The plaintiff, the registered owner of a design in respect of wooden stools, claimed under the United Kingdom Designs (Protection) Ordinance 1949 for an injunction to restrain the defendant from infringing his design registered under the Registered Designs Act 1949 of the United Kingdom and an order for the defendants to deliver up all infringing materials manufactured in the course of infringement of the said design, an account of all stools to which the said design had been applied, made or sold or exposed for sale by the defendant; and profit made thereby; and damages and costs. The defence was that there was no infringement of the design because the design was not new or original and that stools of such design or of a design not substantially different had been manufactured for several years by the defendant and other furniture makers in the Federation of Malaya prior to the registration of the said design by the plaintiff. The defendant counterclaimed under s 4 of the ordinance that exclusive privileges and rights in the said design had not been acquired in the Federation of Malaya by the plaintiff.

Held: there was publication of the design prior to the date of registration because stools substantially similar to those which had been manufactured to the design which was registered had been made by the defendant and sold to the public, presumably at a profit, in considerable quantities either directly or through furniture dealers over a period of five years prior to the registration of the design and, consequently, the design was not new or original.

Teh Teik Boay v Chuah Siak Loo [1962] MLJ 80 High Court, Penang (Hepworth J).

The plaintiffs were manufacturers and distributors of, inter alia, gold-plated orchids marketed under the Risis label. The plaintiffs' predecessor was Setsco Pte Ltd ('Setsco'). In 1982, Setsco started producing and marketing an ornament based on its own interpretation and conception of the national flower, Vanda Miss Joaquim (a sample of which was produced in court as exhibit P-22). In 1985, the plaintiffs took over the business of Setsco. On 23 December 1985, the plaintiffs applied for registration of their own interpretation of the national flower under the UK Registered Designs Act 1949 ('the RDA'). They obtained registration of the design in respect of its application to an ornamental piece for use in the construction of a fashion accessory. In 1986, the plaintiffs started producing and selling ornaments allegedly fashioned to the registered design. The defendants were manufacturers or retailers of gold-plated ornamental orchids incorporated as part of jewellery items. When the plaintiffs discovered that the defen-dants were selling products which they considered to be infringing their registered design, they commenced these actions and obtained an interim injunction and Anton Piller order against each of the defendants. At the trial of these consolidated suits, the defences were that (a) the registration of the plaintiffs' registered design was invalid because it was not new or original within the meaning of s 1(2) of the RDA; and (b) there was no infringement as the defendants' products were not substantially similar to the plaintiffs' registered design. Held, dismissing the plaintiffs' claim and allowing the defendants' counterclaim: (1) on a comparison between the registered design and P-22, the court found that there was a substantial similarity between the two. However, there were also differences: firstly, there was considerably more spacing between the top petal and the top side petals in P-22 than there was in the registered design, secondly, there was an overlapping of the bottom two side petals over part of the top side petals, a feature which was not evident to any extent in the registered design; thirdly, the shape of the lip of the orchid was more pointed in the registered design than in P-22; (2) on comparing the defendants' products with the registered design, the court found the following differences: firstly, the top petal and the two upper side petals in the defendants' products were clearly separated whereas this separation was not evident in the registered design; secondly, the defendants' products were slightly, but perceptibly, elongated whereas the registered design was more rounded; thirdly, the lower two side petals in the defendants' products were set a little back from the top two, giving rise to an 'overlapping' feature which was not evident in the registered design; fourthly, the petals in the defendants' products were smaller relative to the whole object and were not as full and rounded as those in the registered design; finally, the defendants' products had a lighter or more spacious 'feel' about them and were not so ponderous as the registered design; (3) in judging novelty and infringement, the eye is to be the judge about similarities and differences. However, it is the general impression of an object as a whole that may be more important; (4) the typical customer of the plaintiffs' or the defendants' products, apart from a man buying as gift for a lady friend or relative, was probably a lady with some experience in buying and using costume jewellery. She would have an eye for a fair amount of detail in the object, which she would inspect before buying. In addition to the general appearance of the object seen at a distance, she would probably look at it at closer range, perhaps at a book-reading distance; (5) applying this approach on the issue of novelty, and having regard to the similarities and differences between the registered design and P-22 noted above, a fair conclusion was that the registered design was an evolution of P-22, rather than a duplicate of it or something differing in minor detail from it. There was therefore some novelty in the registered design when compared with P-22. The defendants, who had the burden on this issue, had not established a case that the registered design was not new or original within the meaning of s 1(2) of the RDA; (6) nevertheless, there is no infringement of a design which is based on a common object provided the article complained of differs even in comparatively small aspects with the registered design. Having regard to the differences between the defendants' products and the plaintiffs' registered design, the defendants had not infringed the plaintiffs' registered design.

Risis Pte Ltd v Polar Gems Pte Ltd & Ors [1995] 1 SLR 88 High Court, Singapore (Warren LH Khoo J).

The plaintiffs were manufacturers and distributors of, inter alia, gold-plated orchids marketed under the Risis label. The plaintiffs' predecessor was Setsco Pte Ltd (Setsco). In 1982, Setsco started producing and marketing an ornament based on its own interpretation and conception of the national flower, Vanda Miss Joaquim (a sample of which was produced in court as exh P-22). In 1985, the plaintiffs took over the business of Setsco. On 23 December 1985, the plaintiffs applied for registration of their own interpretation of the national flower under the UK 1949 Registered Designs Act (the RDA). They obtained registration of the design in respect of its application 'to an ornamental piece for use in the construction of a fashion accessory, such as a pendant, brooch or earring.' In 1986, the plaintiffs started producing and selling ornaments allegedly fashioned to the registered design. The defendants were manufacturers or retailers of gold-plated ornamental orchids incorporated as part of jewellery items like earrings, bracelets, pendants and so on. When the plaintiffs discovered that the defendants were selling products which they considered to be infringing their registered design, they commenced these actions and obtained an interim injunction and Anton Piller order against each of the defendants. At the trial of these consolidated suits, the defences were that (a) the registration of the plaintiffs' registered design was invalid because it was not new or original within the meaning of s 1(2) of the RDA; and (b) there was no infringement as the defendants' products were not substantially similar to the plaintiffs' registered design.

Held, dismissing the plaintiffs' claim and allowing the defendants' counterclaim: (1) thirdly, the shape of the lip of the orchid was more pointed in the registered design than in P-22; (2) finally, the defendants' products had a lighter or more spacious 'feel' about them and were not so ponderous as the registered design; (3) in judging novelty and infringement, the eye is to be the judge about similarities and differences. However, it is the general impression of an object as a whole that may be more important; (4) the typical customer of the plaintiffs' or the defendants' products, apart from a man buying as gift for a lady friend or relative, was probably a lady with some experience in buying and using costume jewellery. She would have an eye for a fair amount of detail in the object, which she would inspect before buying. In addition to the general appearance of the object seen at a distance, she would probably look at it at closer range, perhaps at a book-reading distance; (5) applying this approach on the issue of novelty, and having regard to the similarities and differences between the registered design and P-22 noted above, a fair conclusion was that the registered design was an evolution of P-22, rather than a duplicate of it or something differing in minor detail from it. There was therefore some novelty in the registered design when compared with P-22. The defendants, who had the burden on this issue, had not established a case that the registered design was not new or original within the meaning of s 1(2) of the RDA; (6) on a comparison between the registered design and P-22, the court found that there was a substantial similarity between the two. However, there were also the following differences: firstly, there was considerably more spacing between the top petal and the top side petals in P-22 than there was in the registered design, secondly, there was an overlapping of the bottom two side petals over part of the top side petals, a feature which was not evident to any extent in the registered design;on comparing the defendants' products with the registered design, the court found the following differences: firstly, the top petal and the two upper side petals in the defendants' products were clearly separated whereas this separation was not evident in the registered design; secondly, the defendants' products were slightly, but perceptibly, elongated whereas the registered design was more rounded; thirdly, the lower two side petals in the defendants' products were set a little back from the top two, giving rise to an 'overlapping' feature which was not evident in the registered design; fourthly, the petals in the defendants' products were smaller relative to the whole object and were not as full and rounded as those in the registered design;nevertheless, there is no infringement of a design which is based on a common object provided the article complained of differs even in comparatively small aspects with the registered design. Having regard to the differences between the defendants' products and the plaintiffs' registered design, the defendants had not infringed the plaintiffs' registered design.

Risis Pte Ltd v Polar Gems Pte Ltd & Ors [1995] 1 SLR 88 High Court, Singapore (Warren LH Khoo J).

A firm of jewellers, IB Ltd employed K, as a salesman and they handed to him certain articles of jewellery to be sold by him on their behalf at certain prices stipulating that the property in the said goods was to remain in the company until the said prices were paid to the company. The salesman K, thereafter handed some of the articles to one Y, whom he had previously employed as a broker for purposes of sale and he took from Y, receipts in which the articles were stated as having been received from IB Ltd each receipt being marked 'for approval'. Y, while ostensibly agreeing to the trust which he secretly intended to disregard, took the articles and at once pawned them with various pawnbrokers.

Held: Y was a mercantile agent and he was acting in the ordinary course of business of a mercantile agent and accordingly he had power to sell the jewellery. An agent who has been entrusted with the power of sale has also got the lesser power to pledge the articles and therefore the pawnbrokers had good titles and the jewellery should only be delivered to IB Ltd on payment by them to the pawnbrokers of the amounts paid by the pawnbrokers to the pledger in each case.

R v Yoon Choon Pawnshop [1939] MLJ 125 High Court, Straits Settlements (Howes J).

[Annotation: Reference may usefully be made to the Editorial Note under the heading 'Disposal of property under the Pawnbrokers Ordinance' in [1939] MLJ lvi.]

When a magistrate is proceeding under s 28 of the Pawnbrokers Ordinance to determine the rights of parties to the pawned property, he should only do so in the presence of the parties. When an owner puts an agent in possession of an article as a mercantile agent, he can either sell or pledge the article and a pawnbroker dealing with such agent in good faith is not liable to have his security defeated.

R v Talib bin Saiman [1935] MLJ 275 High Court, Straits Settlements (Terrell J).

When a pawnbroker makes his advance and takes a pledge of goods bona fide but the pawner had committed criminal breach of trust in pawning the goods, the transaction is protected under s 1 of the Factors' Act 1889, if the true owner had entrusted the goods to the pawner for the purpose of sale by him.

R v Meda [1882] 2 Ky Cr 106 High Court, Straits Settlements (Sidgreaves CJ).

The accused was charged with criminal breach of trust of certain jewellery. It appeared that the accused had obtained jewellery which belonged to one Hazara Singh, from the wife of that man, and had pawned it. At the conclusion of the trial, the learned magistrate acquitted the accused and then ordered that (i) the jewellery be returned to the owner, ie Hazara Singh, and (ii) the accused should repay the pawnbrokers the sums he obtained from them on the jewellery. The learned magistrate held that the wife had by transferring the jewellery secretly without the knowledge of the husband invested the jewellery with the character of stolen property and consequently, the pawnings were unlawful within the meaning of s 27 of the Pawnbrokers Ordinance (Cap 195, 1955 Ed), thus conferring upon the court the discretion to make an order for the disposal of the property. He was also of the opinion that if s 27 of the ordinance did not apply, he had power to make the order under s 430 of the Criminal Procedure Code (Cap 132, 1955 Ed). The pawnbrokers appealed against the order.

Held: (1) the finding that the jewellery was stolen property could not be justified and, therefore, s 27 of the Pawnbrokers Ordinance could not be applied in this case; (2) the court had power to make an order for disposal of the property under s 430 of the Criminal Procedure Code; (3) in the circumstances of the case, the order that should be made is that the jewellery be returned to the owner on payment by him to the pawnbrokers of half the sums for which the jewellery was pledged.

Wong Yong Theng v R [1957] MLJ 22 High Court, Singapore (Whitton J).

This was an appeal against the decision of the sessions court in an inquiry under s 20 of the Pawnbrokers Enactment (Cap 85) wherein it was ordered that all the exhibits comprising the various items of jewelleries in a cheating case be returned to the complainant unconditionally and without payment.

Held: s 20 of the Pawnbrokers Enactment is complementary to s 407 of the Criminal Procedure Code (Cap 6). Although s 407 gives power to the court to make an order as it thinks fit for the disposal of the property produced before it in respect of pawned articles, the disposal must be subject to s 20 of the enactment. It can only be delivered to the owner, but whatever order the court makes, the owner can assert his legal right and there are civil remedies available to the complainant which he could use to assert his right of recovery. It is not within the power of the court acting under s 20 to decide summarily involved questions of ownership of the jewelleries bought by the accused with money which was obtained dishonestly from the complainant.

Hoh Chee Khim & Ors v Public Prosecutor [1970] 2 MLJ 105 High Court, Kuala Lumpur (Abdul Aziz J).

In this case, the magistrate ordered the pawnbroker to return a watch which had been unlawfully pawned, to the owner whose ownership was conclusively proved. Against this order the pawnbroker appealed.

Held: where ownership has been proved, by common law the owner would be entitled to the article unconditionally, however careless he had been. In a case where the conduct of both parties is free from criticism, in no circumstances would the court order the owner to pay a part of the loan; and the innocent pawnbroker must suffer for having taken a risk which is inseparable from his trade.

Sem Hin Pawnshop v R [1952] MLJ 164 High Court, Singapore (Brown J).

Section 421 of the Criminal Procedure Code 1910 provides a convenient, expeditious, and inexpensive procedure, which must be available to all owners of property which is stolen and recovered irrespective of whether it is recovered from a pawnbroker or from a person who is not a pawnbroker. Conditions may be imposed and any person aggrieved by an order made under this section can apply to have his case considered by the Supreme Court under the powers of revision conferred by s 312A.

Lam Lock v R [1933] MLJ 92 Court of Appeal, Straits Settlements (Murison CJ, Whitley and Terrell JJ).

The appellant pawnbrokers received in pawn certain diamonds which proved to be the very diamonds stated in a police circular to have been missing from a jeweller. The thief and receiver of the diamonds were arrested, tried and convicted of theft and dishonestly receiving stolen property respectively. After the conviction was recorded, the prosecutor applied for the return of the diamonds. Counsel who watched those proceedings on behalf of appellants opposed the application. The magistrate made an order for unconditional restitution. In an appeal against the order a preliminary objection was taken that there was no right of appeal from the order.

Held: (1) there was a right of appeal under s 295 of the Criminal Procedure Code; (2) the order of the magistrate was within the jurisdiction of the police court and the conviction was perfectly legal; (3) the question of ownership of the diamonds could not be re-opened, the order being consequential upon the facts disclosed in the trial to which the appellants could not be a party.

Chop Sum Thye v R [1933] MLJ 87 High Court, Straits Settlements (Deane J).

The making of a conditional order under s 28(1) of Ordinance No 61 (Pawnbrokers) is a matter within the discretion of the magistrate but such discretion must be exercised upon definite grounds. There must be something arising from the conduct of the owner or from the other circumstances of the case before the court can properly deprive an owner of his right to the unconditional return of property which has been stolen from him.

R v Nadaison [1935] MLJ 148 High Court, Straits Settlements (Huggard CJ).

[Annotation: See Ho York Quin v R [1953] MLJ 1 where Murray-Aynsley CJ held that the decision in the above case was both wrong and misleading. See also Sem Hin Pawnshop v R [1952] MLJ 164.]

During a disposal inquiry held by the district judge to distribute items stolen from the respondents and several others in the course of certain burglaries by one P and pledged with the petitioners and five other pawnshops, it was ordered, inter alia, that certain items be returned to the respondents, and that the respondents pay the petitioners, with whom these items had been pledged, 10% of the pawned value of each item. The petitioners sought criminal revision of the district judge's decision. Held, dismissing the petition: (1) the disposal inquiry is intended to be an inexpensive and expeditious manner of distributing items produced at trial or found in the course of investigations, and the width of the judicial officer's discretion under the relevant legislation underlines this intention. Where the article has been unlawfully pledged, the court must consider two issues: ownership of the pawned item, and payment to the pawnbroker. If ownership is established, the court may award the item to the owner if it thinks fit. At the same time, it possesses absolute discretion to decide whether to order payment at all to the pawnbroker, and, if any is ordered, the amount of that payment; (2) the pawnbroker is not entitled as of right to any payment from the owner as the risk of a pledge being an unlawful one is inherent in the business he has chosen. If such payment is ordered by the court, it arises merely out of the court's discretionary wish to mitigate his loss; (3) in the usual case, it is unhelpful to go into an in-depth examination of all the facts surrounding the loss and subsequent pledge of every item. If especial circumstances justifying a larger payment exists, for instance, if the owner has himself exercised fraud upon the pawnbrokers, the onus is on the pawnbroker to raise the circumstances as those facts would be within his own knowledge; (4) in essence, the petitioners' claim was that the order for 10% payment was too low. No appeal is available on such matters; the legislators must have intended that finality of proceedings would further their purpose of keeping a disposal inquiry inexpensive and expeditious in character. In such circumstances, the court ought to be slow to exercise its revisionary jurisdiction; (5) (per curiam) while the court, during a disposal inquiry, is unable to settle conclusively questions of title among competing claims, it is entitled to come to a decision on ownership merely upon the oral testimony of the owner that an item is his.

Thai Chong Pawnshop Pte Ltd & Ors v Vankrisappan & Ors [1994] 2 SLR 414 High Court, Singapore (Yong Pung How CJ).

Where an offence has been committed regarding property pawned to a pawnbroker, orders as to the disposal of such property are governed when applicable by s 26 of the Pawnbrokers' Ordinance 1898.

R v Yap To [1909] 11 SSLR 73 High Court, Straits Settlements (Sercombe Smith J).

In any case where articles which have been in pawn are produced as exhibits in court, before making any order in respect of such exhibits, it is incumbent on the magistrate to hold an inquiry under s 20 of the Pawnbrokers Enactment (FMS Cap 85) and having held such inquiry, he has the fullest discretion as to whether to make an order or not. If on such inquiry, the ownership of the articles is proved and the conditions of s 20 of the Pawnbrokers Enactment are fulfilled, the owner is entitled to the articles unconditionally and an order to that effect should be made. There may be circumstances where a conditional order is justified, and finally there may be circumstances where the ownership of the articles is a question of doubt and difficulty and in such cases it is a safe rule that no order should be made.

Public Prosecutor v Yoong Shing Pawnshop & Ors [1957] MLJ 131 High Court, Kuala Lumpur (Buhagiar J).

The Pawnbrokers Ordinance is complementary to and does not oust the provisions of the Criminal Procedure Code. When a pawnbroker hands over property to the police which is suspected to have been stolen, the property may be taken before a court. The court must satisfy itself by hearing evidence as to who is entitled to possession of the article, who is the owner and the circumstances under which the article was lost or found. To do this the court should procure the attendance of the pawnbroker and satisfy itself that the article was unlawfully pawned. Semble: the person claiming the article as against the pawnbroker should also be notified to attend the court at the same time as the pawnbroker.

Lam Lock v R [1933] MLJ 92 Court of Appeal, Straits Settlements (Murison CJ, Whitley and Terrell JJ).

A and B enter into a hire-purchase agreement whereby A hires out a bicycle to B; until such time as all instalments are paid, the bicycle is to remain the property of A but will be in B's possession. On the day the agreement is signed, B, without the consent or authority of A, pawns the bicyle to C, a pawnbroker. B is charged before a magistrate with criminal breach of trust but is acquitted; the magistrate orders the bicycle to be handed over to C.

Held: s 435(1) of the Criminal Procedure Code (Cap 21) is not limited to the particular offence with which an accused is charged and where there is evidence of some offence having been committed, in this case an illegal pawning contrary to s 30(1) of the Pawnbrokers Ordinance, the proper order for the magistrate to make is to restore the bicycle to its rightful owner, namely A.

Tan Ah Cheow v Public Prosecutor [1952] MLJ 79 High Court, Malacca (Abbott J).

Before a magistrate makes an order for the return of pawned property alleged to have been stolen, there must be evidence of ownership and of unlawful pawning.

Lam Fong Tze v R [1933] MLJ 91 Court of Appeal, Straits Settlements (Murison CJ, Whitley and Terrell JJ).

This appeal arose out of an order made under s 27 of the Pawnbrokers Ordinance (Cap 216). The accused had been convicted under s 420 of the Penal Code for cheating in respect of a watch belonging to one Ong Lai Chan. The watch had been pawned by the accused with Chop Teck Chong Pawnshop, of which the appellant was the managing partner. After the conviction of the accused, the learned magistrate held he had no discretion but to order the return of the watch to the complainant, Ong Lai Chan.

Held: (1) the court has the fullest discretion as to whether to make an order or not and in the order it makes if it should decide to make one; (2) it is a safe rule that in cases of doubt or difficulty an order should not be made.

Ho York Quin v R [1953] MLJ 1 High Court, Singapore (Murray-Aynsley CJ).

The respondent had advanced a sum of RM350 at a remunerative rate of interest and had taken three gold brooches as security. He was charged under s 8(b) of the Moneylenders Ordinance 1951 and, alternatively, under s 3(i) of the Pawnbrokers Enactment but was acquitted and discharged without his defence being called. The Public Prosecutor appealed on the ground that there was evidence, which, if unrebutted would warrant a conviction in respect of the first charge.

Held: (1) when a single moneylending transaction is proved against a party, then the onus of proving that he is not carrying on business as a moneylender passes to him; (2) in this case, there was evidence that the respondent had no moneylender's licence and that he had lent money at a remunerative rate of interest, therefore, all the conditions necessary to attract the operation of the presumption in s 3 of the ordinance were present and the defence should have been called.

Public Prosecutor v Ho Tan Sze [1963] MLJ 225 High Court, Seremban (Ismail Khan J).

A person who, for a loan pledges goods to another who is not a pawnbroker, does nothing illegal, and commits no offence punishable under the Pawnbrokers Ordinance VII of 1872; and after tender of the loan, with interest if any, he may maintain an action against the other, for recovery of the goods.

Tijah v Millah [1886] 4 Ky 186 High Court, Straits Settlements (Pellereau J).

A single act of taking a pledge or pawn, does not make a person punishable under the Pawnbrokers Ordinance 7 of 1872, s 5, for carrying on the trade of a pawnbroker.

Pawnbroker v Ramaswamy Padiachee [1882] 3 Ky 148 High Court, Straits Settlements (Sidgreaves CJ).

The onus is on the pawnbroker to show that he has a licence, and not on the prosecution to prove that he has not, where he is charged with carrying on his business without licence.

Khoo Aing Hong v Meyapah Chetty [1880] 3 Ky 124 High Court, Straits Settlements (Ford J).

The respondent, a licensed moneylender under s 5 of the Moneylenders Ordinance 1951 carrying on business of moneylending under the name of Koon Sang Finance Co on various dates received gold ornaments in pawn as security for loans of RM75, RM70 and RM80 respectively advanced to three persons at the interest rate of 12% per annum and instead of issuing the statutory form of pawnbroker's receipt, obtained from each borrower a promissory note for the amount lent which was expressed to be repayable 'on demand six months after date', and gave to the borrower a receipt for the articles deposited 'as collateral security' for the repayment of the loan. At the hearing before the learned magistrate, counsel's contention to the effect that nowhere in s 3 of the Pawnbrokers Enactment (Cap 85) was it provided that a contravention of this section was an offence was upheld by the learned magistrate.

Held: the penalty for contravention of s 3 of the enactment was laid down in s 25 and the respondent was guilty of the offence of acting as a pawnbroker without a licence. Observations on s 2 read as qualified by s 3(ii) of the Pawnbrokers Enactment.

Public Prosecutor v Wan Hee [1962] MLJ 384 High Court, Kuala Lumpur (Ong J).

A loan of jewellery to another does not create any legal trust within the meaning of s 405 of the Penal Code; even if a promise to return the same within a stated time is given. The mere pawning of the jewellery by the person to whom it is lent will not, therefore, amount to criminal breach of trust as defined in that section.

Ng Chye Giat v R [1938] MLJ 126 High Court, Straits Settlements (Howes J).

In this case, counsel for the pawnbroker (appellant) abandoned his appeal but asked the court to exercise its powers of revision to set aside the judgment of the court below and to order a retrial. The reason for the retrial was to enable the pawnbroker to appear in court and put forward his case.

Held: (1) under s 27 of the Pawnbrokers Ordinance (Cap 216) it was discretionary on the court to summon the pawnbroker where it appears that stolen property had been pawned and the appellate court must presume that the magistrate would have exercised his discretionary powers, if it had been considered proper; (2) the court had no power to order a retrial merely to afford opportunity of audience to a third party (the pawnbroker) who could have attended the trial.

Public Prosecutor v Haji Latif [1948-49] MLJ Supp 26 High Court, Malacca (Callow J).

A pawnbroker who permits large numbers and grades of his employees to have access to articles of value pledged with him, beyond what a man of ordinary prudence would do, when such goods had been deposited with him, is guilty of negligence and liable to make compensation if such goods are lost without explanation.

Boey Ah Sam v Seow Ah Seong [1883] 3 Ky 161 High Court, Straits Settlements (Ford J).

The plaintiff, a firm of bankers and moneylenders, sued the defendants, two pawnbroking establishments, on two promissory notes bearing the chops of both the defendant firms and signed by one Chin Yook, a partner in both the defendant firms.

Held: a partner in a pawnbroker firm can bind the other partners on the ground that pawnbroking is a trading business.

Chettinad Bank v Chop Haw Lee [1931-32] FMSLR 31 High Court, Federated Malay States (Prichard J).

This is a claim for $188,000 out of the sum of $300,000 lent by the first plaintiff and his brother, RS ('the deceased'), out of money belonging to them as tenants-in-common. The second defendant's defence is that he and the first defendant were the two partners in the firm of Lal's & Co ('Lal's') who were the borrowers and that he had paid his share of $150,000 to Arjan Sabnani ('Arjan'), another brother of the first plaintiff on the instructions of the deceased and had thereby been discharged. The first defendant's defence is that in addition to the $150,000 paid by the second defendant he had paid $117,000 (and not $112,000 only as admitted by the plaintiffs) and a further $27,000 by way of interest or alternatively towards repayment of the loan and all that was owning was $6,000 only. The plaintiffs deny that the deceased gave these instructions and the first plaintiff says in the alternative that the deceased had no authority to give any such instruction on his behalf and he was not bound by such instructions in equity. The first defen-dant also claimed that he paid a total of $40,000 to the first plaintiff between November 1982 and 1983. Held, allowing the first plaintiff's claim in the sum of $33,000 and dismissing the second plaintiffs' claim: (1) tenants-in-common, holding independently by separate titles, have independent rights, and the same rights as sole tenants, as far as is possible; and there seems no authority for saying that one tenant-in-common can rightfully do any act to the prejudice of other tenants-in-common; (2) the court found that the first plaintiff and the deceased were entitled under the loan as tenants-in-common in equal shares. Each lent $150,000 and each meant to take back $150,000. The arrangement made between the deceased and the second defendant did not result in any payment to the first plaintiff in respect of his share of the loan and there is no evidence to suggest that he authorized or derived any benefit under this arrangement. He is not bound by this arrangement and his claim is not affected by it; (3) it is clear that if the presumption is that the interest in this obligation belonged in equal portions in severalty to the two plaintiffs, the plaintiff who was settled with by the accord and satisfaction has been paid his half at all events, and it cannot be recovered again in this action. The instructions of the deceased to pay $150,000 to Arjan from the loan to Lal's and payment in accordance with those instructions is an answer to the claim of the deceased but not to that of the first plaintiff. The payment to Arjan discharged the deceased's half share of the loan to Lal's and therefore when this action was commenced no part of the loan was due to the deceased; (4) the effect of the payment of $40,000 was to reduce the first plaintiff's share of the loan. Together with the $77,000 paid to him, the first plaintiff has received $117,000 to account of his share of the loan leaving a balance of $33,000, which was awarded to him.

Sabnani & Ors v Lachmandas & Anor Suit No 1673 of 1987 High Court, Singapore (Lim Teong Qwee JC).

It is an abuse of power on the part of the police to effect an arrest in the case of a dispute between respectable persons, when the attendance of the accused before a magistrate can be secured by other means.

Lai Chan Ngiang v Public Prosecutor [1930] 1 JLR 30 High Court, Johore Bahru (Thorne J).

A police officer cannot legally arrest a person for breach of a mere byelaw such as overloading a passenger boat contrary to r 36 made under s 53 of the Harbour Ordinance 8 of 1872.

R v Sahid [1890] 4 Ky 615 Court of Appeal, Straits Settlements (O'Malley CJ, Wood and Pellereau JJ).

The appellant was convicted under s 34(1) of the Minor Offences Ordinance on a charge of being in possession of a fountain pen of the value of $5 reasonably suspected of being stolen or fraudulently obtained. On appeal, the conviction was quashed as it was found that there was no ground for suspicion against the accused. The question arose whether certain statements made by the accused to the police were admissible.

Held: (1) whether a statement made to the police by a person accused under s 34(1) of the Minor Offences Ordinance was admissible depended on (a) whether or not the admission was a confession and (b) whether or not the admission was made in the course of a police investigation under Chapter XIII of the Criminal Procedure Code; (2) if the accused was not under arrest at the time when he made the statement and if the statement was not made in the course of an investigation under Chapter XIII of the Criminal Procedure Code and if the statement was not a confession, the statement made by the accused in answer to the detective's or constable's question was admissible in evidence; (3) the offence with which the accused was charged was one for which the police may ordinarily arrest without warrant and the offence was a seizable one.

Vellasamy v R [1941] MLJ 233 High Court, Straits Settlements (McElwaine CJ).

Section 31 of the Police Force Ordinance 1872 does not confer on the police any new powers, or any powers which they did not possess, or do not posses under the other provisions of the law. Under s 12 of the Criminal Justice Ordinance XX of 1870, a police officer may arrest without warrant any person who commits an offence in his sight, for which he cannot in general arrest without warrant, if the name and address of the offender are not known to him; but he can only detain such person till his name and address are ascertained; if he is detained for any other purpose, the detention is illegal. The police are not the interpreters of the law, and when there is a decision of a magistrate on a point of law, he must obey the law so pronounced.

Yap Kow v Porteous 4 SLJ 42 High Court, Straits Settlements (O'Malley CJ).

The petitioners in this case claimed damages from the Crown for false imprisonment, alleging that they were wrongfully arrested and detained by an Assistant Superintendent of Police on 22 March 1954. The facts were briefly as follows: On the night of 22 March 1954, the petitioners, husband and wife, retired to bed at about 10 pm but shortly before midnight they were woken up and arrested. The first petitioner was able to put on a few day-clothes, but his wife, who was five months pregnant, was not and she went to the police station wearing her night pyjamas. They were kept at the police station from midnight until 5 am before being released on police bail. Later that morning, they appeared before the magistrate and were charged under s 347 of the Penal Code (Cap 119, 1955 Ed) with having wrongfully confined one Ng Yow Jick at their house on 17 March with intent to extort property from him. After that they were once again released on bail but were re-arrested outside the court room and taken to the Criminal Investigation Department to be finger-printed before being allowed to go home. They came before the magistrate again on 30 March and were remanded on bail until 13 April but when the case came up on that date, the prosecution offered no evidence and they were released.

Held: (1) a police officer is entitled to arrrest a person without warrant if he has received a reasonable complaint that such person has been concerned in an offence under s 347 of the Penal Code. In this case, no reasonable complaint was made against the petitioners within the meaning of s 31 of the Criminal Procedure Code (Cap 132, 1955 Ed) and, therefore, their arrest without warrant and their subsequent detention was unlawful; (2) their action, in effect, amounted to a second false imprisonment; (3) as the petitioners had been released by the magistrate on bail, the police had no authority to take them into custody again in order to convey them to the Criminal Investigation Department for fingerprinting;a false imprisonment does not merely affect a man's liberty, it also affects his reputation. Where a person has been wrongfully arrested and detained, it is in the public interest that sufficient damages should be awarded in order to give reality to the protection afforded by law to personal freedom. Damages of S$1,000 to each petitioner allowed with costs. The word 'complaint' in s 31 of the Criminal Procedure Code means a complaint to a police officer.

Tan Kay Teck & Anor v Attorney General [1957] MLJ 237 High Court, Singapore (Whyatt CJ).

A forest ranger cannot legally arrest without warrant unless some ordinance gives him power so to do.

R v Low Lau Sew [1885] 4 Ky 76 High Court, Straits Settlements (Wood J).

It is the duty of the police or customs as the case may be to produce an accused person before the court within 24 hours of arrest.

Public Prosecutor v Yong Chen [1952] MLJ 142 High Court, Kuantan (Whitton J).

A Deputy Commissioner of Police was held liable in damages, for arresting and imprisoning a person and depriving him of all food and water. The defendant pleaded under Indian Act XIII of 1856 that he did not receive a month's notice of action, and that the cause of action did not arise within three months before action; the pleas were overruled.

Mootoosamy v Robertson [1859] SLR Leic 113 Court of Judicature of Prince of Wales' Island, Singapore and Malacca (Maxwell R).

In a suit against an officer of the police for damages for false imprisonment in that the plaintiff was arrested by two police constables at the entrance of the court on a charge of driving a lorry with inefficient brakes, the magistrate found that the arrest was effected through the negligence of the defendant and without reasonable or probable cause and awarded the plaintiff damages and costs. The defendant appealed to the Supreme Court.

Held: (1) the tort of false imprisonment cannot be committed negligently; (2) all policemen and officers are not responsible for one another's wrongful acts unless such act are done by subordinates on the orders or instructions of their seniors; (3) in the absence of proof of malice, the defendant was entitled to the protection of the Public Authorities Protection Enactment (Cap 30), s 2.

Elphinstone v Lee Leng San [1938] MLJ 135 High Court, Federated Malay States (Aitken J).

A police officer was held liable in damages, for arresting, carrying abroad and imprisoning for some months, a married woman, for no crime and without any legal warrant.

Mat Pah Alli v Robertson [1860] SLR Leic 132 Court of Judicature of Prince of Wales' Island, Singapore and Malacca (Maxwell R).

The plaintiff claimed damages for false imprisonment and malicious prosecution. The allegation was that as a result of a report to the police made by the defendant the plaintiff was arrested and detained by the police. Further, the defendant had made a complaint to a magistrate that the plaintiff had given false evidence in a civil case and the defendant was charged with perjury, sanction for the prosecution having been given by the Attorney General.

Held: (1) the defendant in this case did not authorize the arrest of the plaintiff nor did he make any charge on which it became the duty of the police to act. The police acted on their own initiative in arresting the plaintiff and on the facts of the case their action was lawful; (2) the defendant was not prompted by malice in making his complaint to the magistrate and as the Attorney General had granted a sanction for the prosecution of the defendant there could not be said to be an absence of reasonable and probable cause on the part of the defendant in setting the law in motion.

Tay Boo Jiang v Chan Yip Tong [1967] 1 MLJ 84 High Court, Singapore (Winslow J).

An action for false imprisonment will not lie against a police officer for arresting a person whom he suspects of having committed a felony. The law will protect him if he has acted bona fide and in the honest belief that he had authority to do so. An action, or prosecution, which may be brought against a police officer, must be commenced within three months after the act complained of.

Mohamed Driss v Scott [1860] SLR Leic 145 Court of Judicature of Prince of Wales' Island, Singapore and Malacca (Maxwell R).

This was an appeal against the decision of the Federal Court ([1968] 2 MLJ 50) which awarded the respondents the sum of $2,500 each for false imprisonment. The respondents were arrested and detained by the police. The police suspected that one or other of the respondents was driving the lorry from whose trailer timber fell which hit the windscreen of a car and two men in the car causing the death of one of them. The lorry did not stop. The respondents who were interrogated after the arrest denied that they were at the place of the accident. In the Federal Court, Suffian FJ said that the information available to the police was insufficient to prove prima facie a case against the respondents under s 304A of the Penal Code or under s 34A of the Road Traffic Ordinance 1958 (Ord 49/1958).

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

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

A Deputy Commissioner of Police, under a mistaken apprehension that a person was about to commit an offence of disturbing the congregation in a church, was held liable, in damages, for arresting and imprisoning such person.

Adley v Robertson [1858] SLR Leic 56 Court of Judicature of Prince of Wales' Island, Singapore and Malacca (Maxwell R).

Where a police constable, having been handed a warrant of arrest with instructions to ask the complainant in the case to point out the accused named therein, brought the complainant in handcuffs to the police station, in an action against the government for damages for wrongful arrest,

Held: the government was liable inasmuch as the act of bringing the complainant in itself though authorized was done in an unauthorized manner.

Vairavan Chettiar v Attorney General [1933] MLJ 13 High Court, Straits Settlements (Terrell J).

The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.

Saminathan v Public Prosecutor [1937] MLJ 39 High Court, Federated Malay States (Aitken J).

A, whose habits and movements answered to the description given of those of B against whom a report of cheating had been made, was arrested as a result of investigation and inquiries by the police and it was subsequently discovered that he was not the real offender. In an action by A for damages for wrongful arrest,

Held: the circumstances were such that any reasonable man would have fairly suspected A of being the person who had committed the offence complained of and the police were justified in effecting the arrest.

Tan Eng Hoe v Attorney General [1933] MLJ 151 High Court, Malacca (Whitley J).

Irrespective of whether the entry and search is legal or illegal, the powers of a police officer to arrest a person are limited and the exercise of such powers can only be justified on statutory grounds.

Public Prosecutor v Ong Kee Seong [1960] MLJ 156 High Court, Seremban (Ismail Khan J).

When a warrant of arrest had been issued, the police officer who executes it must have the warrant in his possession at the time of making the arrest of the person named therein; otherwise that person cannot be charged with obstruction under s 225 of the Penal Code.

R v See Kah Loon [1881] 2 Ky Cr 101 High Court, Straits Settlements (Wood J).

The applicant was alleged to have committed an offence under s 27(5)(a) of the Police Act 1967 (Act 41/1967) on 30 August 1984, by being a member of an illegal assembly in Kampar, Perak. The police applied for and obtained a warrant of arrest issued by the Kampar magistrate's court on 1 October 1985. The applicant was arrested and released on police bail. He applied for an order to set aside the warrant.

Held: (1) as this is a summons case, a summons, not a warrant, should in the first instance issue; (2) there is no indication that the applicant had absconded or that he would not obey a summons. Nor were there any reasons given by the learned magistrate in issuing the warrant. In the event, the issue of a warrant was wrong in law and therefore illegal; (3) it has to be borne in mind that it is the cardinal principle of law that in criminal cases the provisions of the law must be strictly followed. In the present case, ordinarily a magistrate may only issue a summons. He cannot issue a warrant unless there is good reason for him to do so. In the absence of any good reason, the issue of a warrant would be wrong and illegal. The applicant was therefore illegally arrested; (4) the warrant was accordingly set aside.

Karpal Singh v Public Prosecutor [1986] 2 MLJ 319 High Court, Ipoh (Anuar J).

This was an appeal against the conviction of the appellant on a charge under s 3(b) of the Prevention of Corruption Ordinance 1937. There was evidence to show that at the suggestion of the appellant, Mr Waters, an Acting Deputy Superintendent of the Harbour Board Police, on three occasions carried chandu from the Harbour Board area and on each occasion was subsequently given a sum of money. One of the grounds of appeal was that Mr Waters was an accomplice, as apart from the protection afforded by s 48 of the Dangerous Drugs Ordinance 1951 an offence would have been committed by him.

Held: Mr Waters was not an accomplice and since the first suggestion came from the appellant he was not an agent provocateur.

Lian Teck Chew v R [1955] MLJ 28 Court of Criminal Appeal, Singapore (Murray-Aynsley CJ, Matthew CJ (FM).

The deliberate provoking of an offence by the police merely because it is suspected that the person provoked has previously committed a similar offence cannot be too strongly condemned and the remarks of Lord Goddard CJ in Brannan v Peek [1947] 2 All ER 572 should be brought to the notice of the police authorities for such action as they may think necessary. Per Lord Goddard CJ: 'There is another point of much greater public importance. The court observes with concern and disapproval the fact that the police authority at Derby thought it right to send a police officer into a public house to commit an offence. It cannot be too strongly emphasised that, unless an Act of Parliament provides for such a course of conduct and I do not think any Act of Parliament does so provide it is wholly wrong for a police officer or any other person to be sent to commit an offence in order that an offence by another person may be detected. It is not right that police authorities should instruct, allow, or permit detective officers or plain clothes constables to commit an offence so that they can prove that another person has committed an offence. It would have been just as much an offence for the police constable in the present case to make the bet in the public house as it would have been for the bookmaker to take the bet if in doing so he had committed an offence. I hope the day is far distant when it will become a common practice in this country for police officers to be told to commit an offence themselves for the purpose of getting evidence against someone; if they do commit offences they ought also to be convicted and punished, for the order of their superior would afford no defence.'

Chin Ban Keat v R [1949] MLJ 297 High Court, Penang (Jobling J).

In this case, the two appellants appealed against their conviction and sentence for abetment of bribery and bribery respectively. On appeal, it was argued, inter alia that: (a) the methods adopted by the police in this case in procuring the commission of a traffic offence by the lorry driver; in approaching Teja Singh to use his influence with the magistrate, thereby provoking him to commit the offence wherewith he is now charged; and in further aiding the commission of the offence of bribery by providing the funds were methods wholly foreign to the spirit of our law and that the courts should frown upon such questionable methods to the extent of refusing to accept the evidence of witnesses who stoop to use them; (b) the learned President of the Sessions Court exercised his discretion wrongly in trying the two appellants jointly.

Held: (1) the police officers were at most agents provocateurs and not accomplices and on the facts of this case the evidence of the police officers was properly received; (2) the learned President exercised his discretion rightly in ordering a joint trial in this case; (3) the offences in these cases were of corruption in the course of the administration of justice and, therefore, the sentence of two years' rigorous imprisonment imposed wes not excessive. Semble: the remarks of the Lord Chief Justice in Brannan v Peek [1947] 2 All ER 573 are applicable to the action of the police in the present case in sending the lorry driver into Johore with the express purpose of committing an offence. It was unfortunate that the police authorities thought it necessary to adopt this course in this case and it is hoped that the new legislation which has been passed for the purpose of dealing with corruption will make it unnecessary in future for anything of this kind to be repeated.

Teja Singh v Public Prosecutor [1950] MLJ 71 High Court, Johore Bahru (Spenser-Wilkinson J).

In this case, the learned judge criticized the police for using police constables as agents provocateurs in order to procure and/or provide evidence against the hotel owners and/or management.

Teoh Siew Lean & Anor v Public Prosecutor [1958] MLJ 145 High Court, Penang (Rigby J).

The accused in this case were charged under s 373A of the Penal Code with buying a female for the purpose of prostitution. It appeared that on receipt of certain information Mr Clough the officer-in-charge of 'B' Division, Kuala Lumpur, arranged that a girl Chan Fong Sai should be produced by the witness who had given the information as a girl who was willing to be sold as a prostitute. As a result, the accused was arrested after they had paid a sum of money for the purchase of the girl. It was argued for the accused, inter alia: (a) there could be no sale of the girl by herself; (b) the action of the police officer in this case was improper.

Held: (1) a woman can sell herself into prostitution and as in this case an attempted buying was proved, the accused were guilty of the charge brought against them; (2) the police officer did not behave improperly in this case as, if he had not acted as he did, a gang of traffickers in women would never have been prosecuted.

Re Lee Yoke Keng & Ors [1955] MLJ 55 High Court, Kuala Lumpur (Mathew CJ).

The plaintiff in this case was a police inspector in the Singapore Police Force. On 4 December 1974, he was transferred to the Woodbridge Hospital for an examination where he was detained until 12 December 1974 when he was granted leave by the said hospital at the request of his relatives. He was instructed to return to the said hospital for a review on 18 December 1974 but he never did. Instead the plaintiff tried to report for duty at the Police Reserve Unit but he was told to report to Woodbridge Hospital for a review of his mental condition and not to rejoin his Unit before then. On 15 January 1975, the plaintiff was instructed not to report for duty and to obtain from the medical superintendent of the said hospital a certificate of fitness. The plaintiff thereafter went into hiding and stayed in Malaysia for sometime. On 8 April 1975, the Permanent Secretary (Home Affairs) requested the Director of Medical Services to convene a Medical Board to examine the plaintiff. Attempts were made to serve notice of the said matter on the plaintiff but without success. The plaintiff failed to appear at the first meeting of the Medical Board and it was adjourned to 3 June 1975. The report of the second meeting stated, inter alia, that the plaintiff was suffering from paranoid disorder and that it was likely to prove permanent and the plaintiff was therefore unfit for duty as a police officer. In his letter of 16 June 1975, the Permanent Secretary of the Ministry of Home Affairs proposed to retire the plaintiff under s 7(2)(c) of the Pensions Act (Cap 55, 1970 Ed) 'by reason of an infirmity of mind and that the infirmity is likely to be permanent'. On 28 June 1975, the plaintiff's solicitors wrote to the Director of Medical Services to convene the Medical Board and a transcript of the evidence that was presented before the board. This request was not acceded to. In a subsequent correspondence the defendant claimed that 'no notes of evidence were taken during the proceedings of the Board'. On 20 August 1975, the President gave his approval to retire the plaintiff under s 7(2)(c) of the Pensions Act. The plaintiff claimed that he was denied his rights to be heard by the Medical Board and that the provisions of s 7(2)(c) of the Pensions Act were not strictly complied with.

Held: (1) the government in the various steps it took to comply with the provisions of s 7(2)(c) had to act fairly and observe the requirements of natural justice; (2) the action taken by the government in shutting out the plaintiff altogether from making any representation whatever and forwarding the report of the Medical Board to the President with a request that the plaintiff be retired under s 7(2)(c) of the Pensions Act was manifestly unfair to the plaintiff. It constituted a denial of natural justice; (3) the plaintiff was entitled to know all the evidence given before the Medical Board but the evidence was not disclosed to him on the ground that the Medical Board had made no record of it. If relevant material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie a breach of natural justice; (4) the report of the Medical Board did not state what the evidence was and the President reached his decision without consideration of and in ignorance of the evidence; (5) there was clearly a failure to comply strictly with the provisions of s 7(2)(c) of the Pensions Act. The plaintiff's retirement under the said section was a nullity and he was entitled to a declaration that he was still an inspector in the Singapore Police Force and was entitled to be remunerated as such.

Aziz bin Abdul Rahman v Attorney General, Singapore [1979] 2 MLJ 93 High Court, Singapore (Choor Singh J).

[Annotation: The Attorney General appealed to the Court of Appeal (Civil Appeal No 65 of 1978, Wee Chong Jin CJ, Kualsekaram and Chua JJ, 26 June 1979). The Court of Appeal in dismissing the appeal decided that s 7 of the Pensions Act makes no provision for the retirement of a public officer.]

The plaintiff in this case claimed against the defendants for arrears of salary due to him under a contract of employment with the defendants. The plaintiff joined the defendants' Auxiliary Force as a recruit on 1 October 1969 and was confirmed in the rank of constable on 1 April 1970. On 13 July 1974, he was suspended from duty as a result of a charge against him under the provisions of s 384 of the Penal Code (Cap 103, 1970 Ed). The plaintiff was subsequently acquitted at an inquiry held under reg 6(c) of the Auxiliary Police Regulations 1961. From 1 October 1975, the plaintiff's solicitors had been in communication with the Attorney General's Chambers, the Commissioner of Police and the defendants in an attempt to ascertain the plaintiff's position and whether or not he would be reinstated by virtue of the fact that he was acquitted at the disciplinary inquiry. Nothing was heard from them and on 17 June 1976, the plaintiff's solicitors wrote to the defendants inquiring whether or not the plaintiff was still a member of the Port of Singapore Authority Police Force. The defendants replied, 'whether or not your client is still a member of the PSA Police Force is a question of law to be ascertained in all the circumstances of this case'.

Held: (1) nowhere in the said regulations does it give the defendants power to withhold salary in the event of suspension; (2) the effect of suspension when exercised operates to suspend the obligations of the parties for the duration of the period of suspension. This includes the employer's obligation to pay wages but if the employee is dismissed at the end of the period of suspension, the employer must pay the employee for that period unless there is provision to the contrary; (3) the plaintiff's services were never terminated by the defendants as their records show and he was still in their employ up to the end of March 1979. He was therefore entitled to his salary from the date of his suspension ie July 1974 up to and including 31 March 1979.

Jamshid bin Ajmain v Port of Singapore Authority [1980] 1 MLJ 141 High Court, Singapore (D'Cotta J).

The respondent, a woman inspector of police, was while unmarried given by the government rent-free quarters or an allowance in lieu. After she married on 20 August 1962 and went to live with her husband, however, she received neither the rent-free quarters nor an allowance in lieu. She applied for a rent allowance and eventually the government agreed to give her a rent allowance but with effect from 1 March 1965. She brought an action against the government for the housing allowance from the date of her marriage to 28 February 1965 and judgment was given in her favour in the sessions court. The government of Malaysia appealed.

Held: (1) the contract between a public servant and the government is of a special kind, as once appointed the government servant acquires a status and his rights and obligations are no longer determined by consent of both parties but by statute or statutory or administrative rules made by the government; (2) there was nothing in the circulars and regulations in this case that entitled the respondent to a housing allowance and therefore her claim should have been dismissed.

Government of Malaysia v Rosalind Oh Lee Pek Inn [1973] 1 MLJ 222 High Court, Kuala Lumpur (Suffian FJ).

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

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

Wong Keng Sam & Ors v Pritam Singh Brar [1968] 2 MLJ 158 Federal Court, Singapore (Wee Chong Jin CJ, Tan Ah Tah FJ and Ambrose J).

The accused in this case pleaded guilty to the following charge: 'That you between 8.05 am 1 December 1956 and 8.05 am 22 December 1956 being a police officer to wit SC 24436 appointed under the Special Constabulary Regulations 1948 GN 1694/48 at police station, Johol, did absent yourself from duty under circumstances which show that you had no intention of returning to duty and that you are thereby deemed to have deserted the police force under s 75(i) of the Police Ordinance 14/52.' The learned magistrate refused to accept his plea on the ground that the charge did not disclose an offence and acquitted the accused. Against this acquittal the Public Prosecutor has appealed.

Held: (1) a special constable who absents himself from duty under circumstances which show that he has no intention of returning to duty is not guilty of the offence of desertion under s 75 of the Police Force Ordinance 1952; (2) reg 8(2) of the Essential (Special Constabulary) Regulations 1948 provides that in all matters concerning discipline the Police Force Enactment (FMS Cap 34) shall apply to the special constabulary throughout the Federation. That enactment has been replaced by the Police Force Ordinance 1952 which has created the offence of desertion which was unknown to the enactment and which does not come under that part of the ordinance which deals with discipline. Therefore the offence of desertion, not being a re-enacted provision for the purposes of s 12 of the Interpretation and General Clauses Ordinance 1948 (Ord 7/1948) cannot apply to special constables without an express provision therefor in the Police Force Ordinance 1952.

Public Prosecutor v Abdul Rahman [1958] MLJ 24 High Court, Seremban (Smith J).

The plaintiff, then a police officer, was found guilty by the first defendant, as the adjudicating authority, of accepting a bribe from one Shanmugam a/l Armugam (`SA'). The charge alleged that the giving and receiving of the bribe was witnessed by three officers of the Anti-Corruption Agency (`ACA'). In his statement of claim the plaintiff claimed that his dismissal was null and void on the grounds that he was not allowed to give evidence or to call witnesses in his defence and that the first defendant failed to comply with the law governing disciplinary proceedings. It was not specified however as to which aspect of the law the first defendant failed to comply with. Throughout the disciplinary proceedings the plaintiff was present and was represented by a senior police officer. Two of the three ACA officers gave evidence and the plaintiff was given the opportunity to cross-examine them. SA however had died prior to the disciplinary proceedings. In his examination-in-chief, the plaintiff did not testify that he was not allowed to give evidence or to call witnesses as alleged. Neither did the plaintiff say what had been done or not done in the proceedings that constituted failure to comply with the law governing disciplinary proceedings. In cross-examination by the Senior Federal Counsel, the plaintiff stated that he was not given sufficient opportunity to present his story or to defend himself. The plaintiff admitted however that he was allowed to call witnesses but did not, thus falsifying the allegation made by the plaintiff in his statement of claim that he was not allowed to call witnesses. In cross-examination of the plaintiff, the plaintiff stated that the statement of one detective Kamaruddin was not read out to him and that it was only then that the plaintiff knew that detective Kamaruddin was a witness. It was not in evidence what the role of detective Kamaruddin was in the case against the plaintiff or what his statement contained. However, the officer who was the adjudicating authority testified in his examination-in-chief that detective Kamaruddin had died and his statement was read out to the plaintiff who understood it but did not rebut it and although he was given the opportunity to defend himself, he elected to remain silent. The plaintiff's contention was that, in view of the provisions in regs 6(3) and (9) of the Police (Conduct and Discipline) (Junior Police Officers and Constables) Regulations 1970 (`the Regulations'), the statement of detective Kamaruddin was inadmissible evidence because regs 6(3) and (9) of the Regulations concerned only statements of living persons and therefore did not apply to statements made by a deceased person. Since the inadmissible evidence was acted upon, the decision making process was flawed.

Held, allowing the plaintiff's claim: (1) there was no doubt that the proviso to reg 6(3)(a) of the Regulations was not concerned with the admission of statements of persons who had died. The said proviso was concerned with witnesses who were still alive and could therefore give evidence in the proceedings. These witnesses whose statements had been recorded by the police need not be asked to tell their stories afresh. All that was to be done was for the statements to be read to the witnesses for them to confirm the same. The witnesses would then be subject to the usual cross-examination; (2) the statement of detective Kamaruddin who had passed away was inadmissible evidence. Although it was inadmissible evidence, the statement was nonetheless read out to the plaintiff and considered by the adjudicating authority. There was therefore a flaw in the decision making process which affected the substantive matter of establishing the charge against the plaintiff which rendered the dismissal of the plaintiff null and void; (3) as in a criminal prosecution it was not for the plaintiff to prove his innocence but for the police authorities to prove his guilt. The adjudicating authority had a duty to find, on the evidence in support of the charge, whether a case had been made out against the plaintiff. The admission of detective Kamaruddin's statement raised the serious question of whether, in its absence, the adjudicating authority would have found out that a case had been made out against the plaintiff.

Ramesh s/o Thangaraju v Deputy Chief Police Officer, Perak & Anor Civil Suit No S5-21-331-1989—High Court, Kuala Lumpur (Abdul Aziz J).

In this case, the plaintiff who was a police constable had been convicted on his plea of guilty on a charge under s 353 of the Penal Code. Disciplinary proceedings were taken against him and eventually he was dismissed by the Chief Police Officer, Selangor. The power to dismiss constables had been delegated by the Police Force Commission to the Chief Police Officer. Power to appoint a police constable had not been so delegated to the Chief Police Officer. The plaintiff applied for a declaration, inter alia, that his dismissal was void and inoperative.

Held: the Chief Police Officer was not delegated with the power to appoint but merely with the power to dismiss. In the absence of the power to appoint, the dismissal by the Chief Police Officer was therefore in violation of art 135(1) of the Federal Constitution and therefore void.

Zainal bin Hashim v Mohamed Haniff bin Omar & Anor [1975] 2 MLJ 262 High Court, Kuala Lumpur (Abdul Hamid J).

This was an appeal from the decision of Sharma J (sub nom Isman bin Osman v Government of Malaysia [1973] 2 MLJ 143). The respondent, a police constable, had been convicted of the offence of permitting his car to be used as a public service vehicle without a licence and after his conviction he was informed that his dismissal was contemplated and he was told that if he wished to make representations he should do so in writing to the Chief Police Officer. The respondent sent in a letter asking that he be re-employed but the Chief Police Officer decided to dismiss him. The Chief Police Officer purported to act under the powers given by the Police Force Ordinance. The Police Force Commission had purported to delegate its functions under art 140(1) of the Constitution to the Chief Police Officer. The respondent applied for a declaration that his dismissal was void and inoperative and that he was still a member of the Police Force. Sharma J held that the dismissal by the Chief Police Officer was null and void and inoperative. The appellant appealed to the Federal Court.

Held, dismissing the appeal: as it was not shown that the Police Force Commission had delegated the power to appoint constables to the Chief Police Officer, the purported dismissal of the respondent by the Chief Police Officer was contrary to the prohibition in art 135(1) of the Federal Constitution and therefore void.

Government of Malaysia v Iznan bin Osman [1975] 2 MLJ 61 Federal Court, Ipoh (Suffian LP, Lee Hun Hoe CJ (Borneo).

[Annotation: Upheld by the Privy Council, see [1977] 2 MLJ 1.]

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).

In 1953, the appellant was appointed as a temporary clerk-interpreter in the Kelantan Police Contingent. In 1958, he was transferred to Contingent Police Headquarters in Johore Bahru. In 1962, disciplinary action was taken against him by the Chief Police Officer, Johore, under reg 32 of the General Orders, Chapter D, for acts of alleged indiscipline. His explanations were not accepted and by letter dated 29 May 1962, the Chief Police Officer informed him, in effect, that he had failed to exculpate himself and that it had been decided to terminate his services as a temporary clerk. The appellant appealed to the Public Services Commission for reconsideration of his case but his appeal was dismissed. He therefore sought a declaration that his purported dismissal by the Chief Police Officer was void, inoperative and of no effect.

Held, allowing the appeal: the authority which had power to dismiss the appellant was the Public Services Commission who had not delegated the power and the act of the Chief Police Officer in this case was clearly contrary to the Constitution and therefore void.

Lionel v Government of Malaysia [1971] 2 MLJ 172 Federal Court, Johore Bahru (Ong CJ (Malaya).

In this case, the respondent had been appointed in 1953 as a temporary clerk/interpreter in the Police Clerical Service. His appointment was on the terms that his engagement would be 'terminable at one month's notice or on payment of one month's salary in lieu of notice on either side' and that in so far as they were relevant to the duties of his appointment and to his employment as a public servant, he would 'throughout such employment comply with the provisions of the General Orders applicable to his employment within the Federation'. In 1962, disciplinary action was taken against him by the Chief Police Office, Johore, under reg 32 of the General Orders, Chapter D, for acts of alleged indiscipline. He was required to exculpate himself but his representations were not accepted and the Chief Police Officer informed him by letter that in effect he had failed to exculpate himself and that it had been decided to terminate his services as a temporary clerk. The respondent appealed to the Public Services Commission for reconsideration of his case but his appeal was dismissed. In 1966 the respondent sought a declaration that his purported dismissal by the Chief Police Officer was void, inoperative and of no effect. The High Court dismissed the action but on appeal to the Federal Court, the appeal was allowed and a declaration as sought made ([1971] 2 MLJ 172). The government appealed to the Yang di-Pertuan Agong and the appeal was referred to the Privy Council.

Held: (1) members of the general public service obtained a degree of security of tenure under the Constitution of their appointments and it is not correct to say that they were guaranteed security of tenure under Part X of the Constitution; (2) under the laws of Malaysia a distinction is drawn between dismissal and termination of services and there is nothing in the Constitution which affects the right of the government to terminate temporary employment in accordance with the terms of the engagement. The Board could not agree with the Federal Court that reg 36 of the General Orders was invalid and inconsistent with the Constitution; (3) the learned trial judge in this case was right in holding that the respondent had not been dismissed but that his services were validly terminated in accordance with the terms of his appointment.

Government of Malaysia v Lionel [1974] 1 MLJ 3 Privy Council Appeal from Malaysia (Lord Wilberforce, Viscount Dilhorne, Lord Simon of Glaisdale, Lord Solomon and Sir Gordon Wilmer).

The plaintiffs, police officers in this case were each separately charged with having voluntarily causing hurt to one P on 12 July 1973 for the purpose of extorting information from him which may lead to the detection of an offence. They were each interdicted from the performance of duty on half pay from 22 July 1974 onwards. The criminal charge against them was dropped but they continued to be interdicted from the performance of their duty on half pay. On 31 May 1975, they received identical letters of disciplinary proceedings against them with a view to their dismissal. By a separate letter of the same date, they were each notified that they were interdicted from duty on no pay with effect from 2 June 1975. The plaintiffs submitted exculpatory statements in answer to the charges made against them but the Public Service Commission, acting under reg 4(3) of the Public Service (Disciplinary Proceedings) Regulations 1970, appointed a committee to inquire into the matter. The plaintiffs were represented by counsel and the inquiry at which 30 witnesses gave evidence concluded on 27 July 1976. Several letters were written by the plaintiffs' counsel regarding the result of the inquiry and only on 25 June 1977 were they told that the plaintiffs were found guilty of the charge of assaulting P. The plaintiffs contended that the Public Service Commission or the committee had no jurisdiction to hear or inquire into the two charges preferred against them.

Held, dismissing the plaintiffs' action: (1) s 28A of the Police Force Act (Cap 78, 1970 Ed) could not be construed as having deprived a subordinate officer of any right prior to the enactment of s 28A; (2) whether or not the said s 28A has retrospective effect, the Commissioner of Police had lawfully exercised the discretion vested in him under s 28A of the Act to refer the cases against the plaintiffs for them to be dealt with by the Public Service Commission in accordance with the regulations governing disciplinary proceedings in the public service; (3) under reg 7 of the Public Service (Disciplinary Proceedings) Regulations 1970 the Public Service Commission is empowered to interdict a public officer and to withhold the whole of his total emoluments during the period of his interdiction.

Chang Song Liang & Ors v Attorney General, Singapore [1980] 2 MLJ 4 High Court, Singapore (Wee Chong Jin CJ).

The plaintiff had issued a writ against the Commissioner of Police praying for a declaration that his dismissal from the Singapore Police Force was illegal, void, inoperative and of no effect. The complaint of the plaintiff was that he was never given adequate notice of the charge nor was he given any opportunity to rebut the charge and the evidence against him. Disciplinary proceedings had been taken against the plaintiff under the Police Force Ordinance 1958, and as a result the Commanding Officer had ordered that he be dismissed. He appealed to the Commissioner of Police, who dismissed the appeal. The Commissioner of Police entered conditional appearance and applied for an order to set aside the service of the writ of summons on the contention that the Commissioner of Police was not the proper defendant as the complaint of the plaintiff was not against the Commissioner of Police but against the officer who held the inquiry.

Held: the complaint of the plaintiff was not only against the officer who held the inquiry but also against the Commissioner of Police for dismissing his appeal and therefore the Commissioner of Police was a proper defendant in this case.

Phang Moh Shin v Commissioner of Police, Singapore [1966] 1 MLJ 187 High Court, Singapore (Chua J).

The plaintiff sought a declaration that his dismissal from the Singapore Police Force was void, inoperative and of no effect on three grounds: (a) breach of the audi alteram partem rule, (b) bias, and (c) the disciplinary proceedings were not held in accordance with the Police Regulations or General Orders. A complaint against the plaintiff was made by a member of the public and as a result of a preliminary investigation a disciplinary offence was disclosed and it became necessary to charge the plaintiff in accordance with the Police Regulations 1959. The third defendant was delegated to conduct the disciplinary proceedings. There was sharp conflict of evidence as to when the plaintiff was first informed of the charge. The court, however, arrived at the conclusion that the plaintiff was first charged at the commencement of the disciplinary proceedings on 13 May 1963. During the proceedings, the charge was read to the plaintiff but no copy of it was supplied to him either before, at or during the proceedings. Plaintiff's request for an adjournment to prepare his defence was refused. The third defendant had before him the investigation papers, plaintiff's service sheet and personal record, miscellaneous files containing complaints concerning the plaintiff's behaviour which were unconnected with the charge and a previous conviction on an extortion charge which was quashed on appeal. All these were taken into consideration by the third defendant in arriving at his decision and in making his recommendations. The contents of these documents were not disclosed to plaintiff and he was never given an opportunity of answering or explaining them. Furthermore, the third defendant had been previously the plaintiff's senior officer and had direct charge and control over him and would thus have access to his personal file and service sheets.

Held: (1) the plaintiff was not given adequate notice to meet and answer the charge. Even if the plaintiff was charged on Friday or Saturday there was totally inadequate notice to meet and answer the charge on the following Monday bearing in mind that the weekend had all but arrived and the plaintiff was on 24 hour reserve duty the whole of the Sunday and Sunday night; (2) there was a real likelihood of bias, that is, an operative prejudice whether conscious or unconscious on the part of the third defendant; (3) the disciplinary proceedings were unsatisfactory and not in accordance with the Police Regulations 1959, Part III. None of the witnesses against the plaintiff gave evidence before the third defendant in the presence of the plaintiff. Nor was their evidence recorded by the third defendant as was required by the regulations save for a few questions in cross-examination. The pre-recorded statements which were never made available to the plaintiff were merely read out by the third defendant to the plaintiff and thereupon told to cross-examine the witnesses. The recorded statements were not signed by the third defendant as required by reg 7(6). There was also a breach of the Police General Order 463(27); (4) the plaintiff was entitled to the declaration that his dismissal was void. Observation on conduct of disciplinary proceedings. Per Buttrose J: 'É the strict rules of evidence are not applicable to domestic tribunals, but on the other hand they must conduct themselves in accordance with the principles of natural justice.'

Phang Moh Shin v Commissioner of Police & Ors [1967] 2 MLJ 186 High Court, Singapore (Buttrose J).

The plaintiff was a sergeant in the Singapore Police Force. In May 1984, four disciplinary charges were preferred against him. Three of the charges alleged that he exceeded his duty by causing injury to an accused person, one Neo Hong Huat. The fourth charge was for conduct to the prejudice of good order and discipline by shouting at the same accused person's wife. The disciplinary proceedings were conducted by John Pereira, the authorized officer, in October 1984. In November 1985, the plaintiff was found guilty of all four charges and after mitigation, the plaintiff was informed that recommendations would be made to the proper authority. On 4 January 1986, the plaintiff received a letter of dismissal from Chua Cher Yak who was then a commanding officer. He appealed to the Commissioner, but his appeal was dismissed. He then commenced an action against the government claiming a declaration that the dismissal was illegal, void and inoperative and ultra vires the Constitution and the Police Force Act (Cap 235) ('the Act') and in violation of the rule of natural justice and a declaration that he was still a sergeant in the Singapore Police Force and consequently entitled to be renumerated as such or alternatively damages for wrongful termination. In his pleadings, the plaintiff alleged, inter alia, that the authorized officer who conducted the disciplinary proceedings was biased, that he was not given the opportunity to be heard before a decision to dismiss him was made.

Held, granting the declaration that the plaintiff was still a sergeant and therefore entitled to back pay and pension rights: (1) the right test that should be applied in deciding whether there was bias in disciplinary proceedings should be whether or not there was a 'reasonable suspicion of bias'. If it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done, then the decision of a tribunal ought not to be allowed to stand if there was a reasonable suspicion of bias on the part of the tribunal or any member of it; (2) the authorized officer had indicated in the notes that he had accepted Neo Hong Huat as a truthful witness even before Neo had been cross-examined. Medical evidence was important in respect of Neo's evidence because there were allegations of assault. A reasonable person who had sat in on the proceedings and heard what the authorized officer had recorded, would think that the authorized officer was biased and that a fair hearing was impossible. The authorized officer having committed himself to a view on Neo's evidence with such conviction, it would be hard for any reasonable person to believe that he could from that point of time on hear all the evidence that was to come, assess the whole of the evidence, make findings of fact and generally conduct the proceedings with fairness and impartiality; (3) disciplinary proceedings against an officer in the discharge of his duties touch on matters of public importance. If there was suspicion of bias on the part of an authorized officer in the conduct of such proceedings whether it be to favour the officer or otherwise, public confidence in the Police Force as an institution charged with the maintenance of law and order may be seriously eroded. Taking all these circumstances into account, there must not be an appearance of any departure from a very high standard of fairness and impartiality. In the present case, there had been such a failure. There was a reasonable suspicion of bias. The suspicion of bias would be well founded and it would be of sufficient gravity. The findings of the authorized officer, therefore, in respect of all three charges of assault could not stand. For the same reasons, the conviction on the fourth charge also could not stand; (4) it should also be noted that there was no finding of actual bias. It should also be noted that but for the frank and candid record by the authorized officer of the conviction in his mind as to the truthfulness of the witness, there would have been no occasion for the court to interfere on the ground of bias; (5) there was sufficient evidence to warrant a conviction on all four charges. The plaintiff was given every opportunity to be heard in the proceedings before the authorized officer; (6) there was evidence to support the authorized officer's findings of guilt on all four charges and there was evidence to rebut the charges. But this was not an appeal. It could not be said that the evidence as a whole, even if not altogether satisfactory, was inconsistent with or contradictory to the findings; (7) the plaintiff was not reduced to the rank of constable before he was dismissed. This was a breach of s 33 of the Act, but it had not been demonstrated that any interest was or could be affected by such a breach. The provision was merely directory and not mandatory and its breach did not affect the validity of the dismissal on this ground; (8) if an authorized officer considers that an officer should be dismissed or retired, he must forward the record of proceedings with his recommendations to his commanding officer for sentence. The plaintiff would have had ample opportunity to address the authorized officer on sentence when he presented his mitigation after conviction, which he did through his defending officer. There was no breach of the rules of natural justice by the authorized officer; (9) the record of proceedings together with the grounds of decision and the recommendations of the authorized officer were not seen by the commanding officer until in compliance with an administrative requirement, these documents had been processed by the staff officer concerned and what the commanding officer received and had with him before he made his decision were these documents as well as the assessment report of the staff officer. This assessment was referred to by the commanding officer as an assessment of findings. He also said that his decision was based on the findings and recommendations of the authorized officer and whatever assessment reports were received. But the provisons of s 27 of the Act and reg 6(8) of the Police Regulations do not permit or require the record of proceedings, the grounds of decision of the authorized officer and his recommendations to be sent to a staff officer for assessment of the authorized officer's findings. They do not permit or require the commanding officer to receive and read the staff officer's assessment report before he comes to a decision as to the punishment and announces it or otherwise informs the officer concerned as by writing to him in this case. There have been breaches of these provisions. The documents did go to the staff officer for assessment of the authorized officer's findings. The commanding officer did receive and read the staff officer's assessment report before coming to his decision and issuing the dismissal letter; (10) s 27 of the Act and reg 6 of the Regulations require the commanding officer to assess the findings of the authorized officer himself. This is a protection given to the officer concerned that his case should receive the attention of no less a person than a commanding officer before he can be retired or dismissed. Disciplinary proceedings were not matters to be taken lightly. There had been a breach of the said provisions which were mandatory provisions. The breach made the dismissal a nullity; (11) the report was of such a nature that would induce the commanding officer to come to a decision to dismiss the plaintiff. After reading it, he did come to such a decision. It was for him to explain how he came to his decision on the materials before him other than without relying on the assessment report. He did not do so; (12) the plaintiff never knew about the assessment report and therefore also had no opportunity to be heard on the report. He was entitled to a reasonable opportunity of being heard before being ordered to be dismissed. He was not given such an opportunity of being heard because he had not been given any opportunity of dealing with the assessment report.

De Souza Lionel Jerome v Attorney General [1993] 1 SLR 882 High Court, Singapore (Lim Teong Qwee JC).

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

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

Attorney General, Singapore v Ling How Doong [1969] 1 MLJ 154 Federal Court, Singapore (Wee Chong Jin CJ, Tan Ah Tah FJ and Chua J).

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

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

Lee Keng Kee v Attorney General, Singapore [1981] 2 MLJ 220 High Court, Singapore (Rajah J).

The appellant who was a police officer was detained under an order issued by the Minister of Home Affairs. Whilst in detention, he received a statement in writing sent by the Police Force Commission pursuant to General Order 30(2) of the Public Officers (Conduct and Discipline) (General Orders, Chapter D) Regulations 1969 requiring him to show cause why he should not be dismissed from the police force. The appellant sent a written reply to the Police Force Commission. The appellant was dismissed from the police force and he sought, inter alia, a declaration that his dismissal was void. The High Court dismissed his claim ([1973] 2 MLJ 191) and the appellant appealed to the Federal Court.

Held, dismissing the appeal: (1) in this case, although the respondents could have proceeded against the appellant either under the Public Officers (Conduct and Discipline) (General Orders Chapter D) Regulations 1969 or the Police (Conduct and Discipline) (Junior Police Officers and Constables) Regulations 1970, they were within their rights in choosing to proceed under the 1969 Regulations (Chapter D); (2) in any case, even when proceeding against the appellant under the 1969 Regulations (Chapter D) the respondents should have given him a reasonable opportunity of being heard; (3) in the circumstances of this case, an oral hearing was unnecessary and the respondents had given the appellant a reasonable opportunity of being heard.

Najar Singh v Government of Malaysia & Anor [1974] 1 MLJ 138 Federal Court, Kuala Lumpur (Azmi LP, Suffian CJ and Ong Hock Sim FJ).

[Annotation: Upheld by the Privy Council. See [1976] 1 MLJ 203.]

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

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

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

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

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

Attorney General, Singapore v Lee Keng Kee [1982] 2 MLJ 6 Court of Appeal, Singapore (Wee Chong Jin CJ, Sinnathuray and Lai Kew Chai JJ).

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

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

Wong Kim Sang & Anor v Attorney General [1982] 1 MLJ 176 High Court, Singapore (Kulasekaram J).

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

Held, dismissing the plaintiff's claim: (1) they are not a judicial or quasi-judicial body and they have no power to make any decision in any inquiry. No decision can emanate from the Inquiry Committee; (2) but they are not obliged to give reasons for their decisions; (3) the respective functions of the Inquiry Committee and the PSC are mutually exclusive. The Inquiry Committee are not a delegated body of the PSC for the purpose of making any decision;the PSC may have to act judicially or quasi-judically by the very nature of the power they exercise and the decisions they make, which can affect the livelihood of public officers;the PSC in interdicting the plaintiff from duty acted in accordance with r 7 of the 1970 Regulations. Rule 7(i) does not require the PSC to consider the exculpatory statement of the plaintiff before interdicting him. It empowers the PSC to interdict any officer in the public interest instantly and this must mean without having to hear him. The power of the PSC under r 7 is not dependent on or related to their power under r 4.

Heng Kai Kok v Attorney General, Singapore [1987] 1 MLJ 98 High Court, Singapore (Chan Sek Keong JC).

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

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

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

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

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

Sithambaran v Attorney General [1972] 2 MLJ 175 High Court, Singapore (Tan Ah Tah J).

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 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 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 (Viscount Dilhorne, Lord Wilberforce, Lord Edmund-Davies, Lord Russell and Lord Keith).

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

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

Leong Kum Fatt v Attorney General, Singapore [1986] 1 MLJ 7 Court of Appeal, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Thean JJ).

The plaintiff, who was an inspector, was dismissed from the Singapore Police Force for slapping and assaulting a police suspect, an offence under s 27(1)(c) of the Police Force Act (Cap 78, 1970 Ed) and punishable under s 28(1) of the said Act. The plaintiff claims (a) a declaration that his purported dismissal from the Force is null and void; (b) a declaration that he had continued to be and was still an inspector in the Force and entitled to be remunerated as such; (c) alternatively, damages for wrongful dismissal. The short facts were as follows. On the night of 18 July 1976, there was a fight at a bar in Joo Chiat Road. It was believed that secret society elements were involved. The plaintiff was at that time attached to the Joo Chiat Police Station and was the Inspector-in-Charge Secret Societies in 'G' Division. The plaintiff commenced investigation. On 23 July 1976 at about 8.30 am, four suspects, Tan Lian Ann, Lim Ho Kiat, Soh Kee Hwee and Tan Yong Chiang were escorted into the plaintiff's office. At about 1.55 pm the same day, Tan Lian Ann and Lim Ho Kiat were released and the other two were released later than day. On 30 July 1976, Tan Siak Tong, the father of Tan Lian Ann, lodged a complaint with the Complaints Bureau that Tan Lian Ann was assaulted by the plaintiff on 23 July 1976. The said complaint was referred to ASP Ng on 17 August 1976 for investigation. Two years later, the plaintiff received a letter of 31 July 1978 that in accordance with Police Regulations a board had been appointed to hear into two charges of assault against him, to wit, for slapping Tan Lian Ann on the face several times and for fisting him once on his stomach, both of which were offences under s 27(1)(c) of the Police Force Act (Cap 78, 1970 Ed) and punishable under s 28(1) of the aforesaid Act. On 11 August 1978, the plaintiff appeared before the board. The hearing concluded on 17 November 1978, when the plaintiff was informed that the board found him guilty of two charges. On 2 February 1979, the plaintiff received a letter from the Commissioner of Police stating that he was dismissed from the Police Force and that his dismissal would take effect the day following the date of receipt of the letter. This decision was confirmed by a letter dated 6 October 1979 from the Secretary of the Public Service Commission.

Held, dismissing the plaintiff's claim: (1) the scope of judicial review is limited only to review of the decision-making process, that is the hearing, and not the decision itself. The court is concerned only with the hearing not the conduct of the investigations, the findings of the board or the reasons given by the board for its findings; (2) there was sufficient evidence for the board to come to its finding that the plaintiff was guilty of both the charges; (3) from the record of proceedings, it was clear that the board did comply with the requirements of the law and regulations. Per curiam: the board is not bound to comply with the Evidence Act or the Criminal Procedure Code although it may look to them for guidance. The provisions of the Police Regulations except in so far as they are designed to give effect to art 110(3) of the Singapore Constitution are not mandatory but are merely directory as being purely procedural rules. Any breach or non-compliance with any such purely procedural rules does not give a person aggrieved thereby a legal right to redress in a court of law.

Leong Kum Fatt v Attorney General [1984] 2 MLJ 197 High Court, Singapore (Chua J).

The appellant in this case was a police constable who joined the Police Force in May 1966. In February 1973, he was attached to the Airport Police Station. On 20 May 1973, he was served with four charges under the Police Force Act (Cap 78, 1970 Ed) alleging that he had committed offences under s 27(1)(k), s 27(1)(j), s 27(1)(h) and s 27(1)(e). On 31 May 1973, the appellant appeared before ASP Sta Maria, the officer authorized to conduct the disciplinary proceedings to answer the charges. At the conclusion of the said disciplinary proceedings, he was found guilty. ASP Sta Maria imposed punishment accordingly. However, the punishments were not executed. On 16 July 1973, the appellant was informed by ASP Chan, the Officer Commanding 'F' Division where the appellant was then attached, that the Commissioner of Police, acting under reg 10 of the Police Regulations 1959, ordered a re-hearing of the disciplinary proceedings. The appellant was handed a charge sheet by ASP Chan containing two charges under s 27(1)(k) and (e) of the Police Force Act. These two charges were similar to two of the said four charges which were inquired into by ASP Sta Maria. On 18 July 1979, the appellant was instructed to appear before ASP Chan on 27 July 1973 on these two charges. He duly appeared and claimed trial. ASP Chan found the appellant guilty of both charges. The Commissioner of Police acting on the findings and recommendations of ASP Chan by letter dated 10 August 1973 addressed to the appellant, dismissed the appellant from the Police Force. The High Court dismissed the appellant's claim for a declaration that his dismissal from the Singapore Police Force was illegal, void and inoperative. The appellant appealed.

Held, dismissing the appeal: (1) the remedy of judicial review was concerned not with the decision of which review was sought but with the decision-making process; (2) non-compliance with reg 5 of the Police Regulations 1959 would not render illegal or void a dismissal otherwise valid; (3) the appellant had a fair hearing and he was dismissed after he had first been told what was alleged against him, and hearing his defence or explanation. The written statements were properly admitted in evidence and there was no breach of the procedural provisions of reg 7(5) and (6) of the Police Regulations.

Abdul Raub v Attorney General [1983] 1 MLJ 10 Court of Appeal, Singapore (Wee Chong Jin CJ, Lai Kew Chai and S Rajah JJ).

The plaintiff, an inspector attached to the Special Branch, had on 14 June 1965, four charges preferred against him for breaches of discipline under the Police Force Ordinance 1958. The then acting Commissioner of Police, Singapore Component, Royal Malaysian Police, appointed a board to conduct a disciplinary inquiry in accordance with the Police Regulations 1959. The board found the plaintiff guilty of two out of the four charges (as amended in the course of the proceedings). The Commissioner informed the plaintiff that the board had found him guilty of two charges and that he had accepted the board's finding and decided to impose a fine of S$50 for the first charge and to reprimand him for the second charge. The plaintiff being dissatisfied with the decision appealed against it. The Public Service Commission after hearing the appeal, decided that he should be dismissed from the service. The plaintiff then commenced this action claiming declaration and damages. Counsel for the plaintiff submitted four arguments: (a) the board had no power to amend the charges; (b) the board acted on no or no sufficient evidence or acted contrary to the evidence before it and was therefore wrong in law; (c) the appeal against the Commissioner's award should have been preferred to the President according to the Police Force Ordinance and not to the Public Service Commission; and (d) even if the Public Service Commission did have the power to hear the appeal, it had no power to enhance the punishment awarded by the Commissioner of Police.

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

Ling How Doong v Attorney General, Singapore [1968] 2 MLJ 253 High Court, Singapore (Winslow J).

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

Held, dismissing the appeal: (1) the proper disciplinary authority in this case was the Inspector-General of Police and as the show cause letter was issued on the direction not of the Inspector-General of Police but of the Deputy Inspector-General of Police, the requirement of General Orders, Chapter D, 30 was not complied with; (2) oral evidence should not have been acted upon because it is clear that under s 91 of the Evidence Act 1950 (Act 56), no evidence can be given in proof of any matter which is required by law to be reduced in the form of a document and s 92 prohibits the giving of oral evidence to contradict or vary or explain the terms of such document; (3) as the show cause letter did not direct the respondent's attention to the possibility of the punishment of reduction in rank, it has not sufficiently complied with the requirements of para (2) of General Orders, Chapter D, 30; (4) if the show cause letter had included the proposed punishment, there is no necessity for the appellants to give the respondent another opportunity of being heard before the punishment is imposed; (5) in the circumstances, it was too late for the appellants to make any rectification as the matter having been fought all the way through the court system has already become res judicata.

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

This was an application for an order of certiorari to remove for the purpose of being quashed an order of the Commissioner of Police suspending the applicant from the exercise of his office of Assistant Superintendent of Police. The facts were that the applicant was travelling from Thailand to Alor Star, when his car was stopped and opium found in it. The applicant was convicted by a court in Thailand. The applicant was subsequently informed that disciplinary proceedings were contemplated against him and he was suspended from duty with effect from the date of his conviction. The applicant was informed that disciplinary proceedings were contemplated by reason of his conviction, but subsequently following objection by his counsel he was informed of an additional charge alleging that he had conducted himself in such a way as was considered prejudicial against the good name and integrity of the Royal Federation of Malaya Police and the Federation as a whole. A committee was appointed to investigate the charge against the applicant and he was informed that he would be notified of the time, date and place of the sitting of the committee.

Held: (1) the act of the Commissioner of Police in this case in suspending or interdicting the applicant was an administrative act and therefore certiorari did not lie; (2) although the foreign conviction could not give the Commissioner of Police jurisdiction to exercise any of his powers under reg 43 of the Public Officers (Conduct and Discipline) Regulation 1956, in this case there was the additional charge of misconduct under reg 38 of the regulations and, therefore, the order of the Commissioner of Police in suspending the applicant was not invalid.

Augustine v Commissioner of Police, Malaya [1964] MLJ 438 High Court, Kuala Lumpur (Ong J).

Even in cases where the defence of alibi has not been disclosed, the police should make inquiries as to the whereabouts of the accused at or about the time of the alleged offence.

Public Prosecutor v Mat Zain [1948-49] MLJ Supp 142 High Court, Alor Star (Callow J).

When a police officer in a position to do a favour for another person likely to require such favour, received from such other any money or other valuable thing without consideration or any ostensible reason, then these very circumstances afford reasonable and sufficient grounds for holding a sufficient case was made out by the prosecution under the main or alternative charge. Per Hashim J: 'Under s 2 of the Customs Ordinance 1952, an officer of customs means a police officer and under s 7 of the said ordinance all police officers not below the rank of inspector shall have and may exercise all the powers by this ordinance conferred on senior officers of customs. Furthermore, under s 33(3)(d) of the Police Ordinance 1952 it shall be the duty of police officers to take lawful measures for assisting in carrying out revenue and excise laws. Under s 35 of the Police Ordinance 1952, a police officer is deemed to be always on duty to perform the duties and exercise the powers granted to him under the Police Ordinance 1952 or any other written law at any place in the Federation where he may be doing duty.'

Public Prosecutor v Tan Hock Sing [1963] MLJ 219 High Court, Kota Bharu (Hashim J).

This was an appeal against the conviction of the appellants on charges of assisting in the management of a place used as a common betting house, an offence under s 4(1)(c) of the Betting Ordinance 1953. At the trial, the senior police officer, who led the raid on the premises, stated that he led the raid acting upon information which had been given him by some person orally in the street. He did not give any reason why the information was not reduced to writing nor did he say that this was not done because the delay would have defeated the ends of justice.

Held: at the end of the prosecution's case, the evidence was incomplete and therefore the appellants should not have been called for their defence.

Wong Yiap Long & Anor v Public Prosecutor [1955] MLJ 132 High Court, Seremban (Abbott J).

In May 1963, one Lee, a police informer, reported to the police that an arrangement had been made to pay the sum of RM500 per month to the respondent, the OCPD, Jitra, that various payments had been made to him, and that a further payment would be made to him in June. These sums were allegedly paid to the respondent so that he might allow lorries carrying fresh fish belonging to certain companies to cross the Thai-Malayan border after 6pm. Lee further alleged that one Hashim made the payments to him and he made them to the respondent. Hashim, who was called as a prosecution witness stated in evidence that he had no financial dealings with Lee and that he had not been in Lee's shop. The prosecution, however, adduced evidence to show that a cine-camera and a tape recorder had been installed at Lee's shop and that three prosecution witnesses saw Hashim hand over the money to Lee. The picture taken by the cine-camera and the tape recordings confirmed this evidence. Evidence was also adduced of the police interrogation of the respondent, where he admitted that he had accepted some fish and two motor tyres from the companies. At this stage, the learned President stopped the evidence and acquitted the respondent on a charge under s 4(a) of the Prevention of Corruption Act 1961. On appeal by the Public Prosecutor,

Held: (1) Lee was not an accomplice, but his evidence should be subjected to the closest scrutiny and corroborated in material particulars before it could be accepted; (2) had the learned President correctly assessed the evidence relating to Hashim, he would have no hesitation in holding that he was a wholly unreliable witness who was not to be believed and whose evidence should be rejected in toto; (3) the statements made by Hashim and recorded by the tape recorder were admissible although investigation had commenced because they were not made to a police officer and they were not made with a view to avoid the bar of s 113 of the Criminal Procedure Code (FMS Cap 6); (4) the acceptance of fish or motor tyres is not by itself an offence and such an admission would not amount to a submission to custody. Accordingly, the learned President should not have stopped the evidence at that stage; (5) the effect of s 15(1) of the Prevention of the Corruption Act 1961 is that where a statement is made after the person making it has been arrested, s 26 of the Evidence Ordinance 1950 does not apply but proviso (b) to s 15(1) of the Prevention of Corruption Act 1961 does; (6) the burden of proof on an accused person under s 14 of the Prevention of Corruption Act 1961 is not higher than that on a party to a civil action to prove his case on a balance of probabilities.

Public Prosecutor v Gurbachan Singh [1964] MLJ 141 High Court, Alor Star (Hepworth J).

The expression 'on information received' should not be used by police officers when giving evidence as its use may cloud the issue and/or prejudice the court against the accused.

Vijayaratnam v Public Prosecutor [1962] MLJ 106 High Court, Kuala Lumpur (Hashim J).

At the trial, a police photograph of one of the accused was put in evidence. It bore a police number and was a combined profile and full face photograph.

Held: the production of the photograph would be apt to prejudice a jury and to embarrass a judge. It was obviously a police record and putting it in evidence was tantamount to saying that the man was of bad character.

Girdari Lall & Ors v Public Prosecutor [1946] MLJ 87 Court of Appeal, Federated Malay States (Terrell Ag CJ (FMS).

When a crime has been committed there is no objection to a witness being shown by police a number of photographs and being asked if he could recognize one as that of a wanted man who has been arrested. When the examination of a number of photographs is made to assist the police to effect an arrest there is no objection to it provided that there has been no prompting and that nothing has been done by the police to suggest that a particular photograph may be that of a wanted man. It is otherwise when a photograph has been shown to a witness after arrest; and if that has been done it may be a ground for quashing a conviction.

Lai Ah Kam & Anor v R [1939] MLJ 306 Court of Criminal Appeal, Straits Settlements (McElwaine CJ, Poyser CJ (FMS).

The accused was charged with extortion under s 384 of the Penal Code. In the course of the hearing, a police officer gave evidence of statements made by a witness apparently to corroborate the evidence within the meaning of s 157 of the Evidence Ordinance. The learned district judge convicted the accused who appealed against this conviction. In his grounds of judgment, the learned district judge said that by paying the money under threat, the complainant did not become an accomplice.

Held: (1) as the statements were made in the course of a police investigation they were inadmissible because of s 124 of the Criminal Procedure Code (Straits Settlement, Cap 21) and therefore they could not be used to corroborate the evidence of a witness under s 157 of the Evidence Ordinance (Cap 5); (2) a person who gives money to a policeman in order to cause him to fail in his duties is guilty of a criminal offence and this is so even if the first suggestion is from the policeman and that therefore the complainant in this case was an accomplice within the meaning of the Evidence Ordinance; (3) as the admission of the statement did not influence the learned district judge in coming to his decision and as there was ample corroboration of the evidence of the complainant in this case, the conviction must be upheld.

Wee Boo Soh v R [1947] MLJ 93 High Court, Singapore (Murray-Aynsley CJ).

Once the suspicion of a police officer has been aroused to such an extent as to cause him to proceed to any action, then investigation has been commenced.

Lim Kim Chuan v Public Prosecutor [1948] MLJ 117 High Court, Seremban (Callow J).

A police officer conducted an inquiry into a non-seizable case without the order of the Public Prosecutor under s 108(ii) of the Criminal Procedure Code (Cap 6). In the course of that inquiry, the appellant made a certain statement which the police officer purported to record under s 112(i) of the code. The case into which the police officer was making inquiries subsequently came to trial. The appellant was a witness at the trial and gave evidence completely at variance with his statement to the police officer; subsequently, the appellant was charged under s 193 of the Penal Code, it being alleged that he had made contradictory statements in a judicial proceeding.

Held: since the police officer recorded the appellant's statement before the order of the Public Prosecutor had been obtained under s 108(ii) of the Criminal Procedure Code, the special powers in relation to police investigations under Chapter XIII of the Code had not arisen, and as a result the appellant was not bound to answer truly all questions put to him by the police officer purportedly under s 112 of the code. As a result, the statement made to the police officer was not made in the course of a judicial proceeding.

Anthony v Public Prosecutor [1958] MLJ 148 High Court, Kuala Lumpur (Smith J).

Per Rigby J: 'The vital importance of recording statements from potential witnesses to a crime or accident at the earliest possible opportunity is so elementary that it should require no further emphasis.'

Putra v Sivagnanam & Anor [1959] MLJ 259 Court of Appeal, Ipoh (Thomson CJ, Rigby and Hepworth JJ).

There must be some legal protection for police informers; otherwise a police informer, who is used in a 'police trap' to obtain possession of ammunition from a person regarding whom the informer gave information to the police that such person was in possession of ammunition, would have no protection.

Abdul Aziz v Public Prosecutor [1949] MLJ 181 Court of Criminal Appeal, Federation of Malaya (Willan CJ, Laville and Spenser-Wilkinson JJ).

The appellant, a corporal with the Federation Police, was charged and convicted under s 3(a) of the Prevention of Corruption Ordinance 1950, for corruptly accepting RM30 from one LYK by promising to assist him in settling a samsu case which was still under investigation. On appeal, it was argued, inter alia, that (a) the charge disclosed no offence known to the law because of the omission of essential ingredients of the charge; (b) the learned President erred in law as neither the charge nor the evidence showed that the appellant received money as a reward in relation to his principal's affairs; (c) the learned President erred in not realising that a particular witness was a 'chance witness' and that his evidence should be viewed with caution.

Held: (1) even if there was an omission of an essential ingredient of the charge the appellant was not misled and if the charge can be said to be bad for duplicity there has been no miscarriage of justice; (2) there was ample evidence that the money was received as an inducement for showing favour in relation to the appellant's principal's affairs; (3) a 'chance witness' is one who by chance overhears an admission of a person deceased at the time of hearing. The third prosecution witness was not a 'chance witness' and there was no reason to treat this witness any differently from any other witness.

Low Seng Wah v Public Prosecutor [1962] MLJ 107 High Court, Ipoh (Neal J).

Per Thomson CJ: 'Police Form No 52 is not an altogether satisfactory form even with present day methods of dealing with summonses and charge sheets in magistrate's courts. Some such form is, if not strictly necessary, probably desirable but we think the Commissioner of Police should take advice with a view to having a new form drafted.'

Public Prosecutor v Leonard [1960] MLJ 13 Court of Appeal, Kuala Lumpur (Thomson CJ, Rigby and Ong JJ).

For the purpose of the Emergency Regulations 1948, a Captain of the Malay Regiment, to whom the accused made an oral statement, was a 'police officer' within the meaning of s 26 of the Evidence Enactment.

Public Prosecutor v Lee Weng [1949] MLJ 120 High Court, Raub (Spenser-Wilkinson J).

In this case, the question for the determination of the court was whether a chandu officer, who is not a member of the police force of the Federation, is a police officer within the meaning of s 26 of the Evidence Ordinance 1950.

Held: the words 'police officer' in s 26 of the Evidence Ordinance must be given their ordinary everyday meaning. Applying that test, a chandu officer is not a police officer within the meaning of that section. Obiter: Tan Shu En & Anor v Public Prosecutor [1948] MLJ 196 is not a decision of a court of co-ordinate jurisdiction with the Court of Appeal, and although the Court of Appeal would always give great weight to such a decision, it is not binding upon it.

Public Prosecutor v Tay Yam Peng [1951] MLJ 144 Court of Appeal, Federation of Malaya (Foster-Sutton CJ, Taylor and Abbott JJ).

In this trial, the prosecution submitted as evidence a statement amounting to a confession, alleged to have been made by the accused to certain members of the civilian security police, while in their custody. Counsel for the Crown submitted that the security officers were not police officers and therefore the statement was admissible.

Held: the civilian security police concerned in this case were in fact police and, therefore, the confession was inadmissible.

R v Kungu [1949] MLJ 76 High Court, Singapore (Taylor J).

A custom officer and outdoor officers are chandu officers within the meaning of s 23 of the Opium and Chandu Proclamation (No 49) and as such are police officers for the purposes of ss 25 and 26 of the Evidence Ordinance.

Tan Shu En v Public Prosecutor [1948] MLJ 196 Court of Appeal, Penang (Willan CJ, Bostock-Hill and Briggs JJ).

This was an appeal from the Sessions Court, Kuala Lumpur, against the conviction and sentence of the appellant for contravening s 114(1)(e) of the Customs Enactment. One of the grounds of appeal was that the statements made by the appellant to the customs officer was wrongly admitted in evidence.

Held, inter alia: statements made to a customs officer in the course of an interrogation and investigation under s 126 of the Customs Enactment 1936 are admissible in evidence.

Chong Chin Yuan v Public Prosecutor [1949] MLJ 262 High Court, Kuala Lumpur (Callow J).

Customs officers are not police officers, although in a sense the activities of all government officers engaged in enforcing the law are police duties and it is entirely contrary to the ordinary use of language to describe officers so engaged as police officers.

Man Woo v R [1951] MLJ 20 High Court, Singapore (Murray-Aynsley CJ).

The expression 'the Chief Police Officer' in the Preservation of Peace Ordinance VI of 1872, s 15, (as amended by Ordinance V of 1877 and VI of 1885) might mean, according to circumstances, the Inspector-General of Police of this Colony but is not confined to that officer, and includes the principal officer of police, of whatever rank, for the time being in the Settlement from which the information proceeds.

Re Tan Tua Kow [1887] 4 Ky 291 High Court, Straits Settlements (Ford CJ).

'Police Officer' in s 25 of the Evidence Ordinance should be confined to its natural meaning.

Rasiah v Public Prosecutor [1931-32] FMSLR 45 High Court, Federated Malay States (Burton J).

A penghulu is not ordinarily a police officer within the meaning of s 25 of the Evidence Enactment. Where a penghulu possesses no more powers than are conferred upon him by the Criminal Procedure Code, as in this case, he cannot be regarded as a police officer, and s 25 of the Evidence Enactment does not apply.

Jubri v Public Prosecutor [1947] MLJ 88 Court of Appeal, Malayan Union (Willan CJ (Malayan Union).

As far as service personnel are concerned, the members of the Provost Staff of the Royal Air Force are police officers as they have powers of detention and investigation.

R v Forrest & Ors [1949] MLJ 116 High Court, Singapore (Brown J).

Revenue officers are not police officers within the meaning of ss 25 and 26 of the Evidence Ordinance and therefore a confession or admission of guilt made by a suspect or accused person to a revenue officer is not ipso facto rendered inadmissible in evidence by the provisions of those sections.

Public Prosecutor v Teh Lye Tong [1958] 3 MC 208 High Court, Penang (Rigby J).

The power to impose police supervision is a measure that should be resorted to sparingly by magistrates and then only in the most appropriate cases. Its sole object and only justification is to ensure that in the interests of public security the police are in a position to exercise some measure of control over the movement and activities of persons of known bad character such as burglars, pickpockets and common thieves, who habitually and consistently lead a life of criminal dishonesty. It should therefore not be imposed by way of an additional punishment. The imposition of police supervision and the consequent difficulties and restraint it puts upon the prisoner after his release does more harm than good.

Re Bakar [1959] MLJ 256 High Court, Penang (Rigby J).

Police supervision may well be justified in cases where a man is a habitual criminal who commits offences of burglary or housebreaking or theft. A conviction for an offence of abduction under s 366 of the Penal Code as in this case does not warrant the imposition of police supervision.

Hussain v Public Prosecutor [1956] MLJ 207 High Court, Kota Bharu (Rigby J).

Where it is the intention of the court to order police supervision it is essential that some punishment, however slight, should be imposed upon the accused first.

R v Bakar [1951] MLJ 202 High Court, Penang (Spenser-Wilkinson J).

A police supervision order under s 49A(1)(f) of the Criminal Law (Temporary Provisions) Ordinance 1955 must specify the hours between which the person affected must remain within doors or within the prescribed area. A direction, as in this case, that a person shall not at any time visit such an area does not fall within the scope of the sub-paragraph. An order restricting a person from entering certain area 'at any time' does not comply with the requirement that a direction must be limited so as to take effect 'between such hours as may be specified'. It therefore follows that sub-para (f) of s 49A(1) of the ordinance, as it stands at present, does not entitle the Minister to impose condition (e) in the police supervision order, restricting the respondent from entering a certain area 'at any time'. The appeal must therefore be dismissed and the decision of the learned district judge affirmed.

Public Prosecutor v Chua Siang Kang [1960] MLJ 281 High Court, Singapore (Rose CJ).

The accused were charged before the magistrate, Seremban, on 6 January 1940 with theft of scrap iron, an offence under s 379 of the Penal Code and were convicted and sentenced as follows: 'Fine RM10 or 14 days' RI and one year's police supervision.' Upon revision (on reference by the Public Prosecutor),

Held: police supervision could only be imposed when a substantial sentence of imprisonment was also imposed.

Public Prosecutor v Ng Tai & Anor [1940] MLJ 73 High Court, Federated Malay States (Horne J).

Chapter XIII of the Criminal Procedure Code 1926 applies both to seizable and non-seizable offences, and a police officer investigating a non-seizable offence cannot lawfully examine orally a person under s 112 without the order of the Public Prosecutor under s 108(ii) or of a magistrate under s 115(2) of this code.

Fong Sai Mun v Public Prosecutor [1931-32] FMSLR 42 High Court, Federated Malay States (Elphinstone CJ).

When a police officer is entitled to exercise a certain power only if he is authorized in writing in that behalf it is incumbent upon him to satisfy the court that he was so authorized and to produce the evidence of his authority.

Tan Bok Kee v R [1953] MLJ 238 High Court, Singapore (Brown Ag CJ).

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

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

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

In this case, the magistrate issued an order requiring the return to the owner of some of the articles seized by the police at Ipoh by virtue of two search warrants, in the form prescribed under the Criminal Procedure Code (FMS Cap 6), which he had earlier issued in consequence, in each case, of an information on oath made pursuant to the provision of s 15(4) of the Copyright Act 1969 (Act 10). The effect of the information was that the informants had good cause to suspect that offences under s 15(1) of the Act had been committed. Subsequently, Kah Wai Video (Ipoh) Sdn Bhd came forward to claim certain articles seized but not specified in the search warrant. After hearing arguments in open court, the issuing magistrate made the said order requiring the return of the articles to the owner through the police. Two questions involved are: (a) whether it was beyond the powers of the magistrate to have made the order; and (b) whether, even if he had the necesary power to do so, the making of the order was unlawful exercise of discretion within the principles enunciated by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223.

Held: (1) the issuing magistrate had neither the power nor the authority to direct the return of the unscheduled articles seized by the police authorities to the owners even if he had second thoughts about the propriety of his having issued the warrants of search in the first place; (2) if the issuing magistrate had the power to make the order for return of the unscheduled articles, then on the facts he ought not to have exercised the power in the manner he did because there was no illegal seizure; (3) having regard to the circumstances of this case, the police were authorized to seize and remove the unscheduled articles by virtue of the implied extension of powers under the warrant and/or the extension of their common law powers subject to the limitations imposed by s 15(4)(b); (4) they were also authorized to retain them in their custody and control to facilitate investigations into offences under s 5(1) subject, of course, to the limitation imposed by s 15(4)(b); (5) in any event, even if the police authorities are not authorized to conduct the search or to effect a seizure they may be open, at most, to some sort of civil action. But this is a far cry from saying that a prosecution will not lie under s 15(1) where there has been an illegal seizure of infringing copies; (6) the order of the magistrate directing the return of the unscheduled articles was quashed and substituted in its place an order that the police authorities be authorized to retain custody and control thereof to facilitate investigations into possible offences in contravention of s 15(1). The order made by the issuing magistrate as regards the scheduled articles was varied so as to enable the police authorities to continue to retain custody and control thereof, to facilitate investigations into possible offences in contravention of s 15(1).

Re Kah Wai Video (Ipoh) Sdn Bhd [1987] 2 MLJ 459 High Court, Ipoh (Edgar Joseph Jr J).

The police have power to erect a road barrier under s 38(i) of the Police Ordinance 1952 but a motorist is not obliged to stop at the road barrier unless and until he is signalled to do so by the police under s 38(2) of the Police Ordinance.

Bishan Singh v Public Prosecutor [1964] MLJ 275 High Court, Raub (Hashim J).

In this case, the appellant who were police officers, were convicted in the High Court with the offence of voluntarily causing hurt to extort a confession, an offence under s 330 read with s 34 of the Penal Code. The first appellant a Chief Inspector, was sentenced to three years' imprisonment, the second appellant to 18 months and the third and fourth appellants to 12 months each. They appealed against their conviction and sentence. The Public Prosecutor appealed against the sentence on the second, third and fourth appellants.

Held: (1) the learned trial judge had enough evidence before him which, if believed, would justify his finding the appellants guilty and the appeal court could not disturb his finding; (2) although this was a very serious case, the sentences on the second, third and fourth appellants (especially in comparison with the sentence on the first appellant against which no appeal had been brought) were not manifestly excessive or inadequate and it could not be said that the learned trial judge had proceeded on a wrong principle. The sentences must therefore be affirmed.

Lai Kim Hon & Ors v Public Prosecutor [1981] 1 MLJ 84 Federal Court, Kuala Lumpur (Suffian LP, Ibrahim Manan and Abdul Hamid JJ).

Per Rigby J: 'The efforts made by the responsible government of the country to stamp out corruption and the exhortations made, and very rightly made, to the general public to report cases of corruption and extortion to the police authorities or direct to the Prime Minister's Department are well known. Yet those responsible for the conduct and prosecution of criminal cases in this country apparently thought it adequate and sufficient to leave this serious criminal charge against senior government officers to be prosecuted by a relatively junior police inspector in a magistrate's court. The prosecution was conducted with obvious care and zealousness by the police prosecuting officer and the case tried with the greatest possible care by an extremely thorough and conscientious magistrate. But it was neither fair to the prosecuting police inspector, nor to the magistrate, nor, indeed, to the public that a case of this nature, length and complexity should have been left to be presented in this manner. The magistrate had neither that assistance from the prosecution which he was entitled to expect nor, although I say it with regret, did he receive the assistance from defending counsel that he might have expected.'

Pawanteh & Ors v Public Prosecutor [1961] MLJ 214 High Court, Penang (Rigby J).

The police were formerly the proper prosecutors in cases of felony. In all cases where a complaint has been made to the police, and the information sworn by, or at the instance of, the police, they can claim the right to prosecute.

Tan Tian Soo v Lim Ju [1890] 3 SLJ 17 Magistrate's Court, Straits Settlement (Birch, Magistrate).

Section 38(ii) of the Rubber Supervision Enactment 1937 is supplementary to s 380 of the Criminal Procedure Code (FMS Cap 6), and permits offences under the enactment to be prosecuted by the officers mentioned in s 38(ii) in addition to, inter alia, police officers who are given the necessary power to prosecute under s 380 of the Criminal Procedure Code.

Ang Toon Huan v Public Prosecutor [1956] MLJ 206 Court of Appeal, Kuala Lumpur (Mathew CJ, Whyatt CJ(S).

[Annotation: Selamat v Public Prosecutor [1955] MLJ 241 overruled.]

Statements made during investigation are not admissible. There are cases where it is necessary to commence investigation without waiting for a formal report to be recorded; in such a case it may be convenient for a later statement to be recorded for police purposes in the form of a report; however that may be, such a report is, for the purposes of s 113 of the Criminal Procedure Code, an investigation statement and therefore inadmissible (except in special circumstances).

Daimon v Public Prosecutor [1951] MLJ 11 High Court, Kuala Lumpur (Taylor J).

[Annotation: The appeal is reported in [1953] MLJ 23.]

A report to the police made by the deceased against the accused several months before the murder of the deceased is not admissible under s 32 of the Evidence Ordinance. It is admissible under s 8, not as evidence of the truth of the allegations of the deceased against the prisoner, but as showing the relations between the parties and in support of the motive alleged by the prosecution.

Boota Singh v Public Prosecutor [1933] MLJ 195 Court of Appeal, Federated Malay States (Terrell Ag CJ, Whitley and McFall JJ).

The statement if admitted as a police report under ss 114 and 116 of the Criminal Procedure Code could only be used for the purpose of contradicting or corroborating the testimony of the person who made it.

Mohamed bin Allapitchay & Ors v R [1958] MLJ 197 Court of Criminal Appeal, Singapore (Whyatt CJ, Knight and Tan Ah Tah JJ).

Semble: where a complainant has made a report to the police, the report must be produced as part of the prosecution's case.

Ooi Hock Leong v R [1955] MLJ 229 High Court, Penang (Spenser-Wilkinson J).

This appeal arose out of a private summons case for assault. The evidence produced at the trial was that of the complainant herself and her mother who was very much an interested party. No certified copy of the first report which the complainant made to the police very shortly after the alleged assault was produced at the trial.

Held: (1) in this case, it was necessary for the complainant to support her evidence with that of the first report; (2) as the first report was not produced at the close of the prosecution's case, the magistrate should not have called upon the appellants for their defence.

Teo Thin Chan & Anor v Public Prosecutor [1957] MLJ 184 High Court, Kuala Lumpur (Smith J).

The omission of the accused's name in the police report made by a witness does not in any way detract from the weight and value which the trial judge had attached to the testimony of the complainant himself. The witness' evidence as to the identity of the complainant's assailant was at any rate only secondary, and the law does not in this case (on a charge under s 326, Penal Code) require independent corroboration of the complainant.

Chinnakarappan v Public Prosecutor [1962] MLJ 360 Court of Appeal, Johore Bahru (Hill and Good JJA, Ong J).

The very fact that the report in question was removed surreptitiously points strongly to the conclusion that the person responsible for the removal and substitution had a sinister and not an innocent intention. It is not necessary for the prosecution to prove that the motive behind surreptitious removal of the report was to further a plot to smother a prosecution.

Ang Chiew Choon v R [1957] MLJ 133 High Court, Singapore (Whyatt CJ).

The magistrate held that any subsequent statement made to the police officer witness was inadmissible. A case was stated for the opinion of the High Court under 278 of the Criminal Procedure Code whether such further statements were properly rejected.

Held: (1) the duty of investigation of the facts and circumstances of a suspected offence is vested in the officer in charge of a police station but he can delegate that duty; (2) any statements made to an officer in charge of a police station or to his subordinate when acting on his instructions in the course of an investigation are inadmissible as evidence; (3) as the police officer in this case was acting on his own responsibility and without instructions from the officer in charge of a police station, an investigation under Chapter 10 of the Criminal Procedure Code had not been begun and the case should, therefore, be remitted to the magistrate to hear the further evidence of the police officer.

R v Lo Kon San [1959] SCR 92 Supreme Court, Sarawak, North Borneo and Brunei

A person who is de facto a police constable (whether he be under a formal engagement to serve as such or not) is liable to be punished under s 26 of the Police Force Ordinance 1 of 1872, if he commits any of the offences enumerated in that section. Semble: where no time is specified in an order of the Governor under s 1 of Ordinance IX of 1881 for the term to be named in a contract for service as a constable a contract, made under that ordinance, is void if it be for a term of five years.

R v Kelly [1884] 3 Ky 194 Court of Appeal, Straits Settlements (Sidgreaves CJ, Ford and Wood JJ).

The appellant in this case was a police inspector. He was issued by the Police Force with a service revolver and 12 rounds of ammunition. He was dismissed from the Force on 14 February 1975 but subsequent to his dismissal he did not deliver up the said revolver and ammunition as required under s 24(1) of the Police Force Act (Cap 78, 1970 Ed). He was consequently convicted on the re-amended charge for criminal breach of trust of the said revolver and ammunition and for failing to deliver them to the Police Force in violation of s 24(1) of the Police Force Act, an offence punishable under s 406 of the Penal Code (Cap 103, 1970 Ed). He appealed. Counsel for the appellant argued, inter alia, that s 24(2) had created a specific offence and the appellant by failing to deliver up the revolver and ammunition should have been charged under s 24(2) of the Police Force Act and not under s 406 of the Penal Code and to have done so contravened the specific provisions of s 24(2). The court had therefore to decide whether s 405 of the Penal Code which defines criminal breach of trust, in so far as it applies to a police officer, had been repealed by s 24(2) of the Police Force Act.

Held: (1) an offence created under s 24(2) of the Police Force Act is separate and distinct from the one under s 405 of the Penal Code and there can be no question of s 24(2) repealing s 405 of the Penal Code; (2) the manner in which the criminal breach of trust itself was committed need not be specified in the charge unless the nature of the case is such that the particulars required by ss 151 and 152 of the Criminal Procedure Code (Cap 113, 1970 Ed) have not given the accused sufficient notice of the matter with which he is charged; (3) the appellant had abandoned the revolver and ammunition in a dilapidated and unoccupied hut and had caused wrongful loss to the government of Singapore. There was ample evidence to support the magistrate's finding that the appellant had intended to cause this wrongful loss and consequently this disposal was 'dishonest' within the meaning of s 405 of the Penal Code.

Tong Keng Wah v Public Prosecutor [1979] 2 MLJ 152 High Court, Singapore (Chua J).

In this case, the accused, a member of the armed forces within the meaning of the exception in the definition of 'person' in s 2 of the Public Order and Safety Proclamation, was charged, inter alia, with having abetted the act of carrying arms committed by a detective in the Police Force, the charge being laid under s 109 of the Penal Code and s 3(1) of the Public Order and Safety Proclamation. A preliminary objection was raised to the charge upon two main grounds, viz: (a) the abetment of an offence under the proclamation has been made an offence by s 6 of the proclamation and this provision has impliedly repealed the provisions of the Penal Code relating to abetment so far as these provisions refer to offences under the Penal Code; (b) the person abetted in this case being a member of the Police Force and, therefore, also exempt from the provisions of the proclamation, the carrying of arms by him was no offence, so that there was no offence which could be abetted and the accused could not therefore be liable.

Held: (1) there is nothing in the proclamation as a whole to indicate any intention to repeal or override any of the existing provisions of the criminal law and there being no inconsistency between the provisions of the proclamation and of the Penal Code relating to abetment, there is no reason why the provision of s 6 of the proclamation and the provisions relating to abetment in the Penal Code should not stand side by side; (2) a member of the forces, although not himself liable under s 6 of the proclamation, may be liable for abetment or an attempt under the Penal Code; (3) as the word 'offence' in s 108 of the Penal Code is defined by s 40 of the same code to mean only an offence punishable under the Penal Code, s 108 of the Penal Code is not applicable to offences under the Public Order and Safety Proclamation; (4) therefore a member of the armed forces or of the Police Force cannot be made liable for abetting the offence of carrying arms by any person who is himself a member of the armed forces or of the police.

Public Prosecutor v Mirza Khan [1947] MLJ 49 High Court, Malayan Union (Spenser-Wilkinson J).

The respondent was charged with being found in possession of an offensive weapon, to wit, a pistol-shaped dagger, otherwise than with lawful authority or for a lawful purpose contrary to s 6(1) of the Corrosive and Explosive Substances and Offensive Weapons Ordinance (Ord 43/1958). There was evidence that the place where he was found to be so in possession was a public place, that he was in fact a member of the Police Force and that he was in civilian clothes and not on duty at the time of his arrest. At the close of the prosecution's case, the respondent was acquitted on the ground that he, being a member of the Police Force, was presumed to be in possession of the weapon with lawful authority until the contrary was proved.

Held: (1) the presumption under s 6(3)(a) of the Corrosive and Explosive Substances and Offensive Weapons Ordinance arises on proof first, that the person found in possession of the offensive weapon was a member of the Police Force, and secondly, that the weapon in question was carried in or in connection with the performance of his duty as such member of the Police Force. In this case, as there was no evidence whatsoever that at the time of his arrest he was on duty or that he carried the dagger in or in connection with the performance of his duty as a policeman, the order of acquittal should be set aside; (2) it was not for the prosecution to prove that the accused had no lawful authority because the burden of proving a fact which is especially within the knowledge of any person lies on that person. Per Gill J: 'A policeman cannot be said to be carrying an offensive weapon with lawful authority unless it is shown that it is the type of weapon which is normally issued to him for the purpose of discharging his duty.'

Public Prosecutor v Yeoh Siew Beng [1965] 1 MLJ 119 High Court, Ipoh (Gill J).

[Annotation: See also Public Prosecutor v Mirza Khan [1947] MLJ 49, where the question was whether a member of the armed forces or of the Police Force can be made liable for abetting the act of carrying arms by a person who is a member of the armed forces or of the Police Force.]

On the afternoon of 2 June 1985, the complainant, Leong Hai Len and her husband, Sali, left home about 4.15 pm and walked to the Lion Restaurant where she was working. Outside the restaurant, a blue car containing two policemen, one of whom was the defendant, stopped near them. After a conversation between the two men and Sali, both husband and wife were taken to the Central Police Station in Bandar Seri Begawan. The two officers took Hai Len and Sali upstairs to the main CID room where Sali was questioned. The defendant then took Hai Len to a smaller office where while they were alone he assaulted and raped her. Later both husband and wife were released. On their way home, Hai Len told Sali that she was raped by one of the policemen. The defendant was charged under ss 375 and 354 of the Penal Code.

Held: (1) to amount to corroboration, the evidence must confirm in some important respect to the girl's evidence that intercourse took place, that it took place without her consent and that it was the defendant who committed the offence. Evidence of the distress of the victim of a sexual offence soon after the offence can be regarded as corroboration. On the evidence, the defendant was accordingly convicted; (2) it is a serious aggravation of what is in itself a grave crime, that the defendant abused his position of trust as a guardian of the law, with a duty to uphold it. Such conduct must constitute a blow to public confidence in the Force and damage the fine reputation which it has worked so hard to earn. The defendant was sentenced to eight years' imprisonment on the first charge and one year on the second charge, the sentences to run concurrently.

Public Prosecutor v Emran bin Nasir [1987] 1 MLJ 166 High Court, Bandar Seri Begawan (Roberts CJ).

However obstreperous a member of the public may be at the time of his detention outside the police station there can be no justification for a retaliatory assault upon him once he has arrived inside the police station. Any such conduct on the part of a police officer would be regarded by the courts as a most serious matter, and severe penalties would be appropriate regardless of the serious professional results which would almost certainly follow a conviction.

Leo Fernando v R [1959] MLJ 157 High Court, Singapore (Rose CJ).

When a charge against an accused is made under s 26(1) of the Police Force Ordinance (Cap 177), the offence charged being that of sleeping while on duty, it is unnecessary for the prosecution to prove mens rea. Imprisonment is a suitable punishment for this offence, at any rate in time of war.

Omar Ariffin v R [1939] MLJ 308 High Court, Straits Settlements (Pedlow J).

In this case, the plaintiff alleged that he was unlawfully and negligently shot at and wounded by a police officer while he was at the Lake Gardens. The defence was that when the police officer fired the shots he was lawfully discharging his police duties to prevent the plaintiff from escaping from the scene where an offence was reasonably suspected to have been committed.

Held: (1) on the evidence, the plaintiff had failed to prove his allegations that he had been shot by the police officer negligently and without warning; (2) in the circumstances, the police officer was not negligent and was justified as a last resort to fire the shot to effect the plaintiff's arrest and prevent him from escaping.

Mahmod v Government of Malaysia & Anor [1974] 1 MLJ 103 High Court, Kuala Lumpur (Yong J).

During the Chinese New Year, the police conducted raids on boats tied up at the Muar river front (quay) where a number of fishermen were gambling. The majority of the men on the boat jumped into the river and the police party lined the bank shouting at them to come up to be taken away. Most of them came to shore and were arrested. The deceased was still in the water and appeared to be in difficulty. At that time, a passing fishing boat realizing his distress, came up to pick him up, but the approaching boatman was deterred from the act of rescue by a shout from the leader of the police party warning him not to interfere and pick up the man. If he did so, he would be arrested. The fishing boat accordingly pulled away. The man struggling in the water went down. His body was recovered from the river some hours later. The personal representatives of the deceased sued the policemen and the government for damages.

Held: the policeman who uttered the threat ought to have known and foreseen as any reasonable man would have known and foreseen that his shouted threat would deter the boatmen from accomplishing his act of mercy in going to the aid of the deceased. The second and seventh defendants were therefore 75% liable.

Low Kwan Moi & Ors v Ramli bin Jamil & Ors & Government of Malaysia [1984] 1 MLJ 46 High Court, Muar (Oliver Phipps JC).

The plaintiff sued the defendants for damages arising out of an injury to his right eye which was caused by his being struck by a splinter of stone as a result of blasting operations at a quarry in Malacca. The plaintiff was a police constable who assisted the police escort party in transferring the explosives from the police station to the quarry. The first defendant was the contractor of the quarry who had a licence to possess explosives for the purposes of carrying out blasting operations and the second defendant was the first defendant's servant employed as a kepala at the quarry. The plaintiff's evidence was that he emerged from behind a rubber tree where he was stationed after the kepala and a police corporal had signalled the all clear signal and was struck in the eye by a splinter of stone following a further explosion.

Held: (1) it was clear from the evidence that the kepala as the shot-firer was negligent in giving the all clear signal without making certain that there were not going to be any further explosions. The first defendant was therefore liable in damages for his servant's negligence; (2) the plaintiff was present at the quarry in pursuance of a public duty and consequently was in the same position as that of an invitee and it was the duty of the first defendant as an invitor to take reasonable care for the safety of the plaintiff; (3) general damages should be fixed at RM12,500 for the loss of one eye and a further RM6,000 for loss of earnings.

Shamsudin v Yap Choh Teh & Anor [1969] 1 MLJ 26 High Court, Malacca (Gill J).

The words 'or otherwise' in cll 1 and 2 of s 42 of the Police Force Ordinance 1 of 1872 are not unmeaning, but includes not only laws in force at the date of that ordinance, but also further laws, of whatever kind, under which police officers, and those aiding them, might be called upon to act. Sections 42 and 44 of the Police Force Ordinance are not to be read together, and before it is necessary for a plaintiff to prove malice under s 44 against a police officer, the case must fall within s 43, and before it is necessary for the plaintiff to give a month's notice under s 43, the case must fall under s 42. The words 'anything done É in the execution of his duty as such police officer' in the said s 42, do not only mean an act within the scope of his duty, as a peace officer, but also an act done in excess of his duty, under a reasonable or honest belief it was within his duty. Where an Inspector of Police and a Justice of the Peace entered a common gaming house under a warrant issued under s 8 of the Gaming House Ordinance XIII of 1879, for the search of the premises for 'appliances' of gaming (such as cards, dice, etc) and arrest of all persons found therein but after making such entry and finding no gambling on, or 'appliances' of gaming, but discovering that the place was fitted up with the 'contrivances' (such as heavy doors and trapdoors, bars, bolts, etc) mentioned in s 12 with the object of testing s 13 of the ordinance, they broke down, demolished and carried away such 'contrivances' whereupon they were sued by the occupier of the premises for trespass in removing such fixtures, but without having been first served with a month's notice under s 43 of the aforesaid Ordinance 1 of 1872, or at the trial of the plaintiff attempting to prove malice on their part,

Held: as by s 13 it was plain and the defendants could not but have seen, that it was only a magistrate who could order a demolition of the 'contrivance', and that only after summoning the parties before him to show cause, and judicially inquiring into the matter they could not be said to have had either a reasonable or honest or bona fide belief (within s 42 of the aforesaid Ordinance 1 of 1872), that they were acting within the scope of their duty, and were therefore not entitled to a notice under s 43, nor was the plaintiff bound to prove that they acted maliciously under s 44. Judgment of Pellereau J affirmed on appeal. Section 47 of the aforesaid ordinance applies only to cases where a police officer does an act in 'good faith', and the act is done under that ordinance and not some other.

Lim Seng Ee v Wray & Anor [1887] 4 Ky 240 Court of Appeal, Straits Settlements (Ford CJ, Pellereau and Goldney JJ).

A police officer has no right, after reasonable time from the discharge of a prisoner to detain property taken from him, and the prisoner's possession of such property is sufficient without proof of title to enable him to maintain an action against such officer for the return of it.

Taserip v Riccard [1887] 4 Ky 214 Court of Appeal, Straits Settlements (Ford CJ, Pellereau and Goldney JJ).

Sixty accused persons were charged before the magistrate's court for the following offence: 'That you on 3 December 1974 at about 10.50 am in the compound of Masjid Negara, Jalan Hishamuddin, in the Federal Territory of Kuala Lumpur did take part in an unlawful assembly for which no licence has been issued and thereby committed an offence under sub-s (5)(a) of s 27 of the Police Act No 41 of 1967 and punishable under sub-s (8) of the same section.' The learned magistrate in making a finding of no case to answer at the close of the case for the prosecution held that the prosecution had to prove three ingredients to the charge, viz: '(a) there was an assembly on date and time in question; (b) no licence was issued to hold the assembly; and (c) that the 60 accused persons did take part in the assembly.' The learned magistrate found that there was an assembly at the material time but he held that the prosecution had failed to prove that no licence was issued to hold the assembly and also that the prosecution had failed to prove beyond reasonable doubt that the sixty respondents did take part in the assembly. The Public Prosecutor appealed to the court against the aforesaid decision.

Held: (1) the learned magistrate erred in holding that it was the duty of the prosecution to prove that no licence was issued. It was for the accused to show that they had such a licence if called upon for their defence, and this would have been a complete answer to the charge; (2) there is a distinction between 'taking part' under the Police Act and 'being a member of or is found at an unlawful assembly' under the Penal Code. 'Taking part' calls for a more active part than mere presence; (3) it was not the intention of the Legislature that all persons who were merely found at an assembly for which no licence had been issued under s 27 of the Police Act should be guilty of an offence; (4) the learned magistrate was right in finding that the prosecution had failed to prove beyond reasonable doubt that the 60 respondents did take part in the assembly and the appeal must therefore be dismissed.

Public Prosecutor v Ismail bin Ishak & Ors [1976] 1 MLJ 183 High Court, Kuala Lumpur (Harun J).

The plaintiffs claimed in these two motions various reliefs in the form of declarations following the rejection of their petitions for clemency or pardons for capital offences under the Internal Security Act 1960 to the Ruler of the State of Johore. They also sought an interim injunction against the seventh defendant the Superintendent of Prisons from carrying into effect any warrant of execution which may have been directed to him.

Held: (1) the court has no jurisdiction to entertain the claim for an interim injunction in view of s 29(2) of the Government Proceedings Ordinance 1956 and s 54(d) of the Specific Relief (Malay States) Ordinance 1950; (2) there was no principle or authority supporting the proposition that the court had the inherent jurisdiction to make an interim declaration; (3) no order should be made on either of the two motions.

Law Kiat Long & Ors v Pardons Board, Johore & Ors; Oie Hee Koi & Ors v Pardons Board Johore & Ors [1968] 2 MLJ 249 High Court, Johore Bahru (Ali J).

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

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

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

The appellant was convicted on charges of consorting with members of the Indonesian armed forces and possession of a firearm and ammunition. The main grounds of appeal were that: (a) the appellant did not know that the expedition which he took part in was intended to be an invasion and even if the object was invasion, there was no evidence as to what particular purpose, if any, prejudicial to public security the invaders intended to effect; (b) the statement of the appellant was wrongly admitted in evidence. It was alleged that the appellant had been subjected to assaults and questioning for intelligence purposes and that the statement given by him was not a voluntary one. It appeared that the dates stated in the first charge were wrong but they were not amended.

Held: (1) clearly the expedition in this case was an unlawful one calculated to affect the public security; (2) the court saw no reason to disagree with the view of the trial judge who heard the evidence and found that the statement was voluntarily made but even if the court was satisfied that the statement had been wrongly admitted, the case would clearly come within the proviso to s 60(1) of the Courts of Judicature Act 1964; (3) the mistake in the first charge could not be regarded as material as the date was not an essential part of the alleged offence.

Law Kiat Lang v Public Prosecutor [1966] 1 MLJ 215 Federal Court, Kuala Lumpur (Thomson LP, Ong Hock Thye Ag CJ (Malaya).

[Annotation: On appeal, see [1968] 1 MLJ 148.]

The appellant was convicted on charges of consorting, possession of arms and possession of ammunition in contravention of s 57(1)(a), (b) and 58(1) of the Internal Security Act 1960. The evidence connecting the appellant with the items of ammunition mentioned in the charge was very tenuous and on appeal this was conceded and conviction on this charge was set aside. The other grounds of appeal were: (a) the statement made by the appellant to the police was wrongly admitted in evidence, as it was made under the influence of physical attacks previously made on the appellant. There was also the possibility of misunderstanding because the appellant and the police officer who took the statements from him spoke different dialects of the Hokkien dialect; (b) the trial judge wrongly refused to refer to statements made to the police by two Indonesian witnesses; (c) the appellant was entitled to the defences of mistake and accident under the Penal Code because when the appellant and the other Indonesian left Indonesia in the aircraft they were of the impression that they were on a practice flight and not on an invasion of Malaysia; and (d) on the evidence, the appellant was a member of the Indonesian military forces (he was wearing Indonesian military uniform at the time of arrest) and that he was a prisoner of war and was therefore entitled to the benefit of the Geneva Conventions although this matter was not raised at the trial.

Held: (1) the statement of the appellant was rightly admitted, as the learned trial judge had rejected the appellant's story and found that the statement was voluntary. As there was evidence to show that persons speaking the Hokkien dialect can understand each other irrespective of whatever variety of the dialect of that language was spoken and as there was no evidence to the contrary the court was not prepared to hold that there was any possibility of misunderstanding between the appellant and the police officer who took his statement; (2) the learned trial judge was wrong in refusing the invitation by counsel to refer to statements made by the witnesses but the case fell within the proviso to s 60(1) of the Courts of Judicature Act 1964 as there had been no substantial miscarriage of justice; (3) although the appellant was entitled to avail himself of the defences set out in the Penal Code, this ground of appeal was without any substance in view of what the court had already said in Tan Hua Lam v Public Prosecutor [1966] 1 MLJ 147; (4) as the appellant was born in Johore, it must be presumed that whatever the position as regards his citizenship he was a Johore national and was, therefore, not entitled to the benefit of the Geneva Conventions.

Lee Hoo Boon v Public Prosecutor [1966] 2 MLJ 167 Federal Court, Kuala Lumpur (Thomson LP, Harley Ag CJ (Borneo).

[Annotation: This case was dissented from by the Federal Court in Ooi Hee Koi v Public Prosecutor; Ooi Wan Yui v Public Prosecutor [1966] 2 MLJ 183. On appeal, see [1968] 1 MLJ 148.]

OHK, the appellant in the first appeal, was convicted on charges of possession of a firearm, possession of ammunition and consorting with members of Indonesian armed forces in contravention of s 57(1)(a), (b) and 58(1) of the Internal Security Act 1960. He pleaded guilty to the third charge, but claimed trial on the other charges. OWY, the other appellant, had claimed trial on three similar charges, with the same result. The material evidence in both cases was very much the same. They were members of an armed force of paratroopers who were air-dropped over Labis area in Johore in the early hours of 2 September 1964. On the person of OHK was found his identity card no 3019104 which indicated that his place of birth was 'China' and that he was a 'citizen of the Federation of Malaya'. OHK in his statement to a police officer said, inter alia, that he had come over from China with his parents at the age of two to reside in Pontian, Johore. OWY was not in possession of any identity card and no evidence was given as to the kind of card issued to him under the National Registration Act 1959. In his cautioned statement, OWY said, inter alia, that he was born in China and that in 1948 when he was 12 his father brought him to Malaya. It was contended for the appellants that they were and should be treated as 'prisoners of war' as defined in art 4 of the Third Schedule to the Geneva Conventions Act 1962, and as such they should be entitled to all the benefits of the relevant conventions.

Ooi Hee Koi v Public Prosecutor; Ooi Wan Yui v Public Prosecutor [1966] 2 MLJ 183 Federal Court, Kuala Lumpur (Barakbah LP, Ong Hock Thye FJ and Ismail Khan J).

[Annotation: On appeal, see [1968] 1 MLJ 148.]

This was an appeal against a conviction on charges of consorting with members of the Indonesian armed forces, possession of a firearm and possession of ammunition, offences under the Internal Security Act 1960. The defence of the appellant at the trial was an alibi and he maintained that the statement alleged to be recorded from him was concocted by the police officers. The trial judge accepted the evidence of the Indonesian prisoners of war and held that this evidence was corroborated by the recorded statement of the appellant which he admitted in evidence.

Held: the learned trial judge in this case was correct in holding that the statement was freely and voluntarily given under proper caution and in rejecting the defence allegation that the statement was fabricated by the police.

Ho Ming Siang v Public Prosecutor [1966] 1 MLJ 252 Federal Court, Kuala Lumpur (Thomson LP, Barakbah CJ and Ong Hock Thye FJ).

[Annotation: On appeal, see [1968] 1 MLJ 148.]

The appellant had been convicted of a charge under the Internal Security Act 1960 for consorting with Indonesian armed forces and sentenced to death. The defence raised was one of duress, that is that the appellant did what he did by reason of having been under the threat of death. On appeal,

Held: (1) the effect of s 69 of the Internal Security Act 1960 is to deprive a person accused of an offence punishable with death under Part II of the Act of the right to set up fear as something affecting his criminal responsibility and, therefore, the trial judge was right in disregarding any defence based on threats and fear of death inspired by threats; (2) the appellant's story of threats should have been considered as something that might have afforded mitigating circumstances and as the learned trial judge had failed to apply his mind to this matter, the sentence would be reduced to one of imprisonment for life.

Tan Hoi Hung v Public Prosecutor [1966] 1 MLJ 288 Federal Court, Kuala Lumpur (Thomson LP, Barakbah CJ (Malaya).

The appellant was convicted on three charges of consorting with Indonesian armed forces, possession of a rifle, and possession of ammunition. It was alleged that he took part in the Indonesian invasion near Labis during the night of 12 September 1964. The grounds of appeal were that: (a) whatever the appellant did that might be regarded as unlawful was done in the airspace above Johore and that there was a complete lack of criminal intention on the part of the appellant because when he was in the airspace he did not know that he was over Malaysian soil; (b) the appellant after landing from the aircraft had changed any previous intention which might be inferred from the circumstances of his presence in the aircraft and had formed a new and wholly innocent intention to go home; (c) the appellant had been convicted on the uncorroborated evidence of accomplices and the trial judge's reasons for this were unsatisfactory; (d) the appellant's statement to the police was wrongly admitted in evidence, because he had been subjected to threats and questioning for intelligence purposes before the statement was recorded.

Held: (1) in view of the decision of Tan Hua Lam v Public Prosecutor [1966] 1 MLJ 147, the first ground of appeal could not succeed; (2) there was no evidence of any change of heart on the part of the appellant prior to the time after his landing on Malaysian soil when he failed to make contact with his companions and in any event a mere change of intention on the part of the appellant cannot afford a ground of defence; (3) in the circumstances of this case, the judge was justified in relying on the evidence of the Indonesian soldiers and even if they were to be treated as accomplices, he gave forceful reasons for accepting their uncorroborated evidence; (4) the statement of the appellant was in the circumstances wrongly admitted but the case fell clearly within the proviso to s 60(1) of the Courts of Judicature Act 1964 because no reasonable judge could have failed to convict the appellant on the rest of the evidence, and so there was no miscarriage of justice.

Tan See Boon v Public Prosecutor [1966] 1 MLJ 219 Federal Court, Kuala Lumpur (Thomson LP, Ong Hock Thye Ag CJ (Malaya).

[Annotation: On appeal, see [1968] 1 MLJ 148.]

The appellants were convicted on charges of consorting with the Indonesian armed forces and possession of firearms and ammunition. The principal grounds of appeal were that: (a) the learned trial judge was wrong in holding that the finding of single dollar notes to the amount of RM300 on the person of the first appellant and of RM270 on the person of the second appellant constituted corroboration of the evidence of the members of the Indonesian armed forces against them; and (b) the statements of the appellants were wrongly admitted in evidence.

Held: (1) in the circumstances, the trial judge was clearly right in regarding possession of the sums of money in question as corroboration of the evidence of the Indonesian witnesses implicating each of the appellants in a material particular; (2) there was nothing to show that the learned trial judge was wrong in coming to the conclusion that the statements were made voluntarily and after administration of the statutory caution and in any event quite apart from the statements there was ample evidence which as it was believed by the trial judge was sufficient to support the conviction of the appellants.

Ng Seng Huat & Anor v Public Prosecutor [1966] 1 MLJ 210 Federal Court, Kuala Lumpur (Thomson LP, Ong Hock Thye Ag CJ (Malaya).

[Annotation: On appeal, see [1968] 1 MLJ 148.]

The accused in these cases were Malaysian Chinese, born or settled in Malaysia but whose nationality had not been proved. They were all captured during the Indonesian confrontation campaign against Malaysia having landed and infiltrated Malaysian territory either by boat or were dropped in by parachute. They were armed and accompanied by Indonesian military personnel. All the accused were tried, convicted and sentenced to death for offences under the Internal Security Act 1960, s 57(1)(a) and (b) and s 58. Except for one case (Teo Boon Chai v Public Prosecutor) none of the accused claimed during the trial prisoner of war status. They appealed to the Federal Court which dismissed all but two appeals, ie Public Prosecutor v Oie Hee Koi and Public Prosecutor v Ooi Wan Yui ([1966] 2 MLJ 183). In these two cases, the Federal Court allowed the appeals on the ground that as they had not been proved to be persons owing allegiance to Malaysia, they were entitled to the protection of the Geneva Convention. The Public Prosecutor, in those two cases and the other accused appealed to the Privy Council. In the Privy Council, the accused argued (a) that the provisions of the Geneva Convention were also applicable to Malaysian nationals or persons owing allegiance to Malaysia; (b) that any contrary customary international law denying the status of prisoners of war to such individuals had been abrogated by the Geneva Convention; (c) that the convictions under s 58 of the Internal Security Act 1960 (consorting with persons carrying or having possession of arms or explosives in contravention of s 57(1)), were bad because the only persons they consorted with were Indonesian soldiers who were not persons to whom s 57 applied.

Held, (Lord Guest and Sir Garfield Barwick dissenting): (1) the Geneva Convention does not extend the protection given to prisoners of war to nationals of the detaining power. The same principle applies to persons who, though not nationals of, owe duty of allegiance to the detaining power; (2) the Geneva Convention had not changed or abrogated customary international law on this question; (3) no question of mistrial exists where the accused did not raise a doubt whether they were entitled to treatment as protected prisoners of war, and where no claim had been made to provide any basis for the court to apply s 4 of the Act no burden lay on the prosecution, but the onus was on the accused to prove that they were so entitled; (4)

Held, and that there was no proclamation of a security area as required by s 47 other than that of 17 September, viz the day of the alleged commission of the offence. Held: (1) as the Public Prosecutor was himself the prosecutor, his consent was implicit; (2)

Held: the convictions under s 58 of the Internal Security Act 1960 cannot stand where the persons whom the accused were alleged to have consorted with were Indonesian soldiers. Members of regular forces fighting in enemy country are not subject to the domestic criminal law. The Internal Security Act 1960 is part of the domestic law and not directed at the military forces of a hostile power attacking Malaysia. Per Lord Guest and Sir Garfield Barwick (dissenting): there is no rule of international law which suggests that the national laws may not be applied to armed forces of an enemy which invade the national territory. The convention itself sets the only limitation upon the operation of national law in relation to captured enemies. That they may be tried for breaches of the national law is basic to the structure of the convention: it merely seeks to place procedural limitations on their trial. In the case of Teo Boon Chai v Public Prosecutor, where accused, at the trial, claimed he was not a Malaysian nor an Indonesian citizen and, therefore, was entitled to be treated as a prisoner of war, (Lord Guest and Sir Garfield Barwick dissenting): there was a mistrial. The claim, having been made to the court, was sufficient to raise a doubt whether he was a protected prisoner or not. The court should have treated him as a prisoner of war for the time being and either proceeded with the determination whether he was or was not protected or refrained from continuing the trial in the absence of notices. In the case of Lee Fook Lum v Public Prosecutor it was further argued that under s 80 of the Internal Security Act, the consent of the Public Prosecutor should have been but was not obtained;as the proclamation took effect from the beginning of the day of publication, s 47 of the Internal Security Act 1960 was fulfilled. In the case of Lee A Ba v Public Prosecutor it was further argued that the hand grenade detonators did not come within the definition of ammunition in s 2 of the Act. although the detonators were explosives and not ammunition, this error was immaterial as there was no claim that the accused was misled and as s 152(1) and s 153(1) of the Criminal Procedure Code (FMS Cap 6) were complied with.

Public Prosecutor v Oie Hee Koi & Associated Appeals [1968] 1 MLJ 148 Privy Council Appeal from Malaysia (Lord Hodson, Lord Guest, Lord Wilberforce, Sir Douglas Menzies and Sir Garfield Barwick).

The evidence showed that the appellant was brought in the company of some armed Indonesian soldiers in an aircraft and that they landed by means of parachutes in Johore. The appellant was arrested the same morning and was found in possession of a sten gun and hand-grenades. The evidence against the appellant consisted of the evidence of the Indonesian soldiers in the aircraft, the evidence of his capture and his statement. The appellant was convicted and appealed against his conviction.

Held: (1) the appellant was guilty even though the act of consorting took place in the airspace above the territory of Johore; (2) on the evidence, the appellant had been trained for sabotage work in Malaysia and could not successfully plead that he thought he was on a training exercise and did not know that he was being landed in Malaysia; (3) although there was no direct evidence that the sten gun in the possession of the appellant was serviceable, the evidence of the prosecution witnesses who were acquainted with firearms could be accepted, in the absence of evidence to the contrary, as showing that the appellant was in possession of a serviceable firearm; (4) on the facts, the statement of the appellant was properly admitted in evidence; (5) although the learned trial judge was wrong in not examining the statements of the Indonesian soldiers at the request of the defence counsel, and deciding whether copies should be supplied to the defence, this error did not lead to a miscarriage of justice and, therefore, the case falls within the proviso of s 60(1) of the Courts of Judicature Act 1964.

Tan Hua Lam v Public Prosecutor [1966] 1 MLJ 147 Federal Court, Kuala Lumpur (Thomson LP, Ong Hock Thye Ag CJ (Malaya).

The appellant had been convicted of an offence under s 58(1) of the Internal Security Act 1960 (Act 82) in that in a security area he consorted with a person in possession of firearms in such circumstances as to raise a reasonable presumption that he intended together with that other person to act in a manner prejudicial to public security. There was no finding by the learned trial judge that the accused intended to act in a prejudicial manner.

Held: the conviction under s 58(1) of the Internal Security Act 1960 must be set aside and a conviction under s 58(2) of Internal Security Act 1960 substituted for it, that is that the accused was in the company in a security area of a person who had under his control firearms and ammunition in circumstances giving rise to a reasonable presumption that he knew that person had under his control the firearms and ammunition.

Ang Eng Chan v Public Prosecutor [1978] 1 MLJ 201 Federal Court, Penang (Ong Hock Sim, Raja Azlan Shah and Chang Min Tat FJJ).

The three appellants were convicted by the High Court on an amended second charge which read as follows: 'That you about 6 pm on 22 August 1964, in the security area as proclaimed by the Yang di-Pertuan Agong vide FLN 245 of 17 August 1964, consorted with other persons who carried firearms in contravention of the provisions of s 57 of the Internal Security Act 1960, in circumstances which raised a reasonable presumption that you intended to act in a manner prejudicial to public security and that you have thereby committed an offence punishable under s 58(1) of the Act.' The principal witness, in giving his account of the conversation which transpired between himself and a group of 11 men among whom were the appellants, stated, inter alia: 'They asked me to send them to Indonesia.'

Held: the evidence given by the principal witness, which was to the effect that the group of 11 persons requested him to take them to Indonesia, must at the very least raise a reasonable doubt whether the appellants intended to act in a manner prejudicial to public security as is alleged in the amended second charge. The appeal was allowed and the convictions quashed and sentence set aside.

Lim Kim Hong & Ors v Public Prosecutor [1966] 1 MLJ 191 Federal Court, Kuala Lumpur (Barakbah CJ (Malaya).

The question raised in this case was the admissibility of statements made by the accused under s 126(1) of the Criminal Procedure Code to a magistrate. The accused were in the custody of the police and were detained under the provisions of the Emergency (Public Order and Prevention of Crime) Ordinance 1969.

Held: in the circumstances of this case, there was a doubt as to the voluntary nature of the confession and the statements were therefore not admissible. Where as in this case, there was reason to apprehend that the influence of the police was still continuing on the mind of the accused, the confession could have very little weight.

Public Prosecutor v Law Say Seck & Ors [1971] 1 MLJ 199 High Court, Malacca (Sharma J).

Both the applicants were arrested and detained under s 3(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 ('the DDA') for investigations on 20 December 1993. In the affidavits of the applicants' respective spouses it was averred that the applicants were not informed of the grounds of their arrests, that they are illiterates who do not understand Bahasa Malaysia, and that they can only converse in the 'Hing Hua' dialect. As such, it was contended that the applicants' arrests had contravened art 5(3) of the Federal Constitution. It was further contended that ss 3(3) and 5(1),(2),(3) and (4) of the DDA were not complied with as the first applicant was wrongfully detained for four days in a hospital whilst the detention order of the second applicant contained a date error. It was also contended that s 3(1) of the DDA was not complied with as the applicants were not informed of their right to make repre-sentations. Held, dismissing the applications: (1) the applicants are holders of 'blue identity cards' and were residing in a place in which Bahasa Malaysia is freely used. It was thus inferable that they do understand, and can converse in, Bahasa Malaysia; (2) the error in the date of the second applicant's detention order was merely a typographical error which was not fatal and which had been corrected; (3) the detention order of the first applicant stipulated that he was to be detained in the 'Pusat Pemulihan Akhlak Simpang Rengam, Johor or in any other place'. Such a stipulation is consistent with s 3(4) of the DDA. Therefore, the first applicant was not detained in a place other than that which was stated in his detention order; (4) furthermore, the applicants had been informed of the grounds of their arrests by Chinese police officers who can converse in Mandarin and the Hokkien and Cantonese dialects.

Ng Yew Keong & Anor v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor Criminal Application Nos 44-7-94 and 44-8-94 High Court, Kuala Lumpur (Syed Ahmad Idid J).

A was detained by virtue of a detention order issued under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) for a period of two years beginning from 26 May 1988. The Deputy Minister for Home Affairs revoked the detention order on 3 April 1990. On the same day another fresh detention order was issued, authorizing A's detention for one year with effect from 3 April 1990. By an order dated 1 April 1991 the Deputy Minister extended the duration of the fresh detention order for another year. The Advisory Board reviewed A's case on 5 December 1990 and submitted its report to the Minister for Home Affairs. A applied for habeas corpus in the High Court on the ground that s 11(1) of the 1985 Act had been breached. According to s 11(1) of the 1985 Act the Advisory Board should only review A's case 'not earlier than twelve months' from the date of the detention order. A argued that since the fresh detention order was dated 3 April 1990, the Advisory Board's review was premature. D argued that since the fresh detention order had the duration of one year, it was impossible for the Advisory Board to review A's case 'not earlier than 12 months' from the date of the fresh detention order.

Held, allowing the application: (1) under s 11(1) of the 1985 Act there are two time barriers which must be surmounted by the detaining authority. First, the detention order shall be reviewed by the Advisory Board not earlier than 12 months from the date of the order and secondly, such review shall be conducted not later than three months before the expiration of the period of detention; (2) it would have been impossible for the detaining authority to have complied with s 11(1) of the 1985 Act considering the duration of the fresh detention order but the proviso to s 11(1) empowered the Minister 'at any time during the period of detention' to direct the Advisory Board to review the case. In this case the Minister did not invoke his powers under the proviso to s 11(1). There was therefore a failure to follow s 11(1) which must be rigidly and meticulously complied with.

Lim Kwee Fah v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1991] 3 CLJ 1815 High Court, Penang (Edgar Joseph Jr J).

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

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

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

[Annotation: Overruled on appeal. See Minister for Home Affairs, Malaysia & Anor v Karpal Singh [1988] 3 MLJ 29. Case digested at para 1112.]

The respondent in this case had been placed under detention by virtue of a detention order issued by the Minister for Home Affairs under s 8 of the Internal Security Act 1960 (Act 82). The order of detention, grounds of detention and allegations of fact were served on the respondent. The respondent claimed that he had been unlawfully detained. It was alleged that one of the allegations was made in error as the respondent had not at the date, time and place alleged spoken on the issue of appointing non-Mandarin-qualified headmasters and senior assistants in the national-type Chinese primary schools. The learned trial judge ordered that the writ of habeas corpus be issued and the respondent released (see [1988] 1 MLJ 468). The Public Prosecutor appealed.

Held, allowing the appeal: (1) the learned judge in this case would seem to have failed to distinguish between grounds of detention stated in detention order and the allegations of fact supplied to the detainee. In particular, he failed to recognize that whilst the grounds of detention stated in the detention order are open to challenge or judicial review if alleged to be not within the scope of the enabling legislation, the allegations of fact upon which the subjective satisfaction of the Minister was based are not. The learned judge therefore clearly misdirected himself; (2) whether there is reasonable cause for the making of the detention order is something which exists solely in the mind of the Minister for Home Affairs and he alone can decide it and it is not subject to challenge or judicial review unless it can be shown that he did not hold the opinion which he professed to hold; (3) in this case, the Minister for Home Affairs had gone on affidavit to say that omitting the allegation of fact complained against, he would still have made the detention order having regard to the reports and the information relating to the conduct of the respondent upon which no doubt the rest of the allegations of fact were based. The learned judge was bound to accept these averments in the affidavit and could not inquire into the cause of the detention; (4) the flawed sixth allegation of fact was an error of no consequence which can be regarded as a mere surplusage especially in view of the affidavit of the Minister for Home Affairs. The subjective satisfaction of the Minister for Home Affairs is not subject to judicial review.

Minister for Home Affairs, Malaysia & Anor v Karpal Singh [1988] 3 MLJ 29 Supreme Court, Kuala Lumpur (Abdul Hamid Ag LP, Hashim Yeop A Sani and Harun SCJJ).

The appellant was detained under the Dangerous Drugs (Special Preventive Measures) Act 1985 ('the Act') and an application was made for a writ of habeas corpus. At the hearing of the application corrective and additional evidence by means of supplementary affidavits exhibiting documents were tendered by the respondents after the appellant's counsel had closed his case and commenced submission. In the affidavit, the deponent merely stated that he received the report on the arrest and detention of the appellant from the investigating office and 'seterusnya' (thereafter), he informed the Minister. The affidavit failed to specify the actual date on which the report was submitted to the Minister. The issue in this case was whether such evidence was properly admitted by the High Court and if not so admitted, whether the requirement of s 3(2)(c) of the Act had been complied with on the basis of the available evidence filed in court as at the commencement of the hearing when oral submission by the applicant's counsel had already begun. Held, allowing the appeal: (1) the additional evidence could not be admitted under s 425 of the Criminal Procedure Code (FMS Cap 6) because s 425 was clearly intended to apply to a trial involving viva voce evidence in which witnesses could be examined, cross-examined and re-examined. Furthermore, even if the provision was to be applied, the discretionary and imperative provision of that section must be exercised only in rare cases where the evidence sought to be adduced was raised ex impromptu or that such evidence was not available with reasonable diligence at the time when the evidence of both parties had closed; (2) a party may raise a point of law at the trial itself even though it had not been specifically pleaded. Here, the appellant was sufficiently entitled to raise an issue of law as one of his grounds in respect of an allegation of non-compliance with the mandatory provisions of the Act. It could not be denied that on the evidence available at the close of the affidavit evidence, the respondents were clearly in breach of the provisions of the Act, in that they had failed to comply with the mandatory requirements of proviso (c) to s 3(2) of the Act; (3) the manoeuvre to alter a sworn statement by a further affidavit and the transformation of words by a later corrective affidavit to elude the authority of an unforeseen judgment, after the time for filing evidence had been closed, was not in any way trivial in nature. In cases of this nature, the appellant was entitled to take advantage of any technical imperfection which had the effect of invalidating the restrictive order; (4) (obiter) on the basis of the affidavit evidence, as recorded, and as it stood before the court at the hearing of the application for habeas corpus, it could not be disputed that the defect in the affidavit in failing to specify the actual date on which the report had been submitted to the Minister was fatal.

Ng Hong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri & Anor [1994] 3 MLJ 285 Supreme Court, Kuala Lumpur (Gunn Chit Tuan CJ (Malaya).

D, who was detained under the Internal Security Act 1960, applied for a writ of habeas corpus. Before the scheduled date for hearing the application, D discharged his solicitors and applied to court for the issue of an order for his production in court to argue his own case. The trial judge allowed D's application for an order for his production in court on the date of hearing of his application for the writ of habeas corpus. The trial judge was of the opinion that D had sufficient reasons to discharge his solicitors and accordingly, D fell into a category of one who was forced by circumstances to appear in person. From the decision of the trial judge, P appealed to the Supreme Court.

Held, allowing the appeal: (1) in the instant case, the order D had requested for was an order to produce under r 93(1) of the Internal Security (Detained Persons) Rules 1960. On its proper construction, r 93(1) clearly envisages that the court's discretion should only be exercised in circumstances where the court itself requires the presence of the detainee, for instance, where the court is satisfied that a detainee is a necessary witness to a criminal or civil matter before the court, or where it would occasion a failure of justice to deny the presence of a detainee to argue his own case; (2) in the instant case, D had deliberately discharged his solicitors so that he could ask to be produced in person. In their Lordships' opinion, a detainee discharging his solicitors in order to argue his own case or that he prefers to act as his own advocate can never by itself be a sufficient reason to issue an order to produce under r 93(1). Furthermore, where the issue of a writ of habeas corpus is sought, it is not the practice to allow the presence of the detainee; (3) as the trial judge had not correctly exercised his discretion, their Lordships allowed P's appeal and set aside the order of the trial judge.

Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor v Lim Guan Eng [1989] 1 MLJ 420 Supreme Court, Malaysia (Abdul Hamid LP, Hashim Yeop A Sani CJ (Malaya).

In this application for a writ of habeas corpus, the validity of a detention order and an extension order ('the orders') which had been signed by the Deputy Minister for Home Affairs ('the Deputy Minister') was challenged as the orders contained references to the Minister for Home Affairs ('the Minister'). The applicant asserted that the contents of the orders did not name the Deputy Minister as the person who had considered and was satisfied that the issuing of the orders was necessary. It was argued that in issuing the orders, the same person must carry out the entire process. As such it was contended that the orders were made ultra vires and were thus invalid. Counsel for the respondent submitted, inter alia, that it could not be said that the Deputy Minister was not the person who had considered the issuing of the orders necessary. This was clear if the affidavit of the Deputy Minister filed in opposition to the application was considered. At the hearing, the respondent raised a preliminary objection concerning the jurat of the applicant's affidavit in support which began and ended on a fresh page and did not follow immediately after the substantive averments in the affidavit. It was contended that since applications for habeas corpus were solely based on affidavits, the defective affidavit should not be accepted by the court. Counsel for the applicant, however, invited the court to exercise its discretion to allow the use of the affidavit. Held, dismissing the application: (1) the defect in the affidavit concerning the jurat was a mere irregularity. In the interest of justice and applying O 41 r 4 and O 92 r 4 of the Rules of the High Court 1980, the court allowed it to be used as evidence; (2) the orders should be read as a whole together with the affidavit of the Deputy Minister because habeas corpus proceedings were based on affidavit evidence. Taking into account that affidavit, it was clear that the issuing of the orders had been considered by the Deputy Minister before the orders were signed by him; (3) there was no question of procedural non-compliance as provided under the proviso to s 8B(1) of the Internal Security Act 1960 ('the Act') which would allow the applicants to challenge the validity of the orders since the Act did not provide any prescribed forms or specific procedure for the issuing of the orders. Thus, the problems in the orders were only 'deficiencies' or 'defects' which would not affect their validity. Moreover, there was no injustice caused ; (4) in any case, even though the orders contained references to the Minister, the Deputy Minister was entitled to sign the orders in execution of the powers of the Minister as provided in art 43A(2) of the Federal Constitution.

The judgment was delivered in Bahasa Malaysia.

Thong Kou Hao v Deputy Minister for Home Affairs Criminal Application No 44-34-94 High Court, Taiping (Zulkefli Ahmad Makinuddin JC).

The applicant was detained without trial under the Emergency (Public Order and Prevention of Crime) Ordinance 1969 by the Minister of Home Affairs acting under powers granted to him by the Internal Security Act 1960. He applied for an order of habeas corpus on the ground, inter alia, that certain procedural requirements were breached, viz he was given only one copy of Form 1 instead of two (if unrepresented by an advocate) or three (if so represented).

Held, declaring the detention null and void: powers of preventive detention have to be interpreted strictly as they involve depriving a citizen of his liberty, and the court will lean in favour of the detainee in such cases. Rule 3 of the Internal Security (Advisory Board Procedure) Rules 1972 is mandatory and not directory. The detainee must be notified strictly according to procedure, of the order against him which will deprive him of his liberty without a trial.

Dasuki bin Mathuri v Timbalan Menteri Dalam Negeri, Malaysia Criminal Application No 44-3-1995 High Court, Malacca (Suriyadi Halim Omar J).

This was an application made under Chapter XXXVI of the Criminal Procedure Code (FMS Cap 6) and art 5(2) of the Federal Constitution for an order that a writ of habeas corpus be issued to direct the respondents to produce the applicant before the court and to show cause as to why the applicant should not be set at liberty. The applicant had been arrested in November 1991 and subsequently detained pursuant to an order made under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 for a period of two years. In January 1994 the duration of the order had been extended for another two years. The applicant raised the following grounds challenging the detention: (a) that the first detention order was not valid as there was no concrete evidence to show that the applicant had been informed of the grounds for his arrest; (b) that the respondents had failed to comply with s 10 of the Act, ie the Advisory Board did not meet to consider the applicant's representations; (c) that the detention order was invalid as the statement in writing issued with the detention order had been signed by the Deputy Minister and not by the Minister and further that the two documents were inconsistent.

Held, dismissing the application: (1) the affidavits of the arresting officer and the officer who acted as interpreter show that the applicant had been informed of the grounds of his arrest by the arresting officer and the interpreter had made sure that they understood one another. That was all that was required. The fact that the police report lodged with regard to the arrest did not mention the role of the interpreter was of no relevance. Such a report, which is lodged by the police after effecting an arrest, is merely an 'arrest' report which would not even qualify as a first information report and is inadmissible in criminal proceedings; (2) there was affidavit evidence that a copy of the detention order had been served on the applicant, that the applicant was informed of his right to make representations to the Board, and that the applicant was furnished with a statement in writing of the grounds on which the order had been made. The secretary to the Board also stated in his affidavit that he had received a letter from the applicant informing him that he did not wish to make any representations. The omission to attach that letter to the secretary's affidavit was a mere oversight which did not prejudice the applicant in his application for habeas corpus nor did it amount to a technical defect which would invalidate the order. Therefore, there was no merit in the contention that the respondents had not shown any evidence that the applicant did not wish to make representations to the Board; (3) s 2 of the Act provides that the word 'Minister' means the Minister charged with the responsibility for internal security and art 43A(2) of the Federal Constitution provides that 'Deputy Ministers shall assist Ministers in the discharge of their duties and functions, and for such purpose shall have all the powers of Ministers'. In this application, it was not disputed that the Deputy Minister was assisting the Minister in the discharge of the latter's duties and functions, and, therefore, as Deputy Minister, he had all the powers of the Minister. Thus, the fact that the Deputy signed the statement while omitting to add the word 'Deputy', did not amount to a technical defect which would invalidate the order; (4) counsel for the applicant also claimed that there were three limbs to s 6(1) of the Act, and that all three were stated in the detention order whereas the accompanying statement furnished by the Deputy Minister only referred to two. It was contended that the two documents were inconsistent and that one depended on the other, which denoted that the Deputy Minister had exercised his power of detention mechanically without putting his mind to it. The court found that s 6(1) contained only one limb, namely, any activity relating to or involving the trafficking in dangerous drugs. The only difference was purely grammatical. Therefore, the 'differences' in the two documents were merely differences in form and not in substance. Further the two documents were independent of each other and any difference in the statement could not invalidate the order. The court also found that there was no basis for the contention that the Deputy Minister had merely made a mechanical decision.

Chan Ng v Minister of Home Affairs & Ors No 44-18 of 1994 High Court, Johor Bahru (Mohd Ghazali JC).

The applicant was detained under a detention order dated 22 April 1992 ('the first detention order') issued by the first respondent under s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 ('the Ordinance'). As the grounds of detention in the first detention order was stated in the alternative, by virtue of the case of Lim Thian Hock v Minister of Home Affairs, the court had held that the order was bad and invalid for want of compliance with s 4(1) of the Ordinance and ordered the release of the applicant on 21 December 1992. The applicant was, however, immediately rearrested on the same day and subsequently served with a fresh detention order dated 18 January 1993 ('the second detention order') which on the face of it complied with s 4(1) of the Ordinance in that the grounds of detention were not stated in the alternative. At the same time the respondent also filed a notice of appeal on 18 January 1993 against the decision of the High Court on 21 December 1992. The present application was for a writ of habeas corpus in which the applicant submitted that the actions of the first respondent in filing an appeal to the Supreme Court and at the same time effecting the rearrest of the applicant was an abuse of power in that they had occasioned a contempt of court, and further pointed out that the grounds of detention and allegation of facts in both the first and second detention orders were one and the same. The applicant contended that there was mala fides on the part of the first respondent and submitted that the court had jurisdiction to intervene and put right such abuse of power. Counsel for the applicant also made an oral application to the court for the first respondent to be cited for contempt of court, although there was no separate application or prayer made for leave to cite the first respondent for contempt.

Held, dismissing the application: (1) the power of the Supreme Court and the High Court to punish for contempt of itself is enshrined in art 126 of the Federal Constitution while s 13(2) of the Civil Law Act 1956 (Act 67) expressly provides that the High Court shall have power to punish any contempt of itself. Section 30 of the Interpretation and General Clauses Ordinance 1948 and s 40 of the Interpretation Act 1967 are inapplicable to interpret art 126 of the Constitution as words to similar effect as expressed in both the sections are not specified in and therefore excluded from 11th Schedule of the Constitution. However, even without the aid of the sections aforesaid, where art 126 of the Constitution and s 13(2) of the Civil Law Act 1956 (Act 67) expressly confer power on the courts to punish any contempt, the same would impliedly confer concomitant powers that are reasonably necessary to enable the courts to do or to enforce the doing of the act or thing: power to enforce surely entailed the jurisdiction to enforce, both being synonymous in this context; (2) any act which is calculated to undermine the authority of the court and to disturb the confidence of the citizen in the unquestioned effectiveness of its orders as against any executive authority however high would be contempt; (3) the object and ambit of the Ordinance is such and the purposes specified in s 4(1) are so wide as to allow the Minister in the circumstances of this case to issue repeated detention orders against the applicant. As the Minister clearly had the power under s 4(1) of the Ordinance to issue a fresh order of detention during the pendency of an application challenging the validity of a prior order of detention, his issue of the second detention order could not per se constitute contempt of court; (4) the Minister in this case had not only complied with the writ of habeas corpus issued from the court in respect of the first detention order but the manner of wording of the grounds for detention in the second detention order showed that the Minister subscribed to the court's view that s 4(1) of the Ordinance should be read disjunctively. Further, the grounds for detention appearing on the face of the detention order was distinguishable from the factual basis of the issuance of the order, the former being justiciable but not the latter. In the circumstances, no contempt had been committed by the Minister; (5) the burden of proving lawful justification for the detention lies with the respondents. They discharge this burden by relying on the detention order which must be made in the exercise of a valid legal power, in this case s 4(1) of the Ordinance. The position prior to the amendment embodied in s 7C(1) was that, once this was shown it was for the detenu to show that the power was exercised mala fide or improperly for a collateral or ulterior purpose in fraudem legis. However, the ouster clause s 7C(1) of the Ordinance has the effect of ousting the court's jurisdiction on matters of mala fides or bad faith on the part of the Minister and immunizing from judicial review acts done and decisions made in bad faith (if any) by the Minister. The court found that the facts of the case did not disclose any mala fides or bad faith on the part of the Minister but in any event, the contention that there was mala fides on the part of the Minister in the second detention exercise was not sustainable; (6) other than for contempt committed in the face of the court, courts should only act against the contemnor upon a formal application in writing by the complainant, or at the instance of the court by way of a notice to the contemnor to show cause. The oral application to cite the Minister for contempt was thus untenable. Per curiam: the grant of habeas corpus is as of right and not in the discretion of the court as in the case of such extraordinary legal remedies as certiorari, prohibition and mandamus. By virtue of the provision of s 7C(1) the courts are given governance of merely procedural and technical matters in respect of a detention. Consequently, if a detenu is released upon grounds which are based on form rather than substance, it is untenable for the applicant to allege or for the court to hold that the Minister had been contemptuous of the court's ruling when he released and rearrested the detenu by regularizing the procedural or technical defect.

Lee Gee Lam v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1993] 3 MLJ 265 High Court, Penang (Vincent Ng JC).

[Annotation: Affirmed on appeal. See [1993] 3 MLJ 673.]

The appellant was arrested and detained by the police on 15 September 1990 under s 3(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) ('the Act'). On 13 November 1990, the Deputy Minister of Home Affairs issued a detention order under s 6(1) of the Act. The High Court dismissed the appellant's habeas corpus application. The only ground of appeal is that the Minister had not complied with the provisions of ss 3(3) and 5(4) of the Act and the failure to comply rendered the detention order void. Counsel for the appellant submitted that although the word 'may' is used in ss 3(3) and 5(4), it should be treated as mandatory.

Held, dismissing the appeal: (1) the courts have always construed the words 'may' and 'shall' with reference to the context in which it is used. In order to find out whether these words are being used in a directory or mandatory sense, the intent of the legislature should be looked into along with the pertinent circumstances; (2) Parliament has fixed the time periods under s 3(2) of the Act, but leaves it entirely to the Minister to fix the period within which the report is to be submitted under ss 3(3) and 5(4) of the Act; (3) the words 'as may be prescribed by the Minister' found in both ss 3(3) and 5(4) ought to be treated as conferring a power to prescribe, exercisable at his discretion, and not mandatory; (4) the fact that no period has been prescribed by the Minister within which the reports are to be submitted by the investigating officer under s 3(3) or by the inquiry officer under s 5(4) of the Act does not vitiate the process leading to the detention order being made by the Minister.

Lock Wee Kock v Menteri Hal Ehwal Dalam Negeri & Anor [1993] 3 MLJ 691 Supreme Court, Malaysia (Gunn Chit Tuan CJ (Malaya).

The appellant had been detained under the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). The appellant's solicitors wrote a letter to the police complaining that the appellant had been assaulted while under detention ('the letter'). The letter however evoked no reply. The appellant applied to the High Court for habeas corpus. The appellant's sister, Teoh Siew Hoi ('Teoh'), affirmed an affidavit alleging that the appellant had been assaulted by the police during her detention. The appellant argued that the conditions of her detention rendered her continued detention wrongful. The respondents did not file any affidavit to deny the allegation of assault. The judge found as a fact that the appellant had been assaulted but he dismissed the appellant's application on the ground that habeas corpus was not the remedy where a detainee was proved to have been assaulted. The appellant appealed to the Supreme Court. During the hearing of the appeal, the respondents did not attempt to attack the judge's finding that the appellant had been assaulted. The respondents' counsel even conceded that the fact of the appellant's assault should be regarded as common ground for the appeal since there was no affidavit of denial by the respondents.

Held, dismissing the appeal: (1) the concession by the respondents' counsel was mistakenly made because the bare allegation of assault made in Teoh's affidavit was wholly unsupported by any evidence. There was no suggestion that Teoh was herself present at the time of the alleged assault. Consequently the allegation of assault by Teoh was worthless as evidence being entirely hearsay; (2) similarly, in the absence of a confirmatory affidavit by the appellant, the letter also suffered from the same defect as the allegation of assault in Teoh's affidavit; (3) the mistaken concession by the respondents' counsel was in no way binding on the court; (4) accordingly the judge's finding of assault was plainly wrong; (5) since there was not a scrap of evidence that the appellant had been assaulted, there was nothing to rebut and there was therefore no need for an affidavit of denial.

Teoh Yook Huwah v Menteri Hal Ehwal Dalam Negeri & Anor [1993] 1 MLJ 12 Supreme Court, Malaysia (Gunn Chit Tuan, Edgar Joseph Jr and Eusoff Chin SCJJ).

A preliminary point was raised as to whether the applicant should be allowed to appear in court to argue his own case. The learned judge allowed the applicant's application and the reasons for the learned judge's decision is stated in the judgment.

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

[Annotation: On appeal, see Minister for Home Affairs, Malaysia & Anor v Karpal Singh (No 2) [1988] 3 MLJ 85. Case digested at para 1118.]

In this case, the respondent had applied for an order of habeas corpus in regard to his detention under the Internal Security Act 1960 (Act 82). The respondent succeeded in his application and he obtained an order that he be set at liberty see [1988] 1 MLJ 468. The Public Prosecutor appealed against the decision of the High Court and the respondent also cross-appealed. At the hearing of the appeal, the Deputy Public Prosecutor raised two preliminary objections (a) to the notice of appeal filed by the respondent, and (b) to the presence of the respondent at the hearing of the appeal.

Held: (1) the respondent had succeeded in his application for habeas corpus and obtained an order that he be set at liberty. He is therefore not an aggrieved person to entitle him to appeal under s 365 of the Criminal Procedure Code; (2) the respondent is also precluded from appealing pursuant to s 50(1) of the Courts of Judicature Act 1964 (Act 91), which confers jurisdiction on the Supreme Court to hear and determine any appeal by any person convicted or otherwise found guilty by the High Court in the exercise of its original jurisdiction; (3) the respondent's appeal is therefore struck out; (4) generally in cases where the issue of a writ of habeas corpus is sought, it is not the practice to allow the presence of the detainee. Rule 93(1) of the Internal Security (Detained Persons) Rules 1960 cannot be invoked to secure the presence of a detainee in any criminal or civil court notwithstanding that it is the detainee's choice to agrue his own case. The rule clearly envisages that the discretion should only be exercised in circumstances where the court itself requires the presence of the detainee, for instance where the court is satisfied that a detainee is a necessary witness to a criminal or civil matter before the court or where it would occasion a failure of justice to deny the presence of a detainee to argue his own case; (5) prima facie, the power to issue an order requiring the presence of a detained person is discretionary and that being so it should be exercised judicially. It is a matter essentially for the court to be satisfied that it does require the presence of a detainee and that his presence is, having regard to the whole of the circumstances of the case, necessary.

Minister for Home Affairs, Malaysia & Anor v Karpal Singh (No 2) [1988] 3 MLJ 85 Supreme Court, Kuala Lumpur (Abdul Hamid Ag LP, Hashim Yeop A Sani and Harun SCJJ).

[Annotation: The decision on the substantial appeal is reported at [1988] 3 MLJ 29. See also Sim Kee Guan v Public Prosecutor [1988] 2 MLJ 382.]

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

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

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

This was an application for a writ of habeas corpus in which the primary issue for determination was whether the respondents had, in detaining the applicant, complied with the provisions of s 3(2)(c) of the Dangerous Drugs (Special Preventive Measures) Act 1965 ('the DDA'). In this connection, counsel for the applicant contended that s 3(2)(c) of the DDA could not be taken as being complied with by the mere appending of the necessary report of the reporting officer ('exh YKS1') in the affidavit of the assistant commissioner of police. It was submitted that exh YKS1 was only a piece of secondary evidence and was, thus, inadmissible by virtue of the best evidence rule. It was further contended that there was a gap in the documentary evidence that was adduced by the prosecution to show that the detention of the applicant was lawful. The other collateral issues that arose were whether habeas corpus proceedings are criminal or civil causes, and whether affidavits in habeas corpus proceedings should be governed by O 41 of the Rules of the High Court 1980 ('the RHC') or by s 365 of the Criminal Procedure Code ('the CPC'). Held, dismissing the application: (1) where the document concerned is a public document within the meaning of s 65 read with s 74 of the Evidence Act 1950, the best evidence rule is inapplicable, and, secondary evidence may be adduced not only as to the existence of such a document but also as to its contents. Exh YKS1, being indisputably a public document, clearly fell within the ambit of the exceptions to the best evidence rule; (2) consequently, there was no gap in the chain of evidence relating to the authorization for the detention of the applicant. Furthermore, the contents of exh YKS1 showed that s 3(2)(c) of the DDA had been duly complied with; (3) unless otherwise legislated, habeas corpus proceedings are quasi-criminal proceedings under s 365 and Ch XXXVI of the CPC. The word 'affidavit' in s 366 of Ch XXXVI when read in conjunction with the words 'subject to any rules of court' in s 424(i) of the CPC clearly ordains the application of certain provisions of the RHC to habeas corpus proceedings; (4) however, O 1 r 2(2) of the RHC itself clearly excludes the application of the provisions of the RHC to any 'full-blooded' criminal proceedings.

Applicant's appeal to the Supreme Court vide Criminal Appeal No 05-213-92 was allowed on 27 August 1994. For digest of the Supreme Court decision See preventive detention, para 1764.

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

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

A applied for an order that a writ of habeas corpus be issued for his release. A was detained pursuant to an order made under s 8(1) of the Internal Security Act 1960 (Act 82). A denied that he had acted in any manner prejudicial to the security of the country or to the maintenance of essential services or the economic life thereof. A alleged that the Minister's power to order detention had been exercised mala fide or improperly and relied on the following grounds: (a) the Minister of Home Affairs did not apply his mind subjectively in the proper manner; (b) the allegations of fact were taken out of context; (c) the statement of allegations of fact was not signed by the Minister himself; and (d) the allegations of fact were too remote in point of time to the date of the making of the detention order.

Held, dismissing the application: (1) in the instant case, the production of a copy of the detention order, the authenticity of which was not impugned, was sufficient proof of the legality of the detention of A; (2) to inquire whether any reasonable man would have made the detention order based on the allegations of fact as supplied to A was tantamount to questioning the subjective satisfaction of the Minister which was not subject to judicial review. In the instant case, the Minister had not failed to apply his mind subjectively in the proper manner; (3) in view of the provisions of ss 6 and 17 of the Delegation of Powers Ordinance 1956, there was no merit whatsoever in the complaint that the statement of the allegations of fact should be signed by the Minister himself. In the instant case, the Minister had affirmed that the officer concerned had prepared and signed the allegations of fact under his (the Minister's) direction; (4) there ought to be proximity in time to provide a rational nexus between the incidents relied on and the satisfaction arrived at by the Minister and that unexplained and long delay will be fatal to the plea of subjective satisfaction. In the instant case, although there was a time lag of more than two years, the Minister had satisfactorily explained the reasons for the delay and such explanation had dispelled any inference that his subjective satisfaction was not genuine or colourable; (5) as A had failed to show that the Minister's power had been exercised mala fide or improperly or made for a collateral or ulterior purpose, his application was dismissed by the learned judge.

Patto a/l Perumal v Menteri Hal Ehwal Dalam Negeri & Anor [1989] 1 MLJ 255 High Court, Penang (Wan Adnan J).

The applicant sought a writ of habeas corpus whereby he challenged both the validity of the detention order made by the Deputy Minister of Home Affairs under and by virtue of the provisions of s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316), ('the Act') and his detention thereunder. It appeared that the applicant had been arrested on 9 July 1987 by a police officer who affirmed that he had reason to believe, and did in fact believe, that there were grounds which would justify the detention of the applicant under s 6(1) of the Act as the applicant had been and was associated with activities relating to or involving the trafficking of dangerous drugs. The officer made a police report later wherein he stated that there were grounds which would justify the detention of the applicant under 's 6(1) or s 6(3)' of the Act. The applicant was detained in a police station pending investigations. Following investigations by the police and the submission of reports from the police and the inquiry officer pursuant to the Act, the Deputy Minister made a two-year detention order against the applicant on 4 September 1987. The order was served on the applicant the next day and a day later he was taken into a detention centre. It was contended for the applicant that the powers of arrest given to a police officer under s 3(1) of the Act had to be exercised with a view to detaining a person under s 6(1) and not under s 6(3) of the Act, and that since in the instant case the arresting officer had invoked his powers of arrest under s 6(1) or s 6(3) of the Act the detention of the applicant was unlawful. The second point taken on behalf of the applicant was that the maximum period of detention pending inquiries under s 3(2) of the Act was 60 days but that provisio (c) to the section had not been complied with in that the Minister had not given his approval to the detention of the applicant for more than 14 days. Alternatively, it was argued that if there was no requirement that the approval be given within 14 days, the Minister had to give his approval as soon as reasonably possible thereafter. It was said that, as there was no evidence showing compliance with these requirements, the applicant's continued detention was unlawful. The third point argued for the applicant was that, although the applicant's wife had stated in her affidavit filed in support of the application that no investigations whatsoever had been carried out by the police or anyone during the applicant's detention at the police station, the police officer making the investigations for the purpose of submitting a complete report to the inquiry officer and the Minister had not gone on affidavit to deny the allegation. The applicant's continued detention was therefore unlawful. The fourth point advanced for the applicant was that the affidavit of the inquiry officer revealed that he did not carry out his own independent inquiries with a view to verifying the results of the police investigations but, instead, had relied on the full face value of the complete report of investigations made by the police and that he had therefore failed to discharge his statutory duties under s 5(2) of the Act. The fifth point taken on behalf of the applicant was that the detention order was bad on its face in that there was no reference in the order to the Minister being satisfied that it was necessary in the interest of public order that the applicant be detained for a period not exceeding two years. The sixth point raised on behalf of the applicant was that the affidavit of the arresting officer revealed that there had been a violation of the applicant's constitutional right to be informed, as soon as may be, of the reasons for his arrest, as enshrined in art 5(1) of the Constitution. It was contended that it was not enough for the arresting officer to inform the applicant that the latter had been involved in activities involving drugs; and that it was essential to add the words 'trafficking in drugs'. The final point taken on behalf of the applicant was that there had been a contravention of art 5(4) of the Constitution by reason of the fact that the applicant had not been produced before a magistrate within 24 hours after his arrest and detention at the police station.

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

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

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

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

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

[Annotation: Decision of trial court [1988] 1 MLJ 45 affirmed.]

The applicant was arrested pursuant to s 3(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969. The Deputy Home Affairs Minister issued an order against the applicant under s 4(1) of the said Ordinance which directed that the applicant 'be detained for two years ... in the Pulau Jerejak Rehabilitation Centre or in such other places as may be directed by (him) from time to time'. From 20 June 1988, the applicant was detained in the Pulau Jerejak Rehabilitation Centre. However, during the duration of the said detention, he was taken out of the centre on several occasions to attend court proceedings in the Malacca magistrate's court as a witness and at that time was detained in other places without any order made by the Minister or Deputy Minister under ss 12 or 13 of the Ordinance.

Held, allowing the application for the issue of a writ of habeas corpus: (1) the court is satisfied that the applicant had been informed of his right to make representations to the Advisory Board after considering the circumstances of this case; (2) notification by the applicant that he does not wish to make representations by his letter dated 27 June 1988 as mentioned in the affidavit of the secretary of Advisory Board, although not exhibited in that affidavit, is sufficient; (3) by taking the applicant out and detaining him in places other than that mentioned in the detention order without an order from the Minister under ss 12 or 13, the respondent has not compiled with the detention order and the provisions of ss 4(2), 12 and 13 of the Ordinance. The result is that the applicant's detention in other places during those times was not done in accordance with law and was illegal.

Oo Hua Lai v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1990] 3 MLJ 175 High Court, Penang (Abdul Hamid JC).

Ng Yew Keong & Anor v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor Criminal Application Nos 44-7-94 and 44-8-94 High Court, Kuala Lumpur (Syed Ahmad Idid J).

Zakaria bin Hussin v Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia & Ors Originating Summons No 24-197-1993 (T).

The applicant prayed for a writ of habeas corpus ad subjiciendum whereby he challenged both the validity of a detention order issued against him under s 8(1) of the Internal Security Act 1960 (Act 82) ('the principal Act') and his detention thereunder. In the affidavit evidence, it was stated that although the detention order stipulated that the applicant was to be detained at the Tempat Tahanan Perlindungan, Taiping for a period of two years from 27 December 1987, the applicant had in fact been detained for the initial part of this period at the Police Remand Centre at Empat Centre. In the course of hearing the application, the court considered ss 3 and 5(1) of the Internal Security (Amendment) Act 1988 ('the amendment Act') which stated that 'no detention order shall be invalid or inoperative by reason that the person to whom it relates was immediately after the making of the detention order detained in any place other than a place of detention referred to in s 8(3) ... ' and that 'a detention order ... made ... against any person during the period between the date of the commencement of the principal Act and the commencement of this Act ... (is) hereby declared lawful and valid ... '. In this application, the applicant contended that: (a) his detention violated art 7(1) of the Federal Constitution which stated that 'no person shall be punished for an act or omission which was not punishable by law when it was done or made ... '; and (b) the ground for his detention did not come within the scope of the enabling legislation as the activities alleged against the applicant amounted to breaches of public order only and not the security of the country.

Held, dismissing the application: (1) art 7(1) prohibits retrospective penal legislation and is applicable only to criminal matters. The object of the legislature enacting ss 3 and 5(1) of the amendment Act was to nullify the decision of the Supreme Court in the case of PP v Koh Yoke Koon [1988] 2 MLJ 301 and so to deprive a detainee of the sort of plea raised in that case even in respect of a detention order under s 8 of the principal Act made between the date of commencement of the principal Act and the commencement of the amending Act. Sections 3 and 5(1) do not create offences, much less render acts of a detainee offences which were not offences before he did them. They merely immunize from judicial review detention orders which suffer from the defects therein; (2) the ground for the applicant's detention had been categorically stated to be his involvement in activities which would incite racial sentiment among the various races of the people in this country and so threaten national security. Such a ground is plainly within the scope and ambit of the enabling legislation, namely, s 8 of the principal Act.

Tuang Pik King v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1989] 1 MLJ 301 High Court, Penang (Edgar Joseph Jr J).

The applicant for a writ of habeas corpus was arrested under s 3(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) ('the Act') on 30 March 1988 at 2pm. Half an hour later, the arresting officer, an inspector, signed an authorization dated 30 March 1988 pursuant to s 3(2) proviso (a) extending the period of detention by 24 hours, commencing from 31 March 1988. The period of remand was stated to end at 2pm on 1 April. On the same date, at 3.40pm, an assistant superintendent signed an authorization pursuant to s 3(2) proviso (b) extending the detention period by 12 days with effect from 1 April 1988 but no time was stated. On 13 April 1988 at 9.30am, a deputy superintendent signed an authorization dated the same day pursuant to proviso (c) to s 3(2) extending the period of detention by 46 days with effect from 13 April 1988. The applicant argued that there was a break in the chain of authorization between midnight on 12 April 1988 and 9.30am on 13 April, and the detention during that period was illegal. The respondents argued that the authorized detention for 12 days ended at midnight on 13 April. Alternatively, they argued that the deputy superintendent had on 1 April 1988 reported the circumstances of the detention to the Senior Assistant Commissioner of Police as required under s 3(2) proviso (c) and this authorized the detention for more than 14 days and would cover the period of the alleged break.

Held, allowing the application: (1) the period of detention for 12 days ended at midnight on 12 April and not at midnight on 13 April; (2) the scheme of s 3 of the Act envisages that the period of 60 days is divided into three segments of time and that the longer the segment of time, the higher is the rank of the police officer whose intervention is required. Section 3(2) envisages a certain sequence in the requisite authority to detain within the period of 60 days; (3) the deputy superintendent's authorization under s 3(2)(c) was legally ineffective as that section merely requires the making of a report to the Inspector General who shall then report to the Minister; (4) the deputy superintendent's report under s 3(2) provisio (c) was only effective to authorize the continued detention of the applicant with effect from the expiry of the second segment of 14 days. The report cannot authorize the detention during the last two days of the 14-day segment, before the start of the third segment of 44 days. These two days, ie 13 April and 14 April, were not covered by the assistant superintendent's authorization as that was only for 12 days. The detention during those two days was therefore illegal; (5) even if the deputy superintendent's purported authorization on 13 April signed at 9.30am is valid, it still did not cover the applicant's continued detention from midnight 12 April 1988 to 9.30am 13 April 1988; (6) the deeming provision in s 3(4) cannot assist the respondents. Since there was a flaw in the process of the applicant's continued detention, it cannot be said that the applicant had been detained 'under the powers conferred by this section'. Such a phrase does not preclude the courts from determining whether the power in turn has been properly exercised and whether the detaining authority has acted within the powers conferred in the particular case.

Tan Boon Aun v Timbalan Menteri Dalam Negeri, Malaysia & Anor [1991] 2 MLJ 55 High Court, Penang (Edgar Joseph Jr J).

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

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

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

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

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

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

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

Held, dismissing the appeals: (1) in approaching the appeals, the court must be guided by the clear words of the Federal Constitution and the Internal Security Act 1960. There can be no doubt that the Internal Security Act 1960 is a special law, however unpopular it may be, passed under the authority of art 149 of the Federal Constitution; (2) the police power of arrest and detention under s 73 of the Internal Security Act 1960 could not be separated from the ministerial power to issue an order of detention. There is only one preventive detention and that is based on the order to be made by the Minister under s 8 of the Act. However, the Minister will not be in a position to make that order unless information and evidence are brought before him and, for this purpose, the police are entrusted by the Act to carry out the necessary investigation and, pending inquiries, to arrest and detain a person in respect of whom the police has reason to believe that there exists grounds which would justify the detention of such person under s 8 of the Act; (3) the conditions or restrictions laid down in art 151(1) of the Federal Constitution would come into play only after the Minister's order of preventive detention has been executed. At the initial stage, art 151(1) has no application; (4) it is clear from the provisions of the Constitution and the Internal Security Act 1960 that the judges in the matter of preventive detention are the executive. This is supported by art 151(3) which says that the article does not impose an obligation on any authority to disclose facts, whose disclosure would in its opinion be against the national interest; (5) the Internal Security Act 1960 is valid and from the wording of the provision of the Act, there is nothing to show that it is restricted to communist activities; (6) in this case, whether the objective or subjective test is applicable, it is clear that the court will not be in a position to review the fairness of the decision-making process by the police and by the Minister because of the lack of evidence since the Constitution and the law protect them from disclosing any information and materials in their possession upon which they based their decision. Thus, it is more appropriately described as the subjective test; (7) in this case, there is insufficient evidence for the court to say that the fact (as agreed between the parties) that the detainees were kept in separate rooms amounted to solitary confinement and, therefore, punitive detention; (8) as to when a detainee arrested under s 73 of the Internal Security Act 1960 should be allowed to exercise his right under art 5(3) of the Constitution to consult a counsel of his choice, this should best be left to the good judgment of the authority as and when such right might not interfere with the police investigation. To show breach of art 5(3), an applicant has to show that the police has deliberately and with bad faith obstructed a detainee from exercising his right under the article.

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

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

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

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

P was arrested on 11 February 1989 by the police in purported exercise of the powers under the Dangerous Drugs Act 1952 (Act 234). On 25 February 1989, P was further detained by the police in the purported exercise of the powers under the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). On 22 April 1989, the Deputy Minister of Home Affairs made a detention order dated the same day directing that P be detained for a period of two years with effect from 25 April 1989. P challenged the legality of his detention by the police and the detention order issued by the Minister. P contended that s 6(1) of the 1985 Act refers to the date on which the Minister signed the detention order, ie 22 April 1989 and not the date 25 April 1989 which was the date the period of detention was stated to commence. Accordingly, as the detention order authorized the detention of P until 24 April 1991, it had therefore exceeded the two-year period in violation of s 6(1) and was therefore illegal, unlawful and unconstitutional.

Held, allowing P's application for habeas corpus: (1) having regard to the language of s 6(1) and the whole scheme of the 1995 Act, the detention order signed by the Minister on 22 April 1989 was proper and not in violation of s 6(1) of the 1985 Act. As the Minister was satisfied that P ought to be detained for engaging in activities relating to the trafficking of dangerous drugs, the Minister had properly applied the Act to P. In any event, the subjective satisfaction of the Minister was not open to inquiry by the court; (2) however, the same could not be said as regards the actions of the police officers who were involved in the detention of P prior to the making of the detention order by the Minister. The court found that D had failed to produce the authorization under s 3(2)(b) of the 1985 Act for the detention of P beyond 48 hours and that the wrong use of the forms was not a mere factual irregularity but constituted a breach of the law and the procedure prescribed in s 3(2)(b) and (c) of the 1985 Act. Even assuming that s 3(2)(c) had been complied with, there would be on record before the court two sets of authorizations under s 3(2)(c) by two different officers which would cast doubt on the propriety of the police officers' actions and the lawfulness of their respective orders in the circumstances of the case; (3) as the initial periods of the detention had been proved to be technically defective, the court held that this affected the continued detention of P rendering it bad in law. P's application for habeas corpus was, accordingly, granted by the court.

Cham Yoon Liang v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1989] 3 MLJ 372 High Court, Kuala Lumpur (Mokhtar Abdullah JC).

The applicant was convicted in August 1984 by the Crown Court in Reading, London for a drug offence and was sentenced to seven years' imprisonment from the date of his arrest. After having served his sentence and upon his release, he returned to Malaysia. Upon his arrival at the Subang International Airport, he was arrested pursuant to s 3 of the Dangerous Drugs (Special Preventive Measures) Act 1985 ('Act 316') and was ordered to be detained for two years at the Pulau Jerejak Rehabilitation Centre. The ground of the detention order is as follows: 'That you had been involved in activities relating to or involving trafficking of dangerous drugs.' The application was made on three grounds. First, it was argued that since the appellant had already served his sentence for an offence which is the same as that which formed the basis of the order made by the Deputy Minister, therefore, the position of the applicant does not fall within the purview of s 6(1) of Act 316. Secondly, the applicant was not fully informed of the grounds of his arrest. Thirdly, the applicant was not told when the Advisory Board made its recommendation to the Yang di-Pertuan Agong and when the Yang di-Pertuan Agong confirmed his further detention.

Held, dismissing the application: (1) the first ground is rejected for three reasons. Firstly, there were actually two charges against the applicant and not only one which formed the basis of that charge against the applicant in the Crown Court at Reading, London. Secondly, the applicant was actually questioning the 'decision' of the Minister in making the said order and that is clearly not allowed under s 11(C)(1) of Act 316, as amended by Act A738. Thirdly, accepting the submission of the applicant's counsel that an order cannot be made against one who has been convicted and sentenced by a court outside this country for the same act, would mean inserting a new condition in s 6(1) which obviously did not provide for that condition and that is not proper; (2) there is no necessity for the applicant to understand every word used by the arresting officer, but it is sufficient if the applicant understands the quintessence, that is he is involved in dadah activities and has to be detained in the public interest. The court is satisfied that based on several factors, the applicant has understood the quintessence of the grounds for his detention as spelt out by the arresting officer to him in Bahasa Malaysia, although not translated into the Chinese language; (3) the condition that the recommendation of the Yang di-Pertuan Agong has to be made within a reasonable time is not a requirement under Act 316 and is not a procedural requirement which compliance can be challenged in an application for judicial review based on s 11(C)(1) of the Act which only allows for judicial review to be made on any question pertaining to the compliance of the procedural requirements under that Act. Therefore, this is not a question which can form the basis of a habeas corpus application.

Lee Fong Kooi v Minister of Home Affairs, Malaysia & Anor [1990] 3 MLJ 172 High Court, Penang (Abdul Hamid JC).

The applicant applied for an order of habeous corpus on the ground that he had been wrongfully detained for more than 24 hours. In reponse to the application, the respondents' officers filed affidavits affirming that they had respectively permitted the detention of the applicant for more than 24 and 48 hours respectively pursuant to s 3(2) of the Dangerous Drugs (Special Preventive Measures) Act 1985. In support of their averments, copies of the written permissions were exhibited with the affidavits. These copies had the words 'salinan yang sah' (certified copy) stamped on them and were signed by an officer but were not dated. Counsel for the applicant contended that the copies were not admissible as they did not satisfy s 76 of the Evidence Act 1950. Since that left the respondents with only the bare averments in their affidavits regarding the permission granted without the production of the relevant authorization, counsel contended that the respondents had not proved that they had validly detained the applicant. Held, dismissing the plaintiff's application: (1) if an officer avers on oath in his affidavit that he had given the required written permission for detention beyond 24 hours, this averment can, generally, in the absence of any cause to doubt the truth of such averment, be accepted as the truth. It is not mandatory that the written permission be exhibited; the court could act on the bare averment. (2) even if such averment was not adequate, the court would not normally grant the application automatically. Instead, it would allow the respondents to file additional affidavits with the exhibits duly certified as required under s 76. The court believed that if such an order was made, the same documents would be tendered in court but with a date included. As such the court saw no reason to exercise its discretion and grant the application.

Choo Boon Kah lwn Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Satu Yang Lain Criminal Application 44-10-93 High Court, Kuala Lumpur (Abdul Aziz J).

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

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

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

This was an application for a writ of habeas corpus under s 375 of the Criminal Procedure Code (Cap 132, 1955 Ed). The applicant was arrested and detained under s 55 of the Criminal Law (Temporary Provisions) Ordinance 1955 by a detective corporal who was directed by a superior officer to arrest the applicant. The applicant contended: (a) the arrest was illegal because the detective corporal when making the arrest under s 55(1) of the ordinance had no reason to believe there were grounds which would justify the detention under s 47; (b) s 55(1) imposes an objective test and hence the court could examine whether there were in fact sufficient reasons to justify the detention.

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

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

An application for the writ of habeas corpus was made on the basis that r 3(3) of the Dangerous Drugs (Special Preventive Measures) (Advisory Board Procedure) Rules 1987 was not complied with. There was no dispute regarding the fact that the custody officer had informed the applicant about his right to make representations under r 3(3). However, the reminder was administered in Bahasa Malaysia which the applicant alleged he did not understand. In support of the last fact, the applicant's counsel pointed out that an interpreter had been used on two previous occasions, viz when the applicant was caught, and when the detention order was served on him. Held, allowing the application: although the respondent had roughly given the necessary information under r 3(3) to the applicant, as the applicant had not understood it, the respondent failed to comply with the mandatory rule. It was not relevant that the applicant had in fact made a representation; the issue was whether there was a strict compliance of r 3(3), and in this case there was not.

Chiam Ching Kiang lwn Menteri Hal Ehwal Dalam Negeri, Malaysia & Satu Yang Lain Criminal Application No 44-1-1993 High Court, Johore Bahru (Haidar J).

The applicant was detained for two years under a detention order issued under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985. Upon the expiry of the order, the Deputy Minister extended the detention order by another two years on the same grounds, under powers from s 11A of the Act and art 43A of the Federal Constitution.

Held, dismissing the application: (1) preventive detention provisions must be strictly interpreted as the liberty of an individual is at stake. In a habeas corpus application, the onus is on the detaining authority to show that the detention is lawful. The power must be expressed clearly and unequivocally and not merely inferred; (2) words alone cannot amount to an arrest under s 15 of the Criminal Procedure Code, unless the subject submits to the arrest verbally. General reasons for arrest will suffice for art 5(3) of the Constitution; (3) the court was not empowered to question the Deputy Minister's reasons for extending the detention order; (4) Form II of the Dangerous Drugs (Special Preventive Measures) (Advisory Board Procedures) Rules 1987 was only to notify the applicant of the hearing of his representation. However, three copies of Form I must be given to the applicant if he intends to engage an advocate. Rule 5(1) of the Rules is directory. Failure to exhibit Form II in the affidavit of the Secretary of the Advisory Board could be overlooked as it did not prejudice the applicant; (5) when an applicant raises a point of law for the first time at the hearing, the High Court is not precluded from ascertaining whether it is indeed such or a mere camouflage. The High Court must look at the substance and not the form of the point of law.

Yap Koon Hwa v Menteri Hal Ehwal Dalam Negeri Malaysia & Ors Criminal Application No 44-24 of 1994 High Court, Johor Bahru (Abdul Malik Ishak J).

Wong Kiew Meow lwn Timbalan Menteri dalam Negeri & Satu Yang Lain Criminal Application No 44-19-93 High Court, Kuala Lumpur (Abdul Aziz J).

This was an application for a writ of habeas corpus. The applicant had been arrested and detained under a detention order issued by the Minister of Home Affairs ('the Minister') made pursuant to s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 ('the Ordinance'). The grounds of detention state that the applicant was a criminal who had committed criminal acts involving violence which threatened public safety and peace. The allegations of fact state that the applicant had murdered a man. Submitting that the order was procedurally defective, counsel for the applicant argued that since the allegations of fact only mentioned a single act of murder and not a series of murders, and did not state that the applicant was likely to commit murder in the future, thus, for the Minister to state in the order that the purpose of the detention was to prevent the applicant from act- ing in any manner prejudicial to public order, was illogical. Held, dismissing the application: (1) the court could not accept counsel's contention that his submission concerned only a point of procedure. The court was of the opinion that counsel's criticisms struck not at the procedural aspect of the detention order but at the exercise of judgment on the part of the Minister in determining the purpose of the order; (2) counsel was inviting the court to determine the factual basis of the Minister's declared satisfaction in the detention order. As ss 7C and 7D of the Ordinance precluded the court from embarking on such an examination, the court dismissed the application.

Henry v Timbalan Menteri Dalam Negeri & Ors Criminal Application No 44-3-94 High Court, Alor Setar (Mohd Hishamudin JC).

Emergency (Public Order and Prevention of Crime) Ordinance 1969, ss 4(1), (4)(a), (b), 7C, 7D.

The respondents had been detained under the Emergency (Public Order and Prevention of Crime) Ordinance 1969 ('the Ordinance') pursuant to separate detention orders made by the Deputy Minister for Home Affairs under s 4(1) of the Ordinance. The orders stated the grounds for detention in the alternative. The respondents' applications to the High Court for habeas corpus were allowed on the ground that the orders were defective due to non-compliance with the provisions of s 4(1) of the Ordinance, in that the orders were vague as to which limb of s 4(1) the respondents had been detained under. (See [1993] 3 MLJ 265.) The appellants appealed, contending that: (i) since the grounds for detention in the two orders were an exact reproduction of the words found in s 4(1), with the preposition 'or' distinguishing the ground relating to public order under the first limb from that relating to suppression of violence under the second limb, it did not matter whether the detention was made on the first ground or the second, as it was not a question of procedure but of substance, which came solely within the subjective discretion of the Deputy Minister; and (ii) the judge should have treated one of the grounds as immaterial surplusage without having the effect of invalidating the order.

Held, dismissing the appeals: (1) the learned judicial commissioner was correct in allowing the respondents' applications for habeas corpus because, on the face of it, the order was vague as to whether the Deputy Minister had actually applied his mind to the particular circumstances of each respondent's case or whether he had exercised his power of detention mechanically; (2) the determination of the question as to whether the Deputy Minister addressed his mind to the relevant limb or for that matter to both the limbs, in making his detention order, is a procedural matter and if it is shown that there is some doubt as to which particular limb the Deputy Minister applied his mind to, or whether he applied his mind to both the limbs together in grounding his order, the benefit of the doubt must be given to the detenu.

Menteri Hal Ehwal Dalam Negeri & Anor v Lee Gee Lam and another application [1993] 3 MLJ 673 Supreme Court, Kuala Lumpur (Gunn Chit Tuan CJ (Malaya).

The applicants were detained under detention orders made by the Minister of Home Affairs acting pursuant to powers conferred upon him by s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 ('the Ordinance'), on the identical ground that they were threatening public order. During their detention, the applicants were taken out from the Rehabilitation Centre at Pulau Jerejak, Penang and brought to Kuala Lumpur to attend a court case. This was done pursuant to an order of the Deputy Superintendent under s 13(1) of the Ordinance enabling the applicants to be taken to Kuala Lumpur to attend the court case. In the course of their journeys, both applicants were kept in lock-ups at the police station in Ipoh, Perak. In their applications for orders of habeas corpus, both applicants challenged the validity of their detention orders on two grounds : firstly, that r 3(2) of the Public Order and Prevention of Crime (Procedure) Rules 1972 ('the Rules'), made pursuant to s 5(3) of the Ordinance, which specifically requires a detained person to be provided with the requisite copies of Form I, was not complied with; and secondly, that s 13(2) of the Ordinance had been breached. Held, allowing both applications: (1) the statutory requirement in r 3(2) of the Rules which necessitates the officer in charge to provide a detainee with the requisite copies of Form I is one which is mandatory, the breach of which ultimately renders the detention unlawful. Since the respondents had not stated at all in their affidavits that they had provided the applicants with the necessary copies of Form I, their detentions were unlawful; (2) in cases of preventive detention without trial in which a person is to be deprived of his liberty, there must be strict compliance with the statutory requirements involved, and any infringement of the mandatory requirements of r 3(2) of the Rules would vitiate any order of deten- tion made, even if there is no semblance of prejudice to the detainee; (3) in an application for a writ of habeas corpus, the detained person is entitled to avail himself of any technical defect that will ultimately set him at liberty; (4) s 13(2) of the Ordinance provides that any person in the course of being taken to any place in pursuance of sub-s (1) shall be kept in such custody 'as the Minister may direct'. In the order of the Deputy Superintendent, nowhere did it state that in the course of taking both applicants from the Rehabilitation Centre to Kuala Lumpur, the appli- cants were to be detained at the Ipoh Police Station. Devoid of such evidence, the detention of both applicants at the Ipoh Police Station was clearly unlawful; (5) as a habeas corpus case is decided entirely on the contents of affidavits, the said affidavits must have a high degree of particularization, and must specifically reply to allegations; (6) in an application for a writ of habeas corpus, the burden of proving the detention lawful lies with the detaining authority throughout.

Lye Fong Weng & Anor v Deputy Minister of Home Affairs & Anor Criminal Application Nos 44-6-93 and 44-7-93 High Court, Taiping (Abdul Malik JC).

These were applications for habeas corpus against the detention orders issued by the Deputy Minister of Home Affairs (the 'deputy minister') under s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (the 'Ordinance'). Section 4(1) requires that the Minister of Home Affairs (the 'minister') in making the order be satisfied that the order is needed to prevent the applicants from acting in any manner prejudicial to public order and that it was necessary for that person to be detained for any period not exceeding two years. The detention orders issued against the applicants were, however, signed by the deputy minister. Counsel for the applicants submitted that the minister should be the appropriate person to sign the orders as they stated that the minister was satisfied under s 4(1) of the Ordinance that the orders should be issued. The issue arising here was whether the deputy minister could act partially and complete the minister's act of being personally satisfied that the orders were needed by signing the orders. Another question that arose was whether an unlawfully detained person should be produced before the court before that person was released. Held, allowing the applications: (1) while it was clear that the deputy minister has the same powers as the minister, the deputy minister could not have known the state of mind of the minister when the latter signed the order. Thus, the detention orders signed by the deputy minister were not valid; (2) as the power to detain a person without trial must be expressed, clear and unequivocal and not exercised by sheer inference, the deputy minister could not issue the detention orders mechanically; (3) the deputy minister in exercising the functions of the minister must act as a whole and not partially on behalf of the minister as he had done in this case; (4) the requirements of art 5(2) of the Federal Constitution that an unlawfully detained person be produced before a court before being released must be construed as giving the judge a discretion. Further, as the old O 54 of the Rules of the High Court 1980 and s 365(1)(b) of the Criminal Procedure Code do not lay down the need to produce the detainee in court before his eventual release, the court could release the detainees without requiring their attendance.

Sukumaran v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor Criminal Application No 44-24-94 High Court, Taiping (Abdul Malik Ishak J).

The Deputy Minister of Home Affairs ('the Deputy Minister') issued seven detention orders which were in identical terms ('the detention orders'), against the applicant, Sukumaran, and six others ('the detainees') under s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 ('the Ordinance'), and directed that they be detained at a rehabilitation centre. In effect, the orders stated that the Minister of Home Affairs ('the Minister') himself was satisfied that it was necessary to make the orders against the detainees under the first limb of s 4(1) of the Ordinance, ie to prevent them from acting in any manner prejudicial to the public order. However, the orders were not signed by the Minister, but by the Deputy Minister. The detainees applied for orders of habeas corpus, arguing that the orders shoud not have been signed by the Deputy Minister. They contended that the Minister could not be personally satisfied that the first limb of s 4(1) was breached, if the orders were signed by somebody else. On the other hand, the Deputy Minister raised the issue that even if the applications of habeas corpus were successful, the detainees should not be released before they were produced before the court as laid down by art 5(2) of the Federal Constitution.

Held, ordering that the detainees be forthwith released without being produced in court: (1) pursuant to s 7C of the Ordinance, the act of the Deputy Minister in making the orders was beyond the purview of challenge, save in regard to a question on compliance with any procedural requirement in the Ordinance; (2) s 4(1) of the Ordinance confers on the Minister the power to issue a detention order based on any one of two limbs, ie when it is necessary to prevent a person from acting in any manner prejudicial to the public, or when it is necessary for the suppression of violence or the prevention of crimes involving violence. These two limbs must be read disjunctively, and the detention order must be worded so as to show which particular limb the Minister wishes to apply with regard to the detention; (3) in this case, there was a very serious procedural defect in the detention orders that went to the root of the matter. Although the Deputy Minister has the same power as the Minister under art 43A(2) of the Federal Constitution, the Deputy Minister must not act in part in exercising the power of detention under s 4(1) of the Ordinance. The Deputy Minister did not know the state of mind of the Minister and had acted mechanically in signing the detention orders. He was not empowered to sign the detention orders when he himself did not apply his mind to which limb of s 4(1) of the Ordinance he was acting under; (4) it is trite law that the power to detain a person without trial must be expressed, clear and unequivocal, and cannot be exercised by sheer inference. Thus, one could not infer that the Deputy Minister was personnally satisfied that the first limb of s 4(1) was breached before signing the orders, and that he had acted as a whole; (5) there was no need for the applicants to be produced before the court before their release. The words 'shall order him to be produced before the court and release him' in art 5(2) of the Federal Constitution are expressed in permissive language, as they are meant for the purpose of enabling something to be done. The words import a discretion and must be construed as discretionary because there was nothing in the subject matter to show that they were meant to be imperative and although art 5(2) was already in existence before the deletion of the old O 54 of the Rules of the High Court 1980 (concerning the power of a judge hearing the application of habeas corpus to order the release of a detainee), all the Malaysian judges except one, had seen it fit to release detainees without requiring their attendance before the court.

Sukumaran s/o Sundram v Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia & Anor and other applications [1995] 2 MLJ 247 High Court, Taiping (Abdul Malik Ishak J).

The applicant had been served with a detention order by the Minister of Home Affairs, the grounds being in effect that he was trafficking in drugs as a member of an international drug distribution syndicate. The applicant applied for a writ of habeas corpus and challenged the validity of the order of detention on the contention that the grounds on which the order was made was dehors the purview and ambit of the ordinance. It was argued that the scope of the ordinance was limited and that it applied and was intended to apply only for the purposes of suppressing activities involving violence and preventing crimes of violence. Reliance was placed on the preamble to the ordinance. Section 4(1) of the ordinance empowers the Minister to make a detention order if he is satisfied that it is necessary to do so with a view to preventing any person from acting in any manner prejudicial to public order or where it is necessary for the suppression of violence or the prevention of crimes involving violence.

Held, dismissing the application: (1) where the enacting words of the section are clear, the preamble cannot operate to restrict that meaning. The preamble cannot be invoked for the purpose of creating ambiguity in a statute; (2) it is abundantly clear that trafficking in drugs as a member of international drug distribution syndicate which was the ground on which the order of detention against the applicant was made strikes at the very core of public order and any person indulging in such activities must necessarily be acting in a manner prejudicial to public order.

Re Application of Tan Boon Liat @ Allen; Tan Boon Liat v Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1976] 2 MLJ 83 High Court, Ipoh (Abdoolcader J).

[Annotation: On appeal, see Re Application of Tan Boon Liat & Ors [1977] 2 MLJ 18.]

These three appeals from the decisions of the High Court reported in [1976] 2 MLJ 83 and [1976] 2 MLJ 133 were heard together and raise the question whether a person suspected of being engaged in drug trafficking may lawfully be detained under s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969. The sole question on the appeals was whether the grounds on which the orders for detention were made were outside the scope and ambit of the ordinance.

Held, dismissing the appeals: the ground on which the orders of detention were made against the appellants, namely trafficking in drugs, was within the scope and ambit of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 and, therefore, the applications of the appellants were rightly dismissed.

Re Application of Tan Boon Liat & Ors; Tan Boon Liat v Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors; Patrick Eugene Long v Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors; Donnie Lee Avila v Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1977] 2 MLJ 18 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah and Wan Suleiman FJJ).

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

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

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

The applicants were detained under s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 ('the Ordinance'). Counsel for the applicants advanced only one ground in support of their prayer for habeas corpus, namely, that the detention orders had been issued in breach of s 4(1) of the Ordinance.

Held, allowing the applications: (1) s 62 of the Interpretation Act 1967 does not apply as it concerns the issue of prescribed forms. In this case, no forms in respect of the detention orders were prescribed and it quite clearly shows that the legislature had intended all detention orders made under s 4(1) of the Ordinance to be a matter of substantive law and not a matter whereby the de minimis principle is applicable; (2) a detainee is entitled to know from the face of the detention order under which particular limb of s 4(1) he is being detained given that the two limbs are to be read disjunctively even if he is not entitled to question or challenge the detailed factual basis of his detention.

Shaharudin bin Idris v Menteri Hal Ehwal Dalam Negeri Malaysia & Anor and other applications [1993] 1 MLJ 204 High Court, Penang (Vincent Ng JC).

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

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

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

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

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

Teo Soh Lung v Minister of Home Affairs & Ors [1990] 2 MLJ 129 Court of Appeal, Singapore (Wee Chong Jin CJ, Thean and Chan Sek Keong JJ).

This was 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 the 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 have no 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.

Re Datuk James Wong Kim Min [1975] 2 MLJ 244 High Court, Kuching (Seah J).

This was an appeal from the decision of Seah J ([1975] 2 MLJ 244) in which he held that an order of detention made against the respondent under the Preservation of Public Security Ordinance 1962, was unlawful as at the time when the detention order was made by the Federal Secretary, Sarawak, the detainee was not in Sarawak.

Held, dismissing the appeal: (1) although the Preservation of Public Security Ordinance 1962 of Sarawak was declared to be a federal law it continued to have effect only in Sarawak; (2) neither the Minister nor the Federal Secretary acting on his behalf could order a person to be detained outside Sarawak; (3) the Minister and the Federal Secretary had power to make a detention order in respect of a person who when the order was made was outside Sarawak but the detention order could only have effect when the person concerned sets foot in Sarawak.

Re Datuk James Wong Kim Min; Minister of Home Affairs, Malaysia & Ors v Datuk James Wong Kim Min [1976] 2 MLJ 245 Federal Court, Kuching (Suffian LP, Lee Hun Hoe CJ (Borneo).

This was an application made under s 375 of the Criminal Procedure Code (Cap 132, 1955 Ed) and asked for a declaration that the solitary confinement of the applicant at the Central Police Station lock-up was improper and without any legal justification whatsoever. The applicant also asked for a writ of habeas corpus to be issued, directing the proper detaining authorities to forthwith effect his removal to a proper place of detention.

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

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

This was an application under s 375 of the Criminal Procedure Code (Cap 132, 1955 Ed) for a writ of habeas corpus. The court granted an order nisi directing the Chief Secretary and the Commissioner of Police to show cause why the writ should not issue. In their affidavits, they stated that the applicant was detained under a detention order made under s 3(1) of the Preservation of Public Security Ordinance 1955. It was contended for the applicant that: (1) s 3(1) of the ordinance makes provision for extra-territorial matters, namely, the security of the Federation of Malaya and the maintenance of public order and essential services therein and that the subsection was therefore ultra vires the Legislative Assembly established in Singapore by the Singapore Colony Order in Council 1955; (2) where a statute requires that a public officer should be satisfied of something before exercising a statutory power, if it could be shown that there were no grounds on which he could be so satisfied, the court might infer either that he did not honestly form that view or that, in forming it, he could not have applied his mind to the relevant facts; and (3) the statement of the grounds of detention supplied to the applicant was inadequate and, therefore, the detention was improper.

Held: (1) 52 CWN 620. The test is whether s 3(1) of the ordinance is for the peace, order and good government of the Colony, notwithstanding the fact that it may relate to persons, acts or things beyond the limits of the Colony. As the subsection provides for public security and aims at stamping out activities prejudicial to public security carried on in the Federation of Malaya and the Colony by a subversive organization operating in both territories, it is for the peace, order and good government of the Colony. Accordingly the subsection was not ultra vires the Legislative Assembly of the Colony; (2) as a statement of the grounds of detention had been supplied to the applicant in accordandce with s 5(2) of the ordinance, the applicant failed to show that there were no grounds on which the Governor could be satisfied that the detention was necessary. It followed therefore that neither of the inference suggested by counsel for the applicant could be drawn; (3) the principle to be applied in deciding whether a law is ultra vires the Legislature of the Colony of Singapore is laid down in Wallace Bros & Co Ltd v Commissioner of Income Tax, Bombay (1948) 75 IA 86; AIR 1948 PC 118;as s 3(1) of the ordinance imposed a subjective test, it was not open to the court to inquire whether in fact the Governor had reasonable grounds for being satisfied that the detention was necessary. If the ordinance did not impose a subjective test, the court would have refused a writ of habeas corpus on the ground that an alternative remedy was available and that a writ of habeas corpus not being a writ of course might be refused for that reason.

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

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 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 Menteri Besar of Johore under the Restricted Residence Enactment 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) despite such inconsistency with the Constitution, the enactment is in force, but it must be applied with such adaptions as may be necessary to bring it into accord with the Constitution; (3) 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; (4) 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 Menteri Besar can therefore validly exercise all the powers and duty of the Minister under s 2 of the enactment.

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

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

Held: (1) as in her supporting affidavit the applicant had deposed that when she saw the detainee a few hours after his arrest he was fully informed by the police and knew the reason for his arrest, this satisfied the requirement of art 5(3) of the Constitution which applies to arrests made under any law including the Restricted Residence Enactment in this case. Chia Khin Sze v Mentri Besar of Selangor [1958] MLJ 105 dissented from; (2) the legal position is that the detention order must be in exercise of a valid legal power. Once this is shown, it is for the detainee to show that the power was exercised improperly. Thus, the applicant in this case failed to discharge the onus cast upon her.

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

A was detained for two years under a detention order made under the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). The detention order was served on A by two Malay police officers, X and Y. The detention order stated that the detention order was explained in Mandarin to A by X and Y. A column in the detention order which provided for the signature of the translator was however left blank. X's affidavit did not mention that he was proficient in Mandarin at the material time. There was also no affidavit filed by Y. A's detention order was subsequently extended for another two years. A applied to the High Court for habeas corpus. A firstly contended that since s 11A of the 1985 Act does not provide him with a right to make representation in respect of an extension of a detention order, this contravened art 151 of the Federal Constitution. A then argued that he only understood Mandarin and the detention order was therefore not explained to him. D1-D2 however submitted that A must have understood the detention order since he had signed in the column stating that he understood the detention order.

Held, allowing the application: (1) A had been provided with a right to make representation when the detention order was made. Since the grounds for the extension of A's detention order were the same as those of the detention order, there was no necessity for further right of representation to be granted to him. It is only when the grounds for the extension of the detention order are different from the grounds of the detention order that s 11A(2) of the 1985 Act provides a right of representation to the detainee; (2) in compliance with art 151(1)(a) of the Constitution, it is a rule of law that the detention order must be explained to the detainee to enable him to make effective representation. It is therefore essential for the person explaining the detention order to be proficient in the language which can be understood by the detainee; (3) in this case there was nothing to show that X and Y were proficient in Mandarin. Nor could the court take judicial notice that X and Y were proficient in Mandarin at the material time; (4) unless there was evidence to show that the detention order was explained to A, whatever he signed to say that he understood would be meaningless.

Kok Wee Siong v Timbalan Menteri Dalam Negeri Malaysia & Anor [1992] 1 CLJ 681 High Court, Johore Bahru (James Foong JC).

This application for a writ of habeas corpus concerned the validity of a second detention order ('the second order') made under s 8(7) of the Internal Security Act 1960 ('the ISA') extending a first detention order. In making the second order, the Minister did not specify the month on which the first detention order expired. Counsel for the applicant submitted that the second order was bad in law as it did not specify the month when the extension should proceed from. There was also failure to specify the grounds on which the second order was made. It was thus submitted that the defects rendered the second order null and void. The respondents argued that since the declaration of service by the Penguasa Penjara and the acknowledgment by the applicant on the reverse portion of the second order were dated 15 April 1994, by inference the month that was left blank in the second order should rightly be the month of April. The respondents also argued that the court should look at the two orders cumulatively and in so doing would see the grounds for the second order. Held, allowing the application: (1) an applicant in a habeas corpus application is entitled to take advantage of any technical defect which has the effect of invalidating the order under s 8(7) of the ISA. It is a recognized principle of interpretation that laws which curtail the rights of subjects should be construed strictly bearing in mind the subject's fundamental right to freedom as enshrined in art 5 of the Federal Constitution; (2) the court found that the order had been made without the care and consideration normally associated with the concept and spirit of good faith; (3) without the month being specified in the second order, the concept of inference submitted by the respondents could not be used to validate the second order; (4) the power to detain an individual, especially the power to issue a second detention order, must be expressed, at all times, in clear and unequivocal words; (5) the failure to specify the month when the second order should start was bad in law and struck at the very core of art 5 of the Federal Constitution; (6) there was a complete failure to comply with s 8(7) paras (a), (b) or (c) of the ISA and the proviso thereto. The applicant must be made to know the grounds for his detention so that he could decide whether he should exercise his inherent right under s 11 of the ISA by treating the second order as a fresh order and consequently make representations to the Advisory Board as envisaged under s 12(1) of the ISA; (7) (per curiam) the notion that the court could not proceed to inquire into the legality of a detention unless the body of the person alleged to be wrongfully detained was produced before the court was founded on old English practice and procedure. The modern practice in England to the effect that the production of the body of the person detained was not a basic or essential requirement of a proceeding for a writ of habeas corpus must be vigorously applied in Malaysia.

Mohd Amin bin Mohd Yusoh v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor Criminal Application No 44-31-94 High Court, Taiping (Abdul Malik Ishak J).

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

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

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

Chang Ngo v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor and other applications [1990] 2 MLJ 221 High Court, Muar (Richard Talalla JC).

A was detained for two years pursuant to a detention order issued by D1 under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). The detention had commenced on a date later than the date of the order. A's detention was extended for a further two years upon expiry of the detention period under the earlier detention order. Subsequently, the Deputy Minister of Home Affairs revoked the extension order and issued a fresh detention order under s 6(1) read with s 11B(2) of the Act, authorizing the detention of A for a further period. A applied for a writ of habeas corpus to secure his release from detention. Counsel for A contended that the Deputy Minister was not authorized to make the fresh detention order under s 6(1) read with s 11B(2). It was also contended that the fresh detention order was, for all purposes, a new detention order and could not be validly made in the instant case as no fresh investigation and inquiry had been carried out. In regard to the Deputy Minister's power to revoke the extension order, it was contended that the Deputy Minister had no power to revoke it as the order was a nullity, being bad on its face. Accordingly, the Deputy Minister could not issue a fresh detention order as there was nothing for the Deputy Minister to revoke in the first place.

Held, dismissing the application: (1) the wordings of s 6(1) read with that of s 11B(1) and (2) reveal a clear expression of Parliament's purpose to give the Minister the power to make a fresh detention order or extension order authorizing continued detention for a period not exceeding two years. It is obvious that Parliament's purpose in insering s 11B, in particular, the saving provisions of s 11B(2), was to authorize the continue detention of a detainee who had been illegally detained by the simple expedient of revoking any detention order or any suspended detention order or any extension order and at the same time making, while he is still under detention, a fresh detention order or extension order, thus obviating the necessity for complying with any of the requirements of ss 3-5 afresh; (2) in the instant case, A had remained in custody ever since his arrest and he could not, therefore, since his arrest, be associated with any further activity relating to or involving the trafficking of dangerous drugs. There was, therefore, no necessity for a fresh investigation and inquiry before a fresh detention order is issued; (3) the expression 'revocation' in s 11B(1) is not confined to only the revocation of an order which is valid and operative. It also includes the cancellation of all orders which are invalid as well as those which are valid. Accordingly, the Deputy Minister had the power to revoke the extension order and to issue the fresh detention order in question.

Lai Ah Fatt v Timbalan Menteri Dalam Negeri Malaysia & Anor [1990] 2 MLJ 312 High Court, Penang (Edgar Joseph Jr J).

A were detained for a period of two years pursuant to detention orders issued by the Minister of Home Affairs under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). In each each, the detention had commenced on a date later than the date of the order. Upon the expiry of the original detention period, the Minister had directed that the detention of A be extended for a further two years. Subsequently, in Tan Hoon Seng v Minister for Home Affairs, Malaysia & Anor and another appeal [1990] 1 MLJ 171, the Supreme Court ruled that a detention order was invalid if it provides for detention to commence later than the date on which the order was issued. In the light of this Supreme Court decision, the Minister purportedly revoked the direction for the extension of the detention which had been made against A. Fresh orders were issued purportedly under the power given under s 6(1) read with s 11B(2) of the Act. The original detention orders which were invalid were, however, not revoked by the Minister. In their respective applications for writ of habeas corpus for release from detention, A contended, inter alia, that s 11B of the Act does not give power to the Minister to make a fresh order of detention under s 6. It was also contended that, assuming that the Minister has the power to make a fresh order under s 11B(2), that power can only arise if the orginal order has in the first place, been revoked and that if the original order is invalid, then there cannot be a 'fresh order' as there is nothing for the Minister to revoke in the first place.

Held, allowing the applications: (1) having regard to the provisions of s 11B, the Minister has the power to make a fresh order of detention and this power is not sourced in s 11B(1) but arises under the second limb of s 11B(2); (2) however, s 11B(2) which provides for the making of a fresh order can only be resorted to where the Minister has, in the first place, revoked a valid order or direction. In the instant case, as there was no valid detention order directing the detention of A or a valid direction extending their detention, the Minister could not have validly exercised the power that he purportedly exercised under s 11B(2) which is predicated on a revocation of a valid order or valid direction.

Teoi Guat Meng v Inspector General of Police & Ors and other applications Criminal Application Nos 54-9-89, 44-3-90, 44-5-90, 44-7-90, 44-9,90, 44-13-90, 44-15-90, 44-17-90, 44-19-90, 44-21-90, 44-23-90, 44-1-90, 44-11-90, 44-25-90, 44-27-90, 44-29-90, 44-39-90 (SEE PARTIES) High Court, Alor Setar (KC Vohrah J).

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

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

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

The three applicants are detained under detention orders made under s 6(1) read with s 11B of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) ('the Act') and have applied for writs of habeas corpus. As a result of the Supreme Court decision in Tan Hoon Seng v Minister for Home Affairs, Malaysia & Anor [1990] 1 MLJ 171, which decided that it is not permissible under s 6(1) of the Act for the Minister to specify a different date from the date of the order for the commencement of the detention, the orders affecting the applicants in this case were rendered defective. The Minister then revoked the orders by reference to s 11B(1) and by reference to sub-s (2), he made fresh orders in respect of each of the applicants. Counsel for the applicants sought to impugn the validity of the revocation and the Minister's powers under s 11B(2) to make fresh orders.

Held, dismissing the applications: (1) a fortiori, the detention orders in this case. The argument that the initial orders were null and void, in the light of the Supreme Court decision, and the Minister therefore had no power to revoke the orders or to issue fresh orders, was rejected; (2) the Minister's power to revoke is available to him if he deems it just or fit to do so and the Act does not fetter the discretion so given. This discretion is not open to question by the court; (3) the power to revoke should not be construed restrictively for the effect of revocation is to set the subject free; (4) it is clear from s 11B(1) that the Minister may revoke any detention order made under sub-s (1) of s 6. As long as a detention order is extant, the Minister has a right to revoke it. The argument that the initial orders must be taken to be invalid and there could be no effective revocation for s 11B(2) to come into operation for the Minister to make fresh orders was rejected; (5) looking at ss 6(1) and 11A with s 11B(2), it becomes clear that the reference to sub-s (1) in s 11B(2) means sub-s (1) of s 6 or sub-s (1) of s 11A or both. Any fresh order made or fresh direction given pursuant to s 11B(2) must be an order or direction of a kind that is allowable under ss 6(1) and 11A(1) respectively; (6) the investigation and report submitted under s 6(1) and the inquiry and its report submitted under s 6(1)(b) of the initial orders remain intact and valid. This is because s 11B(2) provides that the revocation shall not affect the validity of the order or direction before its revocation or to anything done thereunder. The fresh orders, therefore, need not be preceded by a fresh police investigation or police inquiry as required under s 6(1); (7) the Supreme Court in Tan Hoon Seng had granted the relief sought by the appellants but there was no order declaring the detention orders to be void. The detention orders therefore remained extant;it would be futile to insist on the motions of the investigation and inquiry in each case being repeated simply because the resulting detention order was technically defective.

Chang Ngo v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor and other applications [1990] 2 MLJ 221 High Court, Muar (Richard Talalla JC).

The applicant was detained under a detention order made under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) ('the Act') for a period of two years commencing from 5 June 1987. On the expiry of this order, the applicant was detained for another two years under s 11(A)(1). The extension order would have expired on 3 June 1991, but on 15 January 1990, the Deputy Minister revoked this order in the exercise of his powers under s 11B and simultaneously issued a fresh detention order under s 6(1) directing that he be detained for six months. The applicant argued, inter alia, that the Minister has no power to issue a fresh s 6(1) order read together with s 11B of the Act.

Held, allowing the application: (1) s 11B(1) of the Act gives the Minister the power to revoke any detention order made under s 6(1) at any time if he deems it just or fit to do so. Under s 11B(2), any revocation under sub-s (1) shall be without prejudice to the power of the Minister to make a fresh order or to give a fresh direction under sub-s (1); (2) however, sub-s (1) is silent about the power of the Minister to make a fresh order or to give a fresh direction. There is a clear omission in sub-s (1) to provide for such a power of the Minister as spelt out in sub-s (2). There are no other sections in the Act which gives power to the Minister to make a fresh order under s 11A(1); (3) even taking sub-ss (1) and (2) together, sub-s (2) cannot be interpreted to fill in the omission regarding the power of the Minister in sub-s (1). Only Parliament can remedy this omission, and the court cannot fill in any gap in order to give effect to the intention of the statute; (4) the Minister therefore has no power to issue a fresh order of detention once a revocation order under s 11B(1) is made.

Wong Ah Kau v Menteri Hal Ehwal Dalam Negeri & Anor and other applications [1990] 2 MLJ 227 High Court, Penang (Mohamed Dzaiddin J).

This was an application for an order of habeas corpus in respect of a detainee. The question was whether the detenu was detained on a valid order under the law. It was urged that there was failure to comply with the provisions of s 5(2)(b) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 requiring that the detenu be furnished by the Minister with the grounds of his detention and that the Minister was acting mala fide in signing a new order.

Held: (1) the failure, if any, to observe in full the provisions of s 5(2)(b) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 could not invalidate the order made by the Minister under s 4(1) of the ordinance; (2) on the facts of the case, no question of mala fides could arise, as it was always open to the authorities to cure a defective order in the proceedings.

Che Su bte Shafie v Superintendent of Prisons, Pulau Jerejak, Penang [1974] 2 MLJ 194 High Court, Penang (Chang Min Tat J).

The applicants were detained under the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) ('the Act') except for the applicant in Criminal Application No 44-65-92, who was detained under the Emergency (Public Order and Prevention of Crime) Ordinance 1969 ('the Ordinance'). All the applicants challenged their detention orders on the ground that it stated their detention in the alternative under the respective legislation they were detained. Secondly, the grounds of detention were not explained to the applicants in a language or dialect understood by them.

Held, allowing the application in Criminal Application Nos 44-190-90, 44-72-91, 44-100-91 and dismissing the other applications: (1) the court is precluded from re-examining the subjective satisfaction of the Minister and also the factual basis relied upon in reaching his decision. This is further fortified by the insertion of s 11C by Act A738 to the Act; (2) the two grounds for detention in s 6(1) of the Act should be read conjunctively as both alternatives refer to one and the same object, being the trafficking of dangerous drugs. Therefore, the detaining authority could not be said to have made the detention order vaguely or mechanically; (3) s 4(1) of the Ordinance should be read disjunctively since it confers on the Minister power to issue a detention order based on any one of the two grounds therein. Since the Ordinance is silent on the form of the detention order, it should be worded to inform the detenu under which limb he is being detained. This requirement is mandatory to dispel any challenge to the detention order being vague or passed mechanically by merely reproducing the language of s 4(1) of the Ordinance; (4) the applicants will be released if the grounds of their detention are not appropriately or satisfactorily explained or made known to them either upon their arrest, upon service of the detention order or when they are brought to the place of detention. It is not fatal if more than one language or dialect is used to explain to or inform the detenu as long as he understands the grounds of his detention. Per curiam: s 366 of the Criminal Procedure Code (FMS Cap 6) enjoins on the applicant to state in his affidavit so far as they are known, the facts relating to such detention with the object of satisfying the court. Therefore, the applicant should state all matters relevant to his detention in his supporting affidavit and is not permitted to raise matters outside the ambit of his affidavit.

Lim Thian Hok v Minister of Home Affairs & Anor and other applications [1993] 1 MLJ 214 High Court, Penang (Vincent Ng JC).

The applicant was taken into custody by the police about the end of April 1985 and was detained in Panaga Police Station until March 1986. About 25 March 1986, he was transferred to Jerudong prison from which, shortly afterwards, he was transferred to the detention centre at Jerudong on the authority of an order of detention ('the order') issued by the Minister of Law under s 2(1)(a) of the Criminal Law (Preventive Detention) Act (Cap 150) ('the Act'). The detention period was later extended for a further period of one year by His Majesty pursuant to s 9 of the Act. In the present case, the applicant sought an order, which was in the nature of a habeas corpus, under s 341 of the Criminal Procedure Code, directing the officer-in-charge of the Detention Centre, Jerudong to set the applicant at liberty on the ground that the applicant was illegally detained in public custody within Brunei Darussalam. The applicant raised a number of contentions. He argued that the court has a duty to inquire as to the grounds on which the Minister was satisfied in declaring the order. The applicant also contended that certain procedures were not followed. He also argued that the manner of his detention was illegal because it infringed the principles of natural justice.

Held: (1) a court may not seek to go behind the Minister's subjective conclusion that he was satisfied of the matters which were a precondition to the making of a detention order; (2) it is not the function of a court to import into such an Act obligations and proceedings which the legislative authority has not seen fit to include in it; (3) the application must fail.

Re Wong Mann Tung [1988] 1 MLJ 286 High Court, Bandar Seri Begawan (Roberts CJ).

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

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

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

D had been detained under the Emergency (Public Order and Prevention of Crime) Ordinance 1969 for engaging in activities relating to the trafficking of dangerous drugs. The detention order served on D stated that his detention was necessary with a view to preventing him from acting in any manner prejudicial to public order. D challenged the validity of the detention order. D's application for a writ of habeas corpus was allowed by the learned judge on the ground that D was detained under the wrong legislation. The learned judge was of the view that D should have been detained under the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) which provided for the preventive detention of persons associated with activities relating to the trafficking of dangerous drugs. A appealed from the decision of the learned judge to the Supreme Court. A contended that the learned judge erred in law and in fact when he directed the release of D on the ground that the wrong legislation had been used in that this ground was never raised by D's counsel in his submissions before the court. A also contended that the learned judge would not have erred if his attention had been drawn to s 25 of the 1985 Act.

Held, allowing the appeal: (1) in the instant case, if s 25 of the 1985 Act had been brought to the attention of the learned judge, he would have come to the conclusion that the enactment of the 1985 Act did not affect the provisions of the 1969 Ordinance which could still be applied to any person who has been associated with any activity relating to or involving the trafficking in of dangerous drugs. Section 25 of the 1985 Act sought to declare for the avoidance of doubt, that the provisions of the 1985 Act shall not derogate from the provisions of the 1969 Ordinance in its application to any person associated with any activity relating to trafficking in of dangerous drugs under the Dangerous Drugs Act 1952; (2) for the above reasons, the court allowed the appeal of A and set aside the order of the learned judge.

Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor v Mohd Zambri Mohd Ariffin [1990] 1 MLJ 102 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

A, who was detained under the Internal Security Act 1960 (Act 82), applied for an order that a writ of habeas corpus be issued directing D to produce A before the court to show cause why A should not be released from detention. A alleged that his detention was not valid as the grounds for his detention were outside the purview of the Internal Security Act 1960 (Act 82). A was detained on the grounds that his activities to practise and propagate Christianity among the Malay community threatened the security of the country. A contended that such activities were not prohibited under the law as at the material time there was no such law prohibiting such propagation. Accordingly, his detention was bad in law in that it was inconsistent with the provision of art 11 of the Federal Constitution.

Held, allowing the application: (1) it is settled law that it is open to the courts, in determining the validity of any order of preventive detention, to consider whether the grounds for the detention fall within the scope of the law providing for preventive detention. However, the allegations of fact upon which the subjective satisfaction of the Minister is based are not open to challenge or judicial review; (2) although the power given to the Minister under s 8 of the 1960 Act is wide, the power must, nevertheless, be exercised within the scope provided under art 149 of the Federal Constitution as the 1960 Act was enacted pursuant to art 149. Having regard to art 149 of the Federal Constitution, it is clear that any provision in the Internal Security Act 1960 which is inconsistent with the provision of art 11 of the Federal Constitution shall not be valid; (3) the learned judge was of the view that the Minister has no power to deprive a person of his right to profess and practise his religion which is guaranteed under art 11 of the Federal Constitution and that if the Minister does so, his act will be inconsistent with the provision of art 11 with the result that any order of detention issued and based on that ground would not be valid; (4) in the instant case, the grounds stated in the order of detention were outside the scope of art 149 of the Federal Constitution. Consequently, the order of detention, which was based on grounds inconsistent with art 11, was outside the purview of the Internal Security Act 1960 (Act 82) and therefore not valid.

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

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

D was detained under s 8(1) of the Internal Security Act 1960 (Act 82) on the grounds that he was involved in a plan or programme to propagate Christianity amongst the Malays and that in doing so he had acted in a manner prejudicial to the security of the country. D applied for a writ of habeas corpus to secure his release alleging that the grounds of his detention were unlawful. In the High Court, the trial judge relied on art 149 of the Federal Constitution read with art 11 thereof on the freedom of religion as the basis for his ruling that the detention of D was unlawful. From the decision of the High Court, P appealed to the Supreme Court.

Held, dismissing the appeal: (1) it is already settled law in this country that whilst the grounds of detention as stated in the detention order are open to challenge if alleged to be not within the scope of the legislation, the allegations of fact are not subject to review. The only question for determination in the instant case was whether the grounds were within the scope of the Internal Security Act 1960 (Act 82); (2) in the instant case, the grounds for the detention of D read in the proper context were insufficient to fall within the scope of the Act. The sum total of grounds for the detention of D was his supposed involvement in a plan or programme for the dissemination of Christianity amongst the Malays. The grounds did not state that any action had been done by D except his participation in meetings and seminars. Their Lordships were of the opinion that mere participation in meetings and seminars cannot make a person a threat to the security of the country. In their Lordships' opinion, the 1960 Act which was enacted under art 149 of the Federal Constitution is a legislation essentially to prevent and combat subversions and actions prejudicial to public order and national security; (3) their Lordships were also of the view that the guarantee provided by art 11 of the Federal Constitution in regard to the freedom to profess and practise one's religion must be given effect unless the actions of a person go well beyond what can normally be regarded as professing and practising one's religion; (4) P's appeal was, accordingly, dismissed by their Lordships.

Minister for Home Affairs, Malaysia & Anor v Jamaluddin bin Othman @ Yeshua Jamaluddin [1989] 1 MLJ 418 Supreme Court, Malaysia (Abdul Hamid LP, Hashim Yeop A Sani CJ (Malaya).

The applicant was detained under s 3 of the Dangerous Drugs (Special Preventive Measures) Act 1985 on 9 January 1993 at 7.50pm. The required permission for extended detention was given under paras (a) and (b) of the proviso to sub-s (2) of s (3). On 19 January 1993 a report pursuant to para (c) of the proviso was made which was ultimately received by the Minister on 21 January 1993. The report stated that the 14 days from the date of arrest of the applicant would have expired by 22 January 1993 and that the applicant needed to be placed under further arrest, whereas, in fact, the 14 days would have only expired on 23 January 1993. Counsel for the applicant contended that the permission under para (c) could only be operative after 14 days of arrest. Since the officers had, in their reports, contended that the permitted extended detention of the applicant under paras (b) and (c) had expired on 22 January 1993, the applicant had been falsely detained for 11 hours and 50 minutes, ie from 7.50 pm, 22 January until 7.50pm, 23 January. Subsequent to this report, the detention order under s 6(1) was made on 9 March 1993 and served on the applicant on the same day with a written statement setting out the grounds of detention and the facts on which the grounds were based. The ground alleged was that the applicant had been or was associated with 'any activity - involving the trafficking of dangerous drugs', which were the exact words used in s 6(1) to describe one of the matters in respect of which the Minister should satisfy himself before issuing a detention order. Counsel for the applicant objected to the use of the word 'apa-apa' ('any') in the grounds, arguing that it indicated that the Minister, while alleging involvement by the applicant in some specific activity, had not yet satisfied himself as to what exactly that wrongful activity was, and that he had issued the detention order mechanically. Held, dismissing the application: (1) according to s 3, no permission is required to extend the detention of the applicant beyond 14 days, provided valid permission had been granted for that 14 days and a report is submitted to the Minister within that time indicating that the applicant was to be further detained. The fact that the report had wrongly stated an earlier date as the relevant expiry date for the 14 days was totally irrelevant if these two conditions were satisfied; (2) while it is true that a person (if he was both sharp and a master in the language) could, from the use of 'apa-apa', draw the inferences that counsel for the applicant did, such assumptions were not reflective of the true state of things, ie the accompanying statement of facts did show the exact activities which the applicant was alleged to have been involved in. For all practical purposes, the phrase as used, together with the accompanying statement of facts on which the ground was based, was sufficient for the applicant to make his representation, so the detention order was not wrongly issued.

Wong Kiew Meow lwn Timbalan Menteri dalam Negeri & Satu Yang Lain Criminal Application No 44-19-93 High Court, Kuala Lumpur (Abdul Aziz J).

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

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

Lau Lek Eng & Ors v Minister for Home Affairs, Singapore & Anor [1972] 2 MLJ 4 High Court, Singapore (Wee Chong Jin CJ).

A was detained under the Internal Security Act (Cap 143) on 21 May 1987. On 16 June 1989, an order was made for the extension of A's detention by a year. A applied for a writ of habeas corpus on the grounds that the detention orders were illegal, irrational and unconstitutional. In support of his application, A filed an affidavit denying that he had acted in any way prejudicial to the security of Singapore. He retracted earlier statements made to the Internal Security Department, claiming that they had been made under duress. Recent amendments to the Internal Security Act (Cap 143) basically ousted the court's jurisdiction to review detention orders.

Held, dismissing the application: (1) the principle in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (ie that errors committed by the executive may nullify an executive decision notwithstanding a clause ousting the jurisdiction of the court) only applies if there is evidence that the executive authority has exceeded its mandate or has misdirected itself on the law. It will therefore only apply if there is evidence that an executive authority has acted ultra vires; (2) the legislative scheme of the Internal Security Act (Cap 143) and of the Constitution is that the executive has been entrusted as the sole body to look at and weigh the evidence and case against a person and to form a view on the question whether a detention order should be issued; (3) in this case, A had admitted that he was a Marxist and that he was a member of a conspiracy. Although he had retracted these admissions, it could not be said that there was no evidence on which the Minister could have decided that a detention order was justified. The case against A had been considered by the entire cabinet and in the light of his own confessions, albeit withdrawn, there had been some evidence against A which related to national security. Once that was so, it would be contrary to the scheme of the Act for any court of law to adjudicate on the sufficiency or relevancy of the evidence; (4) allegations of mala fides, including any allegation that the powers under the Act have been misused, are not justiciable issues. Sections 8B(1) and 8B(2) of the Act have effectively excluded any right of judicial review on the grounds of illegality, irrationality and unconstitutionality of a detention order. There is no limit on Parliament's power to amend the Constitution.

Vincent Cheng Kim Chuan v Minister for Home Affairs & Ors [1990] 1 MLJ 449 High Court, Singapore (Lai Kew Chai J).

A was detained under the Internal Security Act (Cap 143) 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 Internal Security Act (Cap 143) (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] 2 MLJ 449 High Court, Singapore (Chua J).

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

The Minister of Home Affairs had made an order under s 4(2) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969, ordering the respondent, who was a juvenile, to be detained for two years. On application to the High Court, the respondent was set free, as the learned judge held that s 4(1) of the ordinance did not apply to a juvenile and that a juvenile could only be detained without trial in accordance with the Juvenile Courts Act 1947 (Act 90). The appellants appealed.

Held, (Lee Hun Hoe CJ (Borneo) and Wan Suleiman FJ dissenting): the learned judge was wrong in holding that a juvenile can be detained without trial only under the Juvenile Courts Act 1947 and not under the Emergency (Public Order and Prevention of Crime) Ordinance 1969. A juvenile may be detained without trial under s 36 of the Juvenile Courts Act 1947 or under the Emergency (Public Order and Prevention of Crime) Ordinance 1969 according to the circumstances, and in the circumstances of this case, the respondent's detention under the ordinance was lawful.

Superintendent of Pulau Jerejak & Anor v Wong Cheng Ho [1980] 1 MLJ 154 Federal Court, Kuala Lumpur (Suffian LP, Lee Hun Hoe CJ (Borneo).

These were two identical appeals against the decision of the learned judicial commissioner in allowing the respondents' applications for habeas corpus on the common ground that the respective orders issued by the Deputy Minister of Home Affairs for the detention of the respondents were defective due to non-compliance with the provisions of s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 ('the Ordinance'). The learned judicial commissioner held that s 4(1) of the Ordinance provided two grounds, to be read disjunctively, on which a detention order may be issued, and that it was essential and mandatory for the detention order to show, at least on the face of it, under which particular limb of s 4(1) the detenu was being detained in order to dispel the view that the order was vague or was passed mechanically by merely reproducing the language of s 4(1) of the Ordinance. On appeal, the appellants contended that since the grounds for detention in the two detention orders in question were the reproduction of the exact wording found in s 4(1) with the use of the preposition 'or' distinguishing the one ground from the other, it should not matter whether the detention was made on the first ground or the second because the grounds upon which the detention was made constituted a question of substance which came solely within the subjective dis-cretion of the Deputy Minister. In any event, it was argued that the judicial commissioner should have treated one of the grounds as immaterial surplusage without having the effect of invalidating the order. Held, dismissing both appeals: (1) the learned judicial commissioner was correct in allowing the respondents' application for habeas corpus because on the face of it the order was vague as to whether the Deputy Minister had actually applied his mind to the particular circumstances of each respondent's case or whether he had exercised his power of detention mechanically; (2) in determining the propriety or legality of a detention order made under s 4(1) of the Ordinance, the satisfaction of the Minister has to be considered in the light of the limbs under which he acted. The determination of the question as to whether he addressed his mind to the relevant limb or to both limbs in making his detention order is a procedural matter and if it is shown that there is some doubt as to which particular limb the Minister applied his mind to or whether he applied his mind to both the limbs together in grounding his order, the benefit of the doubt must be given to the detenu.

Menteri Hal Ehwal Dalam Negeri & Anor v Lee Gee Lam and another appeal [1993] 3 MLJ 673 Supreme Court, Malaysia (Gunn Chit Tuan CJ (Malaya).

This was an application for a writ of habeas corpus to direct the respondents to produce the applicant before the court and to show cause why the applicant should not be released. The contention of the applicant was that the secretary to the advisory board had not filed an affidavit and hence there was no evidence whatsoever that the respondents had complied with the provisions of s 10(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (the Act) and art 151 of the Federal Constitution (art 151). In this connection the factual basis on which the applicant relied was founded upon paragraphs 26 and 33 of the applicant's affidavit. It was further argued that in an application for the issue of a writ of habeas corpus, the burden was on the detaining authority to prove that all the preconditions had been completely complied with. The respondents submitted that under s 366 of the Criminal Procedure Code (CPC) an application for a writ of habeas corpus had to include the facts and grounds of the application. Since the applicant merely relied upon paragraphs 26 and 33 of his affidavit which did not show any grounds, the applicant had fallen short of the requirements of s 366 of the CPC and the application must be dis-missed. Held, dismissing the application: (1) in order to succeed, it was necessary for the applicant to state in his affidavit the facts relating to such detention with the object of satisfying the court that the detention was without just cause as required by s 366 of the CPC. As to the burden of proof, the onus of proving the legality of the detention was on the Minister, which he could discharge simply by producing the detention order which if its authenticity and good faith were not impugned, was a sufficient answer. The burden was then on the applicant to show that the power of the Minister had been exercised improperly. As the affidavit relied on did not raise any specific ground, s 366 of the CPC had not been complied with; (2) the applicant's contention that the secretary to the advisory board did not affirm an affidavit stating that the advisory board had considered the applicant's representation and made recommendations to the Yang di-Pertuan Agong was a ground which was not stated in the application or the affidavit of the applicant. It was trite law that where the application or affidavit in support thereof had not raised any specific ground, then that ground could not be raised in the submission. A general averment in the supporting affidavit of the applicant could not be accepted as a ground for submission.

Chiam Ching Kiang v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor Criminal Application No 44-02-94 High Court, Muar (Low Hop Bing JC).

P was detained under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) by virtue of a detention order issued by the Deputy Minister of Home Affairs. The detention order authorized his detention for a period of two years. Subsequently, the Deputy Minister directed that his detention be extended for a further period of two years. This direction was subsequently revoked by the Deputy Minister who issued a fresh detention order in substitution for the directive which had been revoked. P sought to impugn the fresh detention order on the grounds, inter alia, that ss 3 and 5 of the Dangerous Drugs (Special Preventive Measures) Act 1990 are inconsistent with and therefore in violation of art 8 of the Federal Constitution and that the Deputy Minister in issuing the fresh detention order in substitution of the direction, had acted ultra vires the powers conferred upon him by s 11B(2) of the 1985 Act.

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

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

A was detained for a period of two years under a detention order of the Deputy Minister for Home Affairs pursuant to s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). Subsequently the Deputy Minister directed that his detention be extended for a further period of two years. Before the expiry of this direction, the Deputy Minister revoked the direction and on the same day, made a 'fresh' detention order for his detention for a period of 13 months. A's application to impugn the 'fresh' detention order was dismissed in the High Court. A appealed to the Supreme Court. The common issue in all these appeals is the Minister's power under s 11B(2) of the 1985 Act and whether such power is affected and if so, to what extent, by the Dangerous Drugs (Special Preventive Measures) (Amendment) Act 1990.

Held, allowing the appeals: (1) the power of the Minister under s 11B(2) of the 1985 Act is specific and distinct for each type of order or direction. The language of s 6(4) and (5) of the 1985 Act shows the distinction between a detention order and a restriction order. Under s 11B(2) of the 1985 Act, a fresh detention order may be made only to replace a detention order which is revoked. Similarly, a fresh restriction order or direction may be made only to replace a restriction order or direction revoked. A 'fresh' detention order could not therefore be made to replace a revoked direction under s 11B(2) of the 1985 Act; (2) s 6A(2) of the 1985 Act as inserted by the amending 1990 Act merely states, inter alia, that no fresh detention order under s 11B(2) of the 1985 Act shall be rendered invalid by reason of the absence of any fresh report under ss 3(3) and 5(4) of the 1985 Act. Section 6A(2) of the 1985 Act does not therefore apply to a 'fresh' detention order which was made to replace a direction revoked. Such a 'fresh' detention order which replaces a revoked direction must comply with the requirements of fresh reports under ss 3(3) and 5(4) of the 1985 Act.

Goh Ah Ba v Timbalan Menteri Dalam Negeri & Anor and other appeals [1991] 1 MLJ 495 Supreme Court, Kuala Lumpur (Abdul Hamid Omar LP, Hashim Yeop A Sani CJ (Malaya).

The applicant was arrested under the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) ('the Act') and a detention order was made on 2 April 1986 for two years. On the day when the applicant was to be released, a second detention order was made, extending the first detention for a further two years. The applicant challenged the legality of the detention on two grounds: firstly, that the various allegations of fact were stale and remote in point of time in relation to the date of the making of the original detention order as the alleged activities took place between the end of 1981 to September 1983 whilst that detention order was only made on 2 April 1986; and secondly, that in making the extension orer, the Minister applied his mind to prejudicial material not only in the case file but also in the report of the Advisory Board which was contrary to s 11(4) of the Act.

Held, allowing the application: (1) the question of staleness or remoteness goes to the question of sufficiency or relevancy of the facts, an inquiry which the court cannot embark on as it is based on the subjective satisfaction of the Minister; (2) it was clear that the extension of the original detention was on the same grounds as the first detention order. After the coming into operation of the Amendment Act 629 of 1985, the Advisory Board was only allowed upon review of each case, either to recommend the cessation or to recommend the continuance of the detention order, and was not entitled to recommend the extension of the order which it could do previously. Although the Act did not provide the basis upon which the Minister was required to act before deciding to extend the detention order, as he purported to act on reports and information from the applicant's file and the report of the Advisory Board and as the recommendation was ultra vires the Act, the Minister, in taking into account the report, was in fact acting in a manner prejudicial to the applicant as the Advisory Board's report must by its very nature have been very persuasive in affecting the decision of the Minister; (3) it is trite law that, in the examination of cases relating to persons detained without trial, the court has no discretion but to grant the subject the writ of habeas corpus where he had been unlawfully detained; (4) the court is precluded from adjudicating on the sufficiency of the satisfaction of the Minister but it can examine whether the detention falls within the scope of the law under consideration. When the Minister considered the report of the Advisory Board which contained a specific recommendation for the detention of the applicant, he had in fact taken into account extraneous material which the law did not contemplate he should consider, and therefore purported to exercise powers beyond the ambit of the law. As there was no strict compliance with the provisions of the law, the applicant was entitled to be granted his application.

Chua Teck v Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1989] 3 MLJ 118 High Court, Johore Bahru (LC Vohrah J).

[Annotation: Reversed on appeal. See [1990] 1 MLJ 104.]

Dasuki bin Mathuri v Timbalan Menteri Dalam Negeri, Malaysia Criminal Application No 44-3-95 High Court, Malacca (Suriyadi Halim Omar J).

Low Teng Hai v Menteri Dalam Negeri, Malaysia & Anor [1992] 2 CLJ 1037 High Court, Johore Bahru (LC Vohrah J).

On 2 April 1990 A was detained in the rehabilitation centre for one year pursuant to a detention order ('the first order') made by the Deputy Minister of Home Affairs ('the Minister'). The copy of 'the first order' which was served on A, was not signed by the Minister and merely bore the rubber stamped words 'TT Dato Megat Junid'. On 2 April 1991, A's detention was extended for a further period of two years pursuant to another detention order made by the Minister ('the extension order'). On 15 October 1991 A was transferred from the Penang rehabilitation centre to the Simpang Renggam rehabilitation centre. The Minister, on 31 October 1991, revoked 'the extension order' with effect from 1 April 1991 and served on A another detention order ('the second order') which was effective also from 1 April 1991. A applied to the High Court for habeas corpus firstly on the ground that the unsigned 'first order' was not a copy within the meaning of s 9(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). A then argued that since 'the first order' was invalid, his continued detention was therefore illegal.

Held, allowing the application: (1) 'the first order' was invalid for not complying with s 9(1) of the 1985 Act. 'The first order' was thus null and void; (2) since 'the first order' was null and void, any revocation of 'the extension order' could not cure the defect in 'the first order'. Nor could the defect in 'the first order' be rectified by 'the second order'. Since the initial period of A's detention had been proved to be technically defective, his continued detention was consequently bad in law.

Yue Mun Nyok v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1992] 2 CLJ 900 High Court, Kuala Lumpur (PS Gill JC).

The detainees in these two applications were arrested and detained under s 3 of the Dangerous Drugs (Special Preventive Measures) Act 1985 ('the Act'). On 27 March 1992 they were ordered to be detained at the Muar Rehabilitation Centre for two years. The detainees' counsel raised the same procedural grounds in both applications except that in Criminal Application No 44-2-93, there was an additional ground. Both applications were heard together. It was submitted that the four grounds raised entitled the two detainees to be released, and these were: (a) that both detainees were not given the reasons for their arrest; (b) that both detainees were brought to the Muar Rehabilitation Centre not on the date when the detention order was made but later; (c) that the officer in charge of the detention centre failed to forward forthwith the detainees' representations in Form 1 to the Secretary of the Advisory Board as required under r 3(4) of the Dangerous Drugs (Special Preventive Measures) (Advisory Board Procedure) Rules 1987 ('the Rules'). There was allegedly a lapse of about two weeks between the date of receipt by the said Secretary of Form 1 by the detainees and the date the detainees were informed of their right to make representations; (d) that in regard to the second detainee, the affidavit of the Deputy Minister of Home Affairs effected the order of detention against him operative as from 8 September 1992 whereas he was ordered to be detained as from 27 March 1992.

Held, dismissing both applications: (1) as regards the first detainee, para 5 of the affidavit of Acting Deputy Superintendent of Police Kamaruddin bin Ibrahim affirmed on 25 April 1993 shows that as soon as he arrested the first detainee, he informed the detainee of the provision of law under which he was arrested and gave the reasons for the arrest, after which Detective Constable Ho Kwee Wee interpreted what he had stated to the detainee; (2) as regards the second detainee, para 4 of Inspector Lokman bin Haji Salleh's affidavit also shows that he explained to the detainee the provision of law under which he was arrested and the reasons for his arrest, which was also interpreted to him. There was therefore compliance with art 5(3) of the Constitution in respect of both detainees; (3) it is clear that the orders for the detention of both detainees at the Muar Rehabilitation Centre was dated 27 March 1992 but both of them were only brought to the Centre on 28 March 1992. But s 6A(a)(ii) of the Act is a complete answer to the detainees' counsel's argument that this procedural defect vitiates the detention of both the detainees; (4) if it is the detainees' allegation that they had completed Form 1 early and had immediately handed them over to the officer in charge and the officer in charge did not forthwith forward the form to the Secretary of the Board, then only would the court be able to make a finding whether the officer had not complied with r 3(4), assuming the requirement to 'forthwith forward' the representation is mandatory and not merely directory. It is not for the court to speculate when the detainees handed over the forms, whether early or late, to the officer in charge. If the allegation is that they handed them over early and the officer was tardy in forwarding them to the Secretary, they should show evidence to that effect but that evidence is not before the court; (5) there is obviously an error in the Deputy Minister's affidavit and is most probably a typographical error. In this case, the error does not appear in the order itself but is merely a slip in the affidavit relating to the perfectly valid order and the slip cannot affect the validity of the detention order.

Chew Kar Chin v Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors and another application Criminal Application Nos 44-1-93 & 44-2-93 High Court, Alor Setar (KC Vohrah J).

Puvaneswaran v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1991] 3 MLJ 28 High Court, Penang (Edgar Joseph Jr J).

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

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

Wee Toon Lip & Ors v Minister for Home Affairs, Singapore & Anor [1972] 2 MLJ 46 High Court, Singapore (Wee Chong Jin CJ).

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

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

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

In this case, the applicants had originally been charged with trafficking in ganja. The prosecution subsequently applied for their discharge not amounting to an acquittal, but they were rearrested under s 3(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). Subsequently, a detention order was made against them and they were detained at Pulau Jerejak for two years. They applied for habeas corpus, contending that their arrest and detention by the police and the further arrest and detention under the order of the Minister were both wrongful and unlawful on a number of grounds.

Held, dismissing the applications: (1) the mere fact that the applicants had been discharged in a criminal case does not mean that no valid arrest could be effected under a preventive detention law or order for preventive detention, or that no order for preventive detention could be passed against the applicants in connection with that very incident or that such order can be characterized as being made mala fide; (2) the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) is also a prevention detention law as can be seen from the long title, preamble and body of the Act, and the court cannot be asked to inquire into the sufficiency of the reasons for the belief for the necessity of the detention as stated in the relevant affidavits which has resulted in the said detention orders; (3) the courts may review an order for preventive detention if there is an allegation that a condition precedent for the making or the continuance of the said order has not been complied with or if there is an allegation that the grounds of detention stated in the said order do not fall within the scope and ambit of the particular legislation under which the said order was made, or if there is an allegation of mala fides; (4) in these cases, the grounds stated by the applicants in their respective notices of motion are devoid of merit and the applications should be dismissed.

Mohd Ali bin Mohd Radi v Director of Prison, Rehabilitation Centre, Pulau Jerejak, Pulau Pinang & Anor and other appeals [1989] 1 MLJ 248 High Court, Ipoh (Abdul Malek J).

In this application, the applicant challenged the detention order issued against him for non-compliance with r 3(3) of the Dangerous Drugs (Special Preventive Measures) (Advisory Board Procedure) Rules 1987 ('the Rules'). At the hearing, counsel for the applicant referred to the affidavit of the officer in charge of the place of detention ('the officer') wherein it was deponed that the applicant was reminded in simple Bahasa Malaysia of his right to make representations against his detention to an advisory board, and urged the court to infer that the failure to use an interpreter to further explain or interpret the reminder in the Hokkien dialect rendered the applicant's detention illegal. It was also submitted that as the Hokkien dialect had been used to explain the reasons for the applicant's arrest and to explain the terms of the detention order when it was served on him, the reminder should likewise have been rendered in the Hokkien dialect. This allegation was however not raised in the affidavit in support of the application, neither was there an averment that the applicant was not conversant in Bahasa Malaysia. The respondents contended that for the objection to be sustained, the applicant should himself have stated that he did not understand the reminder given to him in Bahasa Malaysia. It was however categorically stated by the officer in his affidavit that the applicant had acknowledged understanding Bahasa Malaysia after the officer inquired whether the applicant understood the reminder. The applicant had not objected to the use of Bahasa Malaysia and had not asked for the services of an interpreter. Held, dismissing the application: (1) there was no specific allegation of fact that the oral reminder given in Bahasa Malaysia was not understood because it was not explained or interpreted in the Hokkien dialect. In the absence of direct evidence to controvert the categorical statement of the officer, the objection based on the failure to render the reminder in the Hokkien dialect was totally groundless; (2) the applicant was 26 years old at the time of his arrest, having been born on 9 June 1965. He was therefore not likely to be of that genre of Malaysian citizens born very much earlier who could probably claim not to understand even simple Bahasa Malaysia. By virtue of s 114 of the Evidence Act 1950, the court presumed that as the applicant is a citizen of Malaysia, he is conversant with simple Bahasa Malaysia at least, in the absence of direct evidence to the contrary. If it was contended otherwise, the burden of proof would lie on him; (3) the applicant was served with a copy each of, inter alia, the detention order, the statement of the facts and grounds upon which the order was made, and the notice of his right to make representations against the order to the advisory board, the contents of all of which were also explained and interpreted to him in the Hokkien dialect. In the light of this earlier explanation and interpretation in the Hokkien dialect, and in the absence of any affidavit evidence whatsoever that no reminder was given or that the applicant did not or could not understand the reminder given in simple Bahasa Malaysia, the court found that the reminder was given in a language that the applicant understood and that r 3(3) of the Rules had been complied with by the detaining authority.

Poh Boon Hock v Timbalan Menteri Dalam Negeri, Malaysia & Anor Criminal Application No 44-15-93 High Court, Penang (Selventhiranathan JC).

In all these appeals, A1-A22 were detained under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). A1-A22 were removed from the place of their detention to attend the inquiry by the Advisory Board constituted under art 151 of the Federal Constitution. A1-A22 applied to the High Court for habeas corpus on the ground that their removal to attend the inquiry by the Advisory Board without an order of the Minister under ss 15 and 16 of the 1985 Act rendered their further detention unlawful. The High Court dismissed their applications and they appealed to the Supreme Court. A1-A22 argued that since art 151 of the Constitution does not provide for the removal of a detainee from a detention centre to attend an inquiry of the Advisory Board, the procedure under ss 15 and 16 of the 1985 Act must be followed.

Held, dismissing the appeals: (1) s 15 of the 1985 Act speaks of a removal from a place of detention to another place of detention; (2) s 16 of the 1985 Act confers a discretion on the Minister to order a detainee to be taken to another place on proof to the satisfaction of the Minister that the detainee's presence at the place is required, inter alia, in the interest of justice. Section 16 of the 1985 Act therefore has no application to an inquiry of the Advisory Board.

Lim Thean Lee v Inspector General of Police & Ors and Other Appeals [1991] 3 MLJ 471 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

The plaintiff was already a restrictee when she was arrested by the police. After the arrest, she was detained in prison for 25 days until the restriction order was issued under s 2(ii) of the Restricted Resident Act 1933. At the time of arrest, she was given 14 days to appeal. The order required her to reside within the town under police supervision for two years from the day of issue of the order. The plaintiff had been previously arrested under a restriction order on the same grounds as this order. At the time this order was served, the plaintiff was inquired about the address of her intended residence in the town. This question was not put to her in a language she understood.

Held, dismissing the plaintiff's application: (1) the executive may issue more than one restriction order upon the same set of facts; (2) a detention order is an administrative order, not a punishment or conviction for an offence which has been proved; (3) the defendants had acted with convenient speed in detaining the plaintiff for 25 days before the issue of the restriction order because she had been given 14 days from the date of arrest to appeal to the Deputy Minister; (4) s 3(i) of the Restricted Resident Act 1933 required the defendants to ascertain the plaintiff's address so that the authorities could contact the plaintiff as and when they wished. Thus the defendants' failure to translate the question about the plaintiff's address to the plaintiff was of no consequence and not fatal to the defendants' case.

Sow Foh Choo v Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia & Ors Originating Summons No 24-158-94 High Court, Kuala Trengganu (Mohd Saari Yusoff J).