia. The appellant had not appointed a solicitor nor left an address for service, therefore the respondent acting under r 10 of the election rule in Schedule 2 of the ordinance, lodged a copy of the petition on the registrar on the last day of service prescribed by r 15. He further advertised a notice of presentation of the petition in the gazette on 23 July 1964, after the 10-day period required by that rule. The election judge struck out the petition on the ground that it had not been served in accordance with the rules and considering that his order was interlocutory, he gave leave to appeal under s 68(2) of the Courts of Judicature Act 1964 (Act 91). The Federal Court set aside his decision but gave leave to appeal to the Privy Council.

Held: (1) if the election judge made a final order it was unappealable, but upon the footing that his order was interlocutory, it was open to the election judge to give leave to appeal and the Federal Court to entertain it. While the Privy Council would not entertain an appeal after a final determination of an election petition, the Federal Court, in giving leave to appeal under s 74 of the Courts of Judicature Act, conferred upon the Privy Council jurisdiction to entertain the interlocutory appeal; (2) although lodgment of the petition on the registrar was a literal compliance with r 10 there was, in respect of service of petitions, an inconsistency between rr 10 and 15 and in view of the explicit provisions of r 15, service in accordance with r 10 was insufficient and a petition must be served in accordance with the terms of r 15. The terms of r 15 were mandatory, and not merely directory, and therefore, there being no personal service and the advertisement in the gazette being out of time, the proceedings were a nullity: no weight could be attributed to the circumstances that the rules contained no express power to strike out a petition for non-compliance with r 15 and an election judge had an inherent power to cleanse his list by striking out, or better, by dismissing those petitions which had become nullities by virtue of failure to serve the petition within the time prescribed by the rules. Per curiam: their Lordships are reluctant to entertain interlocutory appeals, especially in election petitions, and unless the case raised is of exceptional public and general importance the Federal Court may well think it wiser to leave the party aggrieved to apply to the Board for special leave to appeal under s 74(2) of the Courts of Judicature Act. The present case, however, does raise a question of exceptional public importance on the proper interpretation of the rules relating to election petitions.

Devan Nair v Yong Kuan Teik [1967] 1 MLJ 261 Privy Council Appeal from Malaysia (Viscount Dilhorne, Lord Pearce and Lord Upjohn).

The four appeals were heard together as some of the grounds of appeal overlap. In Criminal Appeal No 40, the accused had been sentenced to death for the offences of possession of firearm contrary to s 57 of the Internal Security Act 1960 (Act 82). The accused in Criminal Appeal No 46 had similarly been sentenced to death. In Criminal Appeal No 39, the accused had been sentenced to life imprisonment for the offence of consorting with the accused in Criminal Appeal No 40. In Criminal Appeal No 43, the accused was acquitted of the offences of possession of firearm and ammunition contrary to s 57 of the Internal Security Act. The main points taken on behalf of all the accused were: (1) the Essential (Security Cases) Regulations 1975 by virtue of which the accused were tried were void because the Emergency (Essential Powers) Ordinance No 1 under the authority of which the regulations were made, had lapsed and ceased to be law by effluxion of time and by force of changed circumstances; (2) the Essential (Security Cases) Regulations 1975 were ultra vires the Emergency (Essential Powers) Ordinance as it was alleged that the Yang di-Pertuan Agong had sub-delegated his powers to the Attorney General; (3) there was no evidence to show that the areas concerned were 'security areas' and that reference should have been made in the charges to the proclamation making the areas 'security areas'; (4) the power given to the Attorney General to discriminate as between persons alleged to be in possession of firearms or ammunition and charging them with different offences contravenes art 8 of the Federal Constitution and is therefore void; (5) there had been mala fides when the Attorney General elected to charge the accused under the Internal Security Act; (6) the powers of the Attorney General should have been exercised by him personally and not by a Deputy Public Prosecutor. In Criminal Appeal Nos 39 and 40, it was argued that the statements made by the accused under caution to the police should not have been admitted in evidence. In Criminal Appeal No 43, it was argued that as the evidence showed that the pistol 'did not fire off' the ammunition inserted in it, it was not a firearm within the meaning of s 2 of the Internal Security Act.

Held: (1) the 1969 Proclamation of Emergency has not been revoked nor annulled by Parliament. The Emergency (Essential Powers) Ordinance has not been revoked or annulled. Therefore they are still in force; (2) even if there has been sub-delegation by the Yang di-Pertuan Agong, the Essential (Security Cases) Regulations 1975 were not ultra vires the Emergency (Essential Powers) Ordinance as they come within the language of reg 2(1) and 2(2) of the ordinance; (3) by virtue of the Proclamation PU(A) 148/68 the Yang di-Pertuan Agong had proclaimed all areas in the Federation to be security areas for the purposes of Part II of the Internal Security Act and by virtue of s 12 of the Revision of Laws Act 1968 under which the Internal Security Act had been revised. References to Part II should be read as references to Part III of the revised Act; (4) under s 57(1)(a) of the Evidence Act, the court is bound to take judicial notice of all laws and regulations and therefore by virtue of s 56 of the Act, the proclamation in this case need not be proved nor the fact that the locus in each case was in the Federation. Although ideally the prosecution should quote the proclamation in the charges to help the defence and the courts, failure to do so is not fatal; (5) the Attorney General has power to discriminate between persons alleged to be in possession of firearms or ammunition and to charge them differently. As in England, the Attorney General in Malaysia is permitted to take into account the public interest when deciding what charge or charges to prefer against an accused; (6) the Attorney General was not acting mala fide in charging the accused under the Internal Security Act, as the accused came within the scope of ss 57 and 58 of the Internal Security Act; (7) in Criminal Appeal Nos 39 and 40, the learned trial judge should not have ruled that the cautioned statements were admissible until he had heard the evidence of and on behalf of the accused on this issue and considered their counsel's submissions. As the only evidence that the second accused knew that the first accused had a gun was contained in his cautioned statement and that of the first accused, it would be unsafe to allow his conviction to stand and therefore his appeal would be allowed and his conviction quashed; (8) in Criminal Appeal No 43, the evidence showed that the pistol could be adapted for the discharge of a bullet and therefore was a firearm within the meaning of s 2 of the Internal Security Act. In any event under reg 21(b) of the Essential (Security Cases) Regulations 1975 (as amended) the firearm and ammunition are deemed to have been serviceable and the onus of proof to the contrary was on the accused.

Johnson Tan Han Seng v Public Prosecutor; Soon Seng Sia Heng v Public Prosecutor; Public Prosecutor v Chea Soon Hoong; Teh Cheng Poh v Public Prosecutor [1977] 2 MLJ 66 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah and Wan Suleiman FJJ).

See administrative law, para II [3].

Azman bin Abdullah v Ketua Polis Negara [1997] 1 MLJ 263 Court of Appeal, Kuala Lumpur (Siti Norma Yaakob, Abdul Malek Ahmad and Mokhtar Sidin JJCA).

The appellants who were Indonesians were convicted of the murder of three civilians by planting explosives in a building called MacDonald House in Orchard Road, Singapore, during the time of the 'confrontation' by Indonesia against Malaysia. Their appeals to the Federal Court were dismissed ([1967] 1 MLJ 137). In appealing to the Privy Council, it was argued, inter alia, that the Emergency (Criminal Trials) Regulations 1964 conflicted with art 8 of the Constitution, and the Emergency (Essential Powers) Act 1964 (Act 30/1964) did not authorize the making of regulations inconsistent with the Constitution.

Held, dismissing the appeal: the phrase 'in any written law' in the Emergency (Essential Powers) Act 1964 includes the Constitution of Malaysia. There was nothing in the context requiring an interpretation different from that prescribed in the Interpretation and General Clauses Ordinance 1948.

Osman & Anor v Public Prosecutor 1965 Privy Council Appeal from Singapore (Viscount Dilhorne, Lord Morris of Borth-Y-Gest, Lord Hodson and Sir Frederick Sellers).

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

See CONSTITUTIONAL LAW, Vol 3, para 1389.

Johnson Tan Han Seng v Public Prosecutor; Soon Seng Sia Heng v Public Prosecutor; Public Prosecutor v Chea Soon Hoong; Teh Cheng Poh v Public Prosecutor [1977] 2 MLJ 66 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah and Wan Suleiman FJJ).

See CONSTITUTIONAL LAW, Vol 3, para 1194.

Normally, the power to legislate rests with the Yang di-Pertuan Agong and the two Houses of Parliament. But, where an emergency is declared and Parliament is not sitting, then the entire power falls on His Majesty. Indeed art 150 makes provisions for such a situation, and His Majesty is dutybound to summon Parliament as soon as may be.

Government of Malaysia v Mahan Singh [1975] 2 MLJ 155 Federal Court, Kuala Lumpur (Suffian LP, Lee Hun Hoe CJ (Borneo).

See CONSTITUTIONAL LAW, Vol 3, para 1473.

This was an appeal against the conviction of the appellant for the offences of carrying a firearm and being in control of cartridges in a security area, an offence under the Internal Security Act 1960 (Act 82). The appellant was tried before a judge sitting alone and found guilty. On the appeal it was argued that (a) the proclamation of the security area was ultra vires s 47 of the Internal Security Act as it was made in respect of the whole of the Federation; (b) the Emergency (Criminal Trials) Regulations, reg 4, under which the appellant was tried and convicted, was ultra vires the Emergency (Essential Powers) Act 1964 (Act 30/1964) and/or art 8(1) of the Federal Constitution.

Held: (1) even if the proclamation is to be regarded as applying to the whole Federation, it was not ultra vires the Internal Security Act 1960; (2) the Emergency (Criminal Trials) Regulations (regs 4 and 5) are not ultra vires s 2(2)(d) of the Emergency (Essential Powers) Act 1964 (Act 30/1964) or of art 8(1) of the Federal Constitution.

Kong Kim Shing v Public Prosecutor [1973] 1 MLJ 69 Federal Court, Kuching (Ismail Khan CJ (Borneo).

The accused persons in this case had been charged for possession of firearms and ammunition contrary to s 57(1) of the Internal Security Act 1960 (Act 82). They were committed for trial in the High Court after a preliminary inquiry. The Attorney General under the provisions of the Emergency (Security Cases) Regulations 1975 certified that the offences were security offences and the accused were then liable to be tried under the 1975 regulations in accordance with the special rules of evidence and procedure enacted by the regulations. Counsel for the accused submitted that the trial should be held under the ordinary provisions of the Criminal Procedure Code and not under the 1975 regulations, on the ground that those regulations were unconstitutional and void. The learned trial judge, being of opinion that a question had arisen as to the effect of provisions of the Constitution, stopped the proceedings and referred the question of the validity of the 1975 regulations to the Federal Court. The question posed was as follows: 'Are the Essential (Security Cases) Regulations 1975 and the Essential (Security Cases) (Amendment) Regulations 1975 invalid for any of the following grounds: (a) the regulations were made when both Houses of Parliament sat after the proclamation of emergency on 15 May 1969, in contravention of cl (2) of art 150 of the Federal Constitution which empowers the Yang di-Pertuan Agong to promulgate ordinances only until both Houses of Parliament are sitting; (b) the regulations are inconsistent with certain provisions of the Federal Constitution and cl (6) of art 150 of the Constitution (which provides that no provision of any ordinance promulgated under that article and no provision of any Act of Parliament which is passed while a proclamation of emergency is in force and which declares that the law appears to Parliament to be required by reason of the emergency, shall be invalid on the ground of inconsistency with any provision of the Federal Constitution or of the Constitution of the State of Sarawak) does not extend to the regulations, on the ground that the regulations are not such an ordinance but merely subsidiary legislation made under such an ordinance; (c) the regulations were made under ss 2(3) and 2(4) of the Emergency (Essential Powers) Ordinance No 1 of 1969 and these sections are invalid in so far as they purport to delegate power to legislate provisions inconsistent with the Constitution whereas cl (2) of art 150 of the Federal Constitution does not empower the Yang di-Pertuan Agong to provide for such delegation; (d) since the regulations provide for procedure of trial of offences against the Internal Security Act 1960 which has been enacted pursuant to art 149 of the Federal Constitution (under which article any law made pursuant to it is valid even if inconsistent with arts 5, 9 or 10 of the Federal Constitution but not if inconsistent with other provisions of the Federal Constitution) the regulations must conform with art 149, but they do not conform with that article in that they are inconsistent with the provisions of the Federal Constitution other than arts 5, 9 and 10; (e) the regulations were made under the Emergency (Essential Powers) Ordinance No 1 of 1969 and that ordinance was not properly or validly promulgated under cl 2 of art 150 of the Federal Constitution.'

Held by Suffian LP and Wan Suleiman FJ (Ong Hock Sim FJ dissenting): (1) (f) the regulations were not ultra vires s 2 of the Emergency (Essential Powers) Ordinance 1969, as the power to make regulations under sub-s (2) of s 2 is expressed to be without prejudice to the generality of the powers conferred by sub-s (1) of s 2 which gives the Yang di-Pertuan Agong wide powers to 'make any regulations whatsoever which he considers desirable or expedient for securing the public safety, the defence of Malaysia, the maintenance of public order and of supplies and services essential to the life of the community' and also because para (j) of s 2(2) of the ordinance expressly gives power to the Yang di-Pertuan Agong to make essential regulations amending the law, suspending the operation of any written law and applying any written law with modification; (2) the meaning of the word 'sitting' in art 150(2) means sitting and actually deliberating. The two Houses of Parliament do not sit continuously throughout a session but hold five or six meetings in each session. Each of these meetings will last between five and ten days. It is the meeting on each day which is called a sitting; (3) that the Essential (Security Cases) Regulations 1975 and the Essential (Security Cases) (Amendment) Regulations 1975 are valid because: (a) the regulations were made not under cl (2) of art 150 of the Federal Constitution but under s 2 of the Emergency (Essential Powers) Ordinance 1969, and therefore the fact whether or not they were made when Parliament was sitting was irrelevant; (b) by virtue of sub-s (4) of s 2 of the Emergency (Essential Powers) Ordinance 1969, the regulations were valid notwithstanding that they are inconsistent with the Constitution, but in fact it had not been shown that the regulations were inconsistent with the Constitution; (c) it is lawful for the Yang di-Pertuan Agong to delegate under s 2 of the ordinance power to himself to make regulations inconsistent with the Constitution; (d) the regulations do not have to comply with art 149 of the Federal Constitution as they were made not under the authority of that article but under the authority of art 150; (e) Emergency (Essential Powers) Ordinance 1969 were properly and validly promulgated under cl (2) of art 150 of the Federal Constitution;(per Ong Hock Sim dissenting) art 55 states that the Yang di-Pertuan Agong shall not allow six months to elapse between the last sitting in one session and the date appointed for its first meeting in the next session. Parliament would still be sitting, though a week-end recess is taken.

Public Prosecutor v Khong Teng Khen & Anor [1976] 2 MLJ 166 Federal Court, Kuala Lumpur (Suffian LP, Ong Hock Sim and Wan Suleiman FJJ).

This was an application by way of motion for the following orders: (1) the Honourable Court has no jurisdiction to try the applicant under the Essential (Security Cases) Regulations 1975 and the Essential (Security Cases) (Amendment) Regulations 1975 as the said regulations are purportedly made under s 2 of the Emergency (Essential Powers) Ordinance No 1 of 1969 which is null and void and of no effect. The said regulations are accordingly void and inoperative; (2) the Honourable Court cannot legally try the applicant until there is a preliminary inquiry before a magistrate in accordance with the provisions of Chapter XVII of the Criminal Procedure Code (FMS 6); (3) any further or other order deemed fit by Honourable Court. The applicant had been charged in the Magistrate's Court, Penang: (1) that he on 13 January 1976 at about 12.35 pm at the junction of Kampar Road and Ayer Itam Road, in the District of Georgetown, in the State of Penang, without lawful excuse did have in his possession a firearm, to wit, a home-made .38 revolver, and thereby committed an offence punishable under s 57(1)(a) of the Internal Security Act 1960 (Act 82); (2) that he on the same date, time and place, in the District of Georgetown, in the State of Penang, without lawful excuse did have in his possession ammunitions, to wit, 5 rounds of .38 special revolver bullets, and thereby committed an offence punishable under s 57(1)(b) of the Internal Security Act 1960. He was committed under the provisions of reg 6 of the Essential (Security Cases) (Amendment) Regulations 1975, to stand trial in the High Court in Penang.

Held: (1) any action seeking a declaration of this nature can only be commenced by way of writ; (2) a subpoena can only be requested for purpose of trial of an action or a suit. It cannot be requested for purposes of raising a preliminary objection; (3) the Emergency (Essential Powers) Ordinance No 1 of 1969 has been promulgated under the provisions of art 50(2) of the Federal Constitution and by reason of that the Essential (Security Cases) Regulations 1975 and the Essential (Security Cases) (Amendment) Regulations 1975 are not unconstitutional and not invalid.

Teh Cheng Poh v Public Prosecutor [1978] 1 MLJ 30 High Court, Penang (Arulanandom J).

This was an appeal from the judgment of the High Court ([1978] 2 MLJ 204) convicting and sentencing to death the two appellants who had been charged with murder and having under their control firearms and ammunition without lawful excuse and lawful authority. The ground of appeal related to evidence. It was argued that the evidence was not enough to support the convictions. This argument was dismissed as having no merit. Counsel for the appellants, however, contended that the Essential (Security Cases) Regulations 1975, under which the trial was conducted, were invalid as the proclamation of emergency had not been laid before the Senate, as required by art 150(3) of the Federal Constitution.

Held, dismissing the appeal: (1) on the facts in this case the proclamation of emergency had been laid before the Senate and therefore the argument that the Essential (Security Cases) Regulations 1975 were invalid could not be sustained; (2) the court was not precluded from questioning the validity of the proclamation in this case, as s 12 of the Emergency (Essential Powers) Act 1979 (Act 216) refers to proclamations issued under any ordinance promulgated or Act enacted under Part XI of the Constitution, whereas the proclamation was issued under the Constitution itself; (3) the court was not precluded from examining the matter in this case as the votes and proceedings of the Senate were silent on the matter.

Lim Woon Chong & Anor v Public Prosecutor [1979] 2 MLJ 264 Federal Court, Kuala Lumpur (Suffian LP, Syed Othman and Ibrahim Manan FJJ).

Stephen Kalong Ningkan v Government of Malaysia [1968] 1 MLJ 119 Federal Court, Kuala Lumpur (Barakbah LP, Azmi CJ (Malaya).

See constitutional law, Vol 3, para xxx.

Stephen Kalong Ningkan v Government of Malaysia [1968] 2 MLJ 238 Privy Council Appeal from Malaysia (Lord MacDermott, Lord Hodson, Lord Upjohn, Lord Donovan and Lord Pearson).

See CONSTITUTIONAL LAW, Vol 3, para 1105.

At about 5.30 am on the morning of 22 April 1985, after the state elections in Sabah, the plaintiff took the prescribed oath of office of a Chief Minister before the first defendant. The same day the first defendant purported to revoke the appointment as Chief Minister of the plaintiff. At about 8.00 pm the same day, the first defendant appointed and swore in the second defendant as Chief Minister. The plaintiff sued for a declaration that the first defendant's revocation of the plaintiff's appointment as Chief Minister and the appointment of the second defendant as the Chief Minister were ultra vires the Constitution of Sabah. The plaintiff also claimed an injunction to restrain the second defendant from exercising the powers of the Chief Minister. The main issues before the court were: (1) Whether the alleged appointment of the plaintiff as Chief Minister should be an issue to be considered by the court? (2) Whether there was such an appointment and, if so, whether it was a valid one? In this respect it was necessary to consider the following: (i) Which party has the evidential burden to prove that there was or was not a valid appointment? (ii) Did the plaintiff enter the Istana on the invitation of the first defendant or was there a conspiracy to effect the plaintiff's entry? (iii) Did the first defendant decide to appoint the plaintiff as Chief Minister before the latter's arrival? (iv) Did the circumstances under which the plaintiff was sworn in allow the Yang di-Pertua Negeri to make his judgment quietly, independently and in a dignified manner as intended by the Constitution? (v) Was there duress in securing the appointment of the plaintiff? (3) Whether the swearing in of the plaintiff by the first defendant was valid in law? (4) Whether the taking of the oath is sufficient to constitute a valid and complete appointment or whether a letter of appointment is required? (5) Is the Yang di-Pertua Negeri's discretion to appoint a Chief Minister under art 6(3) of the Sabah Constitution reviewable by the courts? (6) Can nominated members be taken into account in making an appointment under art 6(3)? (7) Can the legal appointment of a Chief Minister be validly terminated by the Yang di-Pertua Negeri? (8) Was the subsequent appointment of the second defendant as Chief Minister valid in law? And was it made willingly, voluntarily and freely, without any influence, pressure or threat from anyone? (9) Is notification in the Gazette of the appointment of the Chief Minister conclusive evidence of the appointment?

Held: (1) the matter of the alleged appointment of the plaintiff as Chief Minister was an issue to be tried. The issues in this case are legal matters, although in the circumstances, some of them smack of political flavour, but this factor alone does not have the effect of ousting the jurisdiction of the court. Furthermore, the courts will not shun to decide seemingly political questions when the Constitution or statute has to be interpreted to answer them; (2) the defendants being the party to begin, the evidential burden lies upon them to prove that there was no, or no valid, appointment; (3) on the whole of the evidence and bearing in mind the burden of proof and on the evidence as accepted by the court, the plaintiff did not enter the Istana on the invitation or with the permission of the first defendant; (4) after considering the whole of the evidence and on the evidence as accepted by the court and bearing in mind the burden of proof, the first defendant did not decide to appoint the plaintiff as Chief Minister before the latter's arrival; (5) (b) such a swearing in was made solely as a result cumulatively of the pressure and threat operating on his mind and when he was frightened and confused in mind and tired physically and when he was unable to think properly; (6) in swearing in the plaintiff in the circumstances as found by the court, the first defendant has made no judgment under art 6(3) of the Sabah Constitution. Accordingly such swearing in is null, void and of no legal effect; (7) on the assumption that the court is wrong in holding that the swearing in is null, void and of no legal effect and that the taking of the oath is sufficient to constitute an appointment, it is necessary to consider whether it was vitiated by duress, as pleaded by the defence. On the evidence in this case, the defendants have not succeeded in proving the defence of duress, as pleaded by them; (8) taking all the relevant evidence into consideration, the appointment of the second defendant by the first defendant was made willingly, voluntarily and freely, without any influence, pressure and threat from anyone; (9) when the second defendant drafted the letter of revocation of the appointment of the plaintiff, he did so under the impression that the first defendant had appointed the plaintiff as Chief Minister. The second defendant did not seek confirmation from the first defendant nor was he told by the latter that that was in fact so; (10) the termination of the appointment of a Chief Minister by a letter of revocation is not valid; (11) there was sufficient cogent evidence in this case to conclude that there was a conspiracy to effect the entry of the plaintiff to the Istana and to have him appointed as Chief Minister and that the first defendant was to be persuaded to do so; (12) bearing in mind the relevant principles regarding the proper approach to the interpretation of constitutions and the importance of the subject of the appointment, as well as the tradition and usage pertaining to the appointment of a Chief Minister and despite the absence of express provision in the Sabah Constitution, a signed and sealed instrument is constitutionally required for the appointment as Chief Minister; (13) the taking of the oath by the plaintiff without a signed and sealed instrument of appointment does not suffice to constitute an appointment of Chief Minister under art 6(3) of the Sabah Constitution. It follows that there has been no valid appointment of the plaintiff made thereunder; (14) the 'conclusive evidence' in s 5 of the Chief Minister (Incorporation) Ordinance refers to the fact, together with any procedural requirements, of the appointment as distinct from the conclusiveness of the appointment itself so as to bar any challenge of the legality of the appointment; (15) in a case where the appointment of a Chief Minister has been validly made, there is no power for the head of state to either revoke such an appointment or to dismiss the Chief Minister; (16) any constitutional convention under a wholly elected Legislature is not a convention of which the court can take judicial notice, so as to recognize its existence as an aid for and background to the interpretation of the relevant provisions of the Sabah Constitution; (17) on the evidence as accepted by the court, the first defendant in swearing in the plaintiff as Chief Minister, did not exercise his judgment under the Sabah Constitution in that: (a) he did not take into account the post-election position of PBS as he was waiting for the official election results to be declared. In other words, the first defendant, contrary to what he was required to do under art 6(1) of the Sabah Constitution, did not take into account the actual number of elected seats won by PBS because he was at all material times waiting for official results to be announced;the head of state may not constitutionally take into account any nominated member for the purpose of making his judgment in the choice of a Chief Minister; nor can he constitutionally take any of them into consideration for the purpose of inflating the seats of a party having a minority of elected seats, in order to secure a majority over the party with the majority of elected seats. If he does so, such a judgment would not be in accordance with the requirements of art 6(3) of the Sabah Constitution. Semble: (i) where a witness has been found to be not telling the truth on certain matters, it does not necessarily follow that that would be so in respect of other matters which have to be independently and separately considered; (ii) whether evidence has been fabricated for the purpose of these proceedings is a matter that requires a standard of proof which is that of a criminal standard of proof beyond any reasonable doubt.

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).

Following the Sabah state elections on 18 and 19 February 1994, Datuk Joseph Pairin Kitingan ('Datuk Pairin') was appointed Chief Minister of Sabah. On the advice of Datuk Pairin, other elected members from his party, including the plaintiff, were appointed to form the State Cabinet on 21 February 1994. Subsequent to defections by three members of the State Legislative Assembly ('the Assembly') from his party to the opposition, Datuk Pairin requested the Yang di-Pertua Negeri, the first defendant, to dissolve the Assembly but the first defendant withheld his consent. Datuk Pairin later tendered his resignation as Chief Minister of Sabah on 17 March 1994. He, however, did not tender the resignation of the other members of his Cabinet. On the same day, the first defendant appointed the second defendant as the new Chief Minister to replace Datuk Pairin. On 24 March 1994, the first defendant, on the advice of the second defendant, appointed the third to ninth defendants as the other members of the Cabinet of the second defendant. The plaintiff sought a declaration that since no motion of no confidence was ever tabled in the Assembly against Datuk Pairin, his resignation was personal to him and did not affect the appointment of the plaintiff as a Deputy Chief Minister and Minister of Agriculture and Fisheries. The plaintiff also sought a declaration that the first defendant had acted ultra vires the provisions of the Sabah State Constitution ('the Constitution') by purportedly appointing the third to ninth defendants as members of the Cabinet when at all material times the appointments of the plaintiff and the other Cabinet members had not been revoked nor had they resigned.

Held, dismissing the application with costs: (1) under art 7(1) of the Constitution, if the Chief Minister ceases to command the confidence of a majority of the members of the Assembly, then he shall tender the resignation of the members of the Cabinet. The mere fact that Datuk Pairin chose to tender only his resignation as the Chief Minister would not make the other members of the Cabinet remain in office. The resignation of Datuk Pairin was a resignation of the whole of his Cabinet including the plaintiff and the issue of the resignation and the revocation of the appointment of the other Cabinet members did not arise. The intention behind the requirement in art 7(1) of the Constitution for a Chief Minister to tender the resignation of the members of the Cabinet was to enable a new Cabinet to be formed pursuant to art 6 of the Constitution; (2) a vote in the Assembly is not the only means to determine the confidence of the members of the Assembly in the Chief Minister but depends on the circumstances. Other extraneous matters may provide sufficient evidence to establish the fact of the Chief Minister ceasing to command the confidence of a majority of the members of the Assembly for the purposes of art 7(1) of the Constitution; (3) the dissolution of the existing Cabinet under art 7 does not involve the Yang di-Pertua Negeri or necessarily, the members of the Assembly. The Article merely requires the Chief Minister to tender the resignation of the members of his Cabinet if he ceases to command the confidence of a majority of the members of the Assembly; (4) under art 7(1) and through established convention, the Cabinet may also be dissolved on account of the Chief Minister losing the confidence of a majority of the members of the Assembly which can be evidenced by various circumstances. The Constitution does not state that the only evidence of such fact must be through the actual vote in the Assembly. Thus if the Chief Minister does not tender the resignation of the other members of his Cabinet wherein the Cabinet is to be treated as dissolved under art 7(1) of the Constitution, their offices are deemed to have been vacated; (5) as the Cabinet constituted on 21 February 1994 had been dissolved, the appointment of the second defendant as the new Chief Minister by the first defendant on 17 March 1994 was valid and constitutional, as were the appointments of the second to the ninth defendants on 24 March 1994 under art 6(3) of the Constitution; (6) (per curiam) (i) apart from the constitutional provisions, it is a well-established convention in Sabah that upon the death or resignation of the Chief Minister, the Cabinet stands dissolved. The appointments of all its members are deemed to be vacated, and if any of the members are to continue to be in the new Cabinet, they have to be reappointed upon the advice of the new Chief Minister; (ii) art 6(1) of the Constitution cannot be read to mean that there must be a Cabinet in existence at all times. It can only be read to mean that there must be a Cabinet to advise the Yang di-Pertua Negeri, for the Yang di-Pertua cannot dispense with this body if he is to exercise his constitutional functions.

Datuk (Datu) Amir Kahar bin Tun Datu Haji Mustapha v Tun Mohd Said bin Keruak Yang di-Pertua Negeri Sabah & Ors [1995] 1 MLJ 169 High Court, Kota Kinabalu (Abdul Kadir Sulaiman J).

The applicant, Dr Chuang, was found 'to have been guilty of infamous conduct in a professional respect' after due inquiry by the Medical Council on 8 February 1993. His name was ordered to be removed from the register of medical practitioners. There were 14 charges of 'infamous conduct in a professional respect' concerning 14 named patients of Dr Chuang, to each of whom he was said to have over-prescribed drugs of the benzodiazepine group or family of drugs by prescribing excessive quantities. There were two complaints made against Dr Chuang. The first complaint dated 9 July 1990 covered the period November 1989 to April 1990 and the second complaint, the period January 1989 to February 1990. If the periods of investigation were combined, the period extended from January 1989 to April 1990. One of the members of the Medical Council which heard the complaints against Dr Chuang, a Dr Chew Chin Hin ('Dr Chew'), had at various times during that period, acted as the director of medical services and permanent secretary of the Ministry of Health while holding the substitutive post of deputy director of medical services (hospitals). Dr Chuang sought to have the orders of the Medical Council set aside. Counsel for Dr Chuang argued that there was a breach of the rules of natural justice and that the Medical Council's finding of guilt was wrong both in law and in fact. The miscarriage of justice alleged concerned the composition of the Medical Council which heard the complaint against Dr Chuang. Counsel submitted that the complaints, although made by Miss Amy Lim, the deputy director of the drug administration division of the Ministry of Health, were constitutionally the complaints of the Ministry of Health. Dr Chew, who had periodically acted as the chief executive officer of the Ministry of Health for the last eight months of the investigation and for three periods after the close of the investigation, should have disqualified himself from sitting as a member of the Medical Council which heard the complaints emanating from his ministry. This point was put to the Medical Council at the inquiry by counsel for Dr Chuang but the Medical Council decided, after a closed session deliberation, not to disqualify Dr Chew. Counsel for Dr Chuang argued that by not disqualifying himself, there was a breach of the rules of natural justice as it could not be said that Dr Chew and the Medical Council were free from reasonable suspicion of bias.

Held, allowing the application but ordering a rehearing by a different Medical Council: (1) the investigation by the inspectors from the Ministry of Health into the excessive prescribing and dispensing of the drug by Dr Chuang and the complaint against him by the deputy director of the drug administra- tion division of the ministry is constitutionally the investigation and complaint of the Minister of Health; (2) the proper test to be applied where bias or prejudice of a disciplinary tribunal is questioned is as set out in Re Singh Kalpanath [1992] 2 SLR 639 and De Souza Lionel Jerome v A-G [1993] 1 SLR 882. The test is 'reasonable suspicion of bias seen through the eyes of a reasonable person with knowledge of all matters in evidence before the court where the decision of the tribunal is challenged' where 'reasonable suspicion of bias means suspicion that is well founded and of sufficient gravity in the circumstances of the case'; (3) policy which originates from the minister is passed down through the chief executive officer to the head of the department or division in question and thence to the staff for execution. It must follow that Dr Chew when he acted as the chief executive officer of the Ministry of Health, particularly as he acted as the chief executive officer during a part of the period of investigation, was party to the policy or the decision to investigate into the over-prescribing or the excessive prescribing of the drug by medical practitioners and accordingly has to be imputed with bias if he participates in any inquiry into allegations of over-prescribing of the drug; (4) or, if not actually, at least likely to have seen some memorandum reporting the making of the complaint and thus directly or indirectly 'been associated with any of the matters, the subject of this proceeding'. Any reasonably minded person sitting at the back of the hearing room listening to the inquiry would conclude that this is so and on hearing the Medical Council rule that Dr Chew was not disqualified would go away saying to himself: 'there can be no fair trial from this tribunal'; (5) since there was in this case reasonable suspicion of bias and Dr Chew ought to have disqualified himself and the Medical Council ought to have ruled that Dr Chew was disqualified from sitting as a member of the Medical Council, the proceedings of the Medical Council were void; (6) it is not unreasonable in this situation to assume that although Dr Chew may not actually have given any direction as to how the investigation should proceed, he would likely have done so; or seen, if not actually, at least likely, some memorandum reporting on the progress or the results of the investigation; or if not actually authorized the complaint, at least likely to have authorized the complaint;s 24(1) of the Medical Registration Act provides that on an appeal to the High Court, 'the High Court may give such directions as it thinks proper.' In the court's view, there was a public interest element arising from the 14 charges with which Dr Chuang was charged. The use or misuse of drugs by those who are authorized by law to dispense them is a matter of public concern and the fact that Dr Chuang had succeeded in setting aside the findings of the Medical Council through the misconduct of its proceedings should not, in its view, be a bar to a determination of the merits of the charges made against him. There ought, therefore, to be a rehearing.

Re The Medical Registration Act (Cap 174); Re Chuang Wei Ping [1994] 1 SLR 176 High Court, Singapore (Karthigesu JA).

Article 6(3) of the Constitution of the State of Sarawak gives power to the Governor to appoint as Chief Minister a member of the Council Negri who in his judgment is likely to command the confidence of a majority of the members of the Council Negri, while art 7(1) provides that if the Chief Minister ceases to command the confidence of a majority of the members of the Council Negri, then unless at his request the Governor dissolves the Council Negri, the Chief Minister shall tender the resignation of the members of the Supreme Council. On 16 June 1966, the Governor of Sarawak (the first defendant) received a letter signed by 21 members of the Council Negri to the effect that the writers had no longer any confidence in the plaintiff, their Chief Minister. The Governor thereupon wrote and informed the plaintiff on 16 June that from representations he had received he was satisfied that the plaintiff had ceased to command the confidence of the Council Negri and invited the plaintiff to resign. The plaintiff in his reply of 17 June informed the Governor that the Governor's views as to the loss of confidence of the members of the Council Negri in the plaintiff was not supported by the meeting of the Council Negri held on 14 June and the plaintiff in the same letter requested that he be supplied with the names of the persons who had signed the representations. In reply to this letter, the Governor in his letter of the same date informed the plaintiff that as the plaintiff had refused to tender the resignation of members of the Supreme Council in accordance with art 7(1) of the Constitution of the State of Sarawak (although the plaintiff had ceased to have the confidence of a majority of the members of the Council Negri) he declared that the plaintiff and other members of the Supreme Council had ceased to hold office and appointed the second defendant as Chief Minister forthwith. The Governor also forwarded a list of the names of persons who had signed the representations as requested by the plaintiff. The plaintiff thereupon commenced proceedings against the Governor and the second defendant claiming the following reliefs: (a) a declaration that the Governor acted unconstitutionally when he declared on 17 June that the plaintiff had ceased to hold the office of Chief Minister; (b) a declaration that the Governor should not have relieved the plaintiff from the office of Chief Minister on the ground of alleged loss of confidence in the plaintiff as Chief Minister; (c) a declaration that the purported dismissal of the plaintiff by the Governor was ultra vires, null and void; (d) a declaration that the plaintiff is and has been at all material times the Chief Minister of Sarawak and (e) an injunction restraining the second defendant from acting as Chief Minister.

Held: (1) the Governor of Sarawak was limited by art 6(3) of the Constitution of Sarawak to appointing as Chief Minister a member of the Council Negri who in his judgment was likely to command the confidence (and approval) of the Council Negri and, therefore, it followed by s 21 of the Interpretation Ordinance that only when the Council Negri had shown lack of confidence (and lack of approval) could the Governor's power to dismiss, if it exists, be exercised. Under the provisions of the Sarawak Constitution lack of confidence may be demonstrated only by a vote in the Council Negri; (2) if the Constitution of Sarawak could be construed as giving to the Governor a power to dismiss the Chief Minister when he had refused to resign and failed to advise a dissolution then in this case the plaintiff was never given a reasonable opportunity to tender his resignation or to request a dissolution; (3) the purported dismissal of the plaintiff by the Governor was ultra vires, null and void and judgment should be entered as prayed.

Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli [1966] 2 MLJ 187 High Court, Kuching (Harley Ag CJ).

[Annotation: See the decisions of the Federal Court and the Privy Council in [1968] 1 MLJ 119 and [1968] 2 MLJ 238 respectively.]

In this case, it was

Held by Sproule J: (1) the power to dismiss a public servant of the Colony at will does not depend upon the prerogative but upon rules of contract and of public policy; (2) a contract of service with the Crown is to be construed as containing an implied term, well-known to all public servants, that they hold at pleasure only; (3) in the absence of any statute or custom the courts should apply this fundamental rule of public policy and good government in the State of Kedah and hold that into all contracts of service under the state must be read an implied term, well known to all public servants, that they hold office only during pleasure and are dismissable at will, without any right or recourse to suit for salary or pension or for damages for wrongful dismissal. Held by Stevens J: (1) there was nothing to show that the act of the Sultan in Council in dismissing one of his servants is not a valid exercise of his royal prerogative; (2) a public servant by the terms of his engagement has no legal right as against the Crown to continuity of employment, promotion or pension; (3) the position of a public servant in the service of the State of Kedah is precisely similar to that of public officers in the service of the Colony of the Straits Settlements; (4) the omission of the State Council to follow the provisions of the General Orders cannot confer on the appellant any actionable right as against the state.

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

The question for determination by the tribunal was as follows: 'Whether because art 5(2A) of the Constitution has not been brought into operation, the President has the power under art 22H(1) of the Constitution to withhold his assent to any Bill seeking to amend any of the provisions referred to in art 5(2A), and specifically to any Bill seeking to amend art 22H to restrict the President's powers thereunder to any non-constitutional Bill which provides directly or indirectly for the circumvention or curtailment of the President's discretionary powers conferred upon him by the Constitution.'.

Constitutional Reference No 1 of 1995 [1995] 2 SLR 201 Constitution of the Republic of Singapore Tribunal (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The respondent had been tried and convicted on a charge under s 57(1) of the Internal Security Act 1960 (Act 82) and sentenced to death by the High Court at Kuala Lumpur on 14 June 1983. His appeal to the Federal Court was dismissed on 26 October 1983, and on his case being referred for clemency to His Majesty the Yang di-Pertuan Agong under s 281(c) of the Criminal Procedure Code ('the Code') for consideration in accordance with the provisions of art 42 of the Constitution of Malaysia read with reg 29 of the Essential (Security Cases) Regulations 1975 ('the regulations'), the sentence of death was confirmed and ordered to be carried out and an order to this effect was issued by His Majesty on 20 April 1985. Pursuant thereto a warrant was issued setting the date for execution as 3 July 1985. The respondent then commenced an action on 2 July 1985 against the first and third appellants and the Pardons Board, Malaysia, instead of the second appellant, for declarations impugning the rejection of clemency on the ground of discrimination in breach of art 8 of the Constitution. Hashim J granted a stay of execution of the sentence on that very day but this was later lifted and the action struck out on an application by the defendants thereto. An application for a stay and an appeal against that decision were heard together and dismissed by the Supreme Court on 23 July 1985. See [1985] 2 MLJ 385. The respondent then instituted the present suit against the first three appellants on 13 August 1985. His application for a stay of execution of the sentence was refused but the Yang di-Pertuan Agong in the exercise of the powers of clemency vested in him granted a respite pending the final disposal of these proceedings. The first three appellants applied to strike out the second appellant as a party and to set aside this action as an abuse of the process of the court. Hashim J dismissed this application on 17 October 1985. The appellants appealed and about ten days before the hearing of the appeal the respondent obtained an order from the learned judge to join the fourth appellant as a party to this action and to amend the writ and statement of claim. At the outset of the hearing of the appeal an application was made on behalf of the respondent to include the amended writ and statement of claim in the record of appeal and this was allowed. On the basis of the amended pleading, the relief the respondent sought was for declarations to the effect that the fourth appellant, the Pardons Board for Security Offences which considered the respondent's case, was not lawfully constituted, that the second appellant, the Pardons Board for the Federal Territory, was the proper body for that purpose, that the decision of the Pardons Board dated 20 April 1985 was void and legally ineffective, that the warrant or warrants of execution of sentence of death were equally void and of no effect and that the Pardons Board had acted unfairly and in breach of the rules of natural justice and of the provisions of arts 42, 5(1) and 8(1) of the Constitution, and for a stay of execution pending the final disposal of the imminent proceedings.

Held: (1) the power of pardon or otherwise to mete out clemency is an executive power and in the Federal Constitution the royal prerogative of mercy is expressly preserved by art 42 of the Constitution and is recognized by its inclusion in Chapter 3 of Part IV of the Constitution as an executive power. When the Constitution has empowered the nation's highest executive as the repository of clemency power, the court cannot intervene and judicial review is excluded by implication; (2) the fourth appellant is the appropriate Pardons Board properly constituted under the Essential (Security Cases) Regulations 1975, and was the proper body for the purpose of advising the Yang di-Pertuan Agong under art 42 of the Federal Constitution read with reg 29 of the regulations; (3) the scope of the duty to act fairly imposed by the rules of natural justice depends upon the subject-matter and circumstances of each case and in this case neither the Federal Constitution nor the Criminal Procedure Code contained the requirements requiring the Pardons Board to act in the manner contended for by the respondent; (4) the plea of res judicata applied in this case and there is moreover the inherent jurisdiction of the court in cases where res judicata is not strictly established and where estoppel per rem judicatam has not been sufficiently pleaded or made out, but nevertheless the circumstances are such as to render any reagitation of the questions formerly adjudicated upon a scandal and an abuse, to enable the court to dismiss the action or stay proceedings or strike out the defence, as the case may require; (5) although there were two warrants of execution of sentence issued under s 281 of the Criminal Procedure Code and a third may be issued, this is not unlawful as the matter is envisaged and provided for under s 281(d)(ii) of the Code and in any event s 28(1) of the Interpretation and General Clauses Ordinance 1948 specifically provides that a power conferred or a duty imposed by a written law may be exercised or performed from time to time as occasion requires; (6) the order of the learned judge should be set aside and the action instituted by the respondent struck out.

Superintendent of Pudu Prison & Ors v Sim Kie Chon [1986] 1 MLJ 494 Supreme Court, Kuala Lumpur (Salleh Abas LP, Hashim Yeop A Sani and Abdoolcader SCJJ).

[Annotation: See LR Penna, 'Pardoning Power and the ÒSagaÓ of Sim Kie Chon' (1987) 8 Sing LR 106.]

This was an appeal from the decision of the High Court ordering that the appellant's statement of claim be struck out and the order for stay of execution dissolved. The appellant had been sentenced to death and his appeal had been dismissed by the Federal Court. The Pardons Board had tendered its advice to the Yang di-Pertuan Agong and no pardon, reprieve or respite had been granted. In his statement of claim, the appellant had alleged that the Pardons Board had not considered the petition for mercy properly. It was also alleged that by the failure to commute the sentence the Pardons Board had acted unconstitutionally contrary to art 8 of the Federal Constitution.

Held: (1) the learned judge was right in holding that no cause of action was disclosed. There was no merit in the contention of the appellant for it is not the function of the Pardons Board to commute a death sentence. Its function is merely to tender advice; (2) in the present case, although the Pardons Board tendered advice to the Yang di-Pertuan Agong, clearly the Yang di-Pertuan Agong himself exercised the power in accordance with art 42(1) of the Federal Constitution read with reg 29 of the Essential (Security Cases) Amendment Regulations 1975. Such power is a power of high prerogative of mercy which is an executive act but by its very nature is not an act susceptible or amenable to judicial review; (3) a sentence of death imposed by a court of law on a convicted person who has since exhausted his legal remedies will not be carried out only if the Yang di-Pertuan Agong or the ruler of a state or the Yang di-Pertuan Negeri as the case may be, commutes the death sentence in exercise of the powers under art 42 of the Federal Constitution. If there is to be stay of such execution, the power to stay is only exercisable by the Yang di-Pertuan Agong or the ruler of a state or the Yang di-Pertuan Negeri, as the case may be; (4) a decision made pursuant to an exercise of royal prerogative of mercy cannot be varied or confirmed by the courts there being no jurisdiction to do so. Proceedings in court aimed at questioning the propriety or otherwise of such a decision are therefore not justiciable; (5) there is therefore no justification to interfere with the learned judge's decision in this case. Both the order to strike out the statement of claim and to dissolve the order for stay of execution are confirmed.

Sim Kie Chon v Superintendent of Pudu Prison & Ors [1985] 2 MLJ 385 Supreme Court, Ipoh (Abdul Hamid CJ (Malaya).

This was an application for a writ of habeas corpus. The applicant had been detained under an order issued by the Federal Secretary, Sarawak. The order of detention purported to be made under the Preservation of Public Security Ordinance 1962 but directed the detention of the applicant in Taiping Prison, Perak. The Preservation of Public Security Ordinance 1962, originally a Sarawak Ordinance, had been declared to be a federal law by the Modification of Laws (Declaration of Federal Present Laws) (Sarawak) Order 1965.

Held: (1) when the Preservation of Public Security Ordinance was enacted in 1962 its operation was limited as it was intended to limit its operation to the colony of Sarawak only. The ordinance had no extra-territorial effect; (2) the legal effect of declaring the Preservation of Public Security Ordinance to be a federal law was to transfer the responsibility of administering the federal law to the federal authority and to vest in the Federal Parliament the power to amend or to repeal the said law; (3) the Modification of Laws (Declaration of Federal Present Laws) (Sarawak) Order 1965 did not extend the operation of the Preservation of Public Security Ordinance throughout Malaysia and therefore the ordinance and the regulations made thereunder applied only to the State of Sarawak and did not have legal force outside the State of Sarawak; (4) as the court was not satisfied that the detention of the applicant in Peninsular Malaysia was lawful, a writ of habeas corpus would be issued for the production and the release of the applicant.