A was detained under s 8(1) of the Internal Security Act (Cap 143, 1985 Ed) allegedly as a member of a Marxist conspiracy to subvert the existing social and political system in Singapore. On 26 September 1987 the Minister of Home Affairs directed that the detention order be suspended subject to certain conditions. On 18 April 1988 A and other former detainees issued a press statement denying that they had been part of a Marxist conspiracy and alleging that they had been assaulted and oppressively treated during interrogation. On 19 April 1988 the Minister revoked the suspension orders and A was re-arrested. A applied for a writ of habeas corpus ad subjiciendum.

Held, dismissing the application: (1) (rejecting the argument that the court should objectively examine the evidence for the detention) a matter is justiciable in a court of law if it is within the jurisdiction or function of a court of law to make a decision upon the matter properly before it. Of foremost importance are the terms of the statutory provisions in question; (2) if the decision under challenge pertains to 'jurisdictional precedent facts', it may be adjudicated upon by a court of law subject to the limits of the court's supervisory function. On the other hand, the decision may involve questions of policy, judgment or requirements of national security which the law may have left to the discretion of a designated authority. Whilst a court of law must be vigilant to ensure that there is no unlawful exercise of discretionary powers which affect the liberty of persons, it must be equally punctilious in giving effect to legislation, in not behaving as though it is a court of appeal. The court may not determine, as appellate courts do, whether the decision under challenge is right or wrong; (3) judicial review is concerned with the legality of a decision made in the exercise of executive discretionary powers. In looking at such a decision, the courts do not look at the merits. They do not ask whether the decision is right or wrong. In a judicial review, courts should only ask whether a decision made in the exercise of an executive discretionary power is lawful or unlawful; (4) in the absence of an abuse of power or irrationality, which have to be proved, courts have always recognized that the subjective determination of the Minister is not justiciable and will accept the executive's assessment as to any national security requirement; (5) the learned judge reiterated the four propositions that he advanced in Kevin de Souza v Minister of Home Affairs 1988 BLD [Sep] 2177; (6) A's submissions that there had been an abuse of power or irrationality were rejected on the facts. The learned judge also rejected the allegation that the conditions of A's imprisonment had fallen below minimum standards. The application was dismissed.

Teo Soh Lung v Minister of Home Affairs & Ors (No 1) [1988] 3 MLJ 241 High Court, Singapore (Lai Kew Chai J).

[Annotation: Reversed on appeal. See [1989] 1 MLJ 69.]

A1, A2, A3 and A4 were detained under the Internal Security Act (ISA) (Cap 143, 1985 Ed) in May and June 1987 allegedly as members of a Marxist conspiracy to subvert the existing social and political system in Singapore. The detention orders were for one year. However, they were all released in September 1987 when the Minister of Home Affairs directed that the detention orders be suspended subject to certain conditions. On 18 April 1988 the appellants and other ex-detainees issued a joint statement denying that they had been part of any Marxist conspiracy and alleging that they had been tortured. The following day the Minister revoked the suspension orders and they were all re-arrested. They applied for writs of habeas corpus. The High Court dismissed their applications. The appellants appealed to the Court of Appeal.

Held, allowing the appeal: (1) where a detention under s 8 of the ISA (Cap 143, 1985 Ed) is challenged, the initial burden is on the executive to justify the legality of the detention. This burden is discharged by the production of the detention order and evidence that the President, acting in accordance with the advice of the Cabinet or an authorized Minister, was satisfied as required by that section; (2) it is for the executive to prove that the President was satisfied as required by s 8(1). Evidence of the President's satisfaction must be such evidence as would be admissible in a trial. The affidavit of a Permanent Secretary is not sufficient; (3) in the absence of direct evidence from the President of his satisfaction, the court would presume that the President has been satisfied where there is evidence that the Cabinet or responsible Minister was so satisfied and that the President had received the advice of the Cabinet or Minister. Such evidence must come from any Cabinet Minister or the Secretary to the Cabinet (where the Cabinet was involved) or from the authorized Minister if the decision was that of the Minister's; (4) the executive had not in this case discharged the burden of proving the President's satisfaction because no admissible evidence of that fact had been tendered. Neither the Permanent Secretary's affidavit nor the recital to the detention orders constituted sufficient evidence of the President's satisfaction; (5) the decision of the executive to detain under the ISA is reviewable by a court of law. Although a court will not question the executive's decision as to what national security requires, the court can examine whether the executive's decision was in fact based on national security considerations. Similarly, although the court will not question whether the detention was necessary, it can determine whether the matters relied on by the executive fall within the scope of the purposes specified in the legislation; (6) where the executive's discretion is exercisable only on the establishment of a precedent fact, the court may determine whether or not such a fact has indeed been established. Whether a precedent fact must be established as a prerequisite for the exercise of the discretion is a matter of interpretation of the relevant statutory provisions . The discretion given to the executive under ss 8 and 10 of the ISA fell outside the 'precedent fact' category. Accordingly, the court's only power of review would be limited to 'illegality, irrationality or procedural impropriety'; (7) the burden of proving 'illegality, irrationality or procedural impropriety' lies on the applicant for judicial review; (8) the suspension of a detention order may be revoked, in which case the detention order becomes operative again; (9) the appeal was allowed on the technical ground that there was no admissible evidence of the President's satisfaction as required by s 8 of the ISA (Cap 143, 1985 Ed).

Chng Suan Tze & Ors v Minister of Home Affairs & Ors [1989] 1 MLJ 69 Court of Appeal, Singapore (Wee Chong Jin CJ, Thean and Chan Sek Keong JJ).

A was detained under an order by the Minister for Home Affairs pursuant to s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969. The detention order was based on the ground that A was a secret society member who had committed violent criminal acts which have threatened public order. At the police headquarters, A was served with one copy of 'Form 1' by X, a police officer. At the same time X informed A of his right to make representations to the advisory board. A was taken the same day to the detention centre. A applied for habeas corpus on the ground that there was non-compliance with r 3(2) of the Public Order and Prevention of Crime (Procedure) Rules 1972. Under r 3(2) of the 1972 Rules, the officer-in-charge of the detention place has the duty to serve on the detainee two copies of 'Form 1' and to inform him that he has a right to legal representation in the proceedings before the advisory board. D argued that A had in fact exercised his right to make representations and there had been a hearing before the advisory board. The advisory board had duly made its recommendations to the Yang di Pertuan Agong which resulted in the continued detention of A. D accordingly argued that notwithstanding the breach of r 3(2) of the 1972 Rules, A had suffered no prejudice. A replied that he need not show actual prejudice suffered by him because a risk of prejudice would suffice.

Held, allowing the application: (1) in interpreting powers of preventive detention, such powers have to be interpreted strictly so as to require that the provisions of the relevant statute are rigidly and meticulously complied with; (2) a distinction must be drawn between procedural requirements which are 'directory' only and those which are 'mandatory'. If the requirements are vital and go to the root of the matter, they would be mandatory and their breach cannot be condoned; (3) the requirements of r 3(2) of the 1972 Rules are not just a concession but a right designed to enable and not just to assist A in making representations to the advisory board which has the power to recommend his release to the Yang di Pertuan Agong. If A does not engage counsel, he shall be provided with two copies of 'Form 1' one to be sent to the advisory board and the other to be retained by him for his reference when he appears before the advisory board. Without his own copy, A might be at a disadvantage in proceedings before the advisory board. On the other hand, if A engages an advocate, that advocate must also have a copy of 'Form 1' to enable him to prepare A's case; (4) there is therefore an obligation imposed on the officer-in-charge of the detention place under r 3(2) of the 1972 Rules to inquire from A whether he intends to engage an advocate. Unless such an inquiry is made, such officer could not possibly know whether or not to provide A with two or three copies of 'Form 1'; (5) considering the subject matter of r 3(2) of the 1972 Rules, its importance and its relation to the general object intended to be secured by it and the fact that this is a matter involving the liberty of a person in a case of detention without trial, r 3(2) of the 1972 Rules is mandatory and not merely directory; (6) in this case there has been a serious breach of the mandatory requirements of r 3(2) of the 1972 Rules which rendered A's continued detention unlawful; (7) once a breach of a mandatory statutory requirement is established, the fact that A was not prejudiced is irrelevant. In any event, failure to provide A with his own copy of 'Form 1' for his retention and use at the proceedings before the advisory board had been disadvantageous to A. The risk of prejudice to A is enough as the court will not go into the likelihood of prejudice.

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

This was an application for a writ of habeas corpus. On 2 May 1971, the applicant was arrested without warrant by a police officer and remained in police custody until 22 May 1971, when an order of detention was made by the Minister for Home Affairs under s 8(1) of the Internal Security Act (Cap 115, 1970 Ed) directing that he be forthwith detained for a period of two years. From the date of his arrest on 2 May 1971, until after the order of detention was made on 22 May 1971, the applicant was denied access to his solicitors in spite of requests by his solicitors for access to enable them to be instructed and advise him in regard to his arrest and detention by the police. Two main but unrelated issues were raised by the applicant. The first was that from the time of his arrest and for 20 days thereafter his constitutional right to be allowed to consult a legal practitioner of his choice had been denied to him and the denial of this constitutional right amounted to an abuse of power such as would have justified an order for his release. The second was that the order of detention made on 22 May 1971 was void or invalid because: (a) on the face of the order itself it was ambiguous and ultra vires; and (b) the grounds on which the order was made and the allegations of fact on which the order was based were vague, inadequate and irrelevant; and (c) the order of detention was made in bad faith and, therefore, his detention was illegal or unlawful.

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

Lee Mau Seng v Minister for Home Affairs, Singapore & Anor [1971] 2 MLJ 137 High Court, Singapore (Wee Chong Jin CJ).

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

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

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

A was ordered to be detained at the rehabilitation centre at Pulau Jerejak under the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). A was brought to Pulau Jerejak where he was detained until he was removed to another rehabilitation centre at Simpang Rengam. A's removal was pursuant to another detention order made under s 15(1) of the 1985 Act ('the removal order'). A applied to the High Court for habeas corpus firstly on the ground that the officer in charge of the centre at Pulau Jerejak breached r 3(3) of the Dangerous Drugs (Special Preventive Measures) (Advisory Board Procedure) Rules 1987 by not informing A of his right to make representations. D1-D2 however argued that A had already been informed of such a right when he was served with the detention order by a police officer. D1-D2 further claimed that since A had in fact made representations to the Advisory Board, he had not been prejudiced in any way. D1-D2 also contended that since the officer in charge of the centre had informed A of his right to the services of a lawyer, it could be assumed that he had been reminded of his right to make representations. A also alleged that there was no evidence to show that the Minister had made 'the removal' order before his actual removal. D1-D2 however urged the court to apply the presumption under s 114(e) of the Evidence Act 1950 (Act 56) which states that judicial and official acts may be presumed to have been regularly performed.

Held, allowing the application: (1) the requirement to remind the detainee of his right to make representations under r 3(3) of the 1987 Rules is mandatory and its non-compliance rendered A's detention unlawful; (2) the discretionary presumption under s 114(e) of the 1950 Act could not be called in aid by D1-D2 because by the very nature of habeas corpus proceedings, what was questioned was the regularity of the exercise of official acts or powers; (3) there was nothing in the affidavit evidence to indicate that 'the removal order' was actually made before A's physical removal from Pulau Jerejak; (4) since two possible inferences could be drawn from the facts as presented by the affidavit evidence, the inference favourable to the detainee must be preferred. Accordingly A also succeeded on the second ground in his application.

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

Teo Soh Lung v Minister of Home Affairs & Ors [1988] 3 MLJ 241 High Court, Singapore (Lai Kew Chai J).

By these three originating motions, the applicants applied for writs of habeas corpus ad subjiciendum. The first and second applicants were arrested without warrants on 21 May 1987. The third applicant was arrested, also without warrant, a month later on 20 June 1987. They were all arrested under the Internal Security Act (Cap 143, 1985 Ed) ('the Act') and remained in police custody during which time they were interrogated and statements were taken from them. The first and second applicants remained in police custody until 19 June 1987 when on that day the Minister for Home Affairs made two orders under s 8(1) of the Act that they be forthwith detained for a period of one year from 20 June 1987. The third applicant was also detained forthwith for a period of one year with effect from 19 July 1987 under a ministerial detention order made on 18 July 1987. Copies of the orders of detention were duly served on each of the three applicants together with a statement pursuant to s 11 of the Act setting out the respective grounds and alleged facts on which the detention orders were made. On 26 September 1987, the Minister, in exercise of the powers conferred on him by s 10 of the Act, directed that the operation of the said orders be suspended subject to the execution of a bond and compliance with certain conditions. On 18 April 1988, the three applicants and five other ex-detainees signed and issued a joint statement to the media and others. In that statement they, inter alia, denied that they were Marxist conspirators involved in the Marxist plot. On 19 April 1988, the minister in exercise of the powers conferred by s 10 of the Act revoked all three directions dated 26 September 1987 as he was 'satisfied that it was necessary to do so in the public interest in view of a joint statement issued by the three applicants'. In consequence, the applicants were rearrested and remained in detention at the Whitley Road Centre as directed by the Minister.

Held, dismissing the applications: (1) (iv) subject to the foregoing, those who are responsible for national security must be the sole judge of what national security requires; (2) the burden of proving lawful detentions lay on the respondents and this they had discharged by relying on the detention orders. Once this was shown, it was for the applicants to allege and show that the power was exercised without the subjective satisfaction of the President. This assertion of fact must be properly made on behalf of the applicants in an affidavit; (3) courts of justice must give effect to the following propositions when engaged in reviewing cases involving national security: (i) the subjective determination of the Minister is not justiciable; (ii) courts have refused to review the exercise of ministerial discretion when its validity is challenged in habeas corpus proceedings; (iii) courts cannot examine or investigate the sufficiency of the matters upon which the subjective satisfaction of the minister is or is purported to be grounded, but can examine the grounds disclosed by the Minister to see and ensure that there has been no illegality, irrationality or procedural impropriety;the learned judge rejected all the five grounds of submission put forward by the applicants' counsel, ordered the applications to be dismissed with costs to be taxed on only two motions and paid by the three applicants equally.

Kevin Desmond De Souza & Ors v The Minister of Home Affairs & Ors [1988] 2 MLJ 493 High Court, Singapore (Lai Kew Chai J).

The question in this application for habeas corpus was whether the detainee was detained under a valid and effective order of the Minister. Counsel for the applicant alleged that there were two orders made by the Minister in exercise of his powers under s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969, one dated 8 August 1973 and the the other 6 August 1973. The order dated 8 August 1973 was never served on the detainee, and the respondent conceded that it was inoperative, but contended that the detainee was validly detained under the order dated 6 August 1973.

Held: ex facie there was some doubt whether the order of detention as served was the one actually intended to be made by the Minister and, therefore, an order would be made for a writ of habeas corpus to issue.

Zainab bte Othman v Superintendent of Prisons, Pulau Jerejak, Penang [1975] 1 MLJ 76 High Court, Penang (Chang Min Tat).

Ang Ghee Seng v Minister for Home Affairs, Malaysia & Anor [1991] 3 MLJ 473 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

The appellant was arrested in 1989 and detained for a period of two years under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 which was extended for another two years from December 1991. In 1992, the appellant filed for, and was granted a writ of habeas corpus, but was immediately rearrested under a new detention order issued by the respondents. The appellant then filed for a fresh writ of habeas corpus on the sole ground that the respondents had failed to observe the procedural requirements as specified in r 3(4) of the Dangerous Drugs (Special Preventive Measures)(Advisory Board Procedure) Rules 1987 and that the detaining officer concerned did not send the appellant's 'Form 1' (pertaining to the making of representations) to the Advisory Board. Held, allowing the appellant's application: (1)the respondents' affidavits in support of their case were doubtful and ambiguous on the issue of whether the appellant's 'Form 1' had actually been sent to the Advisory Board. Thus, as it was doubtful as to whether the appellant's 'Form 1' had actually been sent by the detaining officer to the Advisory Board, such doubts must be resolved in favour of the appellant. This is especially so in matters concerning writs of habeas corpus, as in criminal cases.

The judgment was delivered in Bahasa Malaysia.

Chan Kok Fat lwn Hj Hassan bin Shariman Criminal Appeal No 44-101-92 High Court, Penang (Vincent Ng JC).

A was ordered to be detained for two years at a rehabilitation centre under a detention order. A was taken to the centre but the centre refused to accept him because of an error in the spelling of his name in the detention order. A was then detained for five days at a police station until the correction in the spelling of his name in the detention order was made. A was consequently sent to and detained in the centre. A applied to the High Court for habeas corpus. The High Court dismissed A's application and he appealed to the Supreme Court. A firstly argued that the detention order was defective because the spelling error was corrected after the expiry of 60 days as prescribed by s 3(2) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). A then argued that A's journey to the centre was completed when he reached there and A's continued detention in police custody was therefore unlawful.

Held, dismissing the appeal: (1) the validity of the detention order was not affected by the typographical error; (2) the new s 6A(1)(a)(iii) of the 1985 Act makes it clear that no detention order shall be rendered invalid by reason that the subject was during the duration of the detention order on journey in police custody to the place of detention referred to in the detention order. A's journey was thus completed only when he was received by the rehabilitation centre.

Ang Ghee Seng v Minister for Home Affairs, Malaysia & Anor [1991] 3 MLJ 473 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

The two applicants were detained pursuant to the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) and the Emergency (Public Order and Prevention of Crime) Ordinance 1969. The applicants applied to the High Court for habeas corpus on the ground that the police officers designated by the Inspector-General of Police ('the designated officers'), upon receipt of the reports concerning the applicants' detention, had not applied their minds to such reports. The affidavits of 'the designated officers' merely showed that they received the reports concerning the applicants' detention and they then reported the same to the Minister. The applicants therefore argued that s 3(2)(c) of the 1985 Act and s 3(3) of the 1969 Ordinance had been breached. The respondents firstly argued that the provisions were complied with once the reports of 'the designated officers' were forwarded to the Minister within the stipulated time. The respondents further contended that the maxim de minimis non curat lex applied in this case.

Held, allowing the applications: (1) s 3(2)(c) of the 1985 Act and s 3(3) of the 1969 Ordinance provide that 'the designated officers' 'shall forthwith report' to the Minister and not merely to submit or forward the report to the Minister. The legislature must therefore have intended 'the designated officers' to apply their minds to the reports concerning the applicants' detention before reporting to the Minister; (2) it could be inferred from the affidavit evidence in this case that 'the designated officers' had immediately and automatically reported the circumstances of the applicants' arrest and detention to the Minister. 'The designated officers' had therefore acted as rubber stamps by merely forwarding the reports to the Minister; (3) the maxim de minimis non curat lex was inapplicable where 'the designated officers' had not exercised their minds on the materials placed before them which was essential in a matter as grave as this; (4) the applicants' detention orders were therefore bad due to non-compliance by 'the designated officers' of the mandatory requirements of s 3(2)(c) of the 1985 Act and s 3(3) of the 1969 Ordinance.

Lee Guan Seng v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor; Wong Sim Thong v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1992] 2 MLJ 878 High Court, Penang (Vincent Ng JC).

P was first detained for a period of two years from 17 May 1985 under s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 pursuant to a detention order issued under the Ordinance. Upon his release on 16 May 1989, he was arrested for the purpose of investigation under s 3(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). By a detention order dated 13 July 1987, P was detained for a period of two years from 14 July 1987 under s 6(1) of the Act. P applied for a writ of habeas corpus challenging his detention on three grounds, namely, that (a) there was a breach of s 6(1) of the Ordinance; (b) there was a breach of ss 3A and 6(5) of the Act; and (c) there was a breach of art 151(b) of the Federal Constitution.

Held, dismissing the application: (1) in the instant case, there was no breach of s 6(1) of the 1969 Ordinance as the three-month period prescribed therein must be read subject to the provisions of s 5(2A) of the 1969 Ordinance; (2) there was also no breach of ss 3A and 6(5) of the 1985 Act as the earlier detention order issued under s 4(1) of the 1969 Ordinance had already come to an end when P was duly released on 16 May 1989 upon the expiry of the said detention order. P was subsequently detained pursuant to a detention order issued under s 6(1) of the 1985 Act; (3) there was no breach of art 151(b) of the Federal Constitution as P had chosen not to make any representations. Under the said article and s 10 of the 1985 Act, the advisory board could only consider representations if representations had been made. As P chose not to make representations to the advisory board, he could not now complain that there was a failure to comply with art 151(b) of the Federal Constitution.

Moy Kok Min v Menteri Hal Ehwal Dalam Negeri & Anor [1989] 2 CLJ 1028

P applied for a writ of habeas corpus for his release from detention. P was detained earlier under the Emergency (Public Order and Prevention of Crime) Ordinance 1969 and subsequently under the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). P alleged that his detention was illegal and unlawful on the ground that there was a delay in complying with the detention orders. P argued that he should be detained at no other than the place specified in the detention orders on the dates in question. P contended that his detention was unauthorized and illegal and that it violated, inter alia, s 4(2) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 and s 6(2) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). P also contended that the Emergency (Public Order and Prevention of Crime) (Amendment) Act 1988 did not affect his application for habeas corpus as no provision had been made in the respective amendment Acts to make it retrospective and that in any event the amendments provided for therein were contrary to and forbidden by art 7(1) of the Federal Constitution.

Held, dismissing the application: (1) in the instant case, by s 4C of the Emergency (Public Order and Prevention of Crime) Ordinance 1969, the detention order issued under s 4(1) of the 1969 Ordinance which was sought to be impugned was validated. By the terms of s 7 of the Emergency (Public Order and Prevention of Crime) (Amendment) Act 1988, it was made retrospective covering all detention orders made between the coming into force of the Ordinance and the passing of the amendment Act; (2) the amendment Act did not offend art 7(1) of the Federal Constitution as the amendment Act did not create an offence but regulated a procedure. For the reasons given, the learned judge held that the detention order issued under the 1969 Ordinance had been validated by the amendment Act; (3) as for the detention order issued under the 1985 Act, the learned judge held that it had also been validated by s 6A of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) and s 4 of the Dangerous Drugs (Special Preventive Measures) (Amendment) Act 1988.

Tye Ten Phin v Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1989] 2 CLJ 877 High Court, Johore Bahru (Abu Mansor J).

D was arrested and detained for purposes of investigation under s 3(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) on grounds that he had been and was associated with trafficking activities. D applied for a writ of habeas corpus. The learned judge allowed the application and ordered that D be set at liberty. The learned judge held that the order of detention issued by the Minister for Home Affairs was a nullity on the ground that it was founded on a report by the inquiry officer who failed to call witnesses for the inquiry. The learned judge held that it was imperative for the inquiry officer, upon receipt of the report submitted by the police officer under s 3(3) of the Act, for purposes of such inquiry to call witnesses or procure such other evidence or require the production of any document. As the inquiry officer had omitted to do so, he could not be said to have held an inquiry within the meaning of s 5(2) of the Act. P, being dissatisfied with the decision of the learned judge, appealed to the Supreme Court.

Held, allowing the appeal: (1) the question before their Lordships was what constitutes an 'inquiry' within the meaning of s 5(2) of the Act. In their Lordships' opinion, the words used in sub-s (2) read in the light of the whole of sub-s (3) of the same section of the Act make it abundantly clear that a discretion rests with the inquiry officer. The duty is that of the inquiry officer to be satisfied that there are reasonable grounds for believing that the person has been or is associated with trafficking activities. In carrying out his duty, he has a discretion whether or not to call witnesses and it is not mandatory that he should invoke the powers contained in s 5(3) of the Act; (2) in the instant case, the learned judge had imposed on the inquiry officer a heavier burden than that imposed on him by the legislature. As the learned judge had erred in law in holding that it was imperative for the inquiry officer to invoke the powers contained in paras (a) to (d) of s 5(3) to constitute a valid inquiry under s 5(2), their Lordships set aside the order of the learned judge and substituted for it an order of dismissal of D's application for a writ of habeas corpus.

Inspector-General of Police & Ors v Rajoo s/o Ramasamy [1989] 1 MLJ 416 Supreme Court, Malaysia (Abdul Hamid LP, Hashim Yeop A Sani CJ (Malaya).

A applied for an order that a writ of habeas corpus be issued directing D to have A brought before the court to enable him to seek redress for what he alleged to be illegal restraint of his person and unlawful deprivation of his liberty. A was ordered to be detained under the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) for a period of two years pursuant to an order issued by the Deputy Minister of Home Affairs under s 6 of the Act. The Minister had issued the order based on the report submitted by the inquiry officer.

Held, allowing the application: (1) having regard to s 5(2) of the Act, it is imperative that upon receipt of the report submitted by the police officer under s 3(3), the inquiry officer shall inquire into the case. This means that the inquiry officer should either call witnesses or procure such other evidence or require the production of any document to enable him to put up a report to be submitted to the Minister, (2) in the instant case, it was clear from the affidavit of the inquiry officer that he did not properly inquire whether there were reasonable grounds for believing that A had been or was associated with any activity relating to or involving the trafficking of dangerous drugs. What the inquiry officer did was merely to read the report submitted to him by the investigating officer and based on that report, he submitted a report to the Minister; (3) as there was a failure on the part of the inquiry officer to inquire in the instant case, this rendered his report to the Minister bad in law. As the Minister had acted on this report, it followed that the order issued by the Minister was also bad in law and null and void.

Rajoo s/o Ramasamy v Inspector-General of Police & Ors [1989] 1 MLJ 358 High Court, Kuala Lumpur (Anuar J).

See [1989] 1 MLJ 416.

A was earlier detained under the Internal Security Act 1960 (Act 82) pursuant to a detention order (first detention order) issued by the Minister of Home Affairs under s 8(1) thereof. A's application for an order of habeas corpus was granted by the High Court. A was however re-arrested under s 73(1) of the 1960 Act and served with a detention order (second detention order) issued by the Minister under s 8(1) for a fresh period of two years. In the meantime, the Public Prosecutor appealed to the Supreme Court against the decision of the trial judge who granted A the order of habeas corpus. A had after his re-arrest also applied for an order of habeas corpus on the grounds that his re-arrest and continued detention were unlawful. A's application was heard by the trial judge who adjourned the matter to await the decision of the appeal by the Public Prosecutor to the Supreme Court. The Supreme Court allowed the appeal of the Public Prosecutor. The Minister subsequently cancelled the second detention order under s 81(3) of the 1960 Act. The trial judge who heard A's application for an order of habeas corpus dismissed A's application in view of the decision of the Supreme Court upholding the validity of the first detention order. Hence the present appeal by A to the Supreme Court against the refusal of the trial judge to grant him an order of habeas corpus.

Held, dismissing A's appeal: (1) since the second detention order no longer existed (as it had been cancelled by the Minister) at the time A's application for habeas corpus was heard and as A's application was based on the validity or otherwise of the second detention order, the trial judge had correctly dismissed the application of A; (2) the issuance of the second detention order did not impliedly revoke the first detention order nor did it affect the validity of the first detention in any way. In any event, the validity of the first detention order had already been fully argued, considered and upheld by the Supreme Court. A's appeal was, accordingly, dismissed by their Lordships.

Karpal Singh s/o Ram Singh v Inspector-General of Police & Ors [1989] 1 MLJ 184 Supreme Court, Malaysia (Abdul Hamid Omar Ag LP, Hashim Yeop A Sani and Harun Hashim SCJJ).

The three applications for orders of habeas corpus were considered and heard together. All the applicants were detained under s 3, Dangerous Drugs (Special Preventive Measures) Act 1985 ('the Act'). In the first application, counsel for the applicant contended that r 3(4), Dangerous Drugs (Special Preventive Measures) (Advisory Board Procedures) Rules 1987 ('the Rules') had not been complied with in that the officer in charge of the place of detention of the applicant had failed to forthwith forward the written representation of the applicant against his detention in Form 1 of the Schedule to the Rules to the secretary to the advisory board. Affidavits by the father of the first applicant alleged that there was a delay of ten days on the part of the officer in forwarding the written representation of the applicant in Form 1 to the secretary. It was contended that the failure to so forward it forthwith as required by r 3(4) rendered the detention unlawful. The counsel also argued that since the allegation of non-compliance with r 3(4) by the applicant had not been answered, it should be taken to be admitted. The second applicant challenged the detention on the ground of non-compliance with r 3(3) in that there was failure to use an interpreter to remind the applicant in the Teochew dialect of his right to make representations to the advisory board. The deputy public prosecutor argued that the applicant should himself have stated that he had not understood the reminder given to him under r 3(3) in Bahasa Malaysia. An averment by his sister that he was not fluent in Bahasa Malaysia was insufficient to sustain the objection. The third applicant contended non-compliance with r 3(3) and (4) in that no interpreter was used in reminding the applicant of his right to make representations and that the written representations in Form 1 was not forthwith forwarded to the secretary to the board. It was agreed between the parties that the decision in the first two applications should bind the third appli-cation. Held, dismissing all the applications: (1) the detaining authority had discharged the onus cast upon it of showing lawful detention by exhibiting the detention order which was made in the exercise of a valid legal power. Once that is shown, the burden of proving that he was not in lawful custody was immediately shifted to the applicant to show that there had not been compliance with any procedural requirement in the Act which would open the detention order to judicial review within the exception to the provisions of s 11C of the Act. That section otherwise clothes the act or decision of the Minister with the armour of non-justiciability on substantive grounds. Challenging the detention order on failure to comply with such procedural requirement is the only chink in that armour permitted by the Act; (2) under r 3(2) there are two channels through which an applicant desirous of making any written representation against his detention in Form 1 to the advisory board may forward the same, namely, either through the officer in charge of the police district where the detention order was served or the officer in charge of the place of detention. The duty upon either of these two officers to forthwith forward the written representation in Form 1 under r 3(4) only arises where either of them first receives the written representation in Form 1 for onward transmission to the secretary; (3) a bare reference to r 3(4) without facts in the affidavit of the applicant's father cannot suffice to show that the officer had received Form 1 and had failed to forthwith forward it to the secretary to the advisory board, thereby rendering the detention of the applicant illegal or improper under s 365 or without just cause under s 366 of the Criminal Procedure Code (FMS Cap 6); (4) the affidavits of the applicant's father suffer from a further infirmity in that the father purports to depone to matters which are not within his personal knowledge; (5) on the second application, the affidavit adverted to the purported failure to explain or interpret the contents of the various documents in the Teochew dialect and not to the oral reminder given. There was therefore no specific allegation of fact by the applicant or his sister that the reminder was not given or if given in Bahasa Malaysia was not understood by the applicant; (6) taken cumulatively, the court may presume that the applicant has resided in Malaysia throughout his life and is conversant with Bahasa Malaysia, at least in the absence of direct evidence to the contrary. If it is contended otherwise the burden of proof would lie with him.

Tan Chin Haw v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor Criminal Application No 44-117-92 High Court, Penang (Selventhiranathan JC).

This case involved applications for writs of habeas corpus. Under s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 ('the Ordinance'), the Deputy Minister of Home Affairs ('the deputy minister') had ordered each of the applicants to be detained for two years at the Rehabilitation Centre, Simpang Renggam, Johore. The preamble to each order, however, stated that the Minister of Home Affairs ('the minister') was satisfied that the order was necessary. The applicants' counsel contended that having regard to the preamble, for the orders to be valid, they should have been executed by the minister and not the deputy minister. The respondent in reply put in evidence an affidavit by the deputy minister in which he affirmed that he was personally satisfied that grounds existed for the detention of the applicants before he exercised the powers of detention under the Ordinance.

Held, dismissing the applications: (1) art 43A(2) of the Federal Constitution which empowers a deputy minister to exercise the powers of a minister would give the same powers of detention under the Ordinance to the minister or the deputy minister; (2) the powers exercisable by the minister and the deputy minister under the Ordinance are co-extensive and complementary, and the exercise by one or the other, in whole or in part but completed by the other, has no significance except in cases where there is doubt as to the personal satisfaction under s 4(1) of the Ordinance; (3) in the present case, notwithstanding the preamble deposing to the minister's satisfaction, the affidavit evidence established undoubtedly the subjective satisfaction as that of the deputy minister after he had applied his mind to the information and report forwarded to him. That being so, the deputy minister had not acted mechanically nor breached procedural requirements when he executed the detention orders. It could only be said that the word 'Timbalan' was casually or inadvertently omitted from the preamble; (4) it was not disputed that the detention orders had conveyed to the applicants all the essential specifics of their detention. The applicants were under no misapprehension as to the deputy minister's subjective satisfaction and were not misled nor prejudiced in any way. The detaining authority having complied with all procedural requirements, the absence of the word 'Timbalan' before 'Menteri Hal Ehwal Dalam Negeri' in the preamble did not invalidate the detention orders.

Por Seng Hock v Timbalan Menteri Dalam Negeri, Malaysia and another application Criminal Application Nos 44-34-94 and 44-3-95 High Court, Penang (Jeffrey Tan JC).

P applied under s 365 of the Criminal Procedure Code (FMS Cap 6) for orders that they be set at liberty on the ground that their detention under the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) was unlawful. P were separately arrested and detained for the purpose of investigation by the police under s 3 of the 1985 Act. Subsequently, pursuant to separate detention orders made by the Deputy Minister of Home Affairs under s 6(1) of the 1985 Act, P were sent for detention for a period of two years. P challenged their detention on the ground that (a) their detention in police custody beyond 14 days for the purpose of investigation was invalid, being in contravention of s 3(2) proviso (c) of the 1985 Act; (b) the advisory board had acted in contravention of s 11 of the 1985 Act when it recommended that the detention of P be extended beyond their original two-year period; and (c) their detention had commenced a day after the date of their respective detention orders and this was in contravention of s 6(1) of the 1985 Act.

Held, allowing P's application: (1) in the instant case, P were validly detained in police custody beyond 14 days for the purpose of investigation as the requirements of s 3(2) proviso (c) had been complied with. Having regard to s 54(1)(a) of the Interpretation Act 1967 (Act 388), the period of 14 days from the date of arrest is not inclusive of the day of arrest; (2) in the instant case, P had succeeded in showing that their continued detention under s 6(1) after the advisory board had given the null and void opinions in their respective cases were not valid and consequently the Deputy Minister could not have made orders for further detention of them under s 11A of the 1985 Act; (3) as the detention of P did not commence from the date of their respective detention orders but a day after, there was a contravention of s 6(1) of the 1985 Act. For the above reasons, P's applications under s 365 of the Criminal Procedure Code (FMS Cap 6) were allowed by the court.

Lim Kean Hong v Timbalan Menteri Dalam Negeri, Malaysia & Anor; Ong Guan Huat v Inspector-General of Police & Ors Criminal Application Nos 54-3-89 & 54-15-89 High Court, Alor Setar (KC Vohrah J).

A, who was detained under the Internal Security Act 1960 (Act 82), applied for a writ of habeas corpus wherein he challenged the validity of the detention order and his detention under the Act on the following two grounds: (i) that his detention violated art 7(1) of the Federal Constitution and (ii) that the activities alleged against him, even if true, offended 'public order' but not the security of the country so that the ground for his detention did not come within the scope of the 1960 Act.

Held, dismissing the application: (1) instead they merely immunize from judicial review detention orders which suffer from the defects described therein. Consequently, art 7(1) of the Federal Constitution was irrelevant to the question for decision; (2) the ground for A'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 s 8 of the 1960 Act; (3) ss 3 and 5(1) of the Internal Security (Amendment) Act 1988 do not create offences much less render acts of a detainee offences which were not offences before he did them;as for the allegations of fact, it was not open to the court to consider the question whether there was reasonable cause to make the detention order. It was for the subjective satisfaction of the Minister of Home Affairs alone to decide whether there was reasonable cause to make the detention order. In the result, A's application was dismissed by the learned judge.

Dr Tuang Pik King v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1989] 1 CLJ 203 High Court, Penang (Edgar Joseph Jr J).

P was detained pursuant to a detention order made under s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 on the ground that he had committed violent criminal acts which could threaten public order. The order authorized the detention of P for two years. P applied for a writ of habeas corpus. P alleged that the detention order was bad on the grounds, inter alia, that (a) his representations against the detention order were not considered and recommendations made thereon by the Advisory Board to the Yang di-Pertuan Agung within three months from the date of his detention, thereby contravening s 6(1) of the 1969 Ordinance and that (b) his continued detention was illegal and unlawful as the decision of the Yang di-Pertuan Agung under s 6(2) of the 1969 Ordinance was not communicated to him at any time.

Held, dismissing the application: (1) although there is a conflict between ss 5(2A) and 6(1) of the 1969 Ordinance, nevertheless, having regard to the intention of Parliament in enacting s 5(2A) which is to extend the time for the Advisory Board to consider and make recommendations to the Yang di-Pertuan Agung, it is clear that s 5(2A) overrides by implication s 6(1). That being so, it followed that the Advisory Board had, in the instant case, considered the representations made by P and made its recommendations to the Yang di-Pertuan Agung well within the five-month period limited by s 5(2A); (2) an order or direction of the Yang di-Pertuan Agung under s 6(2) must be made known to P within a reasonable time of its making so as to enable him to seek redress in a court of law as he may deem fit. This is so even though there is no express requirement either in the Federal Constitution or in the Ordinance or elsewhere. Nevertheless, P must show that he was prejudiced by the failure to so inform him. This P failed to show in the instant case.

Jayaraman a/l Arumugam v Minister for Home Affairs, Malaysia & Anor [1989] 2 CLJ 605 High Court, Penang (Edgar Joseph Jr J).

P was arrested and detained under s 3(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). The Deputy Minister of Home Affairs subsequently issued a detention order under s 6(1) of the Act ordering A to be detained for two years. A's representations under s 9(1) of the Act were heard by the adivsory board which made its recommendations to the Yang di-Pertuan Agong. The Yang di-Pertuan Agong confirmed the detention order as provided by s 10(2) of the Act. P challenged the detention order on the ground that the confirmation from the Yang di-Pertuan Agong was not given within a reasonable time. Counsel for P stated that there was no indication in the affidavits filed on behalf of D as to when such confirmation was given. Therefore, it could not be said that the confirmation was made within a reasonable time.

Held, dismissing P's application: having regard to the clear words of ss 10 and 11C(1), it is not a procedural requirement in the Act that the confirmation must be given within a reasonable time. Section 10 or, for that matter, the Act, does not lay down any procedural requirement as to how or when the confirmation is to or should be made. Therefore, the question of non-compliance does not arise.

Teh Hock Seng v Minister of Home Affairs & Anor [1990] 3 MLJ 191 High Court, Penang (Abdul Hamid JC).

P appealed to the Supreme Court against the decision of the High Court dismissing their applications for writs of habeas corpus for their release from detention under the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). P were detained separately pursuant to orders under s 6(1) of the 1985 Act. P challenged their detention on the ground that it was bad as the detention had commenced from a date different from the date of the detention orders.

Held, allowing the appeals: (1) it is clear from the words 'from the date of such order' in s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) that the material date for the commencement of the detention is the date when the order is made and signed by the Minister. On this construction, the period of two years must be calculated from the date the order was made and signed by the Minister and not any other date; (2) the law of preventive detention must be construed strictly and in the case of doubt, the court should lean in favour of the subject. A detention not in accordance with law is inconsistent with the fundamental right guaranteed by art 5(1) of the Federal Constitution; (3) for the above reasons, their Lordship allowed the appeals of P and granted their applications for writs of habeas corpus.

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

P, who was detained under the Internal Security Act 1960 (Act 82), applied for a writ of habeas corpus in which he challenged the validity of the detention order on the ground that his arrest and subsequent detention at the detention centre was unlawful and improper as it contravened the provisions of the Federal Constitution and the Internal Security Act 1960 (Act 82). P contended, inter alia, that he was not produced before a magistrate within 24 hours after his arrest and that this was in contravention of art 5(4) of the Federal Constitution. It was also contended by P that as a result of the withdrawal of one of the allegations of fact by the Special Branch officers, the remaining allegations must fail as they were stale allegations and not proximate in point of time to justify the issuance of the detention order. P had also contended that the Internal Security (Amendment) Act 1988 was inconsistent with the Federal Constitution and was therefore invalid as s 5(1) of the Amendment Act sought to validate any detention order effected during the transitional period notwithstanding that there was, inter alia, defect in the service of the order.

Held, dismissing the application: (1) in the instant case, P was arrested pursuant to the provisions of s 73(1) of the 1960 Act and by virtue of sub-s (7) any person detained under the section shall be deemed to be in lawful custody. Having regard to the proviso of art 149(1) of the Federal Constitution, the provisions of the Internal Security Act 1960 (Act 82) are valid notwithstanding that they may be inconsistent with the provisions of art 5. Accordingly, P's arrest did not contravene art 5(4) of the Federal Constitution; (2) it is settled law that the court cannot question the sufficiency or relevancy of the facts upon which the subjective satisfaction of the Minister is based. In the instant case, the withdrawal of one of the allegations of fact did not affect or invalidate the detention order as the Minister was clearly satisfied that P's activities over the specified period were continuous prejudicial activities upon which he made the order; (3) as the Internal Security Act 1960 (Act 82) was lawfully enacted under art 149 of the Federal Constitution, it followed that the Internal Security (Amendment) Act 1988, enacted for the purpose of amending, validating past acts or introducing new sections in the principal Act, could also be enacted under art 149. As the provisions of the Amendment Act came within the scope of the recital of the principal Act, the learned judge held that it was not inconsistent with the Federal Constitution; (4) for the above reason, P's application for a writ of habeas corpus was, accordingly dismissed by the learned judge.

Lim Kit Siang v Menteri Dalam Negeri Malaysia & Ors Criminal Application No 54-8-88 High Court, Penang (Mohamed Dzaiddin J).

A was detained under powers conferred by s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) for a period of two years with effect from 13 May 1988. On 22 May 1988, A made representations to the advisory board under the provisions of art 151(1)(a) of the Federal Constitution. The board fixed the hearing of A's representations on 20 July 1988. In the meantime, A had successfully applied to the court for his release from detention on 14 July 1988 and D appealed to the Supreme Court against the High Court's decision. A was subsequently re-arrested and detained under another order (the second detention order) for a period of two years. On 30 January 1989, the Supreme Court allowed D's appeal and set aside the order of the High Court for the grant of habeas corpus. Following the Supreme Court's decision, the Minister of Home Affairs revoked the second detention order. On 28 February 1989, pursuant to art 151(1)(b) of the Federal Constitution, the Yang di-Pertuan Agong allowed the advisory board extension of time to consider the representation made by A and to make its recommendations. In due course, the advisory board made its recommendations to the Yang di-Pertuan Agong who confirmed the first detention order made against A. A challenged the validity of his detention on the ground that art 151(1)(b) of the Federal Constitution did not empower the Yang di-Pertuan Agong to allow the extension of time for the advisory board to consider the representations and make recommendations under the article after the stipulated period of three months had expired. The learned judge held that ss 45 and 109 of the Interpretation Acts 1948 and 1967 (Rev 1989) (Act 388) gave power to extend the time under art 151(1)(b) of the Constitution. Being dissatisfied with the decision of the learned judge, A appealed to the Supreme Court.

Held, dismissing the appeal: (1) art 160 of the Federal Constitution expressly prescribes that the provisions of the Interpretation and General Clauses Ordinance 1948 as specified in the Eleventh Schedule to the Federal Constitution shall apply for the interpretation of the Constitution. The provisions of the Interpretation Acts 1948 and 1967 (Rev 1989) (Act 388) are not applicable for the interpretation of the Constitution; (2) in the instant case, it is difficult to construe that there is power to extend the time after the expiry of the three-month period when the relevant provision of s 39 of the 1948 ordinance was expressly left out from the Eleventh Schedule to the Constitution. Reading art 151(1)(b) as a whole, it is implicit that if any extension of time is to be granted, it should be granted before the expiry of the period of three months because the express injunction therein is that no person shall otherwise continue to be detained.

Rajoo s/o Ramasamy v Inspector General of Police [1990] 2 MLJ 87 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

P was detained under a detention order made by the Minister of Home Affairs pursuant to s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) directing his detention for a period of two years. On 22 May 1988, P had made representations to the advisory board under art 151(1)(a) of the Federal Constitution. Before the advisory board heard the representations, P had succeeded in his application for a writ of habeas corpus before the High Court which directed his release. The Minister of Home Affairs, being dissatisfied with the decision, appealed to the Supreme Court. While the appeal by the Minister was still pending, P was rearrested and detained under another detention order made by the Minister pursuant to s 6(1) of the 1985 Act directing his detention for a period of two years. P filed a second application for a writ of habeas corpus. Before the application was heard, the Supreme Court allowed the appeal from the decision of the High Court in respect of the first detention order. In consequence, the Minister revoked the second detention order. P's application for a writ of habeas corpus in respect of the second detention order was dismissed by the High Court. On 20 February 1989, pursuant to art 151(1)(b) of the Federal Constitution, the Yang di-Pertuan Agong allowed an extension of time to ten months and nine days commencing from 23 May 1988 within which the advisory board had to consider the representations made by P and make their recommendations thereon to the Yang di-Pertuan Agong. The advisory board heard the representations in due course and made recommendations to the Yang di-Pertuan Agong who, in accordance with these recommendations, had, pursuant to s 10(2) of the 1985 Act, confirmed the first detention order made by the Minister. P challenged his continued detention under the first detention order alleging, inter alia, that the extension of time granted by the Yang di-Pertuan Agong upon application made after the expiry of the three-month period was ultra vires the powers conferred by art 151(1)(b) of the Federal Constitution. P also alleged that there had been no communication to him of the decision of the Yang di-Pertuan Agong made pursuant to s 10(2) of the 1985 Act authorizing his continued detention.

Held, dismissing P's application for a writ of habeas corpus: (1) having regard to ss 45 and 109 of the Interpretation Acts 1948 and 1967 (Act 388), the Yang di-Pertuan Agong has the power to extend time for purposes of art 151(1)(b) of the Federal Constitution even though the application for extension of time was made to him after the expiry of the period fixed thereunder. In the instant case, there were ample grounds for the Yang di-Pertuan Agong to grant the extension of time in view of the chequered history of the case; (2) although there had been no communication to P of the decision of the Yang di-Pertuan Agong made pursuant to s 10(2) of the 1985 Act, P had not suffered any prejudice as a result; (3) in all the circumstances, the court dismissed P's application for a writ of habeas corpus.

Rajoo s/o Ramasamy v Inspector-General of Police & Ors [1990] 1 MLJ 430 High Court, Penang (Edgar Joseph Jr J).

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

A applied for a writ of habeas corpus to be issued for her release. A was detained pursuant to an order made under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). The detention order alleged that A was involved in activities relating to trafficking in dangerous drugs and that it was necessary in the interest of public order that she be detained. In her application, A contended that (a) there was a failure to comply strictly with the requirement of the law; (b) the Deputy Minister of Home Affairs had no power to act on behalf of the Minister concerned; (c) the inquiry officer failed to conduct an independent inquiry as required under s 5(3) of the Act; (d) the Dangerous Drugs (Special Preventive Measures) (Amendment) Act 1988 is unconstitutional and (e) art 151(3) of the Federal Constitution did not apply to the case.

Held, dismissing the application: (1) in the instant case, there was no failure to comply with the provisions of s 6 of the Act. Having regard to the detention order, it was clear that the Minister concerned was satisfied that A had been or was associated with activities relating to or involving the trafficking of dangerous drugs and that it was necessary in the interest of public order that A be detained; (2) having regard to the Interpretation Act 1967 (Act 388) and art 43A(2) of the Federal Constitution, the Deputy Minister of Home & Affairs had all the powers of the Minister concerned. A's contention that the Deputy Minister had no power to act on behalf of the Minister concerned could not, accordingly, be entertained; (3) the inquiry officer under the Act has a discretion whether or not to conduct an independent inquiry. It is not necessary for him to conduct the inquiry if he is satisfied from the complete report of investigation submitted to him under s 3(3) of the Act that there are reasonable grounds for believing that the person in question has been associated with drugs. In the instant case, the inquiry officer was satisfied by the consideration of the report and he had, accordingly, discharged his function; (4) the Dangerous Drugs (Special Preventive Measures) (Amendment) Act 1988 is not unconstitutional as it was enacted pursuant to art 149 of the Federal Constitution. In the instant case, it was not necessary for the Minister concerned to disclose all the facts upon which his decision was made as art 151(3) of the Federal Constitution does not require the Minister concerned to disclose facts which are against the national interest. The test to be applied is whether the disclosure is against the national interest; (5) as A had failed to show that the detention was unlawful, her application was dismissed by the learned judge.

Low Soon Mooi v Menteri Hal Ehwal Dalam Negeri & Anor [1989] 2 MLJ 350 High Court, Penang (Wan Adnan J).

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

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

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

This was an application for habeas corpus to decide the following issue: 'Whether, and if so, to what extent the order of detention of the Minister for Home Affairs under the provision of s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 is open to judicial review.' The applicant was detained under an order for detention, 'necessary for the purpose of preventing him from acting in any manner prejudicial to public order, or that it is necessary for the suppression of violence or the prevention of crimes involving violence'. The applicant was alleged to be a member in an Indian secret society which was active in the York Road area, Penang. He was alleged to have committed criminal activities like criminal intimidation and damaged property in 1982 and 1983.

Held, dismissing the application: (1) the subjective satisfaction of the Minister to detain a subject is not open to judicial review; (2) the vagueness, etc of the allegations of fact upon which a detention order is based does not relate back to the order of detention thereby vitiating it; (3) the mere fact that a subject has been detained under the law as to preventive detention following his acquittal in a criminal court does not ipso facto render his detention wrongful; (4) exceptionally, the courts will review the order for preventive detentive if: (a) mala fides is alleged; or, (b) it is alleged that the grounds of detention stated in the order do not fall within the scope and ambit of the relevant legislation; or (c) it is alleged that a condition precedent for the making or the continuance of the order of preventive detention has not been complied.

Athappen a/l Arumugam v Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1984] 1 MLJ 67 High Court, Penang (Edgar Joseph Jr J).

Poh Chin Kay v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor and other applications [1990] 2 MLJ 297 Supreme Court, Malaysia (Abdul Hamid LP, Hashim Yeop A Sani CJ (Malaya).

In this case, the applicants had been detained under the Emergency (Public Order and Prevention of Crime) Ordinance 1969. They made written representations against their orders of detentions and inquiries were held but the Advisory Board did not make their recommendations within three months of the detention of the applicants. At the time of the applications, however, the Advisory Board had made their recommendations, although three months had lapsed from the date of the original detention order. It was argued that the continued detention of the applicants after a lapse of three months from the date of the original order of detention became illegal and unlawful if within the three months the Advisory Board had not met to consider the representations made by the applicants and following on that made representations to the Yang di-Pertuan Agong.

Held: while the procedural requirements had not been complied with in this case, valid orders of detention were in force against the two applicants and their detention was therefore legal.

Re Tan Boon Liat @ Allen & Anor; Tan Boon Liat & Anor v Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1977] 1 MLJ 39 High Court, Penang (Arulanandom J).

[Annotation: On appeal, see Re Tan Boon Liat @ Allen & Anor et al [1977] 2 MLJ 108.]

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

Held, granting the application: (1) under s 8(1A) of the Internal Security Act, the power to continue the detention of a person detained under an order of detention after the expiry of the period of detention is vested in the President and only the President can direct that the period of the order of detention be extended; (2) the President can signify the exercise of his power either personally or in accordance with s 34 of the Interpretation Act 1965 under the hand of a Minister or of the Secretary to the Cabinet; (3) the five orders or directions in this application were ex facie not made under the hand of the President nor were they in compliance with s 34 of the Interpretation Act and, therefore, they were ex facie defective orders and unlawful; (4) as the orders were defective, they do not provide legal justification for the detention of the applicants and an order must be made for their discharge.

Lim Hock Siew & Ors v Minister of Interior and Defence [1968] 2 MLJ 219 High Court, Singapore (Wee Chong Jin CJ).

The appellant was convicted under s 44 of the Internal Security Act 1960 (Act 82) for breach of a condition of an order made by the Minister of Internal Affairs. It appeared that the order purported to be made by the Minister was 'in exercise of the powers conferred upon me by s 8(1A) of the Internal Security Act 1960'.

Held, allowing the appeal: an order for the extension of a period of detention under s 8(1A) of the Internal Security Act 1960 can only be made in the discretion of the Yang di-Pertuan Agong and as the order in this case was not an order made by or at the direction of the Yang di-Pertuan Agong it was not an effective order.

Soo Kua v Public Prosecutor [1970] 1 MLJ 91 High Court, Malacca (Sharma J).

[Annotation: The power is now given to the Minister see s 8 of Internal Security Act 1960 (Act 82).]

The applicant was detained under the Dangerous Drugs (Special Preventive Measures) Act 1985 ('Act 316') and the Dangerous Drugs (Special Preventive Measures) (Amendment) Act 1985 ('Act A629'). The detention order was signed on 4 June 1987 and pursuant to the said order the applicant was detained in the Rehabilitation Centre, Muar, Johore, for a period of two years with effect from 5 June 1987. From 28 February 1989 to 3 March 1989, the applicant was taken to Pulau Jerejak to attend an inquiry for review by the Advisory Board under s 11 of Act 316. The said inquiry was held on 1 March 1989. Pursuant to an extension detention order (under s 11A of Act 316) dated 2 June 1989, the period under the detention order dated 4 June 1987 was extended for another one year to commence immediately after the expiry of the said detention order that is, from 4 June 1989. The applicant's counsel challenged the validity of the detention on three grounds: (1) the word 'day' in s 3(2)(c) of the Act should be calculated commencing from midnight and not from the time the applicant was arrested; (2) the Advisory Board in making its recommendation to extend the detention of the applicant did not comply with the provisions of s 11(4) which required the board to report to the Minister whether the said detention should be continued; (3) when the applicant was transferred to Pulau Jerejak Detention Centre for review by the Advisory Board, the detention was not done in accordance with powers under statutory provisions, ie did not follow s 16; lastly, the applicant argued that the detention was invalid because the detention order was dated 4 June 1987 whilst it ordered the applicant to be detained for two years with effect from 5 June 1987.

Held, allowing the applicant's application and issuing a writ of habeas corpus immediately: (1) without the definition of the word 'day' in Act 316 and the Interpretation Act 1967 (Act 388), the said word should be given its ordinary meaning and since the court found that the interpretation of the applicant's counsel contravenes s 3(2)(b) and is unreasonable, it is therefore rejected; (2) therefore the court is of the opinion that the applicant's detention beginning from the expiry of time wherein the board ought to review until the date of expiry of the detention order under s 6 is invalid. A distinction ought to be drawn between the meaning of 'extended' and 'continued' within the context of the Act. The word 'continued' means continuing the detention for the remaining term under the said order until it ends. The word 'extended' means adding on the detention from the moment the detention order ends. Failure of the board to strictly observe provisions of the law not only affects freedom but also makes further detention illegal; (3) the respondent has failed to follow the requirements of s 16 which required the Minister to issue the order for the applicant to be brought to Pulau Jerejak to attend the review inquiry by the Advisory Board. Therefore, the applicant has to be released immediately because the extension order dated 2 June 1989 is ineffective in law to detain the applicant; (4) the Advisory Board's action in recommending the applicant's detention be extended whilst the board only had powers to recommend the continuance of the said detention clearly contravenes s 11(4);as the detention order was dated 4 June 1987 but ordered the applicant to be detained for two years with effect from 5 June 1987, the said detention is not in accordance with law.

Lim Yack Boon v Timbalan Menteri Dalam Negeri, Malaysia & Anor [1990] 3 MLJ 55 High Court, Kuala Terengganu (Ahmad Fairuz JC).

The applicant was detained for one year from 15 July 1985 by order of the Minister of Home Affairs under the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). He applied for an order of habeas corpus for his release. He had earlier been detained for two years from 16 July 1983 to 15 July 1985 under s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969. On 11 July 1985, the Advisory Board reviewed the applicant's previous order of detention under s 4(1) of the ordinance. The board was of the opinion that his detention be extended for a further period of one year. It reported to the Minister, who acted on its finding accordingly. The main question for decision is whether the Advisory Board has power under s 11(1) of the Act to review the s 4(1) order of the ordinance.

Held, allowing the application: (1) there are two prerequisites or conditions precedent which must be satisfied before the Advisory Board can commence to review under s 11(1) of the Act. First, there must be an existing order made by the Minister under s 6 or s 7. On 11 July 1985, there was no such detention order. Second, the review must be conducted not less than three months before the expiration of the existing order. Both conditions were not satisfied by the board. The review by the board and its report were therefore invalid. What was fatal was the fact that the Minister acted on the board's report which was invalid and ultra vires s 11(1) of the Act; (2) it is wrong for the Advisory Board to follow or adopt the Public Order and Prevention of Crime (Procedure) Rules 1972 made under the ordinance. In view of the absence of any rules or regulations made by the Yang di-Pertuan Agong under s 9(3) of the Act, any review convened under s 11(1) where representations under s 9 have been made was premature and improper; (3) as the continued detention of the applicant would be unlawful, he must be set at liberty.

Re Khor Hoi Choy; Khor Hoi Choy v Menteri Dalam Negeri Malaysia & Ors [1986] 2 MLJ 312 High Court, Penang (Mohamed Dzaiddin J).

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

There were seven applications for directions in the nature of a habeus corpus made under Chapter XXXVI of the Criminal Procedure Code in respect of seven detainees. As there was one issue for determination which was central to all seven applications and its resolution would dispose of all seven applications it was agreed that this case would be used as a test case. In September 1991, the deputy minister made a detention order under s 8(1) of the Internal Security Act 1960 directing the detention of the applicant at a place of detention for a period of two years. At the time the detention order was served on the applicant, he was also furnished with a statement in writing: (1) of the grounds on which the order was made; and (2) of the allegations of fact on which the order was based, in compliance with s 11(2)(b) so as to enable the applicant to make representations against the order to an advisory board constituted under art 151(2) of the Federal Constitution. In September 1993, the deputy minister issued a direction under s 8(7) that the duration of the detention order be extended for a further period of two years. No statement in writing of the grounds on which the extension order was made and of the allegations of fact on which the extension order was based was furnished to the applicant upon the service of the extension order on him. The question for decision therefore was whether the omission to furnish the grounds on which the extension order was made and the allegations of fact on which the extension order was based was fatal to the continued detention of the applicant in the circumstances.

Held, allowing the application: (1) s 8(1) requires the minister to be satisfied (ie subjectively in his mind) that the detention of any person is necessary with a view to preventing that person from acting in any manner prejudicial to the security of Malaysia or to any part thereof, or to the maintenance of essential services therein, or to the economic life thereof, as specified in that section. The minister's satisfaction as to one of these three limbs of s 8(1) being fulfilled would form the reason for the minister to order the detention of that person. However, the grounds for his detention would necessarily involve a recitation of the facts which motivated the minister to act. When those grounds and the allegations of fact supporting the grounds on which to make the detention order are not revealed or are non-existent, the minister cannot act in vacuo in exercising his power of preventive detention. In the present case, an examination of the original detention order would show that the deputy minister had reason to act, albeit subjectively, under s 8(1) because he was satisfied of the existence of facts which gave grounds for him to invoke his powers; (2) s 8(7) is the provision which enables the minister to make an extension order. If the detention order is extended on totally different grounds or partly different grounds, the detainee is given the same rights under s 11 as he was given initially when the detention order was made under s 8(1) to make representations against the order. The reasoning behind the proviso to s 8(7) is straightforward: if the extension order is made on the same grounds as those on which the detention order was originally made, there would be no need to invoke once more the procedure relating to the making of representations as there would be nothing new for the advisory board to act upon. However, if the extension order falls within para (b) or (c) of s 8(7), the procedure for making representations will have to be invoked because the proviso confers such rights in respect of an extension order as if the order extended was a fresh order. If the grounds are the same, all that the extension order has to state in its body is that it is made on the same grounds as those on which the original detention order was made for the detaining authority to have complied substantially with the requirements of ss 8(7), 11 and 12. In this case, the applicant was not furnished with the statement of the grounds on which the extension order was made and of the allegations of fact on which the order was based. This rendered nugatory the rights specially conferred on him by the provisions of the Internal Security Act 1960 and the Federal Constitution. The applicant had been denied his right to know on what grounds he was continuing to be detained so as to enable him to decide whether or not to exercise his constitutional right to make representations to the advisory board. Thus, as the extension order was silent as to the grounds on which it was made and as to the allegations of fact upon which the grounds were anchored, the continued detention of the applicant was in contravention of the Internal Security Act 1960 and the Federal Constitution.

Badrul Zaman bin PS Md Zakariah v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor Criminal Application 44-23-1994 High Court, Penang (Selventhiranathan JC).

Both applicants were arrested and detained under the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) and the Dangerous Drugs (Special Preventive Measures) (Amendment) Act 1985 ('Act A629'). Their initial detention for two years was extended for a further two years. Both applicants applied for habeas corpus on the basis of six grounds: (1) on the basis of s 3(2)(c) of Act 316, the authorization for detaining for more than 14 days was without the approval and consent of the Minister as impliedly required by the law; (2) no specific officer was appointed to conduct the investigations and whether a complete report had been submitted to the inquiry officer and the Minister within a prescribed time period; (3) the inquiry officer failed to conduct his own independent inquiry to verify the report submitted to him under s 3(3) of Act 316 by the investigating officer; and the Minister had failed to make regulations for the time period for the inquiry officer to submit the reports under s 5(4) of Act 316; (4) the detention orders only stated that the applicants had been or were associated with trafficking in dangerous drugs and omitted to state the Minister's satisfaction that their detentions were necessary in the interest of public order; (5) the power of the Advisory Board under s 11(4) of Act 316 to report its opinion for extension was taken away by Act A629, leaving its function to review and report its opinions to two specific matters, ie whether the detention should cease or continue for the period remaining on the original detention; (6) s 11A(1) requires that the Minister, when extending the detention order, set out in the direction the grounds for the extension and state whether the grounds are the same, different, or partly the same as and partly different from, the grounds of the original detention order.

Held, allowing the applications and issuing writs of habeas corpus: (1) the wording of s 3(2)(c) of Act 316 is clear. It merely states that the DSP shall forthwith report to the Minister but does not state that he is to obtain the Minister's clearance for further detention; (2) no such regulations had been made. The court was of the view that the absence of the regulations prescribing the time period does not render s 3(3) of Act 316 void. Section 22(1) states 'may make regulations', and in the absence of the time period, the submission of the complete report must be made within a reasonable time. Further, the submission was well within the specified 60-day period under s 3(2); (3) there need not be a specified named police officer to investigate as it cannot be expected that just one man would handle the investigation; (4) the inquiry officer has the discretion whether or not to call witnesses in conducting his inquiry. The inquiry officer had stated in his affidavit that he was satisfied that the applicants were involved in trafficking dangerous drugs; (5) the omission to include the objects or purposes for the detention in the alternative is a defect in form only and not substance; (6) the Advisory Board's power to review and give its opinion recommending an extension beyond the original two years did not exist at all when the amendment Act, Act A629, came into force. The Deputy Minister had, however, confirmed in his affidavit that he received the Advisory Board's report and after careful consideration of it, had ordered the extension of two years. This was well after Act A629 had come into force. The order of extension was therefore invalid as it was done in exercise of law that is non-existent; (7) the grounds of the extension order are not the same as the grounds for the original detention order. While the original detention order was meant to prevent the applicants from acting or associating in any manner in activities relating to or involving the trafficking of dangerous drugs, the extension order was made as the Minister was satisfied that the detention was 'necessary in the interest of public order'. The latter ground covers a large spectrum of undesirable activities including drug trafficking and the applicants have to be informed of the reasons of their continued detention after two years; (8) under the second ground, counsel contended that the submission of the complete report by the police officer of the investigation to the inquiry officer and the Minister should be within such period as may be prescribed by the Minister by regulations made under the Act;the defect is not the same as an omission to include the alternate ground. It is a substantial difference from the 'mencegah' [prevention from] ground in meaning, context and purport, and is a legal defect.

Ng Choon Mon v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor and another application [1990] 1 MLJ 38 High Court, Seremban (Mustapha Hussain J).

The four applicants were arrested and the respondent issued a detention order under powers granted by s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). Under the original detention order, the applicants were to be detained for two years. Upon the expiry of the detention order, the respondent issued a further extension order detaining them for a further period of two years. The first applicant challenged the validity of the detention order and directions to extend the order on the following grounds: (a) the first applicant was detained on 10 July 1986 and the detention order was for a period of two years with effect from 12 July 1986. Subsequently, an extension order was issued on 9 July 1988 and it was to take effect from 11 July 1988. This being the case, the Minister acted ultra vires since the phrase 'for a period not exceeding two years from the date of such order' should be interpreted strictly to refer to the date of arrest and detention (10 July 1986) and not to the date the order came into force (ie 12 July 1986); (b) the Minister failed to act before the expiry of the initial detention order and direct that the detention order be extended commencing immediately upon its expiration. Instead, the Minister stated that the extension order commenced on the last day of the life of the initial detention order; (c) continued detention under the extension order was unauthorized because the applicant had been denied the opportunity of making representations in accordance with s 11A(3) of the Act, especially since the grounds for the extension order were different from those of the initial detention order; (d) the two conditions precedent under s 6(1) of the Act, ie that the Minister be satisfied that: (i) the applicant has been or is associated with drug trafficking; and (ii) that it is in the public interest to order detention of the applicant, were not satisfied. Only condition precedent (iii) had been satisfied; (e) the Minister failed to apply his mind adequately to the issue of the detention order because he set out the objects or purposes of the detention in the alternative; (f) the extension order is contrary to s 1(3) of the Act which states that the Act shall only continue in force for five years till 14 June 1990 and the applicant's detention is extended to 10 July 1990; (g) both the detention and extension orders were issued in a mechanical fashion and the Minister had not kept present in mind the question whether it was in fact necessary to make such orders. The second applicant argued that the past activities which were relied on in the allegations of fact were not sufficiently proximate and were too remote in time to justify the detention order. Finally, the third applicant argued that the grounds for the making of the detention order revealed international elements and that the extension order did not and that they therefore consisted of two separate grounds of detention.

Held, dismissing all the applications: (1) Parliament intended that the phrase 'for a period not exceeding two years from the date of such order' in the Act should mean 'from the date the order came into force'. This purposive interpretation of the section accords with good sense; (2) although the periods between the initial detention order and the extension order overlap, there is no break in the chain of authorization to render the detention unlawful. This is only a trifling irregularity, and the maxim of de minimis non curat lex (the law does not concern itself with trifles) applies; (3) comparing the grounds of the detention order and the extension order, the differences are immaterial and do not therefore constitute a new ground for detention; (4) the detention order must be read together with the grounds for detention and the allegations of fact which are stapled together. It is manifestly clear that the contents are incorporated by reference to the detention order and all three documents reveal that both conditions precedent have been fulfilled; (5) any defect in the detention order in setting out the object or purpose of detention in the alternative is only a defect of form and not substance. It cannot be said that the executive had not applied its mind to the desirability of detaining the detainee; (6) s 1(4) of the Act states that the Act may, by resolution of both Houses of Parliament, be extended for a further period as may be specified in the resolution. Although Parliament has yet to pass such a resolution, they are empowered to do so before its date of expiry. Furthermore, s 1(5)(b)(i) provided categorically that upon the expiration of the Act, any order under s 6 or s 7 shall cease to have effect and the applicant will accordingly have to be released if Parliament does not extend the duration of the Act; (7) the subjective satisfaction of the Minister cannot be questioned. Ordinary criminal laws are meant to complement preventive detention laws and they are not substitutes for one another. The fact that the Minister chose to invoke the Act was not evidence that he failed to consider a course in criminal prosecution rather than preventive detention; (8) the delay in the detention of the second applicant was explained by the Deputy Minister and the submission on proximity is unacceptable; (9) scrutinizing the grounds of the detention order and the extension order against the third applicant, both grounds relate to drug trafficking and both are in pari materia and do involve an international element.

Yap Chin Hock v Minister of Home Affairs & Anor and other applications [1989] 3 MLJ 423 High Court, Penang (Edgar Joseph Jr J).

In December 1988 A was detained for two years pursuant to a detention order made under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). On 31 March 1990 the Deputy Minister revoked A's earlier detention order and on the same day issued another fresh detention order whereby A was detained for another nine months. In December 1990 the Deputy Minister extended A's detention for another two years ('the extension order'). The Deputy Minister in his affidavit stated that he had considered, inter alia, reports from the police before making 'the extension order'. The Deputy Minister's affidavit did not however state that he had considered the Advisory Board's report before making 'the extension order'. The affidavit of X, the secretary of the detention centre where A was detained, stated that the Advisory Board's report had been submitted to the Deputy Minister. A applied to the High Court for habeas corpus. It was argued that since the Advisory Board's report had been submitted to the Deputy Minister according to X's affidavit, the court could therefore presume that he had considered such a report.

Held, allowing the application: (1) under s 11 of the 1985 Act, the Minister must consider the Advisory Board's report before making any decision in respect of the detention. The Minister should have at least ascertained whether or not the Advisory Board has recommended that the detention order be revoked; (2) since the Deputy Minister's affidavit did not mention the Advisory Board's report at all, there arose a doubt as to whether he had considered it before making 'the extension order'. This was notwithstanding the fact that the report had already been submitted to him according to X's affidavit.

Yap Fook Pin v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1992] 2 CLJ 983 High Court, Kuala Lumpur (Azmel Ma'amor JC).

These two applications were for writs of habeas corpus to release the applicants who had been detained under the Dangerous Drugs (Special Preventive Measures) Act 1985 (the Act). By consent of both parties the applications were heard together. There was only one question of law for the court's determination, ie whether the detention of the applicants herein was in contravention of the provisions of s 10 of the Act. Counsel for the applicants submitted: (1) that under that section the Advisory Board must consider the representations of the applicants before making recommendations to the Yang di-Pertuan Agong and that there was no evidence that the Board had ever considered the representations of both the applicants although it was not disputed, and indeed it was common ground, that the applicants' representations were heard by the Board. Hearing did not include and could not amount to considering of the representations and thus the strict statutory requirement of s 10(1) of the Act had not been complied with, resulting in the detention of both the applicants being illegal and null and void; (2) there was no evidence that the Yang di-Pertuan Agong had given any direction to the Minister under s 10(2) of the Act. Held, dismissing the two applications: (1) adopting the meaning in the Shorter Oxford Dictionary, to 'hear' a representation was to give consideration to it and therefore the hearing process would inevitably involve and include the process of considering, and this was also the case having regard to other authorities where the words 'has considered' and 'hearing' were judicially explained. The submission thus could not be upheld; (2) the submission that since there was no evidence from the Yang di-Pertuan Agong to prove that the Board had made recommendations to His Majesty, and that upon considering the recommendations His Majesty had confirmed the detention order made by the Minister, the affidavit evidence of the Secretary of the Board to this effect was hearsay, and therefore inadmissible, could not be upheld. Having regard to s 2 of the Evidence Act 1950, and the corresponding provisions in both the Singapore and Indian Evidence Acts which were substantially similar, the Evidence Act in relation to the hearsay rule did not apply to affidavits.

Muthukrishnan a/l Suppiah v Menteri Hal Ehwal Dalam Negeri Malaysia & Ors and Low Kok Boon v Timbalan Menteri Dalam Negeri Malaysia & Ors Criminal Applications Nos 44-3-1994 and No 44-8-1994 High Court, Muar (Low Hop Bing JC).

This was an application for habeas corpus. The two applicants had been arrested pursuant to s 3(2)(a) of the Dangerous Drugs (Special Preventive Measures) Act 1985 on 2 August 1994. Their initial detention until 15 August 1994 was not challenged. An affidavit filed on 20 May 1995 by the minister stated that he had received a report regarding the arrest and detention of the applicants, and that he had ordered their further detention for two years from 30 September 1994. The applicants now challenged the legality of their detention between 16 August and 30 September 1994.

Held, dismissing the application: the period of detention may be extended under s 3(2)(c) so long as the steps required to extend the detention had already been taken within the time that had been specified. From the evidence which was available, it was clear that the relevant reports to the minister had been submitted before 16 August. Section 3(2)(c) had, therefore, been satisfied.

The judgment was delivered in Bahasa Malaysia.

Chiew Yoon Kam & Anor v Menteri Hal Ehwal dalam Negeri Malaysia & Anor Criminal Application Nos 44-40-95 and 44-41-95 High Court, Kuala Lumpur (Syed Ahmad Idid J).

A challenged the legality of their continued detention under the Dangerous Drugs (Special Preventive Measures) Act 1985 on the ground that the orders which extended their detention under s 11A of the Act were invalid because the dates referred to in the orders as the commencement dates coincided with the last dates of the first detention orders. The learned judge applied the maxim de minimis non curat lex and rejected the contention of A. Hence, the present appeal by A to the Supreme Court.

Held, dismissing the appeal: (1) it is clear from the language of s 11A(1) of the Act that the extension order under that section must commence immediately upon the expiration of the period of the current order. Taken as a whole, the extension orders in the instant case had in fact substantially complied with s 11A(1) of the Act; (2) the additional words referred to specifying the dates could not be regarded as rendering the extension orders invalid as they should be ignored either as a genuine mistake or a miscalculation of the dates or a trifling irregularity or being simply superfluous.

Hong Siew Sin v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor; Chye See Chong v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1990] 2 MLJ 90 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

Pursuant to a detention order (`the initial detention order') issued by the Minister of Home Affairs dated 3 November 1987, the plaintiff was detained under the Internal Security Act 1960 (`the ISA 1960') for a period of two years commencing 3 November 1987. The reasons for the detention was stated in the initial detention order. On 31 October 1991, pursuant to powers granted to him under s 8(7) of the ISA 1960, the Deputy Minister of Home Affairs, by a written order (`the extension order'), extended the plaintiff's detention for another two years commencing 3 November 1991. This extension order listed no grounds for the plaintiff's extended detention. On 2 February 1993, the Deputy Minister of Home Affairs, pursuant to the powers conferred upon him under s 81(3) of the ISA 1960, ordered that the initial detention order and the extended order be cancelled with effect from 5 February 1993 (`the cancellation order'). The plaintiff was released. The plaintiff alleged that he was unlawfully detained by the extension order as the order was invalid since it gave no grounds for his detention. He was therefore deprived of his rights to make representations to the advisory board under s 8(7) of the ISA 1960. On the basis that the extension order was invalid, the plaintiff alleged that he was falsely imprisoned from 31 October 1991 until 5 February 1993, that is the date of his release. The plaintiff now claimd damages and costs. Among the issues for consideration was whether there was a necessity for the Minister of Home Affairs or his deputy to furnish grounds and the allegations of fact on which the extension order was based.

Held, declaring that the extension order was null and void and awarding only nominal damages to the plaintiff: (1) a detainee had to be made aware of whether he could exercise his right to make representations. Before he could do so, it had to be disclosed to him on what grounds he was further detained. The extension order therefore had to list the grounds regardless of whether the grounds were the same as, different or partly different from those in the initial detention order; (2) since the extension order did not state any grounds, the extension order was therefore invalid, rendering any detention of the plaintiff thereunder unlawful; (3) as there were no creditable defences raised by the defendants, the plaintiff therefore was falsely imprisoned from 31 October 1991 to 5 February 1993; (4) only nominal damages was awarded to the plaintiff based on the following factors, namely (i) there was no mala fides on the part of the second defendant in executing the extension order; (ii) the extension order was done in good faith and the error, was at most, caused by an oversight; (iii) immediately upon realizing the error, the extension order was cancelled and the plaintiff was set at liberty; (iv) the grounds disclosed in the initial order was based on the fact that the plaintiff was selling the country's military secrets and attempting to recruit spies; and (v) the attitude of the plaintiff in turning against the government and claiming damages on a technical error was deplorable.

Gurcharan Singh a/l Bachittar Singh v Penguasa, Tempat Tahanan Perlindungan Kamunting, Taiping [1997] 4 MLJ 123 High Court, Kuala Lumpur (James Foong J).

P were arrested and detained under the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). P were detained for a period of two years pursuant to a detention order issued under the 1985 Act. The Deputy Minister of Home Affairs subsequently extended the duration of the detention order by another two years. P challenged the legality of their continued detention on various grounds. It was contended that the order extending the period of their detention was illegal and invalid in that it authorized their detention beyond the life-span of the 1985 Act. It was also contended that the continued detention of P was bad as the Minister had authorized their continued detention after taking into consideration the report of the advisory board which was made contrary to the 1985 Act. P further contended that there had been non-compliance with arts 5(3) and 151(1)(a) of the Federal Constitution in that they were not informed of the grounds of their arrest as soon as may be and that they were denied the right to make representation against their continued detention.

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

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

P was detained for a period of two years pursuant to a detention order issued by the Deputy Minister of Home Affairs under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). Subsequently, P's detention was extended for another two years commencing upon the expiration of the first detention order. In his application for a writ of habeas corpus, P contended that the extension order was unlawful as the extended period of his detention exceeded the period of the validity of the Act. It was also contended that the extension order was based on different grounds and since ss 9 and 10 of the Act had not been complied with, the extension was unlawful.

Held, dismissing the application: (1) having regard to s 1(4) and (5) of the Act, a detention order may be made for a period beyond the current validity period of the Act but such order will automatically come to an end if Parliament decides not to extend the validity period of the Act. There was, accordingly, no merit at all in P's objection on this ground; (2) in the instant case, the detention order and the extension order were all based on the same grounds. P's objection that ss 9 and 10 of the Act should apply was, accordingly, without merit. For the above reasons, P's application for habeas corpus was refused by the court.

Hoe Ein Huat v Menteri Hal Ehwal Dalam Negeri & Anor Criminal Application 44 High Court, Penang (Wan Adnan J).

A was detained for two years under the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) for engaging in activities relating to the trafficking of dangerous drugs. On the day A was to be released, the Minister of Home Affairs made an order extending A's detention for a further period of two years. The order extending the detention of A was made on the same grounds on which the detention order was originally made. The Minister did so on the basis of his satisfaction from the reports and information relating to the conduct and activities of A. A challenged the legality of his detention on two grounds: (a) that the various allegations of facts were stale and remote in point of time in relation to the date of the making of the original detention order; and (b) that in making the extension order the Minister took into consideration the report of the advisory board which was made contrary to s 11(4) of the 1985 Act.

Held, allowing A's application for a writ of habeas corpus: (1) the question of staleness or remoteness goes to the question of sufficiency or relevancy of the facts, an inquiry upon which the court could not embark as it was based on the subjective satisfaction of the Minister; (2) as the recommendation of the advisory board to extend the first detention order was made ultra vires the provisions of s 11(4), the Minister in taking into account the report was in fact acting in a manner prejudicial to A as the advisory board's report must by its very nature have been very persuasive in affecting the decision of the Minister. In view of the fact that the Minister had taken into account extraneous material which the law did not contemplate he should consider, there was, accordingly, no strict compliance with the provisions of the law on personal liberty.

Chua Teck v Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1990] 1 MLJ 104 High Court, Johore Bahry (LC Vohrah J).

D was detained for two years under the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) for engaging in activities relating to the trafficking of dangerous drugs. On the date when the detention order was due to expire D was served with an order extending his detention for a further period of two years. The order extending the detention of D was made on the same grounds on which the detention order was originally made. D challenged the legality of his detention on the ground that it was unlawful as the various allegations of fact were stale and remote in point of time and that the order extending his detention was made in contravention of s 11(4) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). The learned judge allowed D's application for a writ of habeas corpus on the ground that the order extending D's detention was bad in law as there was evidence of non-compliance with the law affecting personal liberty. From the decision of the learned judge, A appealed to the Supreme Court.

Held, allowing the appeal: (1) the question of staleness or remoteness of the allegations of fact goes to the question of sufficiency or relevancy of the facts, an inquiry outside the powers of the court. The validity of the detention order could not, accordingly, be questioned on this ground; (2) in the instant case, the order extending D's detention was based on the same grounds on which the original detention order was made. Although the advisory board had exceeded its powers under s 11(4) of the 1985 Act by recommending an extension of the detention order in its report, the exercise of discretion by the Minister in extending the detention of D was not tainted by that recommendation. While it is open to the Minister to consider all information or reports available to him, he is not bound by the recommendation of the advisory board when it comes to the question of extending the detention of a detainee under the Act. In their Lordships' view, so long as the Minister was satisfied, after considering all the information available to him, that the detention order should be extended on the same grounds on which the order was originally made, it was not for the court to question how or why he became so satisfied.

Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors v Chua Teck [1990] 1 MLJ 104 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

The respondent was arrested on 8 June 1973 and detained in the police lock-up, Alor Star, under s 3(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 till 9 June 1973 and at Alor Star prison from 10 June 1973 to 6 August 1973, altogether for a period of 60 days under s 3(3) of the said ordinance. On 1 June 1973, the first appellant, the officer-in-charge, applied to the Minister of Home Affairs for a detention order under s 4(1) of the ordinance. Due to an oversight, the date of the respondent's arrest was erroneously stated as at 9 June 1973 instead of 8 June 1973. At the Ministry, the Assistant Secretary recommended that a detention order be issued and take effect from 8 August 1973, ie immediately upon the expiry of the 60-day period calculated on the basis that the respondent was arrested on 9 June 1973. The Minister signed the detention order on 24 July 1973 but it was sent to the first appellant on 5 August 1973. The error was then discovered. The Assistant Secretary altered the date on the said order by erasing the figure '8' and superimposed over it with the figure '6', thereby purporting to alter the effective date to 6 August 1973. He did not refer the alteration to the Minister for his initials because the Minister had passed away. The court had to decide whether the detention order as altered by the Assistant Secretary subsequent to its issue by the late Minister was valid and effective. The learned President awarded the plaintiff damages for false imprisonment. The defendants appealed.

Held, allowing the appeal: (1) so long as the exercise of the powers by the Minister was done within the ambit of the ordinance which Parliament had given him the power to exercise and was done bona fide, the question as to his competency or otherwise was not within the competence of the court. All that the court could do was to see that the power which it claimed was one which fell within the four corners of the ordinance, that it was exercised in good faith and also to see whether the order directed that to be done which the ordinance gave the Minister the authority to direct; (2) the late Minister in issuing the detention order acted in pursuance of his statutory powers. Any alteration to the order including the date of its commencement must be made or initialled by him and on his demise, by the assistant Minister if no Minister had yet been appointed in his place. The Assistant Secretary had no power under the ordinance to make such alteration; (3) the date formed part and parcel of the order. Therefore, its unauthorized alteration would render the order ineffective; (4) the meaning of 'good faith' within the context of the Emergency (Essential Powers) Ordinance 1969 included due inquiry and implied not only an upright mental attitude but also clear conscience and that ordinary prudence had been exercised according to the standard of a reasonable person; (5) in the circumstances, the first appellant ought to be protected by s 5 of the Emergency (Essential Powers) Ordinance 1969 no matter how strict the ordinance is construed in favour of the respondent and the learned President was wrong in holding that he could not claim protection under the ordinance.

E Gopal & Anor v Awang bin Mona [1978] 2 MLJ 251 High Court, Alor Star (Syed Agil Barakbah J).

In each of these appeals, A was either detained pursuant to an order under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) or detained pursuant to an extension order under s 11A of the Act. The order or extension order was subsequently revoked by the Deputy Minister of Home Affairs under s 11B(1) of the Act. The Minister then issued a fresh order, purporting to act in each case under s 11B(2) of the Act. The issue before the Supreme Court was whether the Minister had in law the power to issue a fresh detention order under s 11B(2) read with s 6(1) of the Act and if so, in what manner. Counsel for A had contended that there could not be a fresh order made to replace an original detention order which was invalid as there was nothing for the Minister to revoke or to replace under s 11B(2) of the Act.

Held, allowing the appeals: (1) there was no merit in the contention by counsel for A that the power to revoke an order and to replace it with a fresh order can only be exercised when the original detention order is a valid order. The use of the words 'any order' in s 11B(1) would embrace all orders, valid or invalid and the word 'revocation' includes cancellation of all orders valid as well as invalid; (2) what is intended in s 11B is to confer on the Minister the power, among other things, to revoke any order under s 6 and any direction under s 11A of the Act. However, if the Minister revokes a detention order, then the saving provision in s 11B(2) makes it clear that the revocation by itself will not prejudice the exercise of the Minister's power to make a fresh detention order under s 6(1) of the Act or any other direction under the Act. However, if he proposes to make an order under s 6(1), then he must abide by the provisions of s 6(1)(a) and (b) of the Act all over again and not merely invoke the saving provision of s 11B. This is because s 11B(1) does not speak of any fresh order and s 11B(2) does not provide for any procedure or limit of a fresh order. This interpretation is in fact fortified by the Dangerous Drugs (Special Preventive Measures) (Amendment) Act 1990 (Act A766) which came into force on 3 April 1990. Accordingly, in respect of all these appeals, there was no power for the Minister to make a fresh order under s 6(1) of the Act by relying solely on the saving provision of s 11B(2) of the Act; (3) the power to detain a person without trial cannot be exercised by inference. The power must be express, clear and unequivocal. This is the correct approach for the courts to apply where detention law and the liberty of the individuals are concerned.

Poh Chin Kay v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor and Other Applications [1990] 2 MLJ 297 Supreme Court, Malaysia (Abdul Hamid LP, Hashim Yeop A Sani CJ (Malaya).

A were initially detained for a period of two years from 18 July 1987 under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). The detention orders were signed on 17 July 1987. The detention was extended for another two years under s 11A(1)(a)(aa) of the Act commencing on 17 July 1989. On 5 February 1990, the extension orders were revoked under s 11B(1) and at the same time fresh orders were issued under s 6(1) read together with s 11B of the Act. A applied for writs of habeas corpus to be issued to secure their release from detention. A contended that the fresh detention orders issued were null and void on the grounds that (a) the Minister of Home Affairs has no valid legal power to issue a fresh detention order under s 6(1) read together with s 11B(2) of the Act; (b) the Minister had not complied with the statutory mandatory provision of s 6(1) in the issuance of the fresh detention orders; and (c) the Minister has no power to revoke a detention order which is bad in law.

Held, dismissing the applications: (1) on a proper reading of the relevant sections of the Act, the Minister has the power to issue a fresh detention order under s 6(1) read together with s 11B(2) of the Act. The subsequent order is referred to as a fresh order simply because it is a new order made in place of the earlier order which has been revoked. The power to make the fresh order is still under s 6(1) of the Act; (2) the Minister can after revoking the earlier order immediately make a fresh order without the need for a fresh investigation and inquiry. The making of the fresh order is still part of the same process of detention wherein the requirements of s 6(1)(a) and (b) had already been complied with earlier. However, there must be a fresh investigation and inquiry where the fresh order of detention is not issued at the same time as the revocation order; (3) under s 11B(1), the Minister is given the power to revoke any order for any reason whatsoever save only if such an order has already been held to be invalid by a court; (4) for the above reasons, the ground raised by A had no merits whatsoever and their applications were, accordingly, dismissed by the court.

Ong Ban Huat v Timbalan Menteri Dalam Negeri Malaysia & Anor and other applications Criminal Application No 44-9-90 High Court, Penang (Wan Adnan J).

A was detained for two years pursuant to a detention order issued by the Deputy Minister of Home Affairs under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). The Minister subsequently revoked the detention order under s 11B of the Act and issued a fresh order authorizing the detention of A for the remaining period. A applied for a writ of habeas corpus alleging that his continued detention was illegal. Counsel for A submitted that the words 'without prejudice to the validity of the order' in s 11B(2) must presuppose the validity of the order to be revoked. It was submitted that if the original order was void ab initio, there was nothing to revoke and consequently there was no power under s 11B(2) for the Minister to exercise.

Held, dismissing the application: (1) s 11B(1) empowers the Minister at any time to, inter alia, revoke any detention order made under s 6(1) or any restriction order made under s 6(3) if he deems it just or fit to do so. It cannot be denied that the Minister is empowered to revoke any detention order. Section 11B(2) has to be read together with s 11B(1); (2) the exercise of such revocation powers cannot be deemed to imply that the Minister by such revocation had conceded that the order revoked was invalid in any way. As the original detention order had been revoked, the court held that it should not concern itself with that order.

Poh Chin Kay v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor Criminal Application No 44(54)37-89 High Court, Ipoh (Ong See Seng JC).

[Annotation: Reversed on appeal. See [1990] 2 MLJ 297. For digest, see para 1222.]

The applicant was arrested by officers of the Central Narcotics Bureau (CNB) on 14 March 1996 at 10.30pm. He was taken to the CNB headquarters at Outram Road. A detention report under s 44 of the Criminal Law (Temporary) Provisions Act (Cap 67) was put up. The first part of this report was signed by one Chew Woon Hock stating that the applicant was arrested at 1230 hours on 15 March 1996 along Outram Road and the reasons for his arrest were that he was believed to have been 'associating with activities of a criminal (drug trafficking) nature and that he was a heroin trafficker operating in the vicinity of Eunos Crescent'. The second part of the report was signed by ASP Teo Cheow Beng and dated 15 March 1996, at 1601 hours. ASP Teo authorised the detention of the applicant for a period of 48 hours expiring on 17 March 1996 at 1230 hours. The third part of the report was signed by Lim Kwang Meng, the Assistant Director, Specialised Crime Division of the Criminal Investigation Department and was also dated 15 March 1996 at 1607 hours. His report stated, 'I am satisfied that the necessary enquiries cannot be completed within a period of 48 hours, and I hereby authorise the detention of the said Shamm bin Sulong for a further period of 14 days expiring at 1230 hours on 31 March 1996'. On 30 March 1996 the Minister for Home Affairs directed that the applicant be detained for a period of 12 months from that date. The order was made pursuant to s 30 of the Criminal Law (Temporary) Provisions Act (Cap 67) (the Act). The applicant applied for the issue of a writ of habeas corpus on the grounds that the arrest of the applicant on 14 March 1996 was not in compliance with the provisions of the Act, and that there were no reasonable grounds for his arrest. The order of the minister was not challenged but counsel argued that the prior illegality vitiated the current detention order.

Held, dismissing the application: an illegality in the detention orders made under s 44 of the Act did not render the detention order under s 30 equally unlawful. Detention under s 44 was for the purpose of investigation. During this period there may only be a mere suspicion that the detainee had indulged in criminal activities. Hence, investigation was required and the section provided for an extended period of a further 14 days for investigation. However, when the minister made an order under s 30 he must do so on the basis that he was satisfied that the detainee had indulged in criminal activities. A s 30 order was, therefore, independent of the orders under s 44. Any illegality in the former did not vitiate the minister's order.

Shamm bin Sulong v Minister for Home Affairs & Anor [1996] 2 SLR 736 High Court, Singapore (Choo Han Teck JC).

In this case, the appellant had been tried and convicted of the offence of having under his control firearms. At the trial, the prosecution relied on the evidence that the appellant after his arrest and interrogation had admitted burying the weapons somewhere and had offered to show the place to the police. It was argued that the evidence was inadmissible under s 27 of the Evidence Act 1950 (Act 56), as it was not in the actual words used by the appellant.

Held: the statement of the appellant to the police officer that he 'admitted burying the weapons and offered to show me the place' was the information supplied by the appellant that had been the cause of the proven discovery. The fact that the information was told by the police officer in the trial court in substance does not per se make it inadmissible, all the more so when, as it so clearly appeared in this case, it was only in indirect speech and it was so close to the direct that there was no apparent difference.

Sum Kum Seng v Public Prosecutor [1981] 1 MLJ 244 Federal Court, Kuala Lumpur (Suffian LP, Chang Min Tat and Abdul Hamid FJJ).

[Annotation: See also under the subject heading Preventive Detention (Consorting).]

In this case, the accused was charged with the offence of having under his control ammunition. Apart from the circumstantial evidence, the prosecution relied on the information of the accused which led to the alleged discovery of the ammunition. There was evidence that the police had prior knowledge of the existence of the exhibits.

Held: (1) on the surrounding circumstances of the case and on balance of probabilities in the evidence, the police had knowledge of the existence of the incriminating exhibits at the premises before the alleged 'discovery' after information said to be given by the accused. As such the provision of s 27 of the Evidence Act 1950 (Act 56) cannot apply, as the discovery could not be said to be the result of the information given; (2) without the assistance of s 27 of the Act, the remaining prosecution evidence, which was entirely circumstantial, was insufficient to prove that the accused was in control of the incriminating exhibits at the material time; (3) in this case, the defence has raised more than a reasonable doubt and the accused must be acquitted.

Public Prosecutor v Liew Sam Seong [1982] 1 MLJ 223 High Court, Kuala Lumpur (Mohamed Azmi J).

The two accused were jointly charged on amended charges for being in control of a pistol and ammunition without lawful excuse and authority and, therefore, had committed offences under the Internal Security Act 1960 (Act 82), s 57(1)(a) and (b). Counsel for both accused raised preliminary objections in respect of the amended charges. Both the first and the second accused were originally charged at the material time, date and place for being in control of the same pistol except the serial number for the Llama pistol was registered as 934383 and one primed home-made hand-grenade together with a total of 88 rounds of live .32 ammunition. On 14 March 1981, the Public Prosecutor issued his consent to prosecute under s 80 of the Internal Security Act 1960 and the accused were subsequently committed for trial on 30 June 1982. Counsel for the accused referred to the amended charges, in particular the serial number which was altered to 984383 and the total number of .32 ammunition being 96. He submitted that any amendment of the charge must be within the consent of the Public Prosecutor. If not, the proceeding was a nullity. The accused should be entitled to a discharge not amounting to an acquittal for the proceeding to be regularized.

Held: (1) under s 80 of the Internal Security Act 1960, the prosecution shall not be instituted except with the consent of the Public Prosecutor. Unlike a charge, s 80 does not provide any particular form of consent. There is no requirement under the said Act that the material particulars to the offence must be specifically stated or particularized in the consent; (2) having regard to the case as a whole, the defence had not raised any reasonable doubt in the prosecution's case. In the circumstances, both accused were gulity of the charge and accordingly sentenced to death.

Public Prosecutor v Chai Chong Yin & Anor [1983] 1 MLJ 267 High Court, Kuala Lumpur (Mohamed Dzaiddin J).

In this case, the accused was charged under s 57 (1)(a) and (b) of the Internal Security Act 1960 (Act 82) (the Act) for possessing two revolvers and ammunition. The offence was alleged to have been committed on 19 October 1981. On 3 March 1982, the Public Prosecutor issued a written consent to prosecute the accused. On 31 July 1982, the accused was brought before the sessions court at Johore Bahru in Arrest Case No 49 of 1982. The name of the accused in the charge sheet was written as Jamal bin Adnan K/P 4264630. The charge was read, explained and understood by him. The consent to prosecute the accused was submitted to the court. The accused was supplied with a copy of the consent and a copy of the charge. No plea was taken from the accused. The accused was then committed to stand trial at the High Court. On 10 March 1984, the accused was brought before the High Court to stand trial pursuant to the committal order. At the trial, the learned Deputy Public Prosecutor submitted the original consent dated 3 March 1982 and also produced two amended charges which differed in some respects from the original two charges. The main issue in this case was whether the original consent issued by the Public Prosecutor was valid in view of the misdescription of the accused and the discrepancy in that description as between the consent and the committal order. In the original consent, the accused was described as Jamali bin Adunan I/C 4829823 whereas in the committal order he was described as Jamali bin Adnan K/P 4264630. There were material differences between the spelling of the name and the identity card numbers appearing on the consent and committal order. The learned Deputy Public Prosecutor drew the attention of the court to these differences and proposed to proceed with the case because he had evidence that the person named in the consent and the person who was brought before the lower court were one and the same person. The defence counsel's submission was that the apparent error in the description of the accused in the consent and the charge sheet nullified the consent and as such the court should acquit and discharge the accused. It was further submitted that the nullity of the consent also avoided the committal order, and the accused person in the dock in the trial court was not lawfully there and should therefore be entitled to an acquittal. The defence further submitted that under reg 8, once a committal order was made, the trial had already begun and since the trial was illegal, a discharge amounting to an acquittal must necessarily follow.

Held: (1) the making of a committal order does not mean that the trial of the accused has commenced. The trial proper will begin only when the accused has pleaded. In this case, no trial has commenced as no plea was taken from the accused and the procedure laid down precludes the taking of a plea. Thus, it is hard to see how the court could be asked to make a discharge order amounting to an acquittal before the trial had even commenced; (2) s 80 of the Internal Security Act 1960 does not make it a statutory requirement that the consent of the Public Prosecutor be in writing. Consent can be given orally and if the case is being conducted by the Public Prosecutor himself, consent is implicit; (3) as to the amended charges, had the learned Deputy Public Prosecutor wished to proceed with the matter, the court had the jurisdiction to try the case irrespective of the manner in which the accused came before the court. It derives its original criminal jurisdiction from s 22 of the Courts of Judicature Act 1964 (Act 91) and s 79 of the Internal Security Act 1960, not from anything in the Criminal Procedure Code or the Essential (Security Cases) Regulations; (4) the control of the criminal prosecution is in the hands of the learned Deputy Public Prosecutor and if he chooses not to proceed with the matter for some reason, the court will grant his request. The court therefore ordered that the accused be discharged on the two original charges in the committal order, such discharge not amounting to an acquittal.

Public Prosecutor v Jamali bin Adnan [1985] 1 MLJ 305 High Court, Johore Bahru (Shankar J).

The accused was tried on two charges under the Internal Security Act 1960 (Act 82). The first charge under s 57(1)(a) related to two revolvers under his control without lawful authority. The second charge under s 57(1)(b) related to 39 rounds of ammunition under his control without lawful authority. These offences are punishable with death. The main prosecution witness was PW2, a senior police officer who, acting on information received, formed a raiding party on 18 October, as a result of which the accused was arrested. In the course of interview with the accused, the police received certain information leading to the discovery of the subject matter of the two charges. On 20 October 1981, PW5, another police officer, recorded a certain statement from the accused, who challenged its admissibility. The crux of the charges was whether the accused was in control of the firearms and ammunition at the material time. The crux of the defence was that he met a Thai friend who told him that he (Thai friend) had kept some things near a durian tree. The accused did not know what the things were. He was adamant that he had never seen these firearms and ammunition before. He insisted that he never at any time said that the guns and ammunition were his.

Held: (1) the statement had been voluntarily made and it was admissible in evidence; (2) the evidence led by the prosecution, quite apart from any specific statement made by the accused either at the interview, or at the scene, or in his cautioned statement, proved beyond all reasonable doubt that the guns and ammunition were under the control of the accused as charged; (3) the accused's evidence as to his alleged meeting with his Thai friend is improbable in the extreme. In all the circumstances, the accused's evidence that he did not know what his Thai friend had kept in the durian plantation and how he had kept it there is quite incredible. There was sufficient independent evidence for the court to find that the prosecution has proved beyond reasonable doubt that it was the accused who buried the revolvers and ammunition and it was he who led the police and assisted them to recover the same. On the evidence, the accused alone had the arms and ammunition under his control; (4) the accused was found guilty as charged on both counts and was convicted accordingly.

Public Prosecutor v Jamali bin Adnan [1985] 2 MLJ 393 High Court, Johore Bahru (Shankar J).

In this case, the accused was retried pursuant to the order of the Federal Court. The accused was charged with two charges under the Internal Security Act 1960 (Act 82) for possession of a revolver and possession of ammunition. At the trial, the prosecution called only four witnesses, the main witness being a police officer in charge of a police patrol car. Thirteen other witnesses who had been subpoenaed by the prosecution were offered to the defence. It was argued that: (a) the police officer in charge of the police patrol car (PW2) was an unreliable and interested witness and that his evidence should not be accepted by the court; (b) a number of witnesses who should have been called by the prosecution was not called to give evidence; (c) the first information report was not produced; (d) the accused had rebutted the evidence for the prosecution.

Held: (1) the police officer in charge of the police patrol car (PW2) was not an interested witness but a police officer performing his duties. In the absence of contradiction or anything improbable in his evidence, he should be accepted as a witness of truth and as a reliable witness; (2) the prosecution has a discretion in calling witnesses and in this case, the presumption under s 114(g) of the Evidence Act 1950 (Act 56) did not arise; (3) PW2 in this case was not the complainant and the failure to produce any report by him could not raise any presumption under s 114(g) of the Evidence Act 1950; (4) in this case, the court did not believe or accept the accused's explanation which did not raise a reasonable doubt as to his guilt. The accused should therefore be convicted.

Public Prosecutor v Teh Cheng Poh [1980] 1 MLJ 251 High Court, Penang (Gunn Chit Tuan J).

The appellant, an Indonesian infiltrator, was charged for having without lawful excuse hand-grenades and ammunition in the security area as proclaimed by the Yang di-Pertuan Agong under s 57(1)(b) of the Internal Security Act 1960. The evidence against him was that he was captured by two men (PW4 and PW11) of the Royal Malay Regiment and that from the pockets of his trousers they recovered the hand-grenades and ammunition in the presence of military and special branch officers. The appellant was then escorted in a land rover to Pontian police station by PW4 and PW11. PW4 said in evidence that he handed the hand-grenades and ammunition to one ASP Zainal Abidin, but the latter denied this. ASP Zainal Abidin stated in evidence that he was handed a large quantity of arms and ammunition which were already grouped. PW11 had no knowledge as to whom the hand-grenades and ammunition had been handed. On this evidence, the learned trial judge held that PW4 had made an honest mistake as to identity although this was not conceded by either PW4 or the prosecution. The learned judge then convicted the appellant and sentenced him to death. On appeal,

Held: a strict analysis of the evidence made it clear that not one jot of evidence was produced by the prosecution to support the evidence of PW4 that the hand-grenades and ammunition were in fact handed in at Pontian police station; (2) since the evidence of handing over the grenades and ammunition to the police depended entirely on the evidence of PW4 alone and he was contradicted by ASP Zainal Abidin, it can hardly be said that the prosecution had proved by evidence beyond all reasonable doubt that the articles allegedly found on the person of the appellant were handed over to the police and that these were the very same articles located in one of the groups: (1) the requirements of strict proof in a criminal case cannot be relaxed to bridge any material gap in the prosecution evidence. Irrespective of whether the court is otherwise convinced in its own mind of the guilt or innocence of an accused, its decision must be based on the evidence adduced and nothing else and, therefore, the appeal must be allowed and the conviction quashed.

Sia Soon Suan v Public Prosecutor [1966] 1 MLJ 116 Federal Court, Kuala Lumpur (Thomson LP, Ong Hock Thye Ag CJ (Malaya).

The respondent had been acquitted by the learned trial judge as he held that the two home-made hand-grenades proved to have been in the custody of the respondent were not ammunition within s 2 of the Internal Security Act 1960 (Act 82). The hand-grenades did not contain any explosive but they had four parts, namely, striker, percussion cap, safety fuse and detonator. The Public Prosecutor appealed.

Held: as the hand-grenades were devoid of any explosive substance they did not come within the definition of ammunition and the learned trial judge was correct in acquitting the respondent.

Public Prosecutor v Leong Kuai Hong [1981] 1 MLJ 246 Federal Court, Kuala Lumpur (Suffian LP, Chang Min Tat and Abdul Hamid FJJ).

D was charged with being in possession of a firearm and one round of ammunition without lawful authority in a security area, both of which were offences punishable under s 57(1)(a) of the Internal Security Act 1960 (Act 82). The case for the prosecution was that D was seen riding a motor cycle and carrying a pillion rider. A police officer had signalled him to stop but D rode on and lost control of the motor cycle. The pillion rider jumped off the motor cycle and escaped. The motor cycle fell by the side of a drain and D fell into the drain. D was pulled out of the drain by the police officer and arrested. One round of ammunition was recovered from his person while the home-made pistol was recovered from an area in the drain which D pointed out. Both the one round of ammunition and the pistol were found to be in a good and serviceable condition by an armaments officer who test fired the round with the pistol. D denied any knowledge of the pistol recovered from the drain and contended that the one round of ammunition had been inserted into his left trouser-pocket by the pillion rider.

Held, finding D guilty: (1) in regard to the ammunition and pistol, the primary facts, not inherently incredible, established that D had control of both of them. Accordingly, at the close of the prosecution's case, the charges against D had therefore been made out on a prima facie basis. The onus was on D to show that he was in control of the ammunition and pistol with lawful authority in a security area; (2) having regard to the totality of the evidence, D's defence did not cast any reasonable doubt on the prosecution's case in regard to the two charges against him. D was found guilty and convicted by the court on both charges.

Public Prosecutor v Yahaya bin Ariffin Criminal Trial No 43 of 1984 High Court, Alor Setar (KC Vohrah J).

Johnson Tan Han Seng v Public Prosecutor & Associated Appeals [1977] 2 MLJ 66 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah and Wan Suleiman FJJ).

This was an appeal from the decision of the Federal Court affirming the appellant's conviction and death sentence under s 57(1) of the Internal Security Act 1960 (Act 82). The appellant was found at the railway station in Singapore to be in possession of six grenade bodies. He was charged for having had in his possession in a security area, 'ammunition, to wit six hand-grenades, without lawful excuse and without lawful authority'. At the trial, expert evidence was given to the effect that the grenade bodies were not complete grenades and could not explode unless used together with other explosives. The appellant's case was that the grenade bodies did not come within the definition of the word 'ammunition' in s 2 of the Internal Security Act. The High Court ruled against him on the ground that as the grenade bodies were designed to contain a noxious thing, they were ammunition within the meaning of the Act. At the hearing before the Judicial Committee, counsel for the respondent sought leave to advance an additional ground, namely, that if the grenade bodies were not 'ammunition' they were 'explosives' as defined in s 2 of the Act, and the appellant was not misled by the error in their description.

Held, allowing the appeal: (1) while it is clear that the definition of the word 'ammunition' includes grenades and that a grenade designed to contain or adapted to contain any noxious liquid, gas or other thing is covered by it, even if empty of that noxious liquid, gas or other thing there is nothing in the definition to indicate that it was intended to cover not only grenades but parts of grenades such as grenade bodies; (2) leave to advance the additional ground for the first time before the Judicial Committee was refused as the Board felt that in all the circumstances of the case it was not right to do so.

Liew Sai Wah v Public Prosecutor [1968] 2 MLJ 1 Privy Council Appeal from Singapore (Viscount Dilhorne, Lord Hodson and Lord Upjohn).

The appellants, members of the Indonesian armed forces, were convicted of carrying explosives, an offence under the Internal Security Act 1960. On appeal, the question was raised whether the 1949 Geneva Convention Relative to the Treatment of Prisoners of War was part of the domestic law in Singapore and whether the appellants were prisioners of war within the meaning of that convention.

Held: (1) as the question of the applicability of the Geneva Conventions was raised at a very late stage of the proceedings, the court would decline to decide it and would assume that they were applicable to Singapore at all material times; (2) a regular combatant who chooses to divest himself of his most distinctive characteristic, his uniform, for the purpose of spying or of sabotage thereby forfeits his right on capture to be treated as a prisoner of war; (3) the appellants in this case had forfeited their rights to be treated as prisoners of war and, therefore, were rightly tried and convicted.

Stanislaus Krofan & Anor v Public Prosecutor [1967] 1 MLJ 133 Federal Court, Singapore (Wee Chong Jin CJ, Tan Ah Tah FJ and Ambrose J).

The appellant was convicted of possession of a hand-grenade without lawful authority and without lawful excuse. His defence was that he was in possession of the hand-grenade only for the purpose of surrendering it to the authorities. This defence was rejected by the trial judge.

Held: the evidence in this case showed that the appellant's intention to surrender only came into existence after his landing in Malaya and at the time he met the three Malays to whom he surrendered and as he had not intended all along to surrender, no lawful excuse had been shown by the appellant for possession of the hand-grenade. Wong Pooh Yin v Public Prosecutor [1954] MLJ 189 distinguished.

Lee Fook Lum v Public Prosecutor [1966] 1 MLJ 100 Federal Court, Kuala Lumpur (Thomson LP, Ong Hock Thye FJ and Ismail Khan J).

The first and second accused who were husband and wife were jointly charged for being in control of nine primed hand-grenades without lawful excuse and authority at a house at Setapak, an offence under s 57(1)(b) of the Internal Security Act 1960 (Act 82). This arose out of an early morning raid by the police acting on a tip-off. The house was cordoned and the front door was forced open by the police. One ASP Salleh went to room 'K' and found it was locked. He banged the room door and requested it to be opened. The second accused unbolted it from the inside. Not far from the mattress on which the accused were sleeping, ASP Salleh found a paper bag containing nine primed hand-grenades and 27 pairs of jungle green shorts and jungle green trousers, 29 jungle green shorts, 12 grey hammocks, one piece of green cloth cut out for a cap and six pieces of putties. Two sewing machines were also recovered from the house.

Held: (1) the prosecution had established beyond reasonable doubt that both the accused had exclusive control of the nine primed grenades and they also had full knowledge of their existence, and that they were in joint control of the incriminating exhibits at the material time; (2) it is self-evident that they contain explosive and it is unnecessary to prove the type of explosive contained in the various parts of the hand-grenades; (3) the hand-grenades had been proved to be serviceable by an expert through examination and by exploding one of them;in both cases, the conduct of the accused as regards the uniforms gives rise to the necessary mens rea in that they knew that the uniforms were for unlawful purpose. The existence of the jungle green uniforms with the hand-grenades is sufficient for the court to conclude by circumstantial evidence that both the accused had knowledge of the grenades at all material times.

Public Prosecutor v Lim Re Song & Anor [1982] 2 MLJ 332 High Court, Kuala Lumpur (Mohamed Azmi J).

In this case, the appellant appealed against his conviction on three charges under s 57(1) of the Internal Security Act 1960 (Act 82). It was argued in the appeal: (a) that the Attorney General had exercised his discretion improperly and unlawfully in charging the appellant with offences under the Internal Security Act 1960; (b) that the trial judge should have found that the appellant was unconscious when the police party found him in the hall of the premises where the gun battle took place; (c) that the trial judge erred in law when he held that the failure of the defence to cross-examine the two prosecution witnesses on the ammunition found in the trouser pockets of the appellant at the time of his arrest constituted a clear admission of the charge of possession by the appellant; (d) that the trial judge erred in law in not adequately evaluating the evidence of the expert witness, the doctor, called for the defence; (e) that the statements purportedly made by the appellant to the police were wrongly admitted in evidence.

Held: the Attorney General had a discretion in the matter and there was no material to show that he had exercised it unlawfully; (2) the learned trial judge had held that the appellant was conscious when he was found by the police and there was no reason not to accept this finding of the trial judge; (3) there was a misdirection by the trial judge when he held that the failure of the defence to cross-examine the witnesses on the ammunition found in the trouser pockets of the appellant constituted an admission of the charge of possession by the appellant but this did not affect the correctness of the verdict as the totality of the evidence pointed conclusively to the guilt of the appellant: (1) it was for the court to assess the evidence of the expert witness and there was no evidence to show that the trial judge had incorrectly or improperly evaluated the evidence; (5) in this case, the trial judge was satisfied that there was no threat, inducement or promise used against the appellant and, therefore, the statements made by him to the police were rightly admitted in evidence.

Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212 Federal Court, Kuala Lumpur (Raja Azlan Shah CJ (Malaya).

It is not open to the court to inquire into the grounds for the Attorney General's decision to prosecute the accused under s 57 of the Internal Security Act 1960 (Act 82), nor is it open to the court to inquire into the merit of the exercise by the Attorney General of his discretion. It is also not the duty of the prosecution to prove that the arms would be used for the purposes stated in the preamble of the Internal Security Act 1960.

Public Prosecutor v Chai Yee Ken [1977] 1 MLJ 167 High Court, Kuala Lumpur (Abdul Hamid J).

Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50 Privy Council Appeal from Malaysia (Lord Diplock, Lord Simon of Glaisdale, Lord Salmon, Lord Edmund-Davies and Lord Keith of Kinkel).

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

Held: (1) it is clear that when a person is charged unde the Internal Security Act 1960 on a security offence there is no violation of art 8 of the Federal Constitution. It is not for the court to inquire why the Public Prosecutor had declared an offence as security offence; (2) a person has to be convicted or acquitted before he could be said to be in double jeopardy.

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

Johnson Tan Han Seng v Public Prosecutor & Associated Appeals [1977] 2 MLJ 66 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah and Wan Suleiman FJJ).

In this case, the appellant, a boy of 14 years had been found guilty of the offence of possession of a pistol and ammunition and had been sentenced to death under s 57 of the Internal Security Act 1960 (Act 82). He appealed to the Federal Court.

Held, dismissing the appeal: (1) the learned trial judge was right in concluding that the appellant knew that the bag found in his possession contained a pistol and ammunition; (2) in view of the provisions of reg 3 of the Essential (Security Cases) Regulations 1975, there was only one sentence authorized by law for each of the offences and that is the sentence of death.

Lim Hang Seoh v Public Prosecutor [1978] 1 MLJ 68 Federal Court, Kuala Lumpur (Suffian LP, Gill CJ and Chang Min Tat FJ).

The accused in this case was charged for having under his control one starting pistol without lawful authority in a security area, ie at an army store in Sungai Patani, an offence under s 57(1)(a) of the Internal Security Act 1960 (Act 82) and punishable under s 57(1) of the same Act.

Held: it was not the intention of Parliament to stretch the definition of 'firearm' so wide as to embrace any component parts of an object resembling a firearm unless they were component parts of an ordinary firearm or if otherwise parts of an object which could be adapted without any difficulty by any ordinary intelligent person, into a barrelled weapon. Section 2 must be construed by the context and circumstances in which it was written so as to give it a plain and unambiguous meaning. To construe it otherwise would tend to turn law-abiding subjects into law-breakers, an undesirable situation which departs from the real intention of the Legislature.

Public Prosecutor v George Abraham [1978] 1 MLJ 79 High Court, Alor Star (Syed Agil Barakbah J).

The accused was charged for having under his control a hand-grenade without lawful authority, an offence under s 57(1)(b) of the Internal Security Act 1960 (Act 82). It appeared that the accused after his arrest was detained and questioned to obtain intelligence data for operational purposes. The accused gave information which led to the discovery of a hand-grenade. Subsequently, the accused made a statement to the police. This statement was attacked by the defence as not having been made voluntarily.

Held: (1) the admissibility of evidence that an accused person gave information which led to the discovery of a relevant fact is not related in any special way to the making of the confession and the fact of such discovery qualifies for admission any such statement or information which might otherwise be suspected on the ground of objection to the reliability of evidence of that type; (2) in this case, the fact of the discovery of the hand-grenade fortified the truth of the cautioned statement of the accused; (3) as the hand-grenade was discovered in consequence of the statement of the accused, this was evidence of his control even though the hand-grenade was concealed in a public place, because unless he had control he could not have concealed it there; (4) in this case considering the defence as a whole, the court was satisfied that the defence had not created a reasonable doubt as to the truth of the prosecution's case but on the other hand had strengthened their case and, therefore, the court must find the accused guilty and convict him.

Public Prosecutor v Er Ah Kiat [1966] 1 MLJ 9 High Court, Johore Bahru (Raja Azlan Shah J).

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

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

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

The appellant had been convicted for possession of a prohibited document. The facts were that the police raided the appellant's toyshop and found toy lorries with the words 'Self-Reliance and Arduous Struggle' printed on them. It was contended on behalf of the prosecution that these words are quotations from the publication 'Quotations from Chairman Mao Tse-Tung' which was a prohibited document. On appeal it was argued that the words are not quotations from the prohibited document. It appeared that the words appear only as a heading in the publication.

Held, allowing the appeal: the headings by themselves are neither quotations from the publication nor extracts therefrom and, therefore, the prosecution in this case had failed to adduce sufficient evidence which if unrebutted would have warranted a conviction and the learned magistrate should not have called on the appellant for her defence and should have acquitted her.

Wong Ah Mee v Public Prosecutor [1970] 1 MLJ 98 High Court, Ipoh (Pawan Ahmad J).

This was a reference under s 66 of the Courts of Judicature Act 1964 (Act 91) on the application of the accused, the appellant herein, reserving for the decision of the Federal Court a question of law of public interest, the question being: 'In a prosecution for an offence under s 25(1) of the Internal Security Act No 18/60 whereby "any person who without lawful excuse has in his possession any document or publication the possession of which is prohibited É" do the words "without lawful excuse" place the onus of such fact on the accused person or does it still lie with the prosecution?'

Held: (1) 'lawful excuse' is not defined in s 25(1) of the Internal Security Act 1960 (Act 82), and it is impossible for the prosecution to anticipate and rebut in advance any explanation the accused person may offer in exculpation. Thus, in the absence of a definition of 'lawful excuse', it is open to the accused to tender any sort of excuse, however fanciful and flimsy, the legality or sufficiency of which is to be determined by the court. This is peculiarly within the knowledge of the person charged and s 106 of the Evidence Ordinance 1950 clearly applied in that the burden of proving that fact was on the appellant. Therefore, it was not for the prosecution to prove the absence of lawful excuse; (2) however, the fact that s 57 of the Internal Security Act 1960, by express words, places the onus of proving the presence of lawful excuse on a person charged with having in his possession without lawful excuse firearms, etc did not affect the answer to the question posed in this reference because those express words were put in by the Legislature ex abundanti cautela. In the result the order of the High Court directing that the case be sent back to the learned magistrate to call on the accused for his defence must be affirmed.

Lee Chin Hock v Public Prosecutor [1972] 2 MLJ 30 Federal Court, Kuala Lumpur (Suffian, Gill and Ong Hock Sim FJJ).

The appellant was convicted on a charge of being found, without lawful excuse, to have in his possession a subversive document, to wit, a document titled 'Is Malaya a Democratic Country? Is there Freedom of Assembly, Association, Speech, Publication, Strike, Demonstration, etc?' and that he had thereby committed an offence punishable under s 29(1) of the Internal Security Act 1960 (Act 82). He was sentenced to a fine of RM5,000 or in default two years' imprisonment.

Held, allowing the appeal: it is essential that a person accused of an offence should be given sufficient particulars to know just what the charge against him is, so that he may rebut it; in this case, the charge was embarrassing to the appellant in not having specified in what manner the document was alleged to be subversive and, therefore, the appellant was prejudiced in his defence.

Yoh Meng Heng v Public Prosecutor [1970] 1 MLJ 14 High Court, Penang (Ong Hock Sim J).

The accused were acquitted of a charge of doing an act preparatory to the posting of a document likely to lead to a breach of peace under ss 27 and 43 of the Internal Security Act 1960 (Act 82). The learned magistrate considered the document to be subversive but nevertheless held that there was no evidence to show that it was likely to lead to a breach of peace. The Public Prosecutor appealed.

Public Prosecutor v Voon Nyuk Tze & Anor [1965] 2 MLJ 131 High Court, Kuching (Harley J).

The appellant was charged for behaving in a manner with intent to provoke a breach of the peace in an area proclaimed by the Minister under s 3 of the Public Order (Preservation) Ordinance 1958, an offence punishable under s 29 of the said ordinance. The learned magistrate found the appellant guilty and sentenced him to six months' imprisonment. One ground of appeal, inter alia, was that the learned magistrate erred in law in construing s 57 of the Evidence Ordinance 1950. In this case, neither did the charge preferred against the appellant quote the gazette notification of the alleged proclamation, nor was a certified copy of the proclamation published by the Minister, produced in evidence by the prosecution. On appeal,

Held, allowing the appeal: (1) a proclamation or a declaration of renewal made by the Minister under s 3 of the Public Order (Preservation) Ordinance 1958 comes within the ambit of s 57(1)(a) of the Evidence Ordinance 1950. In this case, the learned magistrate, in construing s 57 of the Evidence Ordinance 1950, is bound only by s 57(1)(a) to take judicial notice of the proclamation when the relevant gazette notification or publication made by the Minister is either quoted in the charge or adduced in evidence; (2) as there was no evidence that the alleged offence had taken place within a proclaimed area, no prima facie case had been made out and the appellant ought to have been acquitted and discharged without his defence being called.

Samivellu v Public Prosecutor [1972] 1 MLJ 28 High Court, Kuala Lumpur (Mohamed Azmi J).

Upon hearing an application under s 6(1)(a) of the Drug Dependants (Treatment and Rehabilitation) Act 1983 (Act 283) ('the Act'), the magistrate refused to order rehabilitation for the applicant and discharged him. The medical report supporting the application differed from the prescribed form in that the word 'memeriksa' was used instead of the word 'ujian-ujian' used in the prescribed form. It was also alleged that the certificate of the government medical officer was insufficient to classify the subject as a drug dependant. The application was referred to the High Court for review.

Held, setting aside the magistrate's order: (1) the medical report was not invalidated merely by reason of the deviation from the prescribed form. In the Malay texts of the Act the word 'tests' is 'ujian-ujian'. The word 'tests' can ordinarily be also translated as 'memeriksa'. The use of the word 'memeriksa' could not have misled the subject or the court nor could the deviation have a substantial effect. The medical report was therefore not invalid; (2) before a magistrate can make an order under s 6 of the Act, the subject must undergo tests referred to in ss 3 or 4 of the Act and be certified by a government medical officer or medical practitioner to be a drug dependant. The law leaves it to the medical officer to determine the acts or procedures to be carried out in certifying a drug dependant; (3) s 5 of the Act allows for the certificate of the medical officer to be receivable in evidence as prima facie evidence that the person named in the certificate is a drug dependant. The prosecution therefore need only produce the certificate, and need not annex to it evidence that the prescribed tests were carried out.

Public Prosecutor v Soh Ted Foh [1990] 2 MLJ 382 High Court, Kuching (Haidar J).

In this case, orders had been made under the Restricted Residence Enactment (FMS Cap 39): (a) requiring the appellant to reside in the town of Gua Musang in Kelantan for a period of three years from the date of the order; and (b) directing him to be placed under police supervision for the same period. The appellant applied for a writ of habeas corpus to challenge the orders made against him. The application was dismissed in the High Court and the appellant appealed.

Held: the restraint imposed by reason of an order of restricted residence under the Restricted Residence Enactment does not constitute detention of such a nature as to attract the application of the writ of habeas corpus. The writ of habeas corpus is therefore not available to the appellant in the circumstances.

Cheow Siong Chin v Menteri Dalam Negeri, Malaysia & Ors [1985] 2 MLJ 95 Supreme Court, Kuala Lumpur (Salleh Abas LP, Mohamed Azmi and Abdoolcader SCJJ).

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

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

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

The appellant had been originally detained under an order made on 10 January 1964 under s 8(1)(a) of the Internal Security Act 1960 (Act 82). In 1964, s 8 of the Act was amended to give power to the Yang di-Pertuan Agong (later the Minister) to order that a detention order be extended for a further period or periods not exceeding two years. On 10 January 1966, an order was made extending the period of the appellant's detention for another two years. This second order was due to expire on 10 January 1968. A day before that, there was served on the appellant a restriction order under s 8(1)(b) of the Internal Security Act 1960, whereby he was released but restricted in the Pasir Puteh police district. The appellant failed to comply with this order and he was charged for failure do do so. At the trial before the sessions court, he was acquitted but on appeal a retrial was ordered by Syed Othman J, who held that the restriction order was valid. The appellant was subsequently retried and found guilty. His appeal to the High Court was dismissed by Ibrahim J who, however, referred the following questions to the Federal Court: (a) whether there has been a miscarriage of justice as respects the retrial (before the Second President) by reason that the conviction of the (appellant) was predetermined as soon as the (appellant) was called to answer the charge preferred against him and that the hearing afforded to the (appellant) was a mere formality; (b) whether an order made in respect of the (appellant) by the Minister charged with responsibility for internal security under s 8(1)(b) of the Internal Security Act 1960 on certain facts is valid, having regard to the Minister's having previously already made and renewed in respect of the (appellant) an order under s 8(1)(a) of the said Act on the same facts.

Held: (1) there was no miscarriage of justice in this case, as there was a proper trial and there was nothing improper in the President's holding that he was bound by the ruling of the High Court that the order of the Minister was a valid order; (2) (per Azmi LP and Suffian FJ, Ali FJ dissenting) the restriction order in this case was valid. If on one set of facts a detention order under para (a) of s 8(1) of the Internal Security Act 1960 is made by the executive, it is open to them on the same facts to extend that order under sub-s (1A) and also on the same facts it is open to them after the expiration of that order, to substitute for it a restriction order made under para (b) of s 8(1) of the Act; (3) (per Azmi LP and Suffian FJ) there was no evidence to show mala fides in this case and, therefore, the restriction order could not be impugned on this ground.

Musa bin Salleh v Public Prosecutor [1973] 1 MLJ 167 Federal Court, Kuala Lumpur (Azmi LP, Suffian and Ali FJJ).

On 14 October 1988, the plaintiff was ordered, under the Restricted Residence Act 1933 (Act 377) ('the Act'), to be detained at Penjara Taiping. Contrary to the terms of the order, he was detained at a police station at Taiping for four days before being removed to Penjara Taiping. On 21 November 1988, another order was made, under s 2(ii) of the Act, that the plaintiff reside at Tangkak. When the order was served on the plaintiff he was not informed of the terms of the order nor asked to state the place in which he desired to reside. Then, instead of being conveyed to the place wherein he should have stated he wished to stay, the plaintiff was taken to the Hotel Panorama in Taiping and allowed to remain there at his own expense.

Held, allowing the plaintiff's application: (1) orders made under s 2(ii) of the Act should be complied with strictly; (2) the plaintiff's detention at the police station in Taiping and his being allowed to stay at the Hotel Panorama overnight vitiated the order made on 21 November 1988. The plaintiff's restriction in Tangkak was therefore unlawful.

Ooi Cheng Aun v Timbalan Menteri Hal Ehwal Dalam Negeri & Ors [1990] 3 MLJ 108 High Court, Muar (Richard Talalla JC).

This was an application by the plaintiff for the following declarations: (i) that his overnight detention at the Alor Setar police station, instead of at the Alor Setar prison as was stated in the detention order that was issued against him, was illegal and not in accordance with law; and (ii) that the restriction order that was subsequently issued against him was null and void, as a result of his unlawful prolonged detention for one month at the Alor Setar prison pending the issuance of the said restriction order. The Deputy Minister of Home Affairs ('the deputy minister') had, on 4 August 1993, issued an order under s 2(i) of the Restricted Residence Act 1933 ('the Act') for the arrest and detention of the plaintiff at the Alor Setar prison. The plaintiff was arrested on 10 August 1993, and was detained overnight at the Alor Setar police station before he was transported to the Alor Setar prison to be detained thereat. On 4 September 1993, the deputy minister issued a restriction order under s 2(ii) and 2A(i) of the Act restricting the residence of the plaintiff to Bandaran Selama, Daerah Larut dan Matang, Perak, for a period of three years during which he was to be placed under police supervision. In the instant application, the Federal Counsel argued that the deputy minister's explanation for the prolonged detention of the plaintiff, viz that he had to take time to scrutinize the relevant documents and information pertaining to the plaintiff, should be accepted by the court. Held, declaring the restriction order to be null and void, and setting the plaintiff at liberty: (1) s 2(i) of the Act does not prescribe any time-frame within which the detainee is to be conveyed to the place of detention as stated in the detention order after he has been arrested. The framers of the Act must have thought of the 'time-lapse' between the arrest of a person and his ultimate arrival at the place of detention as stated in the detention order. Therefore, the court was not prepared to give the Act as a whole an effect to such an extent as to render it a pointless piece of legislation; (2) in respect of the plaintiff's overnight detention at the Alor Setar police station, the question that arose for determination was whether the plaintiff was conveyed to the Alor Setar prison 'with all convenient speed' after his arrest. What constitutes convenient speed is basically dependant on the circumstances of each case. In the instant case, the facts of which were clearly distinguishable from those in the case of PP v Koh Yoke Koon [1988] 2 MLJ 301, the court found that the plaintiff's overnight detention at the Alor Setar police station was not illegal; (3) however, the prolonged detention of the plaintiff for one month at the Alor Setar prison pending the issuance of the restriction order was unlawful and had rendered the restriction order null and void. This was because the deputy minister's explanation for the prolonged detention of the plaintiff at the Alor Setar prison was not acceptable to the court. There was no evidence whatsoever that the deputy minister had received new documents or information pertaining to the plaintiff which he had to scrutinize before issuing the restriction order. Therefore, the inevitable conclusion was that the deputy minister had not acted with all convenient speed in issuing the restriction order.

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

The Deputy Minister of Home Affairs ('the deputy minister'), exercising the powers of the Minister of Home Affairs under s 2(i) of the Restricted Residence Act 1933 ('the Act'), issued an order for the arrest and detention of the plaintiff at the Pulau Pinang prison. The said order was dated 5 February 1993, and was received by the police on 10 February 1993. The plaintiff was arrested in Butterworth, Pulau Pinang on 13 February 1993 at 12.05am, and was detained overnight at the Georgetown police station lock-up in Pulau Pinang until 12.25pm of 13 February 1993 at which time he was then sent to the Pulau Pinang prison. On 27 February 1993, the deputy minister issued a restriction order under s 2(ii) of the Act to the effect that the plaintiff be held under restricted residence in Bandaran Tampin, Daerah Tampin, Negeri Sembilan, for a period of three years from 27 February 1993, during which time he was to be placed under police supervision. The said restriction order was executed at 2.15pm on 27 February 1993. Counsel for the plaintiff contended that the plaintiff's overnight detention at the Georgetown police station lock-up in Pulau Pinang, as well as his prolonged detention at the Pulau Pinang prison from 13 February 1993 until 27 February 1993 when the deputy minister issued the said restriction order, was illegal and contrary to law, and had rendered the said restriction order null and void. The Senior Federal Counsel submitted that the plaintiff's prolonged detention had been explained by the deputy minister and should be accepted by the court. Held, declaring the restriction order to be null and void: (1) the plaintiff's overnight detention at the Georgetown police station lock-up in Pulau Pinang before he was sent to the Pulau Pinang prison, when viewed in the context of s 2(i) of the Act, shows that the process of sending the plaintiff to the Pulau Pinang prison was done with all convenient speed. The plaintiff thus failed on this point; (2) the explanation afforded by the deputy minister in regard to the plaintiff's prolonged detention at the Pulau Pinang prison for 14 days pending the issuance of the said restriction order merely adverted to the deputy minister's scrutiny of existing documents and not new ones. Consequently, the deputy minister's explanation could not be accepted as reasonable by the court; (3) every step in the process of detention must be followed with extreme care by the Executive, otherwise, the continued detention of the detainee will be illegal; (4) any doubts as to the validity of a detention or restriction order should be resolved in favour of the detainee; (5) in an application for a writ of habeas corpus, the onus is on the detaining authority to show that the detention of the subject is lawful. In the instant case, the defendants had failed to discharge that onus.

Thor Kheng Chye v Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia & Ors Originating Summons No 24-227-1993 (T).

In this case, the appellant had originally been detained by the police under the Emergency (Public Order and Prevention of Crime) Ordinance 1969. Subsequently, a restriction order was made by the Minister of Home Affairs against the appellant. This order was dated 6 August 1973 but the Minister had in fact died on 2 August 1973. On 21 August 1973, the Minister of Home Affairs made an order cancelling the earlier restriction order and he also made a new restriction order. The appellant applied for a writ of habeas corpus on the grounds that the original restriction order was illegal and that the illegality had not been cured by the subsequent restriction order. The High Court dismissed the application and the appellant appealed to the Federal Court. It was argued on the appeal that: (a) the order cancelling the earlier restriction order had not been served on the appellant; and (b) the appellant should have been released from custody on the service of the cancellation order before the new restriction order could be served on him.

Held: (1) on the facts, the order cancelling the original restriction order had been properly served on the appellant; (2) as the new restriction order was in substitution for the previous restriction order, it would be an empty formality to release the appellant on the service of the cancellation order in order to serve the new restriction order.

Mat v Inspector-General of Police, Malaysia & Anor [1974] 1 MLJ 131 Federal Court, Penang (Azmi LP, Ali and Raja Azlan Shah FJJ).

On 31 October 1993, the plaintiff was arrested and detained at Johor Bahru prison pursuant to an order made by the Deputy Minister of Home Affairs ('the Deputy Minister') under s 2(i) of the Restricted Residence Act 1933 ('the Act') on the ground that he had been running an illegal four-digit gambling operation in Muar, Johor since 1990. On 19 November 1993, the Deputy Minister issued a restriction order under s 2(ii) of the Act restricting the plaintiff to Kuala Kurau, Perak for three years commencing from 19 November 1993 and placing the plaintiff under police supervision during that period pursuant to s 2A(i) of the Act. Both orders were served on the plaintiff on 19 November 1993 but it was only on 20 November 1993 that the plaintiff was brought to Kuala Kurau. In support of this habeas corpus application, the plaintiff's wife affirmed an affidavit averring that the plaintiff was brought to Tangkak Police Station on 19 November 1993 where she met the plaintiff. Consequently, it was argued that the Deputy Minister did not sign the orders under ss 2(ii) and 2A(i) of the Act on 19 November 1993 but that the order were postdated. The plaintiff's wife further averred that while under lawful detention at Johor Bahru prison, her husband was denied; (i) access to counsel, contrary to the second limb of art 5(3) of the Federal Constitution; and (ii) access to writing materials and could not write to the Deputy Minister and, consequently, was unable to make an appeal within 14 days as required by the Deputy Minister. Counsel for the plaintiff argued that as the plaintiff's wife's allegations were not rebutted by the defence, they should be deemed to be admitted. On the other hand, the federal counsel for the defendants argued that the plaintiff's wife had failed to state the sources and grounds of her information and belief as required under O 41 r 5(1) and (2) of the Rules of the High Court 1980 ('the RHC'), thus rendering the allegations valueless as hearsay. The federal counsel argued that the failure of the plaintiff's wife to comply with O 41 r 5(1) and (2) of the RHC was a defect which went to the very root of the legal process and could not be cured. Consequently, the defendants need not reply to those allegations. Held, allowing the application for habeas corpus and ordering the release of the plaintiff: (1) the plaintiff's complaint that he was denied access to counsel did not run counter to the second limb of art 5(3) of the Federal Constitution and was not therefore a ground for which the proper remedy is habeas corpus; (2) the plaintiff's wife had rightly affirmed an affidavit in support of the habeas corpus application and had adverted to her personal knowledge as she had met with the plaintiff in the Johor Bahru prison and was asked by him to obtain the services of counsel. She had explained her position and authority in affirming the affidavit as she had been given the authority to do so by the plaintiff, in view of the fact that there was no commissioner for oaths in Kuala Kurau, Perak. The allegations contained in her affidavit had therefore complied with O 41 r 5(1) and (2) of the RHC; (3) as the allegations of the plaintiff's wife had complied with O 41 r 5(1) and (2) of the RHC, the allegations must be true as the defendants failed to rebut it in their affidavits; (4) the prolonged detention of the plaintiff at Johor Bahru prison before the restriction order under s 2(ii) of the Act was issued was illegal, contrary to law and rendered the restriction order null and void and the Deputy Minister's feeble explanation for the delay could not be accepted by the court; (5) although it is basic and fundamental that in the course of litigation, rules of procedure must be observed, no irregularity or defect automatically renders the proceeding a nullity as the court has a discretion under O 2 r 1 of the RHC to remedy any such non-compliance; (6) however, where the liberty of an individual is at stake, there must be meticulous compliance with the law and in applying for a writ of habeas corpus, the plaintiff is entitled to avail himself of any technical defects which may invalidate the order which deprives him of his liberty. The plaintiff was set at liberty forthwith.

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

P were arrested by the police pursuant to s 2(i) of the Restricted Residence Enactment (FMS Cap 39) and subsequently served with orders under s 2(ii) of the same Enactment to the effect that each of them was to reside in the specified district for a period of three years from the date of the order. P challenged the validity of the restriction orders issued against them on the ground that they were null and void and of no effect. P contended that D did not comply strictly with the provisions of s 2(ii) of the Enactment in that there was a delay of one or more days from the date of the respective orders before they were served with the orders and then taken to the various districts mentioned in the orders. The learned judge found in favour of D and P appealed to the Supreme Court.

Held, dismissing the appeals: (1) s 3 of the Restricted Residence Enactment (FMS Cap 39) provides for the implementation of an order made under s 2(ii). Under s 3(ii) of the Enactment, a time frame is imposed by the words 'as soon as may be' for the implementation of a restriction order after action has been taken under s 3(i). The words 'as soon as may be' means as nearly as may be reasonable in the circumstances of the case; (2) it must be explained by the person concerned and it is for the court to decide whether the delay is reasonable under the circumstances; (3) where a delay has occurred in implementing an order;in the instant case, the various delays as explained by the police officer concerned were administrative delays which were not unreasonable under the circumstances. As the learned judge had correctly accepted the explanation for the delays, the court found no reason to interfere with his decision.

Phua Hing Lai v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors; Tan Hin Kiang v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors; Lai Poh Kim v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors; Tan Lim v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1990] 1 MLJ 173 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

P had earlier been detained at Pengkalan Chepa Prison, Kelantan under an order issued by the Deputy Minister of Home Affairs under 2(i) of the Restricted Residence Enactment (FMS Cap 39). P was to be detained until the prison superintendent received further orders from the Minister. The Minister had subsequently issued an order under s 2(ii) of the Enactment to the effect that P was to reside for a period of three years from the date of the order in the town council area of Kota Tinggi, Johore. The order was not complied with until after a delay of one day. Counsel for P, accordingly, argued that the Minister's order issued under s 2(ii) was invalid as no immediate action was taken to comply with the order.

Held: (1) s 3(ii) of the enactment allows time for the Minister's order to be executed. The words 'as soon as may be' in s 3(ii) does not envisage immediate action but that action must be taken with all convenient speed depending on the circumstances of each particular case. In any event, the officer-in-charge of the prison can only take action under s 3(i) when he has received the order from the Minister; (2) in the instant case, the delay of one day had been explained to the satisfaction of the court. The learned judge accordingly held that the Minister's order was valid and that P had to comply with it.

Tan Hin Kiang v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors Originating Summons No R8-24-40-89 High Court, Kuala Lumpur (Eusoff Chin J).

P had earlier been detained at Pudu Prison under an order issued by the Deputy Minister of Home Affairs under s 2(i) of the Restricted Residence Enactment (FMS Cap 39). P was to be detained until the prison superintendent received further orders from the Minister. The Minister had subsequently issued an order under s 2(ii) of the Enactment to the effect that P was to reside for a period of three years from the date of the order in the town council area of Kuala Krai. The order was not complied with until after a delay of six days. Counsel for P, accordingly, argued that the Minister's order issued under s 2(ii) was invalid as no immediate action was taken to comply with the order.

Held: (1) s 3(ii) of the Enactment allows time for the Minister's order to be executed. The words 'as soon as may be' in s 3(ii) does not envisage immediate action but that action must be taken with all convenient speed depending on the circumstances of each particular case. In any event, the officer-in-charge of the prison can only take action under s 3(i) when he has received the order from the Minister; (2) in the instant case, the delay of six days had been explained to the satisfaction of the court. The learned judge accordingly held that the Minister's order was valid and that P had to comply with it.

Tan Lim v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1989] 3 MLJ 111 High Court, Kuala Lumpur (Eusoff Chin J).

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

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

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

On 6 May 1989, D was arrested and detained at Kota Kinabalu, Sabah on the ground that he was a promoter of illegal four-digit lottery in Sandakan. On 17 June 1989, P1 issued a restriction order under s 2(ii) of the Restricted Residence Enactment (Cap 39) restricting D to Bandaran Tapah for a period of three years commencing 17 June 1989. The order was served on D at Kota Kinabalu and on 18 June 1989, he was transferred to Bandaran Tapah. D challenged the validity of the restriction order alleging that it was null and void. It was D's contention that there was no justification for the unreasonable delay in the issue of the restriction order on 17 June 1989 as a period of six weeks had elapsed after he had been arrested and detained. As P1 had failed to provide an explanation for the delay, the detention was illegal and the order null and void. The High Court gave judgment in favour of D and declared the restriction order null and void and of no effect. Dissatisfied with decision of High Court, P appealed to the Supreme Court.

Held, dismissing the appeal: (1) s 2(ii) does not prescribe a time frame within which P1 must make a restriction order. However, the position in law seems to be that when no time frame is prescribed, then anything that must be done under s 2(ii) shall be done with all convenient speed. The correct test to be applied therefore is not on the basis of unreasonable delay but convenient speed; (2) in the instant case, P1 had made a firm decision that it was not necessary to hold any further inquiry under s 2(ii) before issuing the restriction order. There was thus nothing to show that P1 had to scrutinize new information or documents other than those he had already scrutinized before making the order under s 2(ii). In the circumstances, P1 had not acted with all convenient speed in making the order; (3) for the reasons stated above, P's appeal was dismissed by the Supreme Court.

Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors v Liau Nyun Fui [1991] 1 MLJ 350 Supreme Court, Malaysia (Abdul Hamid Omar LP, Mohamed Azmi and Gunn Chit Tuan SCJJ).

On 6 May 1989, the plaintiff was arrested and detained in Sabah for allegedly promoting an illegal four digit lottery. On 17 June 1989, the first defendant issued and served on the plaintiff a restriction order under s 2(ii) of the Restricted Residence Enactment (FMS Cap 39) restricting the plaintiff to Bandaran Tapah, Daerah Batang Padang, Perak for a period of three years commencing on the same date. The plaintiff applied to the High Court for a declaration that the restriction order be declared null and void and of no effect on the ground that there was no justification for: (a) the continued detention of the plaintiff from the date of arrest until the date of the restriction order; (b) the restriction order to be issued six weeks after the plaintiff was arrested and detained.

Held, allowing the plaintiff's application: (1) s 2 of the Restricted Residence Enactment (FMS Cap 39) does not prescribe a time limit but the various steps to be taken pursuant to the section and the implementation of the orders had to be effected within a reasonable time. Further, the Interpretation Act 1967 (Act 23/1967) provides that where no time is prescribed, then anything that shall be done should be done with all convenient speed; (2) there was no evidence why the restriction order was issued on 17 June 1989 when the plaintiff had been in detention since 6 May 1989. In the circumstances of the case, there was an unreasonable delay in the issue of the restriction order.

Liau Nyun Fui v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1990] 2 MLJ 240 High Court, Ipoh (Ong See Seng JC).

[Annotation: Affirmed on appeal. See [1991] 1 MLJ 350.]

Johnson Tan Han Seng v Public Prosecutor & Associated Appeals [1977] 2 MLJ 66 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah and Wan Suleiman FJJ).

Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50 Privy Council Appeal from Malaysia (Lord Diplock, Lord Simon of Glaisdale, Lord Salmon, Lord Edmund-Davies and Lord Keith of Kinkel).

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

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

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

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

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

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

In this case, the appellant together with four others were charged with the murder of the former Negri Sembilan State Assembly Speaker. The offence was alleged to have been committed seven days after nomination day for the Federal and State Elections 1982. The Attorney General who appeared for the prosecution tendered two certificates under reg 2(2) and 6(1) of the Essential (Security Cases) Regulations 1975, the effect of which was that the Attorney General treated the offence as a security offence and specified the High Court, Kuala Lumpur as the place of trial. He also successfully applied for the transfer of the case to the High Court, Kuala Lumpur. The appellant applied for leave to apply for an order of certiorari to quash the two certificates and the order transferring the case to the High Court, Kuala Lumpur. The learned trial judge refused leave and the appellant appealed. The Federal Court allowed the appeal and granted the appellant leave to apply for the order of certiorari and then heard the substantive motion itself. The appellant had also applied for declaratory relief but this had been struck out by the learned judge under O 18 r 19 of the Rules of the High Court 1980.

Held: (1) the appellant should be granted leave to apply for an order of certiorari as the point taken was not frivolous to merit refusal of leave in limine and justified argument on a substantive motion for certiorari. When the Federal Court grants leave, it has jurisdiction to hear the substantive motion; (2) reg 2(2) of the Essential (Security Cases) Regulations 1975 attracts the pure judgment of the Attorney General which cannot be subjected to an objective test and is not accordingly amenable to judicial review. The motion for an order of certiorari must therefore be dismissed; (3) in the circumstances of this case, certiorari is the appropriate remedy and not declaration; (4) the application for declaratory relief should not have been struck out by the learned judge but in view of the decision of the court, it could be withdrawn and thereafter struck out.

Mohamed Nordin bin Johan v Attorney General, Malaysia [1983] 1 MLJ 68 Federal Court, Kuala Lumpur (Raja Azlan Shah Ag LP, Abdul Hamid FJ and Abdoolcader J).

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

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

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

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

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

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

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

Held, dismissing the appeal: (1) Parliament has the plenary powers to enact capital punishment in particular under the Internal Security Act 1960 (Act 82). The authority to enact the law, as a constitutional matter, has never been in doubt; (2) in the circumstances of this case, and on the evidence, the appellant's knowledge that the detonators and grenades were buried in his oil palm holding amounts to control of them.

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

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

Held: (1) Parliament have power to make constitutional amendments that are inconsistent with the Constitution. In construing art 4(1) and art 159 the rule of harmonious construction requires the court to give effect to both provisions; (2) Parliament may amend the Constitution in any way they think fit, provided that they comply with all the conditions precedent and subsequent regarding manner and form prescribed by the Constitution itself; (3) it is unnecessary in this case to decide whether or not Parliament's power of constitutional amendment extends to destroying the basic structure of the Constitution; (4) the Emergency (Essential Powers) Act 1979 is constitutional. Whatever may be the features of the basic structure of the Constitution, none of the constitutional amendments complained of and none of the impugned provisions of the Act have destroyed the basic structure of the Constitution.

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

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

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

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

The appellant had been convicted of offences under the Internal Security Act 1960. The only ground argued on the appeal was that regs 4 and 5 of the Emergency (Criminal Trials) Regulations were ultra vires the Emergency (Essential Powers) Act 1964 as the Yang di-Pertuan Agong had no power under the Act to make regulations such as reg 4 providing for trial before a judge sitting alone and reg 5 providing for committal for trial before a judge without the process of a preliminary inquiry, which empower his delegate, the Public Prosecutor, to determine by an arbitrary act which person should be tried under the Emergency Regulations and which person should be tried under the ordinary criminal procedure. Such regulations were, it was submitted, discriminatory and ultra vires the Act.

Held: the regulations do not confer any arbitrary power on the Public Prosecutor. There was in the Act itself and in the regulations a nexus between the criminal trial or classification of criminal trials to be tried under the special procedure provided in the regulations and the object of the Act. Regulations 4 and 5 are therefore not ultra vires s 2(2)(d) of the Emergency (Essential Powers) Act 1964.

Mohamed Sidin v Public Prosecutor [1967] 1 MLJ 106 Federal Court, Ipoh (Barakbah LP, Azmi CJ (Malaya).

In this case, the appellant had been charged for possession in a security area of a revolver and ammunition under the Internal Security Act 1960 (Act 82). The appellant was tried under the special procedure laid down by the Essential (Security Cases) (Amendment) Regulations 1975 and found guilty and sentenced to death (see [1978] 1 MLJ 68). An appeal to the Federal Court was dismissed ([1977] 2 MLJ 66) and the appellant appealed. Before the Privy Council, three questions of law were argued: (a) the validity of the Essential (Security Cases) (Amendment) Regulations 1975; (b) whether the proclamation of the Yang di-Pertuan Agong on 15 May 1969 declaring Malaysia a security area was valid and (c) the legality under the Federal Constitution of the decision of the Attorney General to prosecute the appellant for an offence under s 57(1) of the Internal Security Act 1960.

Held: (1) once Parliament had sat on 20 February 1971, the Yang di-Pertuan Agong did not have any power to make Essential Regulations having the force of law. The Essential (Security Cases) (Amendment) Regulations 1975 purport to alter in respect of security cases the mode of trial laid down by the Criminal Procedure Code. They are ultra vires the Federal Constitution and for that reason void; (2) and s 57 of the Internal Security Act 1960, which made possession of firearms or ammunition capital offences, was applicable to the possession of firearms or ammunition in Penang; (3) if indeed the Attorney General was possessed of a discretion to choose between prosecuting the appellant for an offence against s 57(1) of the Internal Security Act 1960 or for an offence under the Arms Act 1960 (Act 206) and the Firearms (Increased Penalties) Act 1971 (Act 37), there was no material on which to found an argument that in the instant case he exercised it unlawfully. However, although the Attorney General had a choice whether to charge the appellant with an offence of unlawful possession of a firearm and ammunition at all instead of proceeding with a charge of armed robbery, once he decided to charge the appellant with unlawful possession of a firearm and ammunition he had no option but to frame the charge under the Internal Security Act 1960; (4) the provisions of the Arms Act 1960 and the Firearms (Increased Penalties) Act 1971 which deal with the offence of unlawful possession of firearms or ammunition simpliciter are not applicable where the possession occurs in a security area. The appellant was therefore correctly charged in this case; (5) the proclamation of 15 May 1969 had not been revoked and was therefore still in force; Penang was in a security area;it follows that the charge against the appellant was good in law but his trial upon such charge was a nullity.

Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50 Privy Council Appeal from Malaysia (Lord Diplock, Lord Simon of Glaisdale, Lord Salmon, Lord Edmund-Davies and Lord Keith of Kinkel).

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

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

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

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

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

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

This was an appeal from the conviction of the appellant for the offences of having in his possession a pistol and ammunition. He had been tried under the provisions of the Essential (Security Cases) Regulations 1979 as amended. One of the questions raised on the appeal was whether the Essential (Security Cases) Regulations 1979 were effectively validated by the Emergency (Essential Powers) Act 1979 (Act 216). It was argued that in view of the definition of 'subsidiary legislation' in s 3 of the Interpretation Act 1967 (Act 23/1967), only those regulations having the force of law were validated by s 9(1) of the Emergency (Essential Powers) Act 1979.

Held: s 9(1) of the Emergency (Essential Powers) Act 1979 specifically refers to subsidiary legislation 'made or purported to be made under the Emergency (Essential Powers) Ordinance 1969 on or after 20 February 1971' and these must include the Essential (Security Cases) Regulations which were therefore validated by the Act.

Razali bin Ahmad v Public Prosecutor [1981] 2 MLJ 81 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

This was an appeal from the judgment of the High Court convicting the appellant on charges of possession of a firearm and ammunition under the Internal Security Act 1960 (Act 82). On appeal, the main contentions were against the trial of the case as a security offence and against the admissibility of a statement leading to the discovery of the firearm and ammunition.

Held: (1) the 1969 Proclamation of Emergency is still in force and, therefore, the Emergency (Essential Powers) Ordinance 1969 and the Essential (Security Cases) Regulations 1975 are still in force; (2) the Essential (Security Cases) Regulations are not ultra vires the Emergency (Essential Powers) Ordinance 1969; (3) there has been no improper use of s 57 of the Internal Security Act 1960 in this case; (4) the sanction of the charge against the accused did not require the signature of the Public Prosecutor personally; (5) the statement relating to the discovery of the firearm and ammunition was rightly admitted in evidence.

Chong Soon Koy v Public Prosecutor [1977] 2 MLJ 78 Federal Court, Kuala Lumpur (Suffian LP, Gill CJ (Malaya).

This was an appeal against the conviction of the appellants on a charge of murder. It was alleged at the trial that the two appellants together with two other persons, in furtherance of their common intention did commit murder by causing the death of one Dato Mohamad Taha bin Talib and thereby committed an offence punishable under s 302 read with s 34 of the Penal Code. The case was classified as a security case by virtue of a certificate issued by the Attorney General under the provisions of reg 2(2) of the Essential (Security Cases) Regulations 1975. The case was heard in the High Court in Kuala Lumpur. At the end of the case of the prosecution, the learned trial judge acquitted the other two accused on the ground that no prima facie case had been shown against them, but called on the appellants for their defence. At the conclusion of the case for the defence, the learned trial judge convicted the appellants. The appellants appealed against their conviction and sentence.

Held, inter alia: (1) the point that this was not a security case but one of law and order and that in the circumstances, the Attorney General could not and should not have issued his certificate under the Essential (Security Cases) Regulations 1975, had been decided by the Federal Court in Mohd Noordin bin Johan v Attorney General, Malaysia [1983] 1 MLJ 68 which arose out of and in connection with the same proceedings by an application by one of the first appellant's co-accused. Moreover, the first appellant had applied by certiorari to question the Attorney General's certificate in this matter but leave was refused. The attempt to relitigate and reopen an issue conclusively decided in respect of the same proceedings and between the same parties would appear to be a clear instance of an abuse of the process of the court; (2) under reg 21 of the Essential (Security Cases) Regulations, the prosecution must prove that a statement made by the accused was voluntary if they had wanted to rely on it.

Dato Mokhtar bin Hashim & Anor v Public Prosecutor [1983] 2 MLJ 232 Federal Court, Kuala Lumpur (Raja Azlan Shah LP, Abdul Hamid and Abdoolcader FJJ).

In this case, the respondents had been charged with offences under the Internal Security Act 1960 (Act 82) and tried in accordance with the Essential (Security Cases) Regulations 1975. After the prosecution had closed its case, the learned trial judge acquitted and discharged the respondents on the ground that the prosecution had not proved a prima facie case. The Public Prosecutor appealed and relied on reg 13 of the regulations which reads: 'When the case for the prosecution is closed, the court shall call on the accused to enter on his defence.'

Held, by a majority (Wan Suleiman FJ dissenting): in a security case at the end of the prosecution's case, the court is not obliged to call on the accused to enter on his defence unless the prosecution has then proved a prima facie case against him.

Public Prosecutor v Sihabduin bin Haji Salleh & Anor [1980] 2 MLJ 273 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ (Malaya).

In this case, the respondents were jointly charged with some other persons for murder. The respondents were acquitted by the trial judge at the end of the prosecution's case. The Public Prosecutor appealed and it was argued (a) that the learned trial judge had drawn wrong inferences from the facts as found and accepted by him; (b) that the provisions of the Essential (Security Cases) Regulations 1975 mandatorily require the defence to be called in every case when the prosecution's case is closed, notwithstanding the absence of a prima facie case; (c) that the learned trial judge failed to give due weight to the statement of the co-accused in the case.

Held, inter alia: in a security case, the court is not obliged at the end of the prosecution's case to call on the accused to enter on his defence unless the prosecution has then proved a prima facie case against him.

Public Prosecutor v Nordin bin Johan & Anor [1983] 2 MLJ 221 Federal Court, Kuala Lumpur (Raja Azlan Shah LP, Abdul Hamid and Abdoolcader FJJ).

The four appeals were heard together as some of the grounds of appeal overlap. In Criminal Appeal No 40, the accused had been sentenced to death for the offences of possession of firearm contrary to s 57 of the Internal Security Act 1960 (Act 82). The accused in Criminal Appeal No 46 had similarly been sentenced to death. In Criminal Appeal No 39, the accused had been sentenced to life imprisonment for the offence of consorting with the accused in Criminal Appeal No 40. In Criminal Appeal No 43, the accused was acquitted of the offences of possession of firearm and ammunition contrary to s 57 of the Internal Security Act 1960. The main points taken on behalf of all the accused were: (a) that the Essential (Security Cases) Regulations 1975 by virtue of which the accused were tried were void because the Emergency (Essential Powers) Ordinance 1969 under the authority of which the regulations were made, had lapsed and ceased to be law by effluxion of time and by force of changed circumstances; (b) that the Essential (Security Cases) Regulations 1975 were ultra vires the Emergency (Essential Powers) Ordinance as it was alleged that the Yang di-Pertuan Agong had sub-delegated his powers to the Attorney General; (c) that there was no evidence to show that the areas concerned were 'security areas' and that reference should have been made in the charges to the proclamation making the areas 'security areas'; (d) that the power given to the Attorney General to discriminate as between persons alleged to be in possession of firearms or ammunition and charging them with different offences contravenes art 8 of the Federal Constitution and is therefore void; (e) that there had been mala fides when the Attorney General elected to charge the accused under the Internal Security Act 1960; (f) that the powers of the Attorney General should have been exercised by him personally and not by a Deputy Public Prosecutor. In Criminal Appeal Nos 39 and 40, it was argued that the statements made by the accused under caution to the police should not have been admitted in evidence. In Criminal Appeal No 43, it was argued that as the evidence showed that the pistol 'did not fire off' the ammunition inserted in it, it was not a firearm within the meaning of s 2 of the Internal Security Act 1960.

Held: (1) the 1969 Proclamation of Emergency has not been revoked nor annulled by Parliament. The Emergency (Essential Powers) Ordinance 1969 has not been revoked or annulled. Therefore they are still in force; (2) even if there has been sub-delegation by the Yang di-Pertuan Agong the Essential (Security Cases) Regulations 1975 were not ultra vires the Emergency (Essential Powers) Ordinance 1969 as they come within the language of regs 2(1) and 2(2) of the ordinance; (3) by virtue of the Proclamation PU(A) 148/68, the Yang di-Pertuan Agong had proclaimed all areas in the Federation to be security areas for the purposes of Part II of the Internal Security Act 1960 and by virtue of s 12 of the Revision of Laws Act 1968, under which the Internal Security Act 1960 had been revised, references to Part II should be read as references to Part III of the revised Act; (4) under s 57(1)(a) of the Evidence Act 1950 (Act 56), the court is bound to take judicial notice of all laws and regulations and, therefore, by virtue of s 56 of the Act, the proclamation in this case need not be proved nor the fact that the locus in each case was in the Federation. Although ideally the prosecution should quote the proclamation in the charges to help the defence and the courts, failure to do so is not fatal; (5) the Attorney General has power to discriminate between persons alleged to be in possession of firearms or ammunition and to charge them differently. As in England, the Attorney General in Malaysia is permitted to take into account the public interest when deciding what charge or charges to prefer against an accused; (6) the Attorney General was not acting mala fide in charging the accused under the Internal Security Act 1960, as the accused came within the scope of ss 57 and 58 of the Internal Security Act 1960; (7) in Criminal Appeal Nos 39 and 40, the learned trial judge should not have ruled that the cautioned statements were admissible until he had heard the evidence of and on behalf of the accused on this issue and considered their counsel's submissions. As the only evidence that the second accused knew that the first accused had a gun was contained in his cautioned statement and that of the first accused, it would be unsafe to allow his conviction to stand and, therefore, his appeal would be allowed and his conviction quashed; (8) in Criminal Appeal No 43, the evidence showed that the pistol could be adapted for the discharge of a bullet and, therefore, was a firearm within the meaning of s 2 of the Internal Security Act 1960. In any event under reg 21(b) of the Essential (Security Cases) Regulations 1975 (as amended) the firearm and ammunition are deemed to have been serviceable and the onus of proof to the contrary was on the accused.

Johnson Tan Han Seng v Public Prosecutor & Associated Appeals [1977] 2 MLJ 66 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah and Wan Suleiman FJJ).

The Danish motor vessel 'Chile' was seized at Singapore on 17 April 1940. A motion was made to release and deliver her to the Crown without appraisement for the purposes of requisition.

Held: the proper officer of the Crown having filed an affidavit that the ship was urgently required, and the circumstances not being such as to justify an immediate release, an order ought to be made to allow the Crown to requisition the ship. Quaere: whether the owners have any right to be heard on such an application. Per McElwaine CJ: 'É it is desirable to state that proceedings in the Prize Court are not a warlike operation and the Court is not a part of the Executive. It is a Court of Justice whose independence and duty is thus expressed by the Privy Council in The Zamora [1946] 2 AC 77: "If the Court is to decide judicially in accordance with what it conceives to be the law of nations, it cannot, even in doubtful cases, take its directions from the Crown, which is a party to the proceedings. It must itself determine what the law is according to the best of its ability, and its view, with whatever hesitation it be arrived at, must prevail over any executive order. Only in this way can it fulfil its function as a Prize Court and justify the confidence which other nations have hitherto placed in its decisions." '

The MV 'Chile' [1940] 2 MC 180 High Court, Straits Settlements (McElwaine CJ).

The movable property of the German ambassador to Russia (a neutral state) seized during a time of war between the British Empire and Germany is enemy property and will be condemned as contraband.

Re Contraband Mails ex MV 'Conte Rosso' [1946] MLJ 5; [1941-42] SSLR 197 High Court, Straits Settlements (McElwaine CJ).

A was a public accountant who practised in partnership with two others. The firm was appointed as auditors of BC Ltd. This company was investigated by the authorities, resulting in prosecution against two officers. A letter of complaint was sent by the Commercial Crime Division of the Criminal Investigation Department to the Singapore Society of Accountants ('the society'). It summarized the investigations into BC Ltd and referred to what it described as the 'deep involvment' of A with BC Ltd. It finally expressed the view that in his involvement he 'had failed to take reasonable care and skill', and 'could not have maintained a position of independence required of an auditor in order to be objective in forming and expressing his opinion on the accounts of BC Ltd'. The complaint was laid before the society's investigation committee, which in turn referred it to the disciplinary committee, which then held an inquiry. The disciplinary committee ordered A to be removed from the Registrar of Accountants as a result of two chartges. He was suspended for various periods on three other charges. A appealed to the High Court.

Held, allowing A's appeal on all the charges: (1) the procedure governing such appeals to the High Court is the same as for appeals to the High Court from the decisions of subordinate courts in civil matters. The appeal is in the nature of a rehearing; (2) the court must determine for itself what acts or omissions amounted to professional misconduct which fell within the range of offences set out in the section under which A was disciplined, and whether on a review of the evidence A was guilty of any of them. It may well be that an act or default which was discreditable to an accountant need not necessarily have arisen out of his professional work as an accountant, but it should nevertheless have been an act which would have brought discredit on him as an accountant or on the profession as a whole; (3) the court was of the opinion that a member of the society would have been guilty of gross neglect in the performance of his professional duties if, having regard to all the surrounding circumstances at the time, he did not exercise the skill and care that a reasonable client would have been entitled to expect of him; (4) for any member of the society to be guilty of grave impropriety in a professional respect, there must have been the same element of moral turpitude in the misconduct complained of, to the extent that it would have been regarded without hesitation by other accountants as being so disgraceful that his continued membership of the profession would immediately be called into questions: (5) in view of the seriousness of the allegation, the committee carrying out the inquiry would have to apply a high standard of proof and not arrive at a finding of guilt merely on a balance of probabilities; (6) the committee's finding on the first charge of gross neglect in the performance of professional duties was perverse and the finding must be set aside; (7) the third and sixth charges revolved around the central question of the duties and responsibilities of a company auditor in the audit of a company's accounts. In the first place, a person practising as an accountant may be subject to certain statutory duties imposed by law under s 207 of the Companies Act (Cap 50). The accountant will have duties and responsibilities which arise from the contractual relationship between him and his client. The contract will record the nature and extent of his work and the standard of performance expected of him. Where the extent of the audit is not described in detail, the nature of his duties and responsibilities as an auditor may have to be resolved by the court, which must then have regard to the circumstances of the particular case and to precedents and accepted standards of current professional practice; (8) in particular, a court which is determining a case must guard against hindsight and only take into account knowledge available to the auditor at the time of default; (9) the fact of the matter is that A and his firm were up against people who were not only completely unscrupulous but were also highly skilled in covering up their fraudulent activities. They were able, for a long time, to almost frustrate the entire investigating machinery of the MAS. So far as A and his firm were concerned, it would not be possible to come to a decision even on their culpability without taking into full account the circumstances in which they were placed. In the court's judgment, it would be unsafe and unsatisfactory to allow the findings on the third and sixth charges to stand, and they must be set aside; (10) the seventh charge was that A accepted the appointment as financial consultant to BC Ltd, and at the same time also accepted the appointment of his firm as the auditors of BC Ltd. By doing so, it was alleged that he placed himself in a position of conflict between his duties as a financial consulant and his duties as auditor, thereby committing an act which was discreditable to an accountant. However, there was no evidence, other than the resolution to appoint A, that BC Ltd had acted further on the resolution or that A had in fact taken up the appointment as financial consultant, or had ever acted in any capacity as a financial consultant. The committee nevertheless found A guilty on this charge, on the ground that he ought to have refused the appointment or resigned the office immediately thereafter. The society has not issued any code of ethics or practice guidelines to its members on this subject, and in their absence the committee's finding was a clear misdirection of themselves on the law on this point; (11) whether or not a conflict of interest will arise in any particular case will depend on the nature of the appointments, and the functions required to be carried out under them, and more often than not the manner in which the functions are to be performed. The question of conflict of interest is one of substance and a court must be satisfied in each case that real mischief and real prejudice will in all human probability result. There was no evidence at all to support the finding of guilt on the seventh charge; (12) if it does not do so, it will be acting ultra vires; (13) a practical test could have been if reasonable people, on hearing about what he had done, would have said without hesitation that as an accountant he should not have done it;the auditor's vital task is to take care to see that errors are not made, be they errors of computation, or errors of omission or commission, or downright untruths. In common with other professional men, the standard required of an accountant in carrying out an engagement is that of reasonable skill and care of an ordinary skilled man carrying out the same engagement. Defaults must be considered in the light of the surrounding circumstances, having regard also to professional codes of standards and guidelines and to evidence of general professional practice;domestic tribunals such as this, which derive their authority from Parliament, usually have a wide discretion to carry out inquiries in accordance with their own rules of procedure. At every stage, however, they must observe what are commonly regarded as rules of natural justice; an offender brought before a tribunal must not only be given a hearing, but he must also be given a fair hearing. In our system of justice, the process is adversarial and not inquisitorial; this necessarily means, in the case of a disciplinary committee of a professional body, that it must approach the issues before it with an open mind. In hearing evidence, a disciplinary committee may seek clarification on points in the evidence which are not clear, but in doing so, it must at all times avoid descending into the arena, and joining in the fray. It is not there to supplement the prosecution. It must remember that, in conferring statutory authority on it, Parliament intended that it will act fairly;the court felt from persuing the transcript that, in trying to discharge its responsibilities effectively, the committee went well beyond its authority to carry out a 'due inquiry' under the Act, until the inquiry became an inquisition of its own, aimed at securing evidence to justify a finding of guilt. The committee appeared from the transcript at several stages of the proceedings to have been so carried away by its misinterpretation of its own role that it was actually conducting the proceedings on its own. The manner in which the committee went about its inquiry was clearly against the rules of natural justice and therefore ultra vires, and on this ground alone any finding and sentence by it would hav e been void.

Leslie Wong Kok Chin v Singapore Society of Accountants [1990] 1 MLJ 456 High Court, Singapore (Yong Pung How J).

D were a firm of auditors. P were a group of banks. P had advanced money to G, a company of which D were the auditors, allegedly on the basis of the accounts audited by D. G went into insolvent liquidation and P's loans were irrecoverable. P sued D for negligence in the audit of G's accounts. A preliminary issue as to whether D owed a duty of care to P was ordered to be tried.

Held, dismissing P's claims: (1) and (iii) it must be just and reasonable in all the circumstances to impose a duty of care on the part of the defendant to the plaintiff; (2) in the present case, D did not make their reports to P or to another person with the intention or in the knowledge that those reports would be communicated between P and D to raise a duty of care on D's part to P. The fact that some of the plaintiffs were existing creditors of the company did not affect that conclusion; (3) in order to establish the existence of a duty of care owed to a plaintiff by a defendant who is alleged to have made a negligent misstatement, three requirements must be satisfied: (i) it must be reasonably foreseeable by the defendant that the statement will be relied on by the plaintiff; (ii) there must exist the relevant degree of proximity between the parties;even if there was a sufficient proximity, the court was of the view that it would not be just or reasonable to impose such a duty of care on auditors.

AL Saudi Banque & Ors v Clark Pixley [1989] 3 All ER 361 High Court, England (Millet J).

In this case, the plaintiffs claimed the sum of RM10,000 which they alleged was due to them for the work they had done for the defendants in successfully reducing their tax liability for the years 1964-1967 inclusive. The defendants contended that the work undertaken by the plaintiffs in reducing the tax liability was part of the work which was undertaken for them by the plaintiffs as their accountants and that this work had been paid for by them by separate fees for preparing accounts, auditing them, making up their returns and submitting proposed tax computations. The defendants further contended that the original assessment of revenue was the result of errors made in the tax computations. They therefore maintained that there was no consideration for the further fee agreed and they refused to pay. They counterclaimed for damages because of the mistake made by the plaintiffs, as a result of which they had been assessed for a large amount of tax.

Held: (1) in this case, the plaintiffs had not shown that extraordinary skill was required of them to get the tax reductions and, therefore, the claim must be dismissed; (2) it was reasonable to hold that but for the mistake of the plaintiffs the demand for the tax would not have been made or if it was made it would have been for the much smaller adjusted figure. The legal fees, costs and penalty paid by the defendants flowed reasonably from the negligence of the plaintiffs and they were therefore liable to pay damages therefor.

Hanafiah, Raslan, Mohamed & Partners v Weng Lok Mining Co Ltd [1977] 1 MLJ 248 High Court, Kuala Lumpur (Chang Min Tat J).

The appellant is a partner in C, who are the auditors of a company, S. The appellant is the partner in charge of the audit of S. On 9 December 1986, S sent to the appellant Forms 20 and 21 prescribed by the Securities Industry Regulations 1986 with a request that these forms be urgently completed as S was already late in submitting them to the Monetary Authority of Singapore ('the MAS'). Form 20 was duly completed and the appellant signed it. As for Form 21, D, an audit manager in C, made a photocopy of the form and completed that copy manually, based on a similar form submitted to the MAS the preceding year, as the activities of S had not changed since then. That copy, as completed by D, was used as a working draft in both D's and the appellant's joint review of Form 21. As the appellant was leaving soon for a meeting, he signed Form 21 and gave instructions to D to ensure that the form was completed in accordance with the draft before it was released. At that point, Form 21 had been partially completed and the names of S and C and the date had already been inserted. Subsequently, D also left for an engagement and both forms were left on his table. In the meantime, S telephoned the appellant's office making inquiry with respect to the forms. D's secretary, who saw the forms on D's table and that they had been signed, took the forms and sent them out without realizing that Form 21 had yet to be completed. In consequence, Form 21, partially completed, found its way to the MAS. Subsequently, the MAS wrote a letter to C reprimanding the firm for failing 'to bring the necessary skills, care and diligence to bear on the audit of S's accounts ...' and forwarded a copy of the letter to the Singapore Society of Accountants ('the society'). In consequence, an inquiry was held by the disciplinary committee ('the committee') and it found that the charge against the appellant, that he signed the auditor's report without completing the report as was required by the Securities Industry Act (Cap 289, 1985 Ed), had been proved. The committee held that what the appellant did was 'most discreditable to an accountant' within the meaning of s 33(1)(b) of the Accountants Act (Cap 2, 1985 Ed) ('the Act') and ordered that he be suspended from practice for a period of five years. The appellant appealed to the High Court.

Held, allowing the appeal: (1) the committee appeared to have based their finding essentially on the fact that the appellant signed Form 21 without completing it, leaving it to a junior audit manager to complete it. The committee did not really take into consideration all the relevant circumstances in which the partially completed Form 21 was signed by the appellant and left with D. The committee gave undue emphasis solely on the fact that the appellant signed a form 'in blank' in advance; (2) this is not a case of an auditor 'signing a report in blank', nor is it one where the appellant as an auditor was seeking the assistance of his staff 'to conceal the fact that the appellant had signed the auditors' report in blank'. The committee was in error in their conclusion; (3) Form 21 is an important form to be submitted to the MAS but it is by no means such a complicated form that the completion of it cannot be properly delegated, in particular in this case, to an audit manager who is conversant with the accounting records of S. Clearly, it is not a reckless delegation or one which a reasonable accountant will not allow; (4) an act or default discreditable to an accountant includes any conduct which would be reasonably regarded by other accountants of good professional competence as calculated to destroy or lower public confidence in that accountant, or lower the credit or standing of the accountant in his professional capacity. On the basis of the evidence in the instant case, it could not be said that what the appellant did would destroy or lower public confidence in him as an accountant or injure or lower his credit or standing as an accountant. What the appellant did fell short of the degree of culpability attached to an act or default discreditable to an accountant; (5) even if the conclusion that the appellant was guilty of an act or default discreditable to an accountant is correct, the punishment meted out to him is manifestly excessive. By any standard, the maximum suspension of five years on the appellant under s 33(3)(b) of the Act is totally disproportionate to his conduct. The imposition of a maximum penalty of S$500 under s 33(3)(c) would be sufficient and appropriate; (6) there should be no order as to costs. The society has to discharge its duty under the Act and in so doing it has not acted improperly or vexatiously as against the appellant. The committee at their inquiry had made a finding and given their decision against the appellant. Upon appeal by the appellant, it is incumbent on the society to resist the appeal and present its argument to the court to assist the court in arriving at its decision. Having regard to all the circumstances, no order as to costs here and below should be given.

Chew Kia Ngee v Singapore Society of Accountants [1989] 1 MLJ 331 High Court, Singapore (Thean J).

Leslie Wong Kok Chin v Singapore Society of Accountants [1990] 1 MLJ 456 High Court, Singapore (Yong Pung How J).

The applicant in this case was a practising public accountant and as such, was subject to the provisions of the Accountants Act (Cap 212, 1970 Ed) and the byelaws of the Singapore Society of Accountants (the Society). He commenced practice in Singapore as a public accountant in 1965. In 1977, he concurrently commenced practice in Hong Kong. In 1979, he admitted into the firm two Singapore public accountants, David Chan and Roland Ma. At the hearing of the Disciplinary Committee held on 15 February 1982, the applicant was charged for sending to the said David Chan and Roland Ma a letter of 'Mutual Co-operation' in contravention of the Singapore Society of Accountants (Practice & Etiquette of Accountants) Byelaws 1966, and thereby committing an act discreditable within the meaning of s 34(1)(b) of the Accountants Act (Cap 212). The applicant contended that as he lived and worked in Hong Kong he was not professionally accountable to the Society.

Held, dismissing the application: (1) on the facts of the instant case, the Society has not only statutory but territorial jurisdiction over the applicant. Under the Accountants Act, the Society has control over the professional conduct of all its members, whether such conduct be within or outside Singapore. It is a purely domestic matter of the Society deciding who are fit to continue to be members of it and not a complex question of conflict of laws; (2) the Disciplinary Committee was therefore right in ruling that it had jurisdiction to go into the charges against the applicant.

Re Ng Kong Yau [1983] 1 MLJ 201 High Court, Singapore (Rajah J).

The appellant, an accountant, was charged with 'grave impropriety or infamous conduct in a professional respect'. The charge arose out of a letter from the Director of Corrupt Practices Investigation Bureau to the registrar. The appellant was alleged to have collected S$50,000 from one Lou, an industrialist, and to have given the said money as a bribe to one Wan, a project officer of EDB, for considering his application for registration under the Control of Manufacture Act (Cap 241, 1970 Ed). The Disciplinary Committee found that the appellant had acted as an intermediary in his capacity as a practising accountant in connection with the said bribery. The appellant appealed to the High Court and in his appeal he raised four points: (a) there was no formal complaint as required by s 33(1) of the Accountants Act (Cap 212, 1970 Ed) in that the letter from the Director, CPIB, was not a 'formal complaint' within the meaning of the section; (b) the Disciplinary Committee had no power to hear the matter as no rules had been made in accordance with which due inquiry could be held; (c) the charge failed to give particulars of the alleged offence; and (d) the item for S$3,800 as legal adviser's fees could not be included in fixing the amount of costs. The learned Chief Justice dismissed the appeal ([1979] 2 MLJ 61) as he held (a) the letter of the CPIB constituted a formal complaint within the meaning of s 33(1) of the Accountants Act; (b) where no rules have been made to regulate the procedure to be followed during an inquiry, the Disciplinary Committee could lawfully exercise the disciplinary powers if it conducts the inquiry in accordance with the rules of natural justice; (c) in this case, the charge contained particulars which gave the appellant adequate notice of the case against him to enable him a fair opportunity of answering it; and (d) the legal adviser's fees were correctly included in the costs being part of the costs 'of and incidental to the inquiry'. An appeal to the Court of Appeal was dismissed see [1980] 1 MLJ 258. The appellant appealed to the Privy Council.

Held: there was no substance whatever in any of the four points taken before the Board and in the courts below and the appeal should be dismissed for the reasons given in each of the judgments below.

Tan Choon Chye v Singapore Society of Accountants [1982] 2 MLJ 1 Privy Council Appeal from Singapore (Lord Diplock, Lord Elwyn-Jones, Lord Russell of Killowen, Lord Keith of Kinkel and Lord Brandon of Oakbrook).

The appellant, an accountant, was charged for 'grave impropriety or infamous conduct in a professional respect'. The charge arose out of a letter of 1 April 1976 from the Director of the Corrupt Practices Investigation Bureau to the registrar. The appellant was alleged to have collected S$50,000 from one Lou, an industrialist, and to have given the money as a bribe to one Wan, a project officer for EDB, for considering his application for registration under the Control of Manufacture Act (Cap 241, 1970 Ed). The said Wan had also obtained bribes through the appellant from one Fong. The said Wan was charged and convicted accordingly. The Disciplinary Committee found that the appellant had acted as an intermediary in his capacity as a practising accountant in connection with the said bribery offence in which the appellant had collected S$50,000 from one Lou and gave the money as a bribe to Wan. The appellant appealed. He contended, inter alia, that there was no 'formal complaint' within the meaning of s 33(1) of the Accountants Act (Cap 212, 1970 Ed).

Held: (1) the word 'formal' in the expression 'formal complaint' in s 33(1) of the Accountants Act must be given its ordinary dictionary meaning of explicit and definite. The letter of 1 April 1976 constituted a formal complaint within the meaning of s 33(1); (2) where no rules have been made to regulate the procedure to be followed during an inquiry, the Disciplinary Committee can lawfully exercise the disciplinary powers conferred on it by s 34 if it conducts the inquiry in accordance with the rules of natural justice; (3) one of the requirements of natural justice is that a person must be given adequate notice of the case against him to enable him a fair opportunity of answering it. In the present case, the charge contained particulars which clearly met this requirement.

Tan Choon Chye v Singapore Society of Accountants [1979] 2 MLJ 61 High Court, Singapore (Wee Chong Jin CJ).

The appellant in this case was an accountant. He was charged for 'grave impropriety or infamous conduct in a professional respect'. The charge arose out of a letter of 1 April 1976 from the Director of Corrupt Practices Investigation Bureau to the registrar. The appellant was alleged to have collected S$50,000 from one Lou, an industrialist, and to have given the said money as a bribe to one Wan, a project officer of EDB, for considering his application for registration under the Control of Manufacture Act (Cap 241, 1970 Ed). The said Wan had obtained bribes through the appellant from one Fong. Wan had been charged and convicted. The Disciplinary Committee found that the appellant had acted as an intermediary in his capacity as a practising accountant in connection with the said bribery offence in which the appellant had collected S$50,000 from one Lou and gave the money as a bribe to Wan. The appellant appealed against the decision of the Disciplinary Committee. The learned Chief Justice dismissed the appeal (see [1979] 2 MLJ 61) and the appellant appealed.

Held, dismissing the appeal: (1) the word 'formal' in the expression 'formal complaint' in s 33(1) of the Accountants Act must be given its ordinary dictionary meaning of explicit and definite. The learned Chief Justice was quite correct in his view that the letter from the Director of the Corrupt Practices Investigation Bureau constituted a formal complaint within the meaning of s 33(1) of the Act; (2) under s 33(2) of the Act, the registrar has a discretion whether to require a complaint to be supported by a statutory declaration; (3) the charge in the present case contained particulars which clearly met the requirements of natural justice, ie that a person must be given adequate notice of the case against him to afford him a fair opportunity of answering it.

Tan Choon Chye v Singapore Society of Accountants [1980] 1 MLJ 258 Court of Appeal, Singapore (Chua, Choor Singh and Rajah JJ).

The plaintiffs are a company incorporated in Singapore on 2 March 1974 with unlimited liability. The objects under the memorandum of association included carrying on the practice of architects. Upon its incorporation, it took over the architectural practice of the partnership firm of BEP Akitek on 1 April 1974. The defendants are, inter alia, property developers. Prior to the incorporation of the plaintiffs, the firm of BEP Akitek had been engaged by the defendants as project architect for some of the defendants' projects. On 29 May 1974 the plaintiffs informed the defendants, in relation to one of the projects, about the incorporation of BEP Akitek (Pte) and of its taking over the practice of BEP Akitek. The defendants agreed to the plaintiffs taking over as the project architect for that project. The Pertamina Building project was later cancelled by the employers, and the plaintiffs at the request of the defendants agreed to accept S$100,000 in full settlement of the balance of fees amounting to S$316,318 due to them. This was subject to the plaintiffs being retained, should the defendants decide to continue with the projects at Institution Hill and Grange Road at agreed fees as the project architect for those two projects. In the events that followed no agreements on fees and other terms was arrived at. The defendants subsequently discharged the plaintiffs as architects for their projects. The plaintiffs commenced proceedings claiming as a firm of architects practising in partnership for the sum of S$946,668 being loss of expected profits due to the unlawful termination by the defendants of their professional services as architects. The defendants by their amended defence filed on 2 May 1990 contended that the plaintiffs are an incorporated company and as such 'are not a "registered architect" within the meaning of the Architects Act' and 'are prohibited by law from claiming or recovering any charge fee or remuneration from the defendants' for work done by them as architects. The plaintiffs thereupon amended their claim to one for damages for wrongful termination of their services in causing the defendants to be provided with professional architectural services through their members and employees who were registered architects in respect of the defendants' projects.

Held, dismissing the plaintiffs' claim with costs: (1) s 17 of the Architects Act 1976 prohibits any person not registered under it from practising as architects and by sub-s (2) 'no person other than a registered architect shall be entitled to recover in any court any charge, fee or remuneration for any professional service rendered as an architect in Singapore'. Section 2(1) of the Interpretation Act (Cap 1) defines 'person' to include any company or association or body of persons, corporate or unincorporate. There is nothing in s 17 which renders it inconsistent to construe 'person' as including a company and the provisions of s 17 therefore apply to a company; (2) the purpose of incorporation of the plaintiffs was to carry on the practice of architects under the name of the plaintiffs. The partnership of BEP Akitek was sold to the plaintiffs 'as a going concern'. The plaintiffs were then appointed by the defendants as architects for one of their projects. In the typical floor plans for some proposed condominium housing developments, the plaintiffs were named therein as the architects. All applications for development approval for the projects were submitted by the plaintiffs. Clearly, it was the plaintiffs who undertook the professional architectural work though the same was executed by registered architects who were either shareholders or employees of the plaintiffs; (3) accordingly, the plaintiffs' claim was unenforceable under the Architects Act (Cap 213, 1970 Ed) and/or the 1976 Act in force at the material time. The plaintiffs have also not suffered any loss due to the 'premature termination' as they were fully occupied with other projects.

BEP Akiteck (Pte) v Pontiac Land Pte Ltd [1993] 1 SLR 251 High Court, Singapore (Goh Joon Seng J).

The appellants had entered into a building contract with the respondents, a firm of building contractors for the construction of a housing scheme. The contract provided for progress payments to be made based on interim certificates to be issued by the appellant's architect who was Hajjas Kasturi Associates Sdn Bhd. The contract also contained the usual arbitration clause. The work proceeded and interim certificates were issued for work done. These were signed by a graduate architect who had not been registered. The appellants refused to honour the certificates and the respondents terminated the contract and filed a writ against the appellants. The appellants applied to have the writ struck out on the ground that under the agreement the parties have agreed to go to arbitration in the event of 'any dispute or difference'. This application was heard and dismissed. The respondents then applied for summary judgment on the sums due on the interim certificates. The appellants applied for a stay of the respondents' application for summary judgment pending the outcome of their appeal against the dismissal of the application to strike out the respondents' writ. The learned judge gave judgment in favour of the respondents and the appellants appealed. On the appeal, it was argued that: (a) this was not a proper case for summary judgment; and (b) if not, the matter should go to arbitration.

Held: (1) there appears to be a plenitude of triable issues in this case. It is trite law that leave to defend must be given unless it is clear that there is no real substantial question to be tried or unless there is no dispute as to the facts or law which raises a reasonable doubt that the plaintiff is entitled to judgment; (2) the appeal is allowed and by consent the parties will submit their dispute to arbitration.

Gunung Bayu Sdn Bhd v Syarikat Pembinaan Perlis Sdn Bhd [1987] 2 MLJ 332 Supreme Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

In November 1981, the respondent bought a piece of land to build a two-storey bungalow thereon and engaged the appellants, a firm of architects, planners and engineers, to provide various architectural services in connection with the construction of the bungalow. On 9 December 1982, the contract for the building project was awarded by the appellants, on the respondent's behalf, to Hok Mee Construction (Pte) Ltd ('the main contractor'). The building contract was on the Singapore Institute of Architects form of contract (1982 Ed). Two of the appellants' representatives were appointed 'architect' and 'quantity surveyor' under the contract. The commencement and completion dates were stated to be 17 December 1982 and 16 June 1983 respectively. The original building contract specification provided for marble to be affixed to the external walls of the bungalow through the use of metal anchorages ('the mechanical method'). However, at the time of the award of the tender, the external marble cladding was omitted from the contract owing to the high cost but subsequently reintroduced using a less costly method. This alternative method involved affixing the marble slabs to the external walls using a sand and cement plaster backing with brass wire clamps ('the adhesion method'). There were delays to the construction of the bungalow. Although a temporary occupation licence ('TOL') had not yet been issued, the respondent made arrangements with the main contractor to move into the bungalow. At the time the respondent moved into the bungalow on 28 November 1983, there were various defective works awaiting rectification and the external marble cladding was not fully completed. The respondent and the main contractor agreed, inter alia, that because of the shortage of marble slabs supplied by the respondent, the main contractor would remove all scaffolding and equipment from the site and return subsequently to complete the external marble cladding when the respondent was able to supply the marble slabs and after new rates were agreed between themselves for remobilization, delivery and re-erection of all scaffolding and other necessary works. The respondent and the main contractor were never able to agree on the new rates chargeable for remobilization of the works and the external marble cladding remained uncompleted. Various other disagreements arose between the respondent and the main contractor over, inter alia, the refusal of the respondent to pay the eleventh interim certificate sum, refusal to furnish acceptable security to guarantee payment of the final sum due under the building contract and over the final accounts. The appellants made persistent efforts to mediate a compromise acceptable to all parties but failed. As a result, the main contractor and the nominated sub-contractors refused to rectify defective works and complete the external marble cladding. Beginning September 1985, the respondent engaged various independent consultants to report on the state of the building works, particularly the defective works. The reports by these consultants indicated four main areas of defective works: the external marble works, electrical works, aluminium doors and windows and water seepage. Following these reports, the respondent contracted with Greatearth Construction Pte Ltd ('Greatearth') and Stability Engineering Pte Ltd ('Stability') to do the necessary rectification works to enable him to obtain a TOL and to sell the bungalow. In the interim, the appellants discharged themselves as the architect for the project because of the alleged failure of the respondent to pay their professional fees and disbursements. The main contractor, on the other hand, went into liquidation on 2 October 1987. The respondent sued the appellants alleging only that the appellants had breached their duties as the architect by certifying defective works for payment and neglecting to call upon the main contractor to rectify the defective works and complete the uncompleted works. The appellants counterclaimed for the balance of their professional fees and disbursements. The nature and extent of the defective electrical works were described in an undated report by Bylander Meinhardt Partnership ('the BMP report'). However, the two engineers who prepared the BMP report were not called as witnesses. The BMP report was introduced by a witness who admitted that he had not taken part in the relevant inspection nor the preparation of the report. The trial judge rejected both of the respondent's grounds of claim against the appellants, partly for lack of evidence and partly because he found that the main contractor and the nominated sub-contractors refused to return to complete the necessary remedial works because of the disagreements they had with the respondent over various issues. However, the trial judge went on to hold that the building defects were attributable to a lack of proper supervision by the appellants and a 'failure to require the contractors to make good defective works at the time they were being done or soon after they were done'. The trial judge held that the fact that there were subsequent difficulties in getting the contractors to return to rectify these works was irrelevant and, accordingly, awarded the respondent damages for the cost of the rectification works carried out by Greatearth and Stability, together with the cost of his consultants' fees. The appellants' counterclaim was dismissed for inadequate explanation. The appellants appealed. Held, allowing the appeal and the appellants' counterclaim in part: (1) in the absence of any provision in the building contract requiring a higher degree of supervision, an architect is merely required to give the building works reasonable supervision and whether he has breached the requisite standard of supervision must be measured against the standard expected of a reasonably skilled architect; (2) the respondent had failed to discharge the burden of proving that the appellants, by approving the adhesion method, had approved a non-contractual or defective method of affixing the marble cladding. Neither was there sufficient evidence in the record which would warrant afinding of failure of supervision over the marble works by the appellants. The bare assertions of some of the respondent's witnesses that the appellants had been negligent in supervising the marble works carried out by the contractors is no substitute for the type of concrete evidence that is required to found a proper claim for negligent supervision against an architect; (3) the undated BMP report ought not to have been admitted into evidence since it is hearsay. Apart from the BMP report, there is no evidence showing the state or condition of the electrical works. The respondent's claim in respect of the electrical works must necessarily fail. In any event, even if there was such evidence, there is no evidence before the court to enable it to make a finding of a failure of supervision of the electrical works by the appellants; (4) there was no evidence and neither was it pleaded that the defect in the aluminium doors was the result of a defective design. Neither is there any evidence in the record that would warrant a finding that the degree of supervision of the appellants over the construction of the aluminium doors fell short of that expected of a reasonably skilled architect; (5) the water seepage in the building was attributable mainly to the uncompleted coping on the top of the parapet walls of the roof and terraces. The failure to complete the coping cannot be attributed in any way to the appellants. The evidence clearly indicates that the failure to complete the external marble cladding and coping was the result of the inability of the respondent and the main contractor to agree on new rates to be charged for the completion of the marble works; (6) the defective works were ultimately the result of the failure of the respondent and the main contractor to arrive at an acceptable compromise and not in any way attributable to any failure of the appellants to properly perform their duties as architects under the building contract;(7) furthermore, the respondent has not succeeded in showing that he has suffered any real loss. The final accounts show that if the contractors had completed the rectification works, a sum of S$214,535.56 would have been due from the respondent to the main contractor ('the final sum'). Under the circumstances, the respondent saved paying this sum to the main contractor. As such, unless the cost of the rectification works carried out by Greatearth and Stability exceeded S$214,535.56, the respondent cannot be said to have suffered any loss. The facts show that the total cost of the rectification works carried out by Greatearth and Stability did not exceed the final sum; (8) the appellants have a legitimate basis in respect of part of their counterclaim amounting to a total of S$138,356.64. When the figure of S$132,304.35 representing the value of the Jaguar sold by the respondent to the appellants is set off, the amount of the counterclaim allowed is S$6,052.29; (9) (per curiam) the mere existence of defective works does not, of itself, translate into a finding of lack of supervision against the architect in a building contract.

Sim & Associates (sued as a firm) v Tan Alfred [1994] 3 SLR 169 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

This was an action by the plaintiff for the recovery of payment for services rendered. The plaintiff, an architect, was the assignee of an architectural consultancy firm ('the assignor') in which he was a senior partner. By an agreement ('the agreement') entered into between the assignor and the defendants, the assignor undertook to perform certain preliminary conceptual, and designing and development works for the defendants for a consideration of RM220,000. However, only RM80,000 was paid to the assignor upon completion of the said works. Thus, the plaintiff brought an action for the recovery of the balance of the payment due (RM140,000) plus interest. The defendants resisted the plaintiff's claim on the following two grounds: (i) the assignor had failed or omitted to complete its work in accordance with the agreement; (ii) the agreement was not enforceable by virtue of s 7(1)(c) of the Architects Act 1967 ('the Act') which disentitles any claims for fees, charges or remuneration for any professional advice or services rendered as an 'architect', in respect of claimants who are not registered as 'architects' under s 10(2) of the Act. It was not disputed that neither the assignor nor the plaintiff was so registered under s 10(2) of the Act. The defendants also filed a counterclaim for the sum of RM90,000, being additional costs purportedly incurred as a result of the assignor's alleged failure to complete its work. Held, allowing the plaintiff's action: (1) the plaintiff had proven on a balance of probabilities that the assignor had completed its works as per the agreement and was therefore entitled to the balance of the payment due. The defendants were unable to adduce sufficient evidence to show that the assignor had not performed its work in accordance with the agreement, or that the assignor had been informed of any uncompleted work at any relevant time; (2) s 7(1)(c) of the Act did not apply to disentitle the plaintiff from claiming under the agreement; (3) generally, a person who is not registered as an 'architect' under s 10(2) of the Act is not permitted to do any of the activities outlined in s 7(1)(a), (b) and (c). However, if a person is an architect by profession, but is not registered as an 'architect' under s 10(2) of the Act, then it appears that he is not precluded from performing any acts or services expected of an architect, except for those under s 7(1)(a), (b) and (c) of the Act; (4) s 7(1)(c) of the Act only disentitles a person from recovering fees, charges or remuneration for professional advice or services rendered as an 'architect'. This means that the advice or services must have been rendered while that person conducted himself as though he is an 'architect' who is registered under s 10(2) of the Act; (5) the agreement did not reflect a 'client-architect' relationship, and therefore, it could not be said that the services rendered by the assignor for the defendants fell within the scope of services rendered as an 'architect' as envisaged in s 7(1)(c) of the Act; (6) the defendants' counterclaim was dismissed for lack of evidence.

Ong Teong Pin v Sim Kwan Meng [1994] 1 MLJ 485 High Court, Kuching (Richard Malanjum J).

In this case, the respondent employed the appellant, a firm of architects to build a 27-storey office building at Jalan Ampang on the usual terms as defined by the Pertubuhan Arkitek Malaysia (PAM) conditions of engagement. The overall fee agreed was 4% of the total contract cost of the project. While approval of the plans was still under consideration by the relevant authority, the appellant sued the respondent for the balance of the professional fees of RM14,000. The respondent denied the claim and counterclaimed for breach of contract. Subsequently, the appellant terminated its services as architects on the ground of failure of payment of fees. The respondent requested that the dispute be referred to the PAM for decision and pending reference that the appellant should issue a letter of release to enable them to engage another architect to continue with the work. The appellant denied the request and said that until all the fees were paid they would not issue a letter of release. The respondent applied by summons-in-chambers for an order that the appellant forthwith issue the respondent with a letter of release to enable the respondent to engage another architect to proceed with the proposed construction of the building.

Held, in the High Court by Chan J: (1) in any event, the respondent did not want the plans but a letter of release so that it could appoint another architect to take over the project; (2) an architect is entitled to the copyright in his plans, but there is an implied licence that he will allow his plans to be used for all purposes connected with the erection of buildings to which they relate in return for a reasonable fee; (3) pending the determination of the reasonable fee due to the appellant, the respondent had an implied licence to use the plans; (4)

Held, affirming the decision of the High Court: (1) as the respondent was not disputing liability but the amount it would have to pay, the giving of the letter would not in any way affect the outcome of the trial; (2) the appellant's possessory lien on the plans was lost when it parted with the plans without making any reservations;however, as no architect would take over the project without a letter of release from the appellant, an order compelling the appellant to grant the letter of release would be made, if only, to give business efficacy to the licence. The appellant appealed, inter alia, on the ground that it was contrary to principle to grant a mandatory order of this nature on an interlocutory application before trial. the order directing the appellant to issue the letter of release by mandatory injunction is merely incidental;in the circumstances of this case, the court could not allow the appellant to withhold the letter of release as to do so would mean 'that the architect can hold the client to ransom'.

TR Hamzah & Yeang Sdn Bhd v Lazar Sdn Bhd [1985] 2 MLJ 45 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

This was an appeal from the decision of the learned Chief Justice of the Federation of Malaya who decided that the respondent was entitled to recover the sum of RM1,521.72 under a specific agreement for work done by the respondent who claimed to be an architect and civil engineer. The appeal was brought solely on the ground that the findings of fact by the learned trial judge were against the weight of evidence.

Held, allowing the appeal: in the circumstances of this case, the Court of Appeal was free to examine the whole of the evidence in the light of facts brought to its notice, which facts did not appear to have been brought to the notice of and were not referred to by the learned trial judge in his judgment.

Khoo Boo Gong v Manson-Hing [1948-49] MLJ Supp 27 Court of Appeal, Kuala Lumpur (Jobling, Laville and Russell JJ).

P, an architect, was retained by D to draw up plans for a building that D wanted to erect on their land. The budget for the project was S$1.5m. After the plans were completed and tenders were called for, D found that the estimated cost would far exceed the budgeted sum. After an exchange of correspondence, D terminated P's services as architect. The building was eventually completed at just over the original budget. The building was in all material respects similar to the one that P had designed. A dispute arose regarding the amount of fees due to P. P sued D for his fees. D counterclaimed for the S$25,000 they had already paid to P on the ground of total failure of consideration in that the plans he drew up were not in conformity with instructions.

Held, allowing P's claim and dismissing the counterclaim: (1) it was not an implied term of the contract that P was to ensure that the cost of the building would not exceed the budget. It is not within the province of an architect to quantify the cost of a building with any accuracy and it is not practicable to expect an architect to ensure that the cost would not exceed the budgeted sum; (2) the building eventually erected was substantially based on P's plans. In the cricumstances there was no total failure of consideration; (3) the action could have been avoided if both parties had behaved sensibly. P was awarded only his costs.

Paul Tsakok & Associates v Engineering & Marine Services (Pte) Ltd [1991] 1 MLJ 70 High Court, Singapore (Thean J).

In this case, the appellants, who were architects, claimed under an agreement under which they were engaged to prepare a layout plan for housing development. The layout plan was not submitted for approval by the architects but by the respondents themselves. The respondents argued that the appellants were in breach of their duty when they failed to submit the layout plan for approval. The appellant acknowledged it was their duty to submit the plan, but said the respondents insisted on submitting the plan themselves.The respondents argued that the appellants were in breach of their duty when they failed to submit the layout plan for approval. The plan was not approved but approval was given to another amended plan. The respondents offered RM800 for the work done but the appellants claimed the sum of RM65,500. The respondents also claimed that the charges should be in accordance with the Institute of Architects' scale of fees but this was disputed by the appellants. The assistant registrar gave the respondents conditional leave to defend upon payment into court of the sum claimed and this was upheld in the High Court. The appellants appealed.

Held: if all the main points had been properly adverted to in the pleadings the finding of the court would have been that there were bona fide triable issues in this case. In the circumstance, the appeal must be dismissed.

Seniwisma S & O Akitek Planner v Perusahaan Hiaz Sdn Bhd [1980] 2 MLJ 37 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

P1 purchased a piece of land from D1 who also agreed to construct a building for P1. P1 entered into a loan agreement with P2 whereby P2 was to make progress payments towards the purchase price to D1 according to the stage of completion of the building as certified by an architect, D2. On 22 December 1986, D2 certified that the building had been completed to the stage of handing over of vacant possession and connection of water and electricity supply to the building. P2, inter alia, in reliance on D2's certificate paid a sum of money to D1. In fact electricity supply was connected to the building only on 7 March 1990. P1-P2 thus claims damages from D1-D2. P1-P2's application for summary judgment against D1-D2 was dismissed by the senior assistant registrar. P1-P2 appealed to the High Court only against the senior assistant registrar's decision in respect of D2. P1-P2 argued that D2 was negligent in the certification. D2 firstly averred that it did not owe a duty of care to P1-P2. D2 then argued that at the time the certificate was issued, all the connections for the supply of water and electricity were completed but due to P1's unwillingness and/or negligence in failing to pay the necessary deposit to the authorities concerned, water and electricity could not be supplied to the building. D2 also alleged that it was D1's responsibility as vendor to apply to the appropriate authority for the electricity supply.

Held, allowing the appeal: (1) it was clear that D2 whose duty was to issue a certificate when vacant possession of the building was ready to be delivered complete with electricity supply owed a duty of care to P1-P2 when it knew or ought to have known that P1-P2 would solely rely on its certification to pay to D1; (2) on the balance of probabilities, the electrical works had not been completed when D2 issued the certificate. D2 was therefore guilty of negligence and/or misrepresentation which caused P1 to suffer loss in that P1 had to pay interest to P2 for the premature release of the money to D1.

Chin Sin Motor Works Sdn Bhd & Anor v Arosa Development Sdn Bhd & Anor [1992] 1 MLJ 23 High Court, Kuala Lumpur (Lim Beng Choon J).

The plaintiff, as personal representative of the estate of her late husband Datuk Eric Taylor (the architect), sued the defendants for the sum of RM687,500 for professional services rendered by the architect's sole proprietorship known as 'Eric Taylor dan Rakan-Rakan' in respect of a proposed multi-storeyed commercial and residential complex (the project). The plaintiff claimed the said sum on the ground that there has been abandonment of the project by Udachin or on the ground of quantum meruit. There is no law prescribing the scale of fees for architects. However, the Institute of Architects called 'Pertubohan Akiteck Malaysia' (PAM), which is a voluntary organization which no practising architect registered with the Board of Architects set up under the Architects' Act 1967 (Act 117) is obliged to join, has provided certain guidelines called 'Conditions of Engagement and Scale of Professional Charges' (P50). A practising architect who is a member of PAM is under no legal obligation to charge the scale fees prescribed in P50 so that the architect could have agreed that his fee be paid on a lower scale as stipulated in the terms of the architect's letter of engagement (P14) in this case. The court had to consider whether or not the PAM guidelines as to the calculation of fees in the event of abandonment (or for work done) could be imported in P14. The writ in this case was issued on 15 March 1977 well before the death of the architect on 8 August 1977.

Held, allowing the application: the PAM guidelines should be imported because they reflect the custom or practice of the architectural profession. P14 seems to be limited to the specific question of calculating the full fee when the project was successfully completed and did not provide for the contingency of abandonment. The plaintiff would therefore be entitled to the sum of RM685,622.50 and costs.

Datin Peggy Taylor v Udachin Development Sdn Bhd [1984] 1 MLJ 85 High Court, Kuala Lumpur (Vohrah J).

In this case, the respondent as personal representative of the estate of her late husband Dato Eric Taylor (the architect) sued the appellants for the sum of RM687,500 for professional services rendered by the architect in respect of a proposed multi-storeyed commercial and residential complex. The respondent claimed the sum on the ground that there had been abandonment of the project by the appellants or alternatively on the ground of quantum meruit. The learned trial judge held that the guidelines contained in the MIA rules should be imported and he gave judgment for the sum of RM685,747.50 in favour of the respondent see [1984] 1 MLJ 85. The appellants appealed. At the appeal, it was conceded that the MIA rules should be the basis for the calculation of the full fee and that the partial remuneration or abandonment fee should be at 2/3 of the full fee which is 3 3/4% of the total estimated cost of the project.

Held: having regard to all the circumstances, the basis of computation of abandonment in the form of remuneration for partial services rendered was not excessive or unfair. The award was a fair remuneration for the work done by the architect and the award ought not therefore to be disturbed.

Udachin Development Sdn Bhd v Datin Peggy Taylor [1985] 1 MLJ 121 Federal Court, Kuala Lumpur (Wan Suleiman, Mohamed Azmi and Hashim Yeop A Sani FJJ).

The scale of fees fixed by the Board of Architects under s 3(1)(b) of the Architects Ordinance (Cap 64) was approved by the Governor-in-Council with effect on 1 November 1932 and was duly gazetted.

Held: in the event of a project being abandoned, by virtue of cl 9(b), two-thirds of the percentages mentioned in cl 2 is the whole fee payable, and this percentage is not liable to be increased under cl 4 in the case of alterations and additions to existing buildings; nor is it liable to be increased under cl 7 in the case of reinforced or structural steel building.

Ahmad v Muthu Palaniappa Chettiar [1938] MLJ 113 High Court, Straits Settlements (Horne J).

CS Khin Development Sdn Bhd v Chung Yoke Onn [1985] 2 MLJ 319 Supreme Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

The plaintiffs/respondents a firm of architects claimed against the defendants, a firm of property developers, the sum of S$152,000 being 1/3 of 8% of the estimated costs of a building project estimated to cost S$5.7 million. In the alternative they claimed the said sum of S$152,000 upon quantum meruit for work done for a period of three months prior to the drawing up of the condominium scheme and preparation of the necessary plans. The plaintiffs carried out searches with the relevant government departments, and had discussions with these departments and planning authorities. They submitted draft plans (already approved by the defendants) to the Planning Department. These plans were sufficient for the Planning Department to give 'in principle' approval. The plans were however returned, without having been approved or disapproved by the Planning Department. The plaintiffs were requested to re-submit the plans. It was at this stage that the plaintiffs terminated the contract. The plaintiffs did not give the defendants reasonable notice as required under the contract. The contract provided that the terms of the engagement shall be in accordance with the Singapore Institute of Architects Conditions of Engagement and Scale of Professional Charges. The plaintiffs relied on cl 3(ii) of the said scale which allows the architects payment in stages and in cases of partial services performed for 'É preparing preliminary drawings and particulars sufficient to enable applications to be made for planning approval, and for "in principle" approval in connection with any specific byelaw É' The learned judge allowed the plaintiffs' claim and awarded them S$76,000. The defendants appealed and the plaintiffs cross-appealed.

Held, dismissing the defendants' appeal and allowing the plaintiffs' cross-appeal: (1) the plaintiffs were entitled to recover payment from the defendants for the work done on their behalf as provided by the contract and in accordance with the Singapore Institute of Architects Conditions of Engagement and Scale of Professional Charges. Whether or not the work done by the architects was useful or beneficial to the other party had no bearing on the question of payment for the services rendered by the architects; (2) the plaintiffs' breach of their contract, which was the main defence of the defendants, entitled the defendants at common law to claim damages from the plaintiffs. The defendants could have counterclaimed for damages for the said breach but they had failed to do so; (3) the trial judge misapplied the provisions of cl 3(ii) of the Singapore Institute of Architects Scale of Professional Charges. 'In principle' approval is not a requirement for the application of cl 3(ii). What is required is that the plans should be sufficient for 'application to be made for planning approval and for "in principle" approval'.

Soon Nam Co Ltd v Archynamics Architects [1979] 1 MLJ 212 Court of Appeal, Singapore (Wee Chong Jin CJ, Kulasekaram and Choor Singh JJ).

This was an appeal against the order of the Board of Architects cancelling the certificate of registration of the appellant as an architect and removing his name from the register of architects. The offence alleged against the appellant was one under byelaw 13(26) of the Architects Byelaws 1941, for signing or putting his signature to plans not prepared by him or by his staff under his supervision for the purpose of obtaining the sanction of the local authorities.

Held: byelaw 13 was ultra vires the provisions of the ordinance and was null, void and invalid. The institution of proceedings therefore against the appellant was completely unjustified and the appeal must be allowed.

Chan Fook Wah v Board of Directors [1965] 2 MLJ 7 High Court, Singapore (Winslow J).

[Annotation: See also Lim Ko & Anor v Board of Architects [1965] 2 MLJ 203.]

The appellants Lim Ko and Wong Chee Leong had been found guilty of unprofessional conduct in that: (a) Lim Ko had signed for the purposes of submitting for approval, drawings made or under the supervision of Wong Chee Leong; and (b) Wong Chee Leong had been a party to securing the signature of Lim Ko on the plans and has shared fees with him. An appeal to the High Court was dismissed ([1965] 2 MLJ 203) and the appellants appealed to the Federal Court. On appeal it was argued that (a) the Board of Architects was wrong in delegating its powers under s 9(1) of the Architects Ordinance 1951; (b) there were irregularities in the composition of the committee of inquiry which heard the complaint in this case in that they were differently constituted for the hearings and the chairman did not preside over the meeting; (c) the appellants were not given sufficiently detailed notifications of the charges made against them; (d) although the board had found the appellants guilty of unprofessional conduct, this did not amount to a finding that the conduct was 'infamous' in a professional respect under s 9(1)(b) of the Architects Ordinance 1951; (e) the appellants were not given an opportunity to present their cases; (f) the contents of the Municipal file referred to by the committee of inquiry were not disclosed to the appellants or their counsel; (g) the principles of natural justice had not been observed.

Held: (1) the appeal to the High Court and to the Federal Court was by way of rehearing and it was open to the appellants to show that the decision of the board was wrong; (2) an inquiry under the Architects Ordinance 1951 is not to be equated to a criminal prosecution and all that the board was required to do was to do its best to act justly and reach just ends by just means; (3) the proceedings before the board in this case were conducted with punctilious regard for justice and fairplay and there was no sign of any violation of the rules of natural justice; (4) the Municipality file in this case was produced and the appellants and their counsel were well aware of the contents of the file; (5) the board was entitled to set up the committee of inquiry in this case and this committee had not violated any of the rules of natural justice and the decision was correctly made by the board after considering the report of the committee; (6) as the board had found the appellants guilty of unprofessional conduct within the provisions of s 9(1)(b) of the Architects Ordinance 1951, the board must have had in mind the words of that section and so had in effect found the appellants guilty of conduct 'infamous in a professional respect'.

Lim Ko & Anor v Board of Architects [1966] 2 MLJ 80 Federal Court, Kuala Lumpur (Barakbah CJ (Malaya).

This was an appeal by way of originating motion to set aside the order of the Board of Architects directing that the appellant's name be struck off the register. The appellant was a registered architect under the provisions of the Architects Ordinance1941, and substantially the case against him was that he had charged fees less than the scale of fees fixed by the Board of Architects and had failed to exercise adequate supervision of the building in question. There were a number of grounds argued on the appeal all of which are set out and dealt with fully in the judgment. For the appellant it was contended, inter alia, that byelaw 13(14) of the Architects Byelaws 1941 (which deemed it to be infamous conduct under s 8 of the Architects Ordinance 1941, 'to deviate from by charging less than the scale of fees authorized by the Board of Architects except with the consent of the Board in writing') is invalid as being repugnant to s 8(1) of the ordinance and therefore ultra vires and void.

Held: and they purport to deprive an architect of the right not to have his conduct stigmatised as 'infamous' except by the judgment of his professional colleagues after a full consideration of the facts. On the question of what is the duty to supervise which an architect owes to his client when the client is an owner-builder, Held: (1) an architect's duty to an owner-builder is to perform the work which it has been mutually agreed that he should do, ie his duty to his client is governed by his contract; (2) byelaw 13 is invalid by reason of the words 'and shall be deemed to be conduct which is infamous in a professional respect under s 8'. These words purported to take away from the board a duty with which the Legislature has entrusted to them in a disciplinary case;the correct procedure for appealing to the High Court under the provisions of s 8(3) of the Architects Ordinance 1941 is by way of originating motion.

Re Lee Kian Soo, An Architect [1953] MLJ 195 High Court, Singapore (Brown J).

The appellants, a qualified architect registered in Singapore, was found guilty of improper act or conduct for having undertaken to work for the Chartered Bank with the knowledge of the appointment and position of Messrs Swan and MacLaren as architects for the Chartered Bank and without having obtained the permission of Messrs Swan and MacLaren to do such work. He was suspended from practising as an architect for one month by the respondent. He appealed against the said decision.

Held, allowing the appeal: (1) there is now no available code of professional conduct and ethics prescribed under s 22(3) of the Architects Act 1976. There are, however, guidelines as to the standard of professional conduct required of an architect found in the SIA Code, the ARCUK Code and RIBA Code; (2) this the appellant did when he was appointed in March 1977; (3) all he need do is to notify his appointment to the architect previously employed; (4) looking at the SIA Code, the ARCUK Code, the RIBA Code, it is to be noted that an architect is not required to obtain the permission of the architect previously employed. All that the architect need do is to communicate with the architect previously employed and inquire and ensure that his engagement has been satisfactorily terminated (SIA Code);under the ARCUK Code and the RIBA Code an architect need not even make such inquiry;documentary and oral evidence indicated clearly that the appellant was engaged by Singapore Land alone to prepare a presentation of the possible development of the Bank's site and that the appellant's commission and work for Singapore Land had ceased when Singapore Land on 22 December 1976 agreed with the Chartered Bank to defer the negotiations for a joint venture and to accept appointment as the Bank's development managers for the development of the Bank site; therefore, the ingredients of the charge had not been proved, and the appellant should not have been found guilty by the board. Per curiam: byelaw 13 of the Architects ByeLaw 1941 was ultra vires the provisions of the Architects Ordinance and was null, void and invalid.

JH Kinoshita v Board of Architects, Singapore [1982] 1 MLJ 59 High Court, Singapore (Chua J).

The second plaintiff was one of the promoters of the first plaintiff which was incorporated with the second plaintiff holding 94% of the shares of the first plaintiff. The second plaintiff also stood as guarantor for banking facilities granted to the first plaintiff. On 19 October 1981, the defendant was appointed as auditor of the first plaintiff. She prepared the auditor's report for the first plaintiff for the financial year ending 31 December 1979, 31 December 1980 and 31 December 1981.

Held, dismissing the claim of the plaintiffs: (1) the evidence revealed that proper accounting records had not been kept by the first plaintiff and it was not possible to say whether the accounts based on those accounting records gave a true and fair view of the state of affairs of the first plaintiff; (2) the auditor in her report had to state whether the accounts in her opinion had been properly drawn up in accordance with the provision of the Companies Act (Cap 185, 1970 Ed), and whether the accounting and other records required to be kept by the company had been properly kept in accordance with the Act. The defendant therefore owed the second plaintiff a duty of care under s 207; (3) the duty of the auditor is to exercise reasonable care and control. The defendant had failed in this duty but the duty was only to the first plaintiff and its shareholders in respect of their interests as shareholders; (4) on the second plaintiff's claim arising as a result of his being a guarantor, this head of claim is not within the scope of the duty owed by an auditor to a shareholder of the company as it is a wholly independent transaction having no connection with the second plaintiff's shareholding in the first plaintiff; (5) as to the second plaintiff's claim for the loss of his investment in the first plaintiff, this head of claim could be recouped through the first plaintiff; (6) the plaintiffs were not able to give clear statements as to what action they would have taken if qualified or adverse reports had been given. As such, they failed to show that their losses were due to the defendant's breach of duty, nor were they able to show that the loss could have been avoided but for the breach.

Ikumene Singapore Pte Ltd & Anor v Leong Chee Leng [1992] 2 SLR 890 High Court, Singapore (Goh Joon Seng J).

[Annotation: Affirmed on appeal. See [1993] 3 SLR 24.]

This was an appeal against the decision of the Dental Board, Federation of Malaya, given on 15 August 1952 by virtue of which the name of the appellant was removed from the Dental Register. The grounds of appeal were: (a) the Dental Board was wrong in holding that the appellant had obtained registration by fraudulent or incorrect statement; (b) the Dental Board was wrong in deciding to remove the appellant's name from the Register of Dentists without allowing him to state his case and in so doing the Dental Board acted improperly and without regard to the principles of natural justice.

Held: (1) the Dental Board had not acted judicially in exercising the powers under s 15(1)(a) of the Registration of Dentists Ordinance 1948; (2) s 5(1)(g) of the ordinance requires that a person should have practised dentistry in any state or settlement in the Federation for a period of three years immediately preceding 15 April 1948 and as the appellant had not so practised he did not have the necessary qualifications for registration.

Ong Hin Wah v Dental Board, Federation of Malaya [1953] MLJ 248 High Court, Penang (Buhagiar J).

The appellant, a chartered civil and structural engineer, had claimed a declaration that he was entitled to the copyright in the engineering drawings and designs prepared by him for the construction of double-storey classrooms for school for the government. It was held in the High Court ([1970] 1 MLJ 20) that the appellant in preparing the drawings had substantially copied from PWD drawings and therefore the appellant's drawings and designs were not original literary works so as to qualify for copyright under the Copyright Enactment. The appellant appealed.

Held, allowing the appeal: the respondent had not rebutted the presumption that copyright existed in the appellant's works, as they had failed to prove that the appellant's works were nothing more than direct tracings of other original works or drawings. The engineering drawings and designs were 'literary work' within the meaning of the Copyright Enactment and they were also 'original literary work' within the meaning of the enactment.

Lau Foo Sun v Government of Malaysia [1974] 1 MLJ 28 Federal Court, Kuala Lumpur (Azmi LP, Suffian CJ and Ali FJ).

The appellant in this case was a registered engineer. The Board of Engineers had decided that his conduct amounted to 'improper conduct which renders him unfit to be a registered professional engineer'. He had allowed a wall to be erected without an approved plan some ten years ago. The said wall collapsed and damaged a number of cars.

Held: the appellant had learnt his lesson and justice will be done if the order of the board cancelling his registration was altered to an order suspending him from practice for one year.

DK Gudgeon v Professional Engineers Board [1980] 2 MLJ 181 High Court, Singapore (Choor Singh J).

The plaintiffs, partners of a firm of consulting mechanical and electrical engineers practising in Hongkong, rendered professional services in respect of the Hotel Sheraton project owned by the defendants. This was pursuant to a contract made between the plaintiffs and the defendants. The plaintiffs claimed for the sum of S$106,250 being 85% of the value of work completed by them. The defendants contended that the said contract was illegal and unenforceable in court because the plaintiffs were not registered as required by the Professional Engineers Act (Cap 225, 1970 Ed).

Held: (1) the plaintiffs were engaged in professional engineering work in Singapore even though the drawing of plans was carried out in Hongkong; (2) an overseas professional engineer who undertakes employment as such in Singapore even in respect of one isolated project as this one would be contravening the provisions of s 18 should he fail to register himself unless he engages in such employment under the direction or supervision of a registered professional engineer; (3) services performed by the plaintiffs under the aforesaid contract were therefore illegal in that the plaintiffs never took steps to get themselves registered beforehand nor to engage in such services under the direction or supervision of a registered professional engineer; (4) the plaintiffs' claim was therefore unenforceable notwithstanding the defendants' own participation in this illegal contract.

Raymond Banham & Anor v Consolidated Hotels Ltd [1976] 1 MLJ 5 High Court, Singapore (Winslow J).

The appellants in this case sought to claim a sum of S$143,358.28 from the respondents for professional services rendered to the respondents pursuant to an agreement between the parties dated 19 August 1971. The parties had agreed that the proper law of the said agreement was the law of the State of Washington. The lower court dismissed the claim on the ground that the said agreement was void and unenforceable. The appellants were partners in a firm of consultant engineers practising in the United States. They were, however, not registered as required under ss 18 and 19 of the Professional Engineers Act (Cap 225, 1970 Ed).

Held, dismissing the appeal: (1) the said agreement was illegal as it infringed the provisions of ss 18 and 19 of the Professional Engineers Act; (2) a court will not enforce a contract which by its own lex fori it would not enforce because it was tainted with illegality. In this connection the foreign law factor is irrelevant.

John B Skilling & Ors v Consolidated Hotels Ltd [1979] 2 MLJ 2 Court of Appeal, Singapore (Chua, Kulasekaram and D'Cotta JJ).

[Annotation: See also Raymond Banham & Anor v Consolidated Hotels Ltd [1976] 1 MLJ 5 in which Choor Singh J disallowed the plaintiffs/engineers' claim for professional services rendered on the ground of non-registration which infringed the provisions of the Professional Engineers Act (Cap 225, 1970 Ed).]

The appellant graduated from the University of Singapore in 1975 with a degree in civil engineering. After obtaining his degree, he acquired five years of practical experience in engineering work at professional level. In May 1981, the appellant submitted an application for registration under s 8 of the Professional Engineers Act 1970 (the Act) together with a report describing his professional engineering training and experience and all necessary certificates and testimonials. He was interviewed by a committee of three persons. He failed his interview and was informed that his application had been deferred for one year. His request for a re-interview was rejected by the registrar of the board vide letter dated 28 May 1981. On 3 June 1981, the appellant's solicitors wrote to the registrar asking for grounds of decision and notes of evidence. The registrar refused this. The appellant applied to the court to reverse, vary or set aside the decision of the board.

Held, dismissing the application: (1) the board has a duty to act fairly; (2) the board is not required to give any reasons for its rejection of the appellant's application. In the absence of anything to suggest that the board had been affected by dishonesty or bias or caprice or that there is other impropriety, the board is entitled to give no reasons for its decision; (3) in this case, the board had acted with complete fairness and that all the criticisms of the board's conduct were without foundation.

Tay Eng Chuan v Professional Engineers Board [1982] 1 MLJ 249 High Court, Singapore (Chua J).

Mott Macdonald (Malaysia) Sdn Bhd v Hock Der Realty Sdn Bhd Civil Suit No 22-346-1994 High Court, Johore Bahru (Abdul Malik Ishak J).

The plaintiff (respondent) claimed damages against the defendants (one of whom was the appellant herein) on the ground that the injuries sustained by him were caused by the negligence of the defendants. The plaintiff was at the relevant time a wharf labourer. He was walking along a plank one end of which was placed on a boat anchored in the Singapore River and the other end on the edge of the quay at Boat Quay. The first defendant drove a motor lorry which collided against the plank. This caused the plaintiff to fall into the river and he sustained an injury on his left arm. After the accident he was taken to the third defendant (the appellant), a Chinese physician (a 'sinseh'), for treatment of the injured arm. The third defendant applied some medicine to the arm and bandaged it. Three days later it became gangrenous and was amputated at the General Hospital. The plaintiff and the first two defendants arrived at a settlement and judgment by consent was entered in favour of the plaintiff. The only issue remaining to be tried was whether the third defendant was liable for negligence. The learned trial judge came to the conclusion that the defendant was negligent in his treatment of the plaintiff's left arm and accordingly awarded S$28,070 as damages to the plaintiff (of this amount S$25,000 was for general damages). The third defendant appealed.

Held, dismissing the appeal: the learned trial judge was right in finding that the loss of the plaintiff's left arm was caused by the negligent treatment given by the third defendant.

Ang Tiong Seng v Goh Huan Chir [1970] 2 MLJ 271 Court of Appeal, Singapore (Wee Chong Jin CJ, Tan Ah Tah and Chua JJ).

The points of law for the determination by the Court of Appeal in this reference were: (i) whether a certificate signed by a medical practitioner, and forwarded pursuant to r 20 of the Employees Provident Fund Rules 1952 by a contributor to the Employees Provident Fund in support of an application to withdraw any amount standing to his credit in the fund, is a certificate required by law to be given within the meaning of s 197 of the Penal Code; and (ii) whether before a person can be convicted of an offence in relation to the issuing or signing of any certificate referred to in s 197 of the Penal Code it is necessary for the prosecution to prove that such person was aware of the purpose for which the certificate was required. Evidence led by the prosecution was to the effect that the respondent, a medical practitioner, had given three medical certificates each to the effect that the person named therein was no longer capable of being employed and not likely to be an employee again. The person named in each of the certificate gave evidence that he had not been examined by the respondent. There was evidence that when the respondent signed two of the certificates he signed them without examining any person. Use was made of these certificates to obtain from the Employees Provident Fund the return of the amount standing to the credit of the persons named in each certificate. There was no evidence to show that the respondent was aware of the purpose for which the certificates were required or of the use to be made thereof.

Held: (1) it is not necessary that the certificate should have been signed or issued by the person legally empowered to sign or issue it. It may have been issued by a person wholly unauthorized, and still he may commit the offence, for all that s 197 requires is that the certificate must be one either required by law to be issued or signed, or it must relate to a fact admissible in evidence. There being no law requiring a medical practitioner to issue a certificate of unfitness, the evidence in this case did not disclose an offence under the first part of s 197; (2) it is not every certificate which is admissible in evidence that comes within the provisions of the second part of s 197 that part only applies to certificates which are admissible in evidence of the fact to which the certificate relates in other words the certificates affected are those which are proof of the truth of the contents thereof. The documents covered by the provisions of law under consideration are certificates made by a person who is under a legal obligation to state the truth. Although the respondent was under an obligation to state the truth as a medical practitioner he was not under any legal obligation to do so; (3) even assuming that the second part of s 197 applies to certificates given by a person when under no such legal obligation, he could not be found guilty under that section when the certificate given by him was produced in evidence unless he was aware of the purpose for which the certificate was required. In this case, as there was no evidence that the respondent was so aware, no offence was disclosed under the second part of s 197.

Public Prosecutor v D'Fonseka [1958] MLJ 102 Court of Appeal, Kuala Lumpur (Thomson CJ, Buhagiar J and Sutherland Ag J).

The plaintiff medical practitioner faced a complaint against him before the Preliminary Investigation Committee of the Medical Council. He applied to be excused from personal attendance because of his age and attend through his counsel at the proceeding, who would cross-examine the complainant and witnesses examined by the Committee.

Held, refusing the plaintiff's application: (1) the tenor and spirit of the Medical Regulations 1974 require the plaintiff's attendance with or without his consent. His personal attendance is absolutely important because the Regulations envisage separate parts to be played by the Committee and the plaintiff; (2) if the plaintiff's health prevents him from attending, the Committee must arrange to sit at a place where he may be easily present.

Dr Natarajan a/l Muthuswamy v Majlis Perubatan Malaysia Saman Pemula No R1-24-51 of 1991 High Court, Kuala Lumpur, (Abu Mansor J).

This was an appeal against a finding of the Medical Council of Singapore that the appellant, a registered medical practitioner, was guilty of infamous conduct in a professional respect. The appellant was given notice of six charges of infamous conduct in that he was alleged to have prescribed and supplied the drug 'Rohypnol' to named patients in such 'irregular and excessive quantities' that it constituted infamous conduct in a professional respect. The appellant appeared before the Medical Council at a hearing of the charges held pursuant to the provisions of s 23 of the Medical Registration Act (Cap 218, 1970 Ed). He was represented by counsel, and witnesses were called by both sides. The inquiry was held over two days and at the conclusion the Medical Council made an order that the appellant be suspended from medical practice for nine months. The record of the inquiry showed that not all members of the Medical Council who were present at the start of the inquiry were present throughout the hearing. Some who were present on the first day were absent on the second day. Some who were present on the second day did not attend the hearing on the first day of the inquiry. Furthermore, on both days, members of the council were walking in and out of the inquiry as and when they liked while evidence of witnesses was being recorded.

Held, allowing the appeal: (1) the appellant did not get a fair and proper hearing in this case. The manner in which the inquiry was conducted resulted in substantial prejudice to the appellant. It was a clear breach of natural justice for a member of the Medical Council to participate in a decision of the council when he had not heard all the oral evidence and the submissions made. This breach was so fundamental that it could not be waived; (2) there was clearly no 'due inquiry' in this case within the meaning of s 23(1) of the Medical Registration Act.

Tan Boon Chee, David v Medical Council of Singapore [1980] 2 MLJ 116 High Court, Singapore (Choor Singh J).

P was a teacher in a Chinese language government-aided school. She underwent an operation in a government hospital to relieve a pain in the neck. After the operation, she could not speak properly. She sued the surgeon and the government for damages for negligence.

Held, dismissing the claim: (1) on the evidence, P had failed to establish that the operation had been negligently carried out; (2) P was employed by the committee of management of the school and not by the government; (3) the judge was satisfied that at the time the operation took place, P knew the nature of the risks she ran and the complications that could arise if she did not have the operation performed. The risks and complications had been explained to her before the operation. She had consented to run the risk. The claim was therefore dismissed.

Chew Swee Hiang v Attorney General & Anor [1991] 1 MLJ 284 High Court, Singapore (Rajah J).

The deceased was injured in a road accident on 31 January 1981 and died on 18 July 1981. At that time, the deceased was earning a monthly salary of RM365. The widow testified that she spent RM500 for funeral expenses, RM300 for the grant of letters of administration and RM150 for 15 visits to the hospital. She also claimed that the deceased's bicycle was worth RM100. She alleged that after the accident, the deceased was restless all the time and tied for some time lying down while in the hospital and at home. He could not walk on his own or talk. He could not eat and was fed through tubes and could urinate only through condom drainage. He was finally discharged on 30 June 1981 and she alleged that the doctor had told her mother to treat her husband at home. His condition did not change; in fact he got worse and subsequently died. According to the defendant, he saw the deceased some 60ft away. The deceased was cycling along the left side and suddenly crossed in front of his car when he was 30ft away. He sounded his horn and swerved to the right but could not avoid the accident. Expert evidence was given on behalf of the defendant by a doctor (DW2), who was of the opinion that the deceased should never have been discharged, and a computer axial tomogram scan ('CAT scan') ought to have been done to get further information as regards the blood clot and state of fluids in the brain. Evidence was also given by the medical officer in charge (TPW1) to the effect that the head chart indicated no abnormal signs in the nervous system. There was no manifestation of a blood clot although the possibility was always present. The deceased was then discharged and readmitted. According to TPW1, the cause of death could have been due to head injuries and could have been saved if there was a CAT scan. However, in many other similar cases, no CAT scan was done. The third party (TPW2) gave evidence that he was only involved in the deceased's conservative treatment. He added that there was no purpose in doing the CAT scan as it was discovered that damage to the brain at the time of the accident was permanent. Another witness (TPW3) also gave evidence that the deceased showed no neurological deficit when he was first discharged. On the second admission, TPW3 had intended to do a CAT scan but it was only available in Kuala Lumpur and no appointment could be arranged by 31 May 1981. As such, TPW3 decided to do exploratory burr holes and no evidence of any haemotoma was found. Although he then recommended institutional care, the deceased's relatives preferred to bring him home, resulting in the second discharge.

Held, allowing the plaintiff's claim on 40% liability against the defendant and dismissing the action against the third party: (1) the court accepts the fact that the deceased had cut across the path of the defendant about 30ft away but is of the view, especially because the defendant had noticed the deceased from a distance of 60ft away, that there was a far enough distance for the defendant to have anticipated the possibility of the deceased cutting across and to have been able to avoid the collision. However, the deceased was more to blame as there would have been no accident if he did not cut across in that manner. Accordingly, liability is apportioned at 60% as against the plaintiff and 40% as against the defendant; (2) the first third party has been wrongly cited as he was not involved in the active management of the deceased despite his signatures on the records. In fact, he was assisting another doctor. However, based on the evidence which satisfactorily explained the conclusions made by the doctor, no legal inference can be made on the facts as they stand upon a balance of probabilities that the third party was liable in negligence. The doctor had treated the deceased in the same way he had treated other patients in similar conditions; (3) the court allowed, on a 100% liability: (a) the sum of RM500 claimed for funeral expenses as the plaintiff stated that she had spent this amount, and it was a reasonable and appropriate amount for a Muslim funeral; (b) the sum of RM350 for the letters of administration as this is the usual figure; (c) the sum of RM36 for the medical report, police and sketch plan reports and the RIMV report; (d) the sum of RM100 for the loss of the bicycle although there was no clear evidence as regards the damage but it was a fair amount; (e) the sum of RM150 for transport expenses as the deceased spent some time in hospital; (f) the sum of RM6,000 for loss of expectation of life as agreed by the parties; (g) the sum of RM31,150 for loss of future earnings; (h) the sum of RM15,000 for pain and suffering and loss of amenities since death was not immediate.

Mariah bte Mohamad (Administratrix of the estate of Wan Salleh bin Wan Ibrahim, deceased) v Abdullah bin Daud (Dr Lim Kok Eng & Anor, Third Parties) [1990] 1 MLJ 240 High Court, Kota Bahru (Abdul Malek J).

In 1978, the plaintiff, then a student, applied to the Canadian High Commission in Singapore for a student visa. He went to see Dr BK Sen, the second defendant, for medical examination. The second defendant sent him to the first defendant for a VDRL blood test. The first defendant submitted a report dated 2 May 1978 to the second defendant: 'VDRL Reactive (2 units) and FTA/ABS Reactive.' The plaintiff, on being told by the second defendant that his blood was syphilitic, went to another laboratory (AM Lab) for a blood test VDRL (RPR). The result was negative. The second defendant then asked the first defendant to do another test on the plaintiff. The results (PB 3) were the same: 'VDRL: Reactive (2 units); FTA/ABS: Reactive.' The plaintiff was told by the second defendant that he was obliged to forward the report of the first defendant to the Canadian High Commission. AM Lab sent a blood sample of the plaintiff for confirmation of their test results to the Department of Pathology, which reported: 'NRT Non-Reactive; FTA Non-Reactive.' The plaintiff was told by the second defendant that he had informed the Canadian High Commission that the plaintiff 'Has evidence of syphilis serological'. PB 3 was later confirmed by the Department of Pathology. Subsequently, the plaintiff got a favourable report dated 28 June 1978 from the Middle Road Hospital: 'VDRL Non-Reactive: FTA/ABS Non-Reactive'. Eventually, the plaintiff was granted the visa on 18 July 1978. The plaintiff then sued the two defendants for damages for negligence and defamation. The plaintiff proceeded against the first defendant, the second defendant having settled the claim for S$15,000.

Held: (1) the first defendant was merely asked to do the blood test and report on it as it found and do nothing more; (2) it was the duty of the referring doctor, the second defendant, to diagnose whether it was syphilis or a BFP reading after all the clinical assessments had been done. This duty did not extend to the first defendant. The plaintiff had failed to substantiate his allegation that the findings of the first defendant were wrong; (3) the publication to the Canadian High Commission was not publication of what the first defendant said but rather the conclusions or diagnosis of the second defendant and the use by him of the word 'syphilis'; (4) there was neither recklessness nor malice which would defeat the defence of qualified privilege; (5) the plaintiff's claim against the first defendant was therefore dismissed with costs.

Joel Salaysay v Medical Laboratory (Pte) Ltd & Anor [1985] 2 MLJ 185 High Court, Singapore (Chua J).

The plaintiff was injured as a result of a motor accident involving his motor cycle and a car driven by the first defendant. As a result of the accident, the plaintiff suffered a close fracture at the upper tibia of his left leg with haemarthrosis of his left knee. Initially when the plaintiff went to the Casualty Unit of the General Hospital, the doctor on duty covered the plaintiff's leg with plaster of paris. The plaintiff suffered severe pain. Thereafter the severe pain was diagnosed as Volkmann's Ischemia. The plaintiff underwent numerous hospital treatments. Despite this, he completely lost the use of his left leg. It had become shorter by 6 inches. There were deformity on his ankle. He could not dorsiflex his foot nor feel any sensation to it. Subsequently, the left leg was amputated below the knee. The plaintiff sued the first defendant and the second defendant, the government of Malaysia.

Held: the first defendant is 20% liable and the second defendant is 80% liable.

Kathavarayan v Ng Sup Moi & Anor [1987] 1 MLJ 246 High Court, Kuala Lumpur (Siti Norma Yaakob J).

In this case, a person had been assaulted and had sustained injuries. He was brought to the Casualty Department of the General Hospital where he was examined by the first respondent. After a physical examination, X-Rays were taken of his right elbow and chest. The X-Rays revealed two fractures of the elbow and the clavicle but the first respondent detected no fractured rib nor did he find the presence of any fluid in chest or abdomen. The person was sent home that same evening. He died 15 hours or so later and the post-mortem revealed that the cause of death was shock due to internal bleeding from a ruptured spleen brought about by the fractures to his eighth, ninth and tenth left ribs. The appellants sued the respondent for negligence in failing to properly examine or diagnose the extent of the deceased's injuries or prescribe the proper and appropriate treatment. The respondents denied that they were in any way negligent and claimed that the first respondent had done all that was medically necessary to treat the deceased. They stated that the injuries that caused his death were not evidenced from the X-Rays films taken of the deceased. The action was dismissed by the trial judge and the appellants appealed.

Held, (Seah SCJ dissenting): (1) when a prima facie case of negligence against a defendant has been established under the doctrine of res ipsa loquitur, the defendant can rebut that case by proving he was not negligent, even though he cannot prove how the accident happened. If the defendant can show a way in which the accident may have occurred without negligence the cogency of the fact of the accident itself disappears and the plaintiff is left as he began, namely that he has to show negligence. If the defendant gives a reasonable explanation which is equally consistent with the accident happening without his negligence as with his negligence he has again shifted the burden of proof back to the plaintiff; (2) a consideration of the evidence in this case negatives any suggestion of negligence on the part of the first respondent and therefore on the particular facts of this case res ipsa loquitur does not apply; (3) the learned trial judge in this case should have made an assessment of the damages. If no assesment were made and the appeal was allowed, it would mean that the case has to be sent back to the learned judge for assessment. This would cause unnecessary delay, inconvenience and costs.

Wong Choon Mei & Anor v Dr Kuldeep Singh & Anor [1985] 2 MLJ 373 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

Caldeira v Gray [1936] MLJ 137 Privy Council Appeal from Trinidad and Tobago (Lord Alness, Lord Maugham and Sir Sidney Rowlatt).

In this case, the plaintiff claimed damages for negligence on the part of the first defendant, a medical officer employed by the second defendant, in treating the plaintiff for an itch on his hands by injecting an arsenical preparation, acetylarsan, which was alleged to have resulted in paralysis of his hands and legs. The medical evidence showed that it was not certain that the injections caused the paralysis.

Held: the plaintiff had not discharged the onus of showing that the injection of acetylarsan was the cause of the paralysis and further there was no evidence to show that the first defendant had been negligent in prescribing the injection.

Swamy v Matthews & Anor [1967] 1 MLJ 142 High Court, Seremban (Ismail Khan J).

This was an appeal against the decision of Ismail Khan J ([1967] 1 MLJ 142) dismissing the appellant's claim against an estate medical officer and his employers for negligence in treatment resulting in paralysis of the appellant's arms and legs from polyneuritis. It was common ground at the appeal that only two injections of acetylarsan, an arsenical compound, were administered. However, the long delay between commencement of the trial and the judgment due to an abortive interlocutory appeal had led to an error of fact in the finding of the trial judge, namely, that there had been two heavy doses of 5 cc each given without any untoward reactions before the third and final dose, which was followed shortly after by polyneuritis. Accordingly he held that the two heavy doses having failed to produce any symptoms of polyneuritis, the third dose was not the cause thereof, nor was the administration of the third dose, in the circumstances, negligent.

Held, (Ong Hock Thye FJ dissenting): the two questions to be decided were: (1) whether polyneuritis was caused by the injection of acetylarsan; (2) if so, was the doctor negligent in giving the injection. Both questions being answered in the negative, the appeal must be dismissed. Per Ong Hock Thye FJ (dissenting): 'Had the judge found as a fact that two full doses of 5 cc each were administered without untoward effects prior to the last, I have considerable doubts whether he would have come to the conclusion he did.' Rejecting the theory of a latent but dormant ailment as the cause of the polyneuritis, Ong Hock Thye FJ held that the onus was sufficiently discharged by the appellant in establishing that his polyneuritis was the direct result of the injection. 'Diagnosis is of crucial importance in the determination of liability É Was the treatment given here satisfactorily explained? In my judgment it was not, and it was not for the simple reason that, on his own showing, his diagnosis prior to each injection was less than perfunctory.'

Swamy v Matthews & Anor [1968] 1 MLJ 138 Federal Court, Kuala Lumpur (Barakbah LP, Azmi CJ (Malaya).

This was an action for personal injuries against the government of Malaysia and the anaesthetist. It was alleged that owing to the negligence of the anaesthetist doing a pre-operation sigmoidoscopic examination the plaintiff suffered a perforation of the colon. As a consequence, the plaintiff was unable to undergo a piles operation by reason of the nervous shock she suffered from the perforation.

Held: having regard to the circumstances of this case, the anaesthetist was competent to do the sigmoidoscopic examination and he had exhibited competent care and skill on the particular occasion and therefore negligence had not been established.

Elizabeth Choo v Government of Malaysia & Anor [1970] 2 MLJ 171 High Court, Kuala Lumpur (Raja Azlan Shah J).

In April 1960, an amah employed in the Social Hygiene Clinic at Sultan Street, Kuala Lumpur spoke to the staff nurse about an ulcer on her right ankle and swollen glands to her thigh. The nurse took her to the second respondent Dr Devadason who was then the medical officer in charge of the clinic. After the doctor had examined her, she was given an injection of procaine penicillin from which she died within an hour. The appellant, the deceased's mother, claimed damages under s 7 of the Civil Law Ordinance on behalf of herself and the infant son of the deceased. The action came before Ong J (see [1964] MLJ 322) who found for the appellant. He awarded damages and compensation in the sum of RM10,250 including RM750 for funeral expenses and he apportioned the balance by awarding RM8,000 as compensation to the infant son and RM1,500 to the appellant personally. He also ordered the respondents to pay the costs of the action. On appeal by the respondents the Federal Court (see [1965] 2 MLJ 91) rejected Ong J's finding of negligence and allowed the appeal, dismissing the action with costs both in that court and the court below. The appellant then obtained special leave to appeal to the Privy Council in forma pauperis. The only issue arising upon appeal was whether the Federal Court was right in rejecting Ong J's finding that the doctor was negligent.

Held: the learned trial judge was right in adopting the test propounded by McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 that where you get a situation which involves the use of some special skill or competence the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill, it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. Applying this test it is plain that Dr Devadason failed in his duty to make appropriate inquiry before causing the penicillin injection to be given which it was admitted on the pleadings was the cause of the death of the deceased. Had any inquiry been made he would undoubtedly have been made aware that in 1958, three years after the giving of the injection of which the nurse made mention, the deceased had been given another injection from which she suffered adverse reactions and which led to the endorsement on her outpatient card of the warning 'Allergic to Penicillin'. Judgment of Federal Court reversed and that of Ong J restored.

Chin Keow v Government of Malaysia & Anor [1967] 2 MLJ 45 Privy Council Appeal from Malaysia (Viscount Dilhorne, Lord Hodson, Lord Guest, Lord Upjohn and Sir Hugh Wooding).

Medical practitioners, in possession of pills containing morphia for medical purposes are protected by s 19 of Ordinance IV of 1870.

R v Wee Kim Chuan [1890] 3 SLJ 9 Magistrate's Court, Straits Settlements (Logan, Magistrate).

[Annotation: See now provisions under the Misuse of Drugs Act 1973 (Cap 185, 1985 Ed).]

The deceased was admitted to Mount Elizabeth Hospital on 7 December 1988 and died on 20 December 1988. After his death, complaints were made by his father Dr James M Wynne ('the complainant') regarding the standard of care shown by the doctors and medical specialists who attended to the deceased. The two doctors who attended to the deceased initially were subsequently found guilty of infamous conduct by the Medical Council. The charges brought by the Medical Council against the medical specialists who attended to the deceased were subsequently discontinued after the complainant agreed to withdraw his complaint against these specialists. Prior to this the complainant had written to Mount Elizabeth Hospital regarding the system the hospital used for the treatment of seriously ill patients who were admitted to the hospital. The four applicants were members of a committee of inquiry set up by the Quality Assurance Committee of the Medical Advisory Board of Mount Elizabeth Hospital to look into the questions raised by the complainant's letter. The committee's report was written before the Medical Council held an inquiry into the complaint made by the complainant against the six specialists. Apart from a ten-hour delay between the time of admission and the time of treatment which they felt was a critical lapse the committee found the procedures largely appropriate. This report prompted the complainant to write the Medical Council that there were in fact numerous basic blunders, that this strongly suggests that the applicants participated in a deliberate attempt to hide the deficiencies in order to protect their colleagues and hospital, and that this was disgraceful, dishonest and infamous conduct for members of the medical profession. Subsequently a Preliminary Proceedings Committee ('the PPC') was constituted under reg 16 of the Medical Registration Regulations (Cap 174, Reg 2, Subsidiary Legislation, 1990 Ed) ('the regulations') to determine whether an inquiry should be held in respect to the complainant's complaints. The chairman of the PPC invited the applicants to submit an explanation in writing on the complaint as required by reg 18(2) of the regulations. In the written explanation given by the applicants there was only a bare denial to the complainant's allegations of basic deficiencies in acute medicine. The PPC decided that an inquiry should be held. The applicants applied for a certiorari to quash that finding and a declaration that the PPC's decision was null and void. Held, dismissing the application: (1) in order to succeed in their application, the applicants must show that the decision of the PPC was irregular or unreasonable in the Wednesbury sense, ie unreasonableness verging on absurdity; (2) faced with the bare denial of the complainant's allegations and the facts as made available in the complaints. the PPC did not act irregularly or unreasonably in the Wednesbury sense by determining that an inquiry be held by the Medical Council into the complaints; (3) the PPC acted reasonably in leaving it to the Medical Council to decide whether the complainant's allegation was scandalous, frivolous or without any foundation whatsoever, since it was not itself empowered to hold an inquiry into the complaints; (4) the applicants' report was submitted to Mount Elizabeth Hospital before the two doctors and the five specialists faced disciplinary proceedings. The fact that the two doctors had already been suspended and the other specialists were absolved by the Medical Council would no doubt be taken into account by the Medical Council when they hold their inquiry. It could not prevent the Medical Council from holding an inquiry into the professional behaviour of the applicants as members of a committee reviewing the hospital's system.

Re Application for Leave to apply for an Order of Certiorari and a Declaration Originating Summons No 497 of 1993 High Court Singapore (Goh Phai Cheng JC).

The appellant, a registered practitioner, performed an operation of abortion on a Chinese woman which caused her death. He was convicted in the High Court at Malacca and sentenced to imprisonment. At a subsequent inquiry before the Disciplinary Committee of the General Medical Council in England, the committee decided that the attendance of witnesses from Malaya was not practicable and, accordingly, the solicitors on each side agreed to the committee proceeding on the documentary evidence of the trial. The committee decided that the doctor had been guilty of infamous conduct and that his name should be struck off the medical register.

Held: (1) the record of the criminal proceedings having been put in evidence by consent as soon as the committee had decided, quite properly, that the attendance of the witnesses from Malaya was not practicable and that their absence did not vitiate the proceedings, that consent was fatal to any objection to it; (2) there had been no miscarriage of justice, since the copy of the record of proceedings was properly admissible, subject to the Medical Disciplinary Committee (Procedure) Rules 1951, because the disciplinary committee, as a domestic forum but not a court of law, had a duty to make due inquiry whether the appellant had been guilty of infamous conduct in a professional respect.

Ong Bak Hin v General Medical Council [1956] MLJ 117 Privy Council Appeal from the Medical Disciplinary Committee of the General Medical Council, England (Lord Oaksey, Lord Tucker, Lord Cohen, Lord Keith of Avonholm and the Rt Hon LMD de Silva).

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

The appellant, a registered medical practitioner, faced disciplinary charges before the Medical Council of Singapore under the provisions of the Medical Registration Act (Cap 218, 1970 Ed). The disciplinary charges alleged that the appellant was guilty of infamous conduct in a professional respect, the allegations being that on various occasions between November 1973 and January 1974, he did allow one SS Pillai of his clinic to issue and sign medical certificates to various patients when the said SS Pillai was not a registered medical practitioner within the meaning of the Act. At the conclusion of the disciplinary inquiry, the Medical Council deliberated and came to the unanimous decision that the appellant was guilty of the disciplinary offences as charged and unamimously decided to remove the appellant's name from the Medical Register. Costs were also awarded against the appellant. The appellant appealed against the decision of the Medical Council on the following grounds: (a) the decision of the Medical Council was contrary to the weight of the evidence adduced; (b) the council's solicitor had at the close of his case failed to make out a prima facie case against the appellant on any of the charges preferred against him, and the council should therefore have dismissed the said charges, and not called upon the appellant's defence as it did; (c) the council's legal assessor had, at the close of the council's solicitor's case, wrongly directed the council on the burden of proof required to be discharged by the council's solicitor in the proceedings, and on the meaning of 'proof beyond a reasonable doubt'; (d) the sentence imposed by the council was manifestly excessive in the circumstances. At the hearing of the appeal, the appellant abandoned the third ground of his appeal and proceeded with the other grounds.

Held, dismissing the appeal: (1) the appeal lies of right by the statute and the terms of statute do not limit or qualify the appeal in any way, so that the appellant is entitled to claim that it is in a general sense nothing less than a rehearing of his case and a review of the decision; (2) notwithstanding the generality of the above language, the actual exercise of the jurisdiction is severely limited by the circumstances in which it can be invoked. The appeal is not by way of rehearing in the sense that the witnesses are heard afresh or the evidence gone over again. This, amongst other things, mean that there is a heavy burden upon an appellant who wishes to displace a verdict on the grounds that the evidence alone makes the decision unsatisfactory; (3) beyond a bare statement of its findings of fact, the Disciplinary Committee does not in general give reasons for its decision as in the case of a trial in the High Court by a judge alone from which an appeal by way of rehearing lies to the Court of Appeal. It follows from this that the only circumstances in which an appellate court can reverse a view of the facts taken by the Disciplinary Committee would be a case where, on examination, it would appear that the committee had misread the evidence to such an extent that they were not entitled to make a finding in the state of the evidence presented before them; (4) the legal assessor who assists the committee at its hearing is not a judge, and his advice to the committee is not a summing up, and no analogy with a criminal appeal against a conviction before a judge and jury can properly be drawn. The legal assessor simply advises the committee in camera on points of law and reports his advice in open court after he has given it. The committee under its president are masters both of law and of the facts and what might amount to misdirection in law by a judge to a jury at a criminal trial does not necessarily invalidate the committee's decision. Where a criticism is made of the legal adviser's account of his advice the question is whether it can fairly be thought to have been of sufficient significance to the result to invalidate the decision; (5) in the result, although the jurisdiction conferred by statute is unlimited, the circumstances in which it is exercised in accordance with the rules approved by Parliament are such as to make it difficult for an appellant to displace a finding or order of the committee unless it can be shown that something was clearly wrong either (i) in the conduct of the trial or (ii) in the legal principles applied or (iii) unless it can be shown that the findings of the committee were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread.

Re Joseph Francis Lopez [1976] 1 MLJ 161 High Court, Singapore (Chua J).

Where the Medical Council, without formal complaint before it, but being in receipt of written material, takes legal advice thereon, frames charges against the medical practitioner and invites him to attend a proposed inquiry under s 18 of the Medical Registration Ordinance 1907 and answer charges relative to alleged 'infamous conduct in a professional respect' the council thereby constitutes itself both prosecutor and judge in the proceedings, which are for that reason vitiated. The bare possibility of a pecuniary interest in the result of the inquiry disqualifies the person having that possible interest from adjudicating on the issue. If there is such a possibility, the court will not inquire into the extent of it nor as to whether, in the circumstances, it is likely to result in bias or prejudice. The fact of a private medical practitioner taking part in an inquiry under s 18 into the conduct of any other private practitioner will therefore vitiate the proceedings, and omission on the part of the practitioner charged to take the objection at the inquiry, will not operate as a waiver. The presence of the council's legal adviser at their deliberations preparatory to judgment is undesirable. Sed quaere: whether his presence would vitiate the judgment.

FW Goonetilleke v The Medical Council [1911] 12 SSLR 95 Court of Appeal, Straits Settlements (Law Ag CJ, Thornton, Fisher and Ebden J).

A medical practitioner was found guilty of infamous conduct by the Medical Council. He appealed under s 18 of Ordinance 99 (Medical Registration) to the Supreme Court.

Held: an appeal to the Supreme Court under s 18 of Ordinance 99 (Medical Registration) lies to a single judge and not direct to the full Court of Appeal.

Paglar v The Medical Council [1933] MLJ 241 Court of Appeal, Straits Settlements (Huggard CJ, Terrell and Mills JJ).

The appellant was a Burmese herbalist practising in Singapore who described himself in the English version of his advertisements as 'Burmese Specialist' 'Dr Khoo Boo Lone' and in the Chinese version as 'Ee Seng' (Yee Sang) (doctor).

Held: the appellant had used a title implying a qualification to practise medicine, and he had done so purposely and therefore wilfully and falsely, and he had been properly convicted under s 20 of Ordinance No 99 (Medical Registration).

R v Khoo Boo Lone [1935] MLJ 1 High Court, Straits Settlements (Terrell J).

There is nothing in the Medical Registration Enactment (Cap 178) to prevent a practitioner in native medicine, though not registered as a medical practitioner under the enactment, from recovering reasonable charges for his services.

Ramachandran v Kandiah [1940] MLJ 54 High Court, Federated Malay States (Poyser CJ).

This was an application under s 44 of the Specific Relief Ordinance 1950 for an order of mandamus. An infant met with an accident on 19 August 1970, and as a result of that accident, his leg was amputated above the knee. He brought an action for damages against the defendant (Civil Suit No 168 of 1971). The present application was filed by the defendant in the said suit against the respondent, the surgeon who performed the operation on the infant. The applicant alleged that the amputation of the leg was not necessary, the inference being that it was the negligence of the respondent which aggravated the injuries. On being requested by the applicant's solicitor for details of the injuries found on the infant and the treatment given at the hospital, the infant's solicitors authorized the hospital authorities to supply the information. The request was not complied with. Thus, the applicant, not having received any satisfactory reply from the hospital authorities, made an application under s 44 of the Specific Relief Ordinance 1950. The issue before the court was whether the applicant had succeeded in bringing his case within the purview of s 44 of the Specific Relief Ordinance.

Held: the applicant must show not only that he had a legal right to have the act performed, but that the right was so clear and well defined as to be free from any reasonable controversy. In the circumstances of this case, the applicant had failed to show the existence of any legal right to compel the performance of a legal duty cast upon the respondent.

Koon Hoi Chow v Pretam Singh [1972] 1 MLJ 180 High Court, Ipoh (Sharma J).

A is an obstetrician and gynaecologist in private practice. On 22 June 1989, the Medical Council of Singapore after due inquiry into a charge that A had taken advantage of the mental and emotional state of one of his patients, T, and had frequently committed adultery with her between February and May 1986 ordered that his name be removed from the Register of Medical Practitioners in Singapore with effect from 1 August 1989. A appealed under s 24 of the Medical Registration Act (Cap 174) and the order of 22 June 1989 was stayed pending the outcome of his appeal. The evidence alleged against A was, inter alia, a diary kept by T whereby T had recorded the occasions A and T had met and had sexual intercourse, and a sketch map purportedly drawn by A giving directions to T to a Shell station where they were to have met. A's defence was a total denial of having any sexual relations with T. The Medical Council found A guilty as charged but did not give its reasons.

Held, allowing the appeal: (1) every statutory body entrusted with the statutory duty of maintaining professional standards and conduct should give reasons in support of the findings of fact in respect of each of the essential ingredients of the charges; (2) there is an implied duty on the Medical Council in announcing its verdict to state what facts of the charge have been proved to its satisfaction. It is not obligatory although it is desirable in a complex case to state briefly the reasons for determining those facts were proved to its satisfaction; (3) in all cases of professional misconduct a high standard of proof would be required but where knowledge or intention is an ingredient of a disciplinary offence the criminal standard of proof proof beyond a reasonable doubt applies; (4) the evidence of three of the allegations of adultery was skimpy; (5) this was a case which cried out for independent corroboration and support but there was none; (6) there was no evidence whatsoever before the Medical Council that A had any knowledge at all of T's psychiatric condition; (7) on the evidence presented, the allegation of adultery was not proved;legal assessors statutorily appointed to advise professional disciplinary bodies must be vigilant to see that the professional man charged is given a fair hearing. This is best achieved by strictly adhering to the rules of natural justice.

Re Ooi Koon Hean, Alex Originating Motion No 73 of 1989 High Court, Singapore (M Karthigesu J).

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

Held: (1) no principle of law precludes a man who has been acquitted or convicted upon a set of facts alleged to constitute an offence being subsequently subjected upon the same facts to disciplinary action by a domestic tribunal; (2) (3) it was not improper for the Public Service Commission to institute disciplinary proceedings in this case as the exercise by the Public Service Commission of its powers is not by way of punishment but rather to enforce a high standard of propriety and professional conduct; (4) therefore reg 11 of the Public Service (Disciplinary Proceedings) Regulations 1970 is not ultra vires art 7(2) of the Federal Constitution;there was no res judicata in this case as the parties were different and the facts were relevant to the accusation of a different character, that is, misconduct.

Mohamed Yusoff bin Samadi v Attorney General [1975] 1 MLJ 1 High Court, Singapore (Chua J).

In February 1961, the plaintiff was employed as a teacher at the High School, Klang, by the Board of Governors of that school. In the May 1961 general elections, whilst he was so employed, he stood for election as a candidate of the Democratic Action Party (hereafter abbreviated as DAP). However, prior to Nomination Day, he notified the Permanent Secretary of the Ministry of Education, through the headmaster of his school, of his intention to contest in the general elections. In response to this, his headmaster wrote him a letter dated 16 April 1969 asking him to tender his resignation but the plaintiff refused. The plaintiff won the election and served his full term as a state assemblyman at the same time continuing to teach at the High School. No disciplinary action was taken against him. In 1972, following the recommendation of the Royal Commission on Teaching Services in West Malaysia, teachers under the UTSR were granted options to either remain under UTSR as non-government servants or to become government servants. The plaintiff opted to remain under UTSR and from 1 April 1972, he was a non-government servant and an employee of the second defendant. In 1974 and 1978, the plaintiff stood for elections whilst he was a teacher. After the election, the second defendant requested for his resignation. The plaintiff refused but no disciplinary action was taken against him. By a circular 1/78, the plaintiff was offered by the second defendant an option of being placed under the revised salary scale and on a pensionable scheme and he accepted. On 1 December 1979, the plaintiff once again stood as a DAP candidate in the by-election. On 11 January 1980, he received a letter from the second defendant to show cause why he should not be dismissed for having breached reg 20(4) of the Central Board (Conduct and Discipline) Regulations 1977 (hereinafter called the 1977 Regulations). The plaintiff replied that the regulations would have applied had he won the by-election and as that was not the case, he should not be dismissed from his service. On 1 June 1980, after having obtained the approval of the first defendant, the second defendant dismissed the plaintiff. The plaintiff claimed, inter alia, that he was wrongfully dismissed and for consequential reliefs such as reinstatement to his former position as a teacher, arrears of salary and damages.

Held, dismissing the plaintiff's claim: (1) there is no merit to the plaintiff's contention that the 1977 Regulations are null and void as being in excess of a power, that is ultra vires s 116(p) of the Education Act 1961 (Act 43/1961); (2) as far as the plaintiff's participation in the 1969, 1974 and 1978 general elections was concerned, the omission of the second defendant to take any action against him was not due to its reluctance to do as it had, until then, no power to take any disciplinary action against him. To that extent, estoppel cannot work against the defendants for having failed to take any action against the plaintiff for having contested in the general elections; (3) the plaintiff's evidence of mala fide and victimization amounted only to mere allegations which remained uncorroborated; (4) the plaintiff was very much aware of the restriction imposed in the 1977 Regulations when he contested the 1979 by-election and in so doing, he had deliberately flouted the prohibition which entitled the second defendant to dismiss him.

K Ramasen v Minister of Education, Malaysia & Anor [1987] 1 MLJ 160 High Court, Kuala Lumpur (Siti Norma Yaakob J).

In this case, the first appellant sustained injuries when he was accidentally struck on the head by a changkol wielded by a fellow pupil in the course of a practical gardening class. The appellants sued for damages claiming that the respondents failed to provide proper supervision of the pupils participating in the gardening class and failed to instruct the pupil who caused the injury on the proper use of a changkol. The claim was dismissed in the High Court as Ajaib Singh J held that the respondents had given proper instructions and warnings on the use of the gardening implements and had taken the reasonable steps and precautions to ensure the safety of the pupils when using agricultural implements. The appellants appealed.

Held, allowing the appeal: (1) in this case, the respondents were negligent for failing to take all reasonable and proper steps to prevent the appellant under their care from sustaining the injury and moreover their teacher did not check the condition of the garden tools nor provide a safe system of holding the gardening class; (2) in this case, the teacher appreciating that the boys were handling dangerous instruments had not given sufficient warning as to their use nor had she taken steps to see that the pupils were positioned within such distance between them as to prevent injuries from being inflicted.

Mohamed Raihan bin Ibrahim & Anor v Government of Malaysia & Ors [1981] 2 MLJ 27 Federal Court, Kuala Lumpur (Raja Azlan Shah CJ (Malaya).

In this case, the facts were that a pupil in school pricked the respondent's thigh with a pin which produced a shock causing the latter to turn round and his eye to come into contact with the sharp end of a pencil which the pupil was holding. The eye had to be removed subsequently. The respondent and his father brought an action for damages and the learned trial judge in the High Court gave judgment for the respondents. He held that there had not been sufficient or reasonable supervision by the form mistress at the material time and that the injury was caused by her negligence. The appellants appealed to the Federal Court.

Held, allowing the appeal: (1) in considering whether or not the appellants were in breach of their duty of care to the respondent it was necessary for the trial judge to consider first whether the risks of injury to the plaintiff were reasonably forseeable and secondly assuming it was, whether the appellants took reasonable steps to protect the respondent against those risks; (2) in this case, the evidence fell short of the requirement that the injury sustained by the plaintiff-respondent were of a kind or type of class reasonably forseeable as a result of the form mistress's wrongful act, assuming she was wrongful. It could not be said that the particular teacher exposed the plaintiff-respondent to injury of a class or type that could reasonably be forseen; (3) it could not be concluded in this case as a matter of evidence and inference that more probably than not constant vigilance in the classroom would have prevented the injury which the plaintiff-respondent in fact received.

Government of Malaysia & Ors v Jumat bin Mahmud & Anor [1977] 2 MLJ 103 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah and Wan Suleiman FJJ).

This was an action for damages for negligence. The defendants were the principal and two teachers at a school and they had gone with some students of the school for a picnic by the sea. While the students were playing a ball game in waist deep water, some of them apparently moved to a depression and found themselves in difficulty. The teachers and some boys came to their assistance, but one of the students went missing. She was later found but artificial respiration failed to revive her and she died. The action was brought by the administrator of the deceased student.

Held: (1) in this case, the principal and the teachers owed no duty to the deceased or her father to provide supervision; (2) even assuming that the principal and the teachers owed such a duty, they had done all they possibly could to ensure the safety of the students and the action must therefore be dismissed.

Chen Soon Lee v Chong Voon Pin & Ors [1966] 2 MLJ 264 High Court, Miri (Lee Hun Hoe J).

From 1981 to 1985 parts of D's estate land were acquired under the Land Acquisition Act 1960 (Act 34/1960). Compensation was awarded to D as assessed by the Collector of Land Revenue. On D's appeal to the High Court, the market value of the land acquired was increased solely on reliance on a previous acquisition award made in 1979 ('the award'). 'The award' was in respect of an earlier acquisition of another part of D's estate land. In 'the award' the High Court increased the market value of the land and this was affirmed on appeal. An appeal to the Supreme Court was made against the judge's increase of the market value of D's land on the ground that the judge had failed to consider the comparable sale of two adjoining estates as indicative of the market value of D's land.

Held, allowing the appeal: (1) it was not wrong for the judge to accept the evidence of the previous acquisition award of the same estate as relevant consideration indicative of the market value of D's property; (2) valuation is not an exact science capable of strict mathematical process; (3) in this case it would be more reliable to follow the normal guide in determining the fair market value of D's land by considering the sales of similar land in the neighbourhood after making due allowances for all circumstances, when such evidence was available; (4) interfering with the Collector of Land Revenue's assessment would necessarily involve his assessment of primary facts which were dependent upon his observations of the witnesses whom he alone had the advantage of hearing and seeing or observing the properties himself; (5) accordingly the judge had not applied the correct principle in making his award.

Pentadbir Tanah Daerah Petaling v Glenmarie Estate Ltd [1992] 1 MLJ 331 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

This is a reference under s 38 of the Land Acquisition Act 1960 (Act 34/1960) ('the Act'). The Collector of Land Revenue made an award of RM64,189.55 for the acquisition of a parcel of land, Lot 757, SPK 1623, Mukim of Air Puteh, District of Pendang, Kedah. The land was 5.4938 relongs in area and the collector valued it at RM11,500 per relong, the relevant date of valuation being 2 August 1984, the date of the notice under s 8 of the Act. He valued the double-storeyed house and store standing on the land at RM32,700. The applicants in this reference, the former owners of the land, claim that on the relevant date the market value was RM18,000 per relong for the land and RM40,000 for the house.

Held, dismissing the application with costs: (1) having considered all available evidence, the court have not been persuaded that the government valuer was wrong in taking the value obtaining in November 1980 in respect of comparable Lot 756 and the values of the neighbouring lots for guidance on the market value of the subject land; (2) the applicants have not shown that the government valuer had acted on wrong principles in his calculation of the value of both the house and the store. In contrast, when PW1, the private valuer on whom the applicants relied, went to the subject land where the buildings had been demolished, he relied on the description of the double-storeyed house and store by the owner for his calculation of the built up area, and the figure arrived at was clearly an erroneous one; (3) it is reasonable to infer that the reason for the purchase of Lot 756 at an abnormally high price in 1984 was to artificially boost the compensation that would have been payable in respect of the land intended to be acquired. And the applicants have failed to adduce evidence to show that the transaction in respect of Lot 756 in April 1984 was a bona fide transaction.

Che Pa bin Hashim & Ors v The Collector of Land Revenue, Kedah [1993] 1 CLJ 193 High Court, Alor Setar (KC Vohrah J).

X Sdn Bhd executed a debenture in favour of Bank Y in consideration of the latter granting credit facilities to the former. X Sdn Bhd also registered a charge over its land in Bank Y's favour under the National Land Code 1965. Bank Y subsequently transferred the debenture and the charge to Bank Z. X Sdn Bhd was ordered by the court to be wound up. Bank Z pursuant to the debenture appointed S as X Sdn Bhd's receiver and manager. S applied to the High Court for leave to sell X Sdn Bhd's land. S exhibited a few valuation reports in his application. One of the valuation reports was prepared by B which stated the fair market value of X Sdn Bhd's land to be RM1.875m. S obtained the court order granting him leave to sell X Sdn Bhd's land (the 'order'). There were five applications to the High Court to set aside the 'order'. All the applications, except the second application, were made by X Sdn Bhd's creditors. The second application was filed by L who was X Sdn Bhd's former director. L firstly argued that S had no capacity or power under the debenture to sell X Sdn Bhd's land because the debenture merely provided for a floating charge. L contended that there was already a separate charge over the land under the 1965 Code which was immediately fixed to the land the moment it was charged. L further alleged that B's valuation report was defective because although B purported to have adopted the comparison method of valuation, B's report however did not show any evidence of the values of comparative properties. L also argued that there were two other valuation reports which were not brought to the court's attention when S made his application.

Held, allowing the five applications to set aside the 'order': (1) the debenture merely provided for a floating charge in respect of X Sdn Bhd's land. S thus had no capacity or power to invoke the debenture; (2) since X Sdn Bhd's land was held under 'Land Office title', the only remedy open to Bank Z as chargee was under the 1965 Code. In view of ss 260 and 261(1) of the 1965 Code, the court had no jurisdiction to order the sale of X Sdn Bhd's land; (3) a receiver and manager has the duty to take reasonable care to obtain the true market value of the property at the time of the sale although he was not obliged to sell the property at the highest price; (4) B's valuation report was defective because it did not disclose the comparable basis for the valuation. S had thus failed to obtain the true market value of X Sdn Bhd's land when he applied for 'the order'. There was therefore no evidence to show that RM1.875m was the true market value of the land.

Re SAMA Corp Sdn Bhd, CI Holdings Bhd v Jabatan Pemegang Harta [1992] 2 MLJ 251 High Court, Kuala Lumpur (Zakaria Yatim J).

The plaintiffs commenced an admiralty action against the defendants for cost of repairs carried out to the defendants' ship. A warrant of arrest was issued and following the arrest, the vessel was sold under an order of court. The defendants were subsequently wound up by an order of court and the CPF Board ('the board') was unable to recover the arrears of CPF contributions of the crew members from the proceeds of sale because of a ship mortgage in favour of the mortgagee-interveners. On an application to the court, the assistant registrar gave leave to the board to intervene in the proceedings for the purpose of claiming against the proceeds of sale of the ship. The mortgagee-interveners then applied to set aside this order of the assistant registrar. The main grounds advanced by the mortgagee-interveners in support of the application were that (a) the board is only a trustee of the moneys in the fund and not a trustee of unpaid or future CPF contribution and therefore it has no right to sue as trustee for unpaid or future contributions. Any such right the board has is by virtue solely of s 35 of the CPF Act which changed the fundamental nature of the claim of the board from wages to a government debt under the Government Proceedings Act (Cap 21, 1970 Ed); (b) though CPF contributions formed part of the wages of the seamen, the court does not have jurisdiction to determine and hear the board's claim because s 3(1)(n) of the High Court (Admiralty Jurisdiction) Act 1961 ('the 1961 Act') permits only the master and the crew to do so.

Held, dismissing the mortgagee-interveners' application: (1) the board is a statutory body as well as a trustee of the fund. The board was a trustee of the fund even before there were any moneys in it. As the board is entitled to payment, it must perforce have a right to sue for payment; (2) s 35 of the CPF Act is otiose if its intention is to confer a capacity on the board to sue or be sued. The section is intended to confer priority on any sum due to the fund to the same extent that a debt due to the government has priority by virtue of the Government Proceedings Act (Cap 21, 1970 Ed). There is nothing in the language of s 35 which affects or diminishes the rights of the board in relation to the recovery of CPF contributions under the general law or which purports to change the nature of the statutory debt (or any privilege or right, eg a lien, incidental to such debt). Section 35 is intended to extend and extends to the scope of recovery of arrears of CPF contributions and is entirely consistent with the object of the provident fund scheme established by the CPF Act; (3) the claim of the board comes within the terms of s 3(1)(n) of the 1961 Act. By reason of its status and obligations under the CPF Act, the board as trustee has effectively stepped into the shoes of those seamen for whom CPF contributions are payable. The claim of the board is in substance the claim of the members of the crew and the claim by the board as trustee is a claim, as it were, by the alter ego of each affected member; (4) the mortgagees should not be allowed to obtain payment out of the balance of the fund without giving effect to the prior rights of the board.

Soon Aik Marine & Engineering Pte Ltd v 'Hoesheng' (Owners of) (Central Provident Fund Board, Intervener) [1989] 1 MLJ 178 High Court, Singapore (Chan Sek Keong JC).

In this case the appellant had been convicted for failing to pay contributions due under the Employees Provident Fund Ordinance. He was also ordered to pay the amount due as certified in a certificate issued by the accountant of the Employees Provident Fund. The certificate merely certified the lump sum due without specifying the amount due for each period. The question for the court to decide was whether it was essential to state in the accountant's certificate the actual amount due in reference to a particular employee for any specific period for the purpose of s 16A(4) of the Employees Provident Fund Ordinance.

Held: the certificate must state what is due for each month by the employee and this not having been done the certificate was not a proper certificate for the purpose of s 16A(4) of the Employees Provident Fund Ordinance.

Hock Soon Seng v Public Prosecutor [1962] 4 MC 50 High Court, Ipoh (Azmi J).

On 15 October 1984, the appellant-company was charged under s 16A(1)(c) of the Employees Provident Fund Act 1951 (Act 272) for failing as an employer to remit contributions in respect of certain employees. Its manager pleaded guilty to all the charges. The magistrate imposed fines in the total sum of RM4,320 which was paid. The magistrate also ordered the appellant company to pay to the board arrears of contributions amounting to RM28,325 by 15 December 1984. The manager failed to do so and eventually on 18 October 1986, the magistrate made the order committing him to ten months' imprisonment for failing to pay the arrears. The appellant company appealed. The question for decision is whether the manager can be imprisoned for his failure to pay the arrears of contributions owed to the board by the appellant company.

Held, allowing the appeal: (1) the specific provisions of s 283(i)(b)(4) and (c) of the Criminal Procedure Code (FMS Cap 6) prescribe imprisonment in case of default of payment of a fine imposed as punishment for a particular offence. These specific provisions cannot apply to arrears of contributions upon certification because they were not fines as such; (2) the arrears of contribution by their very nature constitute a civil debt and were not ordered to be paid by way of penalty. The order of committal made by the learned magistrate should accordingly be set aside.

Pontian Bas Bhd v Public Prosecutor [1987] 2 MLJ 646 High Court, Johore Bahru (LC Vohrah J).

The respondent pleaded guilty to two charges under the Employees Provident Fund Act 1951 ('the EPF Act') for failing to remit contribution in respect of one of its employees for the months of September and October. It was convicted and fined accordingly. An application was made to require the respondent to make payment in respect of outstanding arrears from January 1985 to March 1987. A certificate by the accountant of the EPF Board was produced to the court. This certificate related to the arrears in the charges and other arrears in respect of the same employee as well as arrears in respect of other employees of the respondent. It was argued before the magistrate that s 64A(4) of the EPF Act conferred upon the court the duty to make an order in respect of any contributions as long as they were due prior to the finding of guilt.

Held, dismissing the appeal: (1) it could not be the intention of the EPF Act that the court is under a duty to make an order in respect of contributions other than those which have become the subject matter of the charges. Section 64A(4) must be read in its proper context, taking into account s 16A as a whole. From the opening words of s 16A(4), the inference was that the court order under that subsection must relate only to the contribution which is the subject matter of the offence under s 16A(1)(c) for which there has been a finding of guilt. It also could not be the intention of the drafters to introduce such a drastic mode of enforcement as the employer would not have the opportunity to defend himself on those contributions which were not stated in the charge; (2) even assuming that there was an ambiguity, there is the basic principle of statutory interpretation that laws which impose criminal or other penalties must be strictly construed so that if the words are ambiguous and there are two reasonable interpretations, the court must adopt the interpretation that favours the citizen.

Public Prosecutor v Silectron Sdn Bhd Criminal Appeal No 51-284-87 High Court, Shah Alam (Mohd Hishamudin JC).

P was charged in the magistrates' court for an offence under s 16A(1)(c) of the Employees Provident Fund Act 1951 (Act 272) in that, being an employer, it failed to pay to the Employees Provident Fund the amount which it was liable under the Act to pay in respect of the employees' contributions. P was represented at the hearing by X, its chairman/director, who pleaded guilty to all the charges. P was convicted and was ordered to pay the outstanding contributions. When P defaulted in payment, the learned magistrate ordered that X be made personally liable to pay the outstanding contributions. In this criminal revision, the issue for the consideration of the High Court was whether X can be made personally liable for an offence under s 16A(1)(c) committed by P, as an employer.

Held, setting aside the order of the magistrate: (1) reading s 16A(1)(c) together with s 18(2), a director of a company can be made personally liable for the offence committed by the company unless he proves that it was committed without his consent or connivance; (2) in the instant case, X was not given any opportunity to prove to the magistrate that the offence for which he had pleaded guilty was committed without his consent or connivance. In the circumstances, it was wrong for the magistrate to make him personally liable for the offence committed by P; (3) the order of the magistrate made against X personally was, accordingly, set aside.

Sing Pin Jih Pao Sdn Bhd v Public Prosecutor [1991] 1 MLJ 127 High Court, Penang (Mohamed Dzaiddin J).

Public Prosecutor v Kasihku Sdn Bhd [1991] 3 MLJ 116 High Court, Alor Setar (KC Vohrah J).

D, a company, was charged for failure to remit contributions to the Employees Provident Fund under s 16A(1)(c) of the Employees Provident Fund Act 1951 (Act 272). D, through a representative, pleaded guilty and was sentenced to be fined by the magistrate's court. D was also ordered to pay arrears of contributions to the Fund under s 16A(4) of the 1951 Act within a stipulated time. The fines were paid but not all the arrears were remitted to the Fund. D was brought to the magistrate's court again and was given an extension of time to settle the arrears. The learned magistrate also ordered that if D failed to settle the arrears within the extended time, D would be liable to imprisonment. D, however, did not settle the arrears and was again brought to the magistrate's court. On that day, X, D's manager, appeared for D. The learned magistrate dismissed an application by the prosecution to imprison X for D's failure to settle the arrears. The learned magistrate, however, ordered the arrears to be claimed as a civil debt under s 17 of the 1951 Act. The prosecution appealed to the High Court.

Held, allowing the appeal in part and remitting the case back to the magistrate's court: (1) X could not be sent to prison for D's failure to settle the arrears because there was no prosecution instituted against X as D's officer under s 18(2) of the 1951 Act; (2) the learned magistrate's order that the arrears be recovered as a civil debt was set aside. Once D has pleaded guilty, the court has a statutory duty under s 16A(4) of the 1951 Act to order recovery of the arrears in the same manner as a fine under s 283 of the Criminal Procedure Code (FMS Cap 6). The matter would be remitted to the magistrate's court to decide whether to grant D another extension of time to settle the arrears or to issue a warrant for the levy of the amount by distress and sale of D's property under s 283(1)(b)(3) of the Code.

Public Prosecutor v Kasihku Sdn Bhd [1991] 3 MLJ 116 High Court, Alor Setar (KC Vohrah J).

In this case, the respondent had been charged in the magistrate's court for an offence under s 16A(1)(c) of the Employees Provident Fund Act 1951 (Act 272) ('the Act') for failing as an employer to remit contributions of four employees. The manager of the respondent company, who was present in court, pleaded guilty and a fine totalling RM4,320 was imposed. This fine was paid. The magistrate also made an order under s 16A(4) of the Act for the respondent company to pay the arrears of contributions to the Employees Provident Fund Board amounting to RM28,325. The respondent company failed to pay the arrears. The learned magistrate subsequently acting under s 16A(4) of the Act committed the manager to ten months' imprisonment for default of payment of such arrears. The respondent appealed to the High Court, Johore Bahru, and the learned judge of the High Court allowed the appeal and set aside the order of committal by the learned magistrate (see[1987] 2 MLJ 646). The Public Prosecutor then applied for the following question of law to be referred to the Supreme Court: 'Whether the learned judge was right in law in holding that s 283(i)(b)(4) of the Criminal Procedure Code (FMS Cap 6) can have no application in the enforcement of an order made by the court for payment of arrears of contribution pursuant to s 16A(4) of the Employees Provident Fund Act 1951.'

Held: (1) s 16A(4) states in clear terms that the arrears of contribution 'shall be recoverable in the same manner as a fine'. In short, for purposes of recovery, arrears of contribution are to be treated in the same manner as any fine imposed as punishment for a particular offence; (2) as the respondent firm has been wound up by a High Court order, no consequential order or alternative order for the recovery of the arrears will be made.

Public Prosecutor v Pontian Bas Bhd [1988] 2 MLJ 530 Supreme Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

In this case, Pan-Malaysia Industries Ltd had failed to pay contributions to the Central Provident Fund in respect of certain of its employees. The company was charged for failure to do so and was convicted and fined. In addition, the company was ordered to pay arrears of contributions amounting to S$48,493.30. The company paid S$10,483.25 leaving a balance of S$38,010.05 due and owing to the Central Provident Fund Board. Subsequently, the plaintiffs were appointed receivers and managers of the company at the instance of the Chase Manhattan Bank pursuant to the provisions of three debentures created by the company in favour of the bank. The assets of the company were insufficient to meet the claim of the debenture holders in full so that if the claim of the Central Provident Fund Board were postponed to the claim of the debenture holders, the board would not be able to get anything. It was contended by the plaintiffs that having regard to the provisions of ss 191 and 292 of the Companies Act, only a sum of S$13,276.16 (being contributions payable during the 12 months previous to the appointment of the receivers) would be payable by way of preferential payment before the claim of the debenture holders was met. The defendants contended that the whole of the sum of S$38,010.15 was payable to them in preference to any claim of the debenture holders.

Held: in the circumstances of the case, the board was entitled to rank as preferential creditor for the sum of S$13,276.16. As regards the balance of S$24,733.89 due to the board, payment of this sum had to be postponed until after the debenture holders had been paid.

Re Pan-Malaysia Industries Ltd; Tay Ah Kee & Anor v Central Provident Board [1979] 1 MLJ 19 High Court, Singapore (Choor Singh J).

D was charged with two offences for failing to remit contributions to the Employees Provident Fund under s 16A(1)(c) of the Employees Provident Fund Act 1951. The two charges were in respect of contributions for two months amounting to RM60 for each month concerning D's employee, X. D pleaded guilty to the two charges and was sentenced by the magistrate to RM1,000 fine for each offence. The prosecution adduced a certificate from the Employees Provident Fund Board certifying that D owed arrears of contributions totalling RM9,542 in respect of all its employees from the month of July 1988 until March 1989. D did not dispute the validity of the certificate. The prosecution then applied for an order that D be liable to pay the RM9,542 to the Board under s 16A(4) of the 1951 Act. The magistrate refused to order D to pay the RM9,542. The magistrate instead ordered D to pay RM120 to the Board being contributions in respect of the two months for which the two charges were brought against D. The magistrate was of the view that s 16A(4) of the 1951 Act did not empower the court to order arrears of contributions concerning employees and months that were not stated in the charges. The magistrate further held that s 16A(3) of the 1951 Act which enables an employer to be tried at one trial for a maximum of 36 charges under s 16A(1)(c) of the 1951 Act, supported her view. The prosecution appealed to the High Court against the magistrate's refusal to order D to pay the RM9,542. D cross-appealed against the fines imposed.

Held, allowing the appeal by the prosecution; dismissing D's cross-appeal against sentence: (1) the object of the legislature in enacting s 16A(4) of the 1951 Act is to provide a simple and effective way to recover arrears of contributions from an errant employer. This is intended to protect the employees' interest; (2) the words 'any contributions' in s 16A(4) of the 1951 Act, mean 'whatever contributions' or 'all contributions'. The literal meaning of s 16A(4) of the 1951 Act is therefore clear that once an employer is found guilty of any offence under s 16A(1)(c) of the 1951 Act, the court shall order the employer to pay the total amount of contributions due to the Board which is not confined to the amount of contributions concerning employees and months as stated in the charges against him; (3) s 16A(3) of the 1951 Act should not be interpreted in such a way which would confine the application of s 16A(4) of the 1951 Act. The purpose of s 16A(3) of the 1951 Act is to punish and deter the errant employer. This is to be distinguished from the purpose of s 16A(4) of the 1951 Act which is to recover arrears of contributions; (4) this case was therefore remitted back to the magistrate to order D to pay the RM9,542 to the Board.

Public Prosecutor v LCY Holdings Sdn Bhd Criminal Appeal No 41-216-1990 High Court, Kuala Lumpur (Abdul Aziz J).

United Overseas Bank Ltd v Promotion & Sales Centre Pte Ltd & Ors (Central Provident Fund & Anor, claimants) [1996] 1 SLR 374 High Court, Singapore (Choo Han Teck JC).

The plaintiff employed one Lim from 11 September 1950 to 31 January 1966 at monthly wages above the statutory limits of RM400 and RM500 as laid down in the Employees Provident Fund Ordinance 1951, as amended from time to time. In or about January 1958, Lim without the knowledge or consent of the plaintiff took part-time employment with one Seng Lee Co Ltd for which employment he was paid monthly wages below the said statutory limits. On 11 March 1967, the defendant notified the plaintiff that Lim was found liable to contribute to the provident fund in respect of his part-time employment with effect from January 1958 and in consequence the plaintiff was liable to pay arrears of contribution on Lim's behalf amounting to RM4,220 in respect of his full-time employment with the plaintiff. The plaintiff complied with the demand of the defendant and paid the said amount under protest. On 27 July 1967, the defendant demanded payment of interest on contributions in arrear amounting to RM1,645 and the plaintiff paid this sum again under protest. In this application, the plaintiff sought for the determination of the following questions: (a) whether Lim was or was not at any material time an employee of the plaintiff and whether the plaintiff was or was not at any material time the employer of Lim within the meaning of the Employees Provident Fund Ordinance 1951 and the regulations made thereunder as amended from time to time; (b) whether the plaintiff was or was not then or at any material time had or had not been under any liability to pay contribution to the provident fund in respect of the said Lim.

Held: (1) although Lim's monthly wages from Seng Lee Co Ltd were all the time below the statutory limits but his monthly wages from the plaintiff were always above the statutory limits and there was no reason why 'wages' in para 2 of the First Schedule to the ordinance should not be construed to mean not only the wages Lim was getting from the said company but also the wages he was concurrently getting from the plaintiff. As Lim had not become an 'employee' when he took up employment with the company, the plaintiff was not an employer of an employee within the meaning of s 7(1) and as Lim had not become liable to contribute, the plaintiff was not caught by the proviso to s 2; (2) (b) the plaintiff was not then or at any material time had not been under any liability to pay contribution to the provident fund in respect of Lim; (3) accordingly (a) Lim was not at any material time an employee of the plaintiff and the plaintiff was not at any material time his employer within the meaning of the ordinance and the regulations made thereunder as amended from time to time;therefore (a) an account must be taken of all sums paid under protest by the plaintiff to the defendant by way of contribution to the Employees Provident Fund as demanded by the defendant together with interest on such arrears of contribution similarly paid by the plaintiff to the defendant upon the demand of the defendant and (b) the defendant must refund to the plaintiff the amount found due upon taking of the account with 6% interest thereon.

Boustead Trading Sdn Bhd v Employees Provident Fund Board [1970] 2 MLJ 56 High Court, Kuala Lumpur (Ibrahim J).

The plaintiff company sought a declaration that salesmen employed by their shop managers were not their employees for the purposes of the Employees Provident Fund Ordinance 1951. It appeared that the shop managers were employed by the company under written agreements which gave a shop manager power to employ salesmen, salesgirls, clerks and servants and which provided that the shop manager was to be the employer of such salesmen, salesgirls, clerks and servants.

Held: (1) in view of the considerable control which the company had over the shop managers the shop managers were the employees of the company; (2) in the light of all the evidence in this case, the shop managers could not be said to be acting as the agents of the company when they recruited their own salesmen to assist them and therefore, there was no relationship of employer and employee within the meaning of the Employees Provident Fund Ordinance 1951, between the plaintiff company and the salesmen employed by its shop managers.

Bata Shoe Co (Malaya) Ltd v Employees Provident Fund Board [1967] 1 MLJ 120 High Court, Kuala Lumpur (Gill J).

This was an appeal against the decision of Gill J ([1967] 1 MLJ 120) who had held that there was no relationship of employer and employee between the Bata Shoe Co (M) Ltd and the salesmen employed by the managers of the company's retail shops. Under the agreement between the company and the managers, the managers were given power to employ persons to assist them and it was stated that the managers would be responsible for payments under the Employees Provident Fund Ordinance 1951.

Held, dismissing the appeal: (1) construing a 'contract of service' in s 2 of the Employees Provident Fund Ordinance 1951 does not require the court to go beyond ascertaining whether such a contract existed or not, to the extent of exploring the wider field of an employee's liability for the unauthorized acts of putative agents; (2) the contract between the company and the managers was a valid one and it was clear that under it the managers and not the company were the employers and, therefore, the company was not liable to contribute to the Employees Provident Fund.

Employees Provident Fund Board v Bata Shoe Co (M) Ltd [1968] 1 MLJ 236 Federal Court, Kuala Lumpur (Barakbah LP, Azmi CJ (Malaya).

The respondent, the widow of one Kwan Yat Hong who was killed in a motor accident for which the appellants admitted liability, brought an action against the appellants under s 12 of the Civil Law Act (Cap 30, 1970 Ed) claiming damages on her own behalf and on behalf of the children and parents of the deceased. No claim was made on behalf of the estate under s 8 of the Act and such a claim eventually became statute-barred. In the statement of claim, it was originally alleged that the dependants had suffered loss and damage amounting to S$800 a month but this was amended to add the words 'in addition to CPF contributions'. The assistant registrar assessed the general damages at S$118,560 and indicated that S$44,856 of that sum was in respect of the loss attributable to the cessation of contributions to the Central Provident Fund. The total figure for general damages was increased to S$148,000 on appeal to the High Court and this assessment was upheld in the Court of Appeal ([1983] 2 MLJ 306). The amount attributable to the cessation of contributions to the fund was not disturbed. The appellants appealed and contended that the loss resulting from the cessation of contributions to the fund was a loss suffered by the deceased estate and as such should have been claimed under s 8 of the Civil Law Act. They said that the dependants have suffered no loss of dependancy in relation to the contributions and the fact that they were nominated under s 16(1) of the Central Provident Fund Act (Cap 121, 1970 Ed) did not entitle them to claim as dependants.

Held, dismissing the appeal: (1) on the facts of the case, there could be no reasonable difference between the loss of the expectation of a greater sum from the Central Provident Fund in consequence of additional contributions that would have been made and the loss of expectation under a will or intestacy resulting from additional savings; (2) s 15 of the Central Provident Fund Act supports the respondent's claim to a reasonable expectation from the fund.

Singapore Bus Service (1978) Ltd v Lim Soon Yong [1985] 2 MLJ 267 Privy Council Appeal from Singapore (Lord Keith of Kinkel, Lord Edmund-Davies, Lord Brandon of Oakbrook, Sir Owen Woodhouse and Sir Edward Eveleigh).

The respondent brought an action against the appellant under s 12(8) of the Civil Law Act (Cap 30, 1970 Ed) as the widow of Kwan Yat Hong for the benefit of the dependants of Kwan Yat Hong who was killed in a motor accident when his car collided with a motor bus driven by the appellant's servant on 26 May 1979. On 15 October 1982, judgment by consent was given for the respondent and damages were ordered to be assessed by the registrar and costs to be taxed. On 31 January 1983, the assistant registrar assessed the damages at the sum of S$3,000 for funeral expenses, S$59, 808 to the respondent as dependency under s 12, S$44,856 to the respondent as dependency from the Central Provident Fund (CPF) and S$13,896 to the respondent for the mother of the deceased as a dependant. The respondent appealed against the decision of the assistant registrar. Abdul Wahab Ghows J increased to S$148,000 the dependency claim of the respondent and ordered that the award of S$44,856 as dependency from the CPF to remain. The deceased was aged 32. He was drawing a basic salary of S$950 per month as a store purchaing officer.

Held: (1) the learned judge did not in fact increase the dependency claim of the respondent from S$59,808 to S$148,000. The learned judge increased it to S$128,000. S$20,000 of the S$148,000 was for the mother; (2) the assistant registrar when taking the respondent's dependency to be S$400 per month had failed to take into account the pecuniary loss which it was estimated the dependant would sustain in the future; (3) the learned judge had applied the principles laid down in Cookson v Knowles [1978] 2 All ER 604 and did not err in law; (4) CPF contribution formed part of the widow's dependency claim.

Singapore Bus Service (1978) Ltd v Lim Soon Yong [1983] 2 MLJ 306 Court of Appeal, Singapore (Kulasekaram, Sinnathuray and Chua JJ).

In this case, the facts were that one Kirpal Singh Brar had been an employee of the Malayan Government on contract as an inspector of police during which time he was a member of the Employees Provident Fund, his salary at that time being less than RM500. He resigned from government service in 1960 and went to London to read law. He qualified in 1964 and on his return, after he was admitted to practise as an advocate and solicitor, he was employed as an assistant by the respondents from 1 September 1964 at a salary of RM501 per month which was increased to RM601 per month in September 1965. Under para (2) of the First Schedule to the Employees Provident Fund Ordinance 1951, a person whose wages exceed RM500 a month is exempted from the definition of 'employee' but the proviso to the paragraph provides that 'where after an employee has become liable to pay contributions as provided in s 7 of this ordinance or would at any time but for the provisions of ss(1), (1A) and (2) of s 16 thereof have become so liable, the wages of such employee shall not by reason only of this paragraph be deemed to have become excluded from the provisions of this ordinance, but his wages shall for all the purposes of this ordinance be deemed to be RM500 a month É'. The Employees Provident Fund Board in this case applied for a declaration that Kirpal Singh Brar was an employee of the respondents within the meaning of the ordinance, and for an order that the respondents do pay arrears of contribution. The learned trial judge held that Kirpal Singh Brar ceased to be an employee for the purposes of the Employees Provident Fund Ordinance 1951, when he left the government service in 1960 and that he did not become an employee when he was subsequently employed in 1964 at a salary exceeding RM500. The board appealed.

Held, (Azmi LP and MacIntyre FJ, Ong Hock Thye CJ dissenting): once an employee commenced to contribute and so becomes a member of the Employees Provident Fund, his subsequent employment does not affect his status as a member, though his liability to contribute would only arise when he is an employee and earning wages. The proviso to para (2) of the First Schedule would apply irrespective of whether the increase of his wages above RM500 a month occurred during his employment with the same or with another subsequent employer.

Employees Provident Fund Board v RR Chelliah Bros [1969] 1 MLJ 161 Federal Court, Kuala Lumpur (Azmi LP, Ong Hock Thye CJ (Malaya).

This was an appeal from a decision of the Federal Court of Malaysia ([1969] 2 MLJ 161) in an application by the respondents who sought a declaration that the appellants, a firm of advocates and solicitors practising in Kuala Lumpur, were liable under the Employees Provident Fund Ordinance 1951 for arrears of contributions amounting to RM800 and interest and an order for payment. Raja Azlan Shah J dismissed the application but the Federal Court by a majority (Azmi LP, MacIntyre FJ; Ong Hock Thye CJ (Malaya) dissenting) granted the respondents' application. The undisputed facts were: Before August 1960, one Kirpal Singh Brar was employed as an inspector of police. Contributions were paid and he became a member of the fund. Then he resigned and went to England and after a course of study he was called to the Bar. Then on his return to Malaysia, he was duly admitted to practise there as an advocate and solicitor. From 1 September 1964 until 31 January 1966, he was employed by the appellants. His salary was RM501 per month later increased to RM601 per month. The respondents maintained and the appellants denied that contributions to the fund were payable in respect of this employment.

Held, dismissing the appeal: the proviso to para 2 of the First Schedule to the ordinance applied in this case and as the employee had become liable to pay contributions under the ordinance he was not excluded from the provisions of the ordinance when his wages subsequently exceeded RM500 a month, even though the subsequent employment was of a different character.

RR Chelliah Brothers v Employees Provident Fund Board [1971] 1 MLJ 131 Privy Council Appeal from Malaysia (Lord Reid, Lord Morris of Borth-y-Gest and Lord Donovan).

In 1986, a Mdm Yee Sow Thoo ('the deceased') made a will appointing her son ('the appellant') to be the executor and trustee of her will. Subsequently, the deceased made a nomination ('the nomination') in Form KWSPÐ4 under the Employees Provident Fund Regulations 1969 ('the EPF Regulations'), nominating her daughter to receive the amount standing to her credit in the Employees Provident Fund ('EPF'). The deceased passed away in 1987. In 1991, the appellant was granted probate of the will by the High Court. The appellant then instituted an action at the High Court by way of originating summons seeking a declaration that the EPF nomination in favour of the deceased's daughter was null and void and that the will should take precedence. It was argued that the disposition of the deceased's property under reg 9 of the EPF Regulations, which amounted to a form of testamentary disposition of the deceased's property, did not comply with the provisions of the Wills Act 1959 ('the Wills Act') in this case. In reply, counsel for the respondent submitted that the Wills Act did not apply in this case, and therefore could not invalidate the EPF nomination which was made in the prescribed form under reg 9 of the EPF Regulations. The judge dismissed the appellant's application. The appellant appealed. The primary issue in this appeal was whether the nomination under the EPF Regulations was a testamentary document which must comply with the provisions of the Wills Act 1959.

Held, dismissing the appeal: (1) a nomination has certain testamentary characteristics. However, there is a vast difference between a testamentary paper and a disposition of a testamentary nature. A testamentary paper must satisfy the Wills Act, but a disposition might have certain testamentary characteristics without the paper containing it being a testamentary paper; (2) the nomination was a statutory nomination, which operated by force of the Employees Provident Fund Act 1951 ('the EPF Act') and Regulations. Section 20 of the EPF Act empowers the Minister of Finance to make regulations to provide for the nomination by a member of the EPF of the persons to whom any amount standing to his credit in the EPF at the time of his death is to be paid at his death. By virtue of this section, the EPF Regulations came into force, and the power to make nominations by a contributor of the EPF was provided for under reg 9. The nomination to be valid must be made in writing on the prescribed form (Form KWSPÐ4) signed by the nominator whose signature must be attested by a witness. It was not disputed that the nomination in this case had complied with the aforesaid provisions, and was therefore valid; (3) the contention that the disposition of the deceased's property under the EPF Regulations was invalid as it was inconsistent with the Wills Act was devoid of any merit, in view of the court's opinion on the primary point that the nomination of the deceased was not a testamentary document and that it had complied with the provisions of reg 9 of the EPF Regulations.

How Yew Hock (Executor of the estate of Yee Sow Thoo, deceased) v Lembaga Kumpulan Wang Simpanan Pekerja [1996] 2 MLJ 474 Federal Court, Kuala Lumpur (Chong Siew Fai CJ (Sabah & Sarawak).

W was employed by A, an Indonesian company. His wages were paid by R, a Singapore company, in Singapore. No CPF contributions were made by either A or R. R was prosecuted under the Central Provident Fund Act (Cap 36), which provides that the responsibility for payment of CPF contributions rests, inter alia, with 'any manager, agent or person responsible for the payment of wages to an employee on behalf of an employer'. R was convicted and appealed. It was argued that the term 'person responsible' should be read ejusdem generis with 'manager, agent'.

Held, dismissing the appeal: (1) in the construction of a clause in modern legislation, the approach of the courts is to limit the application of the ejusdem generis rule. The term 'person responsible ... etc' created a category distinct from 'manager' or 'agent'; (2) the person responsible for payment of wages on behalf of an employer need not be under a legal duty to pay. It is sufficient if the person pays the wages on behalf of the employer for whatever reason. The appeal was therefore dismissed.

Rimaco Pte Ltd v Public Prosecutor [1991] 1 MLJ 480 High Court, Singapore (Sinnathuray J).

The defendants' leasehold property was mortgaged to the plaintiffs. The plaintiffs sought delivery of possession of the mortgaged property under O 83 of the Rules of the Supreme Court 1970. The defendants raised two objections to the plaintiffs' application: (a) the mortgage was invalid on the ground that the property had been mortgaged without the prior approval of the CPF Board and thus in breach of cl 7(a) of the 'Conditions For the Use of CPF Money to Purchase Mindef Flats'; (b) even if the mortage is valid, the plaintiffs' interest is subject to an earlier charge over the property in favour of the CPF Board.

Held, allowing the plaintiffs' application: (1) cl 7(a) is purely contractual in character between the CPF Board and the defendants. The plaintiffs were not a party to this agreement and cannot be bound by its terms or effects. The defendants' breach of cl 7(a) merely renders them accountable to the CPF Board but does not alter or affect any substantive rights which third parties have acquired in breach of their provisions; (2) the defendants' second argument has no merits. On the facts, the question of priorities posed by the defendants does not arise as no charge or caveat had been lodged by the CPF Board; (3) the plaintiffs' interest, which had been duly registered, must prevail under the ordinary principles of registration under the Land Titles Act (Cap 157, 1985 Ed). The plaintiffs were thus entitled to possession of the mortgaged premises.

Probo Pacific Leasing Pte Ltd v Lim Poh Weng & Anor [1988] 2 MLJ 345 High Court, Singapore (Wee Chong Jin CJ).

On 26 March 1960 C married L and their marriage was duly registered in accordance with the Christian Marriage Ordinance. Sometime in 1975, a Chinese customary marriage was celebrated between C and M. On 15 January 1980 a divorce decree absolute was granted, dissolving the marriage between C and L. Thereafter, no step was taken by C and M to have a marriage between them solemnized in Singapore or elsewhere. On 4 June 1986 C and M entered into an agreement for the purchase of a piece of property. C and M submitted to the Central Provident Fund Board ('CPF Board') a joint application for withdrawal of their respective savings ('CPF savings') to purchase the property. Under reg 11(1) of the Central Provident Fund (Approved Residential Properties Scheme) Regulations 1982, a member is only entitled to apply for withdrawal of money under these regulations for the joint purchase of residential property if his relationship with the co-purchaser falls within one of five categories described therein, and one such relationship is that of husband and wife. In their application, C and M declared their relationship to be that of 'husband/wife'. The property was transferred to C and M as joint tenants. Under s 21 of the Central Provident Fund Act (Cap 36) ('CPF Act'), a charge on the property came into existence to secure the repayment of moneys withdrawn by C and M including interest that would have accrued thereto if the withdrawal had not been made. C died on 19 August 1987. In these appeals, there are only two issues: (a) whether there was a valid and subsisting marriage between C and M on 23 June 1986 ('the material date'), this being the date when they submitted the joint application to the CPF Board for withdrawal of their respective CPF savings to purchase the property; and (b) if there was no such marriage, whether the moneys withdrawn by C, including interest that would have accrued thereto if such withdrawal had not been made, became due and payable to the CPF Board.

Held, dismissing all the appeals: (1) on the first issue, there was no dispute that in 1975, when C and M went through the customary marriage, C was still legally married to L. On the material before the court, M had not proved that on the material date of 23 June 1986 she was legally married to C; (2) under the provisions of s 21(10) read with s 24(e)(i) of the CPF Act, and under reg 20(3) of the Central Provident Fund (Approved Residential Properties Scheme) Regulations 1982, the moneys withdrawn by C ceased to be payable to the CPF Board upon his death, and the charge created by virtue of s 20(1), so far as it concerned C's withdrawal of his CPF savings, ceased to continue to have any force and effect; (3) on the question of costs, the CPF Board acted rightly and was justified in initiating these proceedings seeking necessary declarations. Therefore, there ought to be no order as to costs. In respect of the proceedings instituted by M, this was an unnecessary litigious stand taken by her and those advising her. Therefore, costs ought to have been awarded to M and accordingly, such order as to costs made by the court below is set aside.

Moh Ah Kiu v Central Provident Fund Board [1992] 2 SLR 569 Court of Appeal, Singapore (Yong Pung How CJ, LP Thean and Goh Joon Seng JJ).

The question raised in this case was whether payments of certain moneys distributed to the applicants' employees on a points or share system out of the service charges levied on all their customers were 'wages' under the Central Provident Fund Act (Cap 121, 1970 Ed), ie remuneration in money due or granted to them in respect of their employment and if so whether the applicants were liable to make Central Provident Fund contributions on such payments.

Held: the moneys in question which were deployed out of funds collected by service charges by the applicants and paid out to the employees on a points or share system did not represent moneys of which the applicants were mere trustees or collecting agents for their employees. They were moneys demanded from clients and they accrued to hotel revenue in the first instance and the hotel decides in the absence of industrial arbitration how the amount collected should be distributed to its employees, In the circumstances, they were part of the remuneration in money due to the employee in respect of his employment falling squarely within the meaning of 'wages' as defined in s 2 of the Central Provident Fund Act.

Hotel Biltmore & Ors v Central Provident Fund Board [1972] 2 MLJ 232 High Court, Singapore (Winslow J).

In this case, the appellants applied for a declaration that Employees Provident Fund contributions are payable in respect of service charges collected by the hotel and distributed to the hotel and staff. The application was dismissed in the High Court and the appellants appealed.

Held: (1) the service charges were not 'due to an employee under his contract of service'. To be so due, the money received by or paid to the employee must essentially and juridically be due 'from his employer' and this money must before payment to the employee be the property of the employer and must in turn be in the nature of consideration or quid pro quo flowing from the employer in return for the service rendered by the employee. This concept of reciprocity is implicit in or rather the concomitant part of the concept of contract of service; (2) money collected from the hotel customers as service charges and subsequently accounted for and paid to the hotel employees can under no circumstances be held to be 'due' under the employees' contract of service, as customers are not parties to such contract. Hence, they are not wages within the meaning of the Employment Provident Fund Act 1951 (Act 272); (3) as the service charges are not brought into existence by the contract of service, but as a matter of trade practice levied by the employer on its customers and as the money so collected are kept distinct and accounted for and distributed to all its employees, they do not constitute 'wages' within the meaning of the Act so as to attract contributions thereunder.

PA Pereira & Anor v Hotel Jaya Puri & Anor [1983] 2 MLJ 314 Federal Court, Kuala Lumpur (Salleh Abas CJ (Malaya).

This was an appeal from the decision of the Federal Court reported at [1983] 2 MLJ 314. The question in the appeal is whether the first respondent and the first appellant, who was employed as a senior cook by the respondent, were obliged under the Employees Provident Fund Act 1951 (Act 272) to pay contributions to the second respondents, the Employees Provident Fund Board, not only in respect of his basic salary and food allowance but also in respect of his share of the service charges collected from their customers by the first respondent. The learned judge of the High Court and the Federal Court had concluded that the first appellant's share of the service charges were not wages within the meaning of the Act so as to attract contributions thereunder.

Held: (1) where a contract of service provides that the employee is bound to work for a certain period and provides for two distinct payments to which he shall be entitled as an employee, the proper conclusion to draw is that both payments are due to the employee in respect of the work which he has bound himself to perform. Where there is provision for additional remuneration if an employee does work over and above that which he has bound himself by his contract to perform, the additional amount he receives in consequence of an application of that provision will not be wages within the meaning of the Employees Provident Fund Act 1951, but all remuneration to which he is entitled in terms of his contract if he performs only the work which he is bound to perform must, in the absence of special provision, be properly regarded as remuneration in respect of the normal periods of work to be performed by him; (2) the share of the service charge is properly to be regarded as due to the first appellant under his contract of service as remuneration and it is in respect of the normal periods of work. The first appellant's entitlement to his share of the service charges collected by the first respondent arises under his contract of service with the first respondent and, therefore, even if the first respondent in terms of that contract is acting as his agent to collect for him and the other employees from the hotel's customers, the service charges which they pay to the first respondent, that money is due to them by the first respondent under their contracts of service as a reward for the service which the employees render under their contracts of service to the first respondent.

PA Pereira & Anor v Hotel Jayapuri Bhd & Anor [1986] 2 MLJ 1 Privy Council Appeal from Malaysia (Lord Bridge of Harwich, Lord Templeman, Lord Mackay of Clashfern, Lord Oliver of Aylmerton and Lord Goff of Chieveley).

[Annotation: The Malaysian Parliament at the March 1986 session passed the Employees Provident Fund (Amendment) Act 1986 (A 642), the provisions of which nullify this decision.]

In this case, the Malaysian Mining Staff Provident Fund was established to provide for the retirement benefits of Malaysian employees of various companies involved in the mining industry. It was the practice of the trustees of the fund to pay the capital gain obtained from the realization of equity investments to a reserve fund. The provident fund was wound up and the questions posed to the court were: (a) whether the trustees were correct in crediting the investment surplus to the reserve account under the rules; (b) what is the distribution scheme allowed by law for the surplus funds and assets of the fund. The learned trial judge held that the sum in the hands of trustees came within the definition of reserve account and that the persons entitled to the money were those who were contributors on the date of winding up, that is 31 July 1981. He also held that it would be fair and equitable that the distribution be made pro-rata in accordance with the amount of the respective contributions standing to the credit of the fund. The appellant who represented the class who advocated for an equal rather than a proportionate distribution appealed.

Held: (1) it was not improper in this case for the trustees to have credited the surplus investments into the reserve account; (2) prima facie the distribution of surplus funds of a society which has ceased to function should be based solely on contract and not on equity and, therefore, the funds are distributable among the members or contributors at the relevant date per capita or equally. However, the rules governing the fund may have written into them the basis of inequality among the different classes of members in relation to the principal contractual burdens and benefits of membership. Such expressed provisions in the rules will alter the presumption in favour of inequality of distribution; (3) in this case, the surplus fund should be distributed to those members who were contributors on the date of the winding up of the fund in proportion to the amount standing to the credit of each contributor in the books of the fund at that date.

Lim Yee Cheong v Haji Mokty bin Datuk Mahmood & Ors [1984] 2 MLJ 308 Federal Court, Ipoh (Abdul Hamid CJ (Malaya).

The appellants were convicted on eight charges of failing to pay contributions to the Central Provident Fund in respect of eight employees of the company as required by s 7(1) of the Central Provident Fund Act (Cap 121, 1970 Ed). The appellants appealed against the said decision. They contended, inter alia, that the expression 'remuneration' in the definition of 'wages' under s 2 of the Central Provident Fund Act does not include fixed payments made to cover genuine pre-estimates of an expense of a particular type of employee and that in the present case the payments made to the bunkering crew were 'genuine pre-estimates of expenses necessarily incured by the crew'.

Held, dismissing the appeal: (1) there is no substance in the above submission. No inference could be drawn from cl 25(c) of the first Collective Agreement that the amounts of S$90 and S$60 were genuine pre-estimates of the expenses necessarily incurred by the employees of the company who were engaged as locally engaged bunkering employees; (2) the trial judge was correct on the evidence before him in finding the appellant company guilty and the appeal must accordingly be dismissed.

Lian Soon Shipping & Trading Co (Pte) Ltd v Public Prosecutor [1984] 2 MLJ 97 High Court, Singapore (Wee Chong Jin CJ).

On 20 October 1973, the late Prime Minister Tun Abdul Razak issued a statement about the government's decision to implement a two-pronged strategy to help Malaysians of the lower income group. The first prong which was meant for government employees was in the form of a special relief allowance (SRA). The SRA proviso expressly stated it to be a temporary allowance not subject to income tax or EPF contribution. The plaintiff has sought for a determination whether the SRA paid to the first defendant's employee in the private sector is in fact wages as defined in the Employees Provident Fund Act 1951 (Act 272, Revised 1982) ('EPF Act'), and whether, therefore, the first defendant would have to pay Employees Provident Fund in respect of these allowances. The plaintiff's arguments are based on a two-pronged approach (i) that SRA by the employer was contractual and non-discretionary in nature and would therefore attract EPF contributions, and (ii) that SRA would attract contribution by operation of law.

Held, giving judgment for the plaintiff: (1) the plaintiff had failed to prove that the SRA in the present case arises out of the contractual terms entered into between the plaintiff and the first defendant. Here, there was no such intention between the parties to treat SRA as wages, no specific terms stating that SRA would be taken into consideration when deciding wages were present, and it was clear that the SRA payments were temporary relief that could be withdrawn at any time; (2) the term 'together with' in s 2 of the EPF Act should be construed literally and be given its plain and ordinary meaning within the context of that definition to read as 'inclusive of' or 'in union with'; (3) so long as it can be taken explicitly or impliedly as an allowance paid by the employer to relieve the employee of the high cost of living, it will fall within the definition of wages; (4) wages under the EPF Act is not confined to the remuneration due to the employee under his contract of service in circumstances specified under paras (a), (b) and (c) of that definition only, but will include any other allowance payable in respect of high cost of living. It is immaterial in what name one calls it;although the initial intention and policy of the late Prime Minister was to make SRA a temporary allowance and not to treat it as wages, it is nevertheless caught by the definition of wages in s 2 of the EPF Act as the primary purpose of such allowance is undeniably related to the high cost of living allowance.

Ehambaram & Anor v Consolidated Plantation Bhd & Ors [1992] 2 CLJ 1002 High Court, Melaka (Wan Yahya J).

The appellant company was charged, convicted and fined by a magistrate's court on six charges under s 29(1) of the Central Provident Fund Act (Cap 121, 1970 Ed) ('the Act') in that in respect of six employees the company failed to pay contributions in accordance with the rates payable as required by s 7 of the Act. The company appealed and the only issue raised by the company was whether the transportation allowances paid to the six employees under cl 26(a)(ii) and (b) of a collective agreement dated 31 March 1978 fall within the definition of 'wages' in s 2 of the Act. 'Wages' is defined thereunder as 'the remuneration in money, including any bonus, due or granted to a person in respect of his employment'.

Held, allowing the appeal: (1) the payments made by the company under cl 26(a)(ii) were in the nature of reimbursements of transportation expenses incurred by the employees. Whenever an employee of the company is required to attend for work in circumstances which entitle him to transportation under cl 26(a) but the company is unable to supply its own transport, the employee has the immediate right under cl 26(b) to be reimbursed by the company for the transportation expense incurred by him; (2) the fact that for administrative convenience the employee was not reimbursed immediately but was reimbursed at the same time as his salary did not alter the nature of the payment from reimbursement to reward for services rendered.

PN Electronic Pte Ltd v Public Prosecutor [1985] 1 MLJ 279 High Court, Singapore (Wee Chong Jin CJ).

The applicant sought for a declaration that he was entitled to withdraw the whole of the money standing to his credit with the Employees Provident Fund. He was an officer in the service of the Federal Government and had since left and was at the time of these proceedings a judicial officer in the Borneo States. Under s 13(1)(d) of the Employees Provident Fund Ordinance1951, withdrawal was permitted if an employee was about to leave 'Malaya' with no intention of returning. The sole issue was whether 'Malaya' meant 'Malaysia' thus including the Borneo States.

Held: the word 'Malaya' and 'States of the Federation' appearing in the Employees Provident Fund Ordinance 1951 and the Interpretation and General Clauses Ordinance 1948 were not amended to fit in with the new changes on the formation of Malaysia. However, since under the proviso to s 73(1) of the Malaysia Act 1963, reference to the Federation were to be construed as references to Malaysia and expressions importing such a reference were to be accordingly construed, it followed that reference to the States of the Federation would be construed to mean the States of Malaysia and Singapore and with the secession of Singapore it would then mean the States of Malaysia.

Reddy v Employees Provident Fund Board [1967] 2 MLJ 82 High Court, Kuala Lumpur (Raja Azlan Shah J).

The appellant, a magistrate in West Malaysia, was a member of the Employees Provident Fund. He resigned from his employment, intending to work as a magistrate in East Malaysia, with no intention of returning to West Malaysia. He applied to withdraw the money standing to his credit from the fund under s 13(1)(d) of the Employees Provident Fund Ordinance 1951, on the ground that he was 'about to leave Malaya with no intention of returning thereto'. The respondent, the Employees Provident Fund Board, refused him authority to withdraw. The appellant applied to the High Court for a declaration that he was entitled to withdraw the money standing to his credit in the fund. The application was dismissed ([1967] 2 MLJ 82). In an appeal from this decision, the question before the Federal Court was whether, at the relevant date 30 September 1965 the word 'Malaya' in s 13(1)(d) of the Employees Provident Fund Ordinance 1951 included East Malaysia.

Held, allowing the appeal: the word 'Malaya' in s 13(1)(d) of the Employees Provident Fund Ordinance 1951 did not include East Malaysia at the relevant date for the following reasons: (i) s 2 of the Interpretation and General Clauses Ordinance 1948 defined 'Malaya' as 'the States of the Federation and Singapore'; (ii) under s 73(1) of the Malaysia Act 1963 (as amended by Act No 31 of 1965) any reference in any law existing before Malaysia Day, to the Federation shall be construed as reference to Malaysia, 'unless the context otherwise requires, or it is otherwise provided by any written law'; (iii) the context in which the word 'Malaya' was used in s 13(1)(d) of the Employees Provident Fund Ordinance 1951 required the court not to construe 'the States of the Federation' in the Interpretation and General Clauses Ordinance 1948 to mean Malaysia for the purposes of the Employees Provident Fund Ordinance 1951. At the relevant date, 30 September 1965, the ordinance did not apply to East Malaysia, and 'leaving Malaya' therefore could only mean leaving the States of West Malaysia and Singapore. Per Suffian FJ: 'The Interpretation and General Clauses Ordinance É still defines the States of the Federation as meaning only what is now West Malaysia É in my view effect must continue to be given to the definition in the Interpretation and General Clauses Ordinance. To hold otherwise would be to treat the amendment (No 31 of 1965) as surplusage.' Per MacIntyre FJ: 'É even if the amendment of s 73(1) of the Malaysia Act 1963 had not been effected by the addition of the words "unless the context otherwise requires or it is otherwise expressly provided by any written law", I would have still allowed this appeal.'

Reddy v Employees Provident Fund Board [1968] 2 MLJ 77 Federal Court, Kuala Lumpur (Barakbah LP, Suffian and MacIntyre FJJ).

The respondent company was a private company dealing in provisions, medical supplies and general merchandise. The business of the respondent company was conducted and managed by a group of persons known as working assistants who were rewarded by a share of the profits. All capital required by the business was provided by the company and all labour and skill in the conduct and management of the business were supplied by the working assistants. The two issues that were raised in this case were: (a) whether the working assistants were employees within the meaning of the Employees Provident Fund Ordinance 1951, that is whether they were persons employed under a contract of service to work for an employer; and (b) whether even if the working assistants were employees within the meaning of the ordinance, contributions were payable by them towards the Employees Provident Fund. The learned trial judge held that the working assistants were not employed under a contract of service and he also held that no contributions were payable by them. The appellant appealed to the Federal Court.

Held: (1) that they were employed as part of the business and their work was done as an integral part of and not as an accessory to the business. The working assistants were therefore under a contract of service and not a contract for services and they were employees within the meaning of the Employees Provident Fund Ordinance 1951; (2) the correct conclusion to be drawn from the evidence was that there was a sufficiency of control or that the working assistants were part and parcel of the organization;what the working assistants received each year were not wages as defined in the Employees Provident Fund Ordinance 1951 and, therefore, contributions were not payable by them to the Employees Provident Fund.

Employees Provident Fund Board v MS Ally & Co Ltd [1975] 2 MLJ 89 Federal Court, Kuala Lumpur (Gill CJ (Malaya).

This was an appeal against the judgment of the learned magistrate ordering the appellant to pay a sum of RM936 in respect of a claim by the respondents. The respondents' claim was in respect of the value of one case of locksets lost while in the custody and possession of the appellant. The learned magistrate held that as the appellant was a bailee, mere proof of loss by the respondents was sufficient by invoking the doctrine res ipsa loquitur to show that the appellant was negligent thus placing the burden upon the appellant to show absence of negligence on its part.

Held, allowing the appeal: (1) it is clear from the language of r 91(1) of the Port Authority Byelaws 1965 that in exercising its statutory functions with regard to the storage of goods, the Authority is not liable for loss of goods in its custody unless actual fault is established; (2) the burden of proof in this case therefore, unlike the position at common law, is cast upon the respondents and as they had failed to discharge this burden of proof, judgment should have been given against them.

Port Swettenham Authority v Sharikat Lee Heng Sdn Bhd [1971] 1 MLJ 110 High Court, Kuala Lumpur (Abdul Hamid J).

This was an appeal against the decision of the High Court ([1971] 1 MLJ 110) allowing an appeal from the decision of the magistrate allowing a claim by the plaintiffs/appellants for the sum of RM936 being the value of one case of locksets lost while in the custody of the defendant/respondent. The learned magistrate had found as a fact that four cases were delivered into the custody of the respondent, but when the appellants' agent went to collect them, only three cases were to be found in the respondent's warehouse. These findings were affirmed by the learned judge who heard the appeal. The magistrate took the view that, in the circumstances, the doctrine of res ipsa loquitur applied, that there was prima facie proof of negligence and that 'the onus is thrown on the defendants to show that there was no negligence on their part or, at least, to give an explanation of the accident which is consistent with the absence of negligence'. This the defendant failed to do; consequently, r 91(1) of the Port Swettenham Authority Byelaws 1965 which provided that 'The Port Authority shall not be liable for any loss, destruction of deterioration arising from delay in delivery or detention or misdelivery of goods or for any other cause unless such loss ... has been caused solely by the misconduct or negligence of the Authority or its officers or servants', did not relieve the defendant of the onus of proving that the loss was not due solely to its own negligence or that of its officers or servants. On appeal, the learned judge took the contrary view of the rule and held that for the (present) appellants to succeed, the onus was upon them to show that the loss was due solely to the negligence of the respondent or its officers or servants. The issue before the Federal Court was whether, on the true construction of r 91(1), the operation of common law principles is by that rule excluded so as to shift the burden of proving how the goods came to be lost from the bailee for reward to the bailor.

Held, allowing the appeal: (1) the contra proferentem rule should apply to the construction of r 91(1) just as much as it does to any exemption clause in a contract. The very fact that serious controversy had arisen as to whether the rule had placed the onus of proof on the bailor or bailee to show how the goods came to be lost, clearly demonstrates that it suffers from ambiguity; (2) in the case of non-delivery, all that the bailor need plead is the contract and a failure to deliver on demand. That puts on the bailee the burden of proving either loss without his fault (which would be a complete answer at common law) or, if the loss was due to his fault, that it was a fault from which he is excluded by the exemption clause. Mere non-delivery, therefore, is prima facie evidence of negligence this being a case of res ipsa loquitur. And 'once negligence on the part of the defendant had been established and this negligence could have caused the loss, it was eminently reasonable to ask them to prove that in fact it did not'; (3) upon the evidence in this case, the learned magistrate was fully justified in coming to the conclusion that the loss had been caused 'solely by the negligence of the Authority or its officers or agents.' There was no suggestion on the part of the defence that it was otherwise and pure speculation as to other possibilities cannot take the place of evidence; (4) in this case, the evidence was conclusive in the appellants' favour; the onus as a determining factor, therefore, did not arise.

Sharikat Lee Heng Sdn Bhd v Port Swettenham Authority [1971] 2 MLJ 27 Federal Court, Kuala Lumpur (Ong CJ (Malaya).

The plaintiffs claimed damages arising from the defendants' failure to deliver some cases of whisky which were discharged from a vessel into the custody of the defendants as bailees for reward for delivery to the plaintiffs' licensed warehouse. The goods were lost and the evidence showed they had been lost during carriage from the ship to the wharf of the defendants. The defendants admitted that they were bailees for reward but contended that: (a) they had not entered into any contract with the plaintiffs but had accepted the goods subject to the port regulations and the terms and conditions of the relevant bills of lading; (b) the loss was not due to any neglect or default on their part; and (c) in any event, their liability was limited by the port regulations.

Held: (1) there was in fact an express contract between the plaintiffs and the defendants as evidenced by the delivery orders and the consignment notes; (2) the loss of the goods in this case was due to negligence on the part of the defendants' servants in leaving valuable pilferable goods unattended; (3) as the defendants were not a party to the bills of lading, they could not rely on any clause in the bills of lading; (4) the loss of goods in this case was due to the negligence of the defendants' servants in that they were remiss in the performance of routine duties, and therefore there was no 'actual fault or privity' on the part of the defendants within the meaning of reg 16 of the Port Swettenham Tariff Book No 1 and their liability was therefore limited under the regulations.

Sime Darby Ltd v Port Swettenham Authority [1966] 2 MLJ 116 High Court, Kuala Lumpur (Ong Hock Thye FJ).

The appellants claimed damages for breach of contract of bailment. They said that they were the consignees of a cargo of 3,960 loose rubber tyres which arrived in Singapore on 4 July 1946 from Bombay. They alleged that the respondent board received the full number of tyres into their godown but delivered to the appellants 17 tyres short. The appellants on 1 August 1946 notified the respondent board of the loss of 17 tyres and on 19 June 1948, the writ was issued. The respondent board which was a statutory body incorporated by the Ports Ordinance (Cap 149) contended that under the ordinance they have powers to manage the Singapore harbour and carry on the business of warehousemen and as the action against them was for an act done in pursuance of the Ports Ordinance it was not maintainable because it was not commenced within six months after the alleged act, neglect or default complained of as required by s 2 of the Public Authorities Protection Ordinance (Cap 14). Brown J held that the respondent board had not discharged their burden of proving that the loss of the tyres was not due to any fault of theirs and the respondent board could not claim the protection of the Public Authorities Protection Ordinance as they were dealing with the appellants as individuals in the course of an implied contract, which was an incident in carrying on their business as warehousemen. The Court of Appeal in allowing the appeal held that the board were directly performing their duties as dock owners under the Ports Ordinance and were entitled to protection under the Public Authorities Protection Ordinance. On appeal to the Privy Council,

Held, dismissing the appeal: the board had, under the powers conferred on them, elected to carry on the activities of wharfingers and warehousemen themselves; such activities were essential to the proper running of the port for which they were responsible, and so constituted one of the main purposes for which they had received their powers. The board were, accordingly, entitled to the protection of the ordinance.

Firestone Tire & Rubber Co (SS) Ltd v Singapore Harbour Board [1952] MLJ 145 Privy Council Appeal from Singapore (Lord Normand, Lord Tucker, Lord Asquith of Bishopstone and Lord Cohen).

Coramas Sdn Bhd v Rakyat First Merchant Bankers Bhd & Anor [1994] 1 MLJ 369 Supreme Court, Kuala Lumpur (Harun Hashim and Edgar Joseph Jr SCJJ and Lim Beng Choon J).

Notwithstanding s 32 of the Government Suits Enactment (Cap 17), claims for sums due in respect of electricity and water supplies are not entitled to any priority in the distribution of the property of a bankrupt under s 38 of the Bankruptcy Enactment.

Re Lim Hee Kung [1939] MLJ 51 High Court, Federated Malay States (Cussen J).

[Annotation: Priority in the distribution of a bankrupt's property is now governed by the Bankruptcy Act 1967 (Act 55/1967).]

The appellant company pleaded guilty to a charge under s 5(1) of the Building Control Act (Cap 29) (the Act) for carrying out building works without approval and was convicted. The statement of facts alleged that the appellant, having been previously convicted of an offence under s 5(1) of the Act, allowed the unauthorized structure to remain erected throughout the relevant period. However, it did not allege that any building work was carried out during the relevant period. The appellant was fined a total of $197,600. The notice of appeal was against sentence only. The appellant filed a petition of appeal against conviction and sentence. The Deputy Public Prosecutor conceded that the facts as stated did not constitute any offence under s 5 of the Act.

Held, dismissing the appeal, but exercising the High Court's power of revision to quash the conviction and sentence: (1) since there was no allegation of any building work being carried out by any person at all Ð much less the appellant Ð during the relevant period, no offence under s 5 of the Act could have been committed by the appellant; (2) where it was manifestly plain that the offence charged was nowhere disclosed in the statement of facts, the correct procedure was to apply for revision. The revisionary powers given to the High Court were very wide and there was no need to stretch the meaning of the provisions in the Criminal Procedure Code (Cap 68) (CPC) in order to do justice in a case such as this. In the present case, the error was compounded by the fact that the notice of appeal stated that the appeal was only against sentence. Nevertheless, the error was so fundamental that the court should still exercise its extensive powers of revision under ss 266 and 268 of the CPC and quash the conviction; (3) in the event, the proper thing to do was to dismiss the appeal, but at the same time, the court would exercise its powers of revision to quash the conviction and sentence; (4) (per curiam) section 5 of the Act dealt with the commencement or carrying out of building works and had nothing to do with what was to be done to any structure which had been built in contravention of s 5. The latter was covered by s 13, which empowered the Building Authority to make the relevant orders. The scheme of the Act required the Building Authority to make a decision as to what was to be done with the unauthorized structure that had been constructed. It was up to the authority then to issue the relevant order. An offence was not committed by merely allowing the structure to remain intact.

Chen Hock Heng Textile Printing Pte Ltd v Public Prosecutor [1996] 1 SLR 745 High Court, Singapore (Yong Pung How CJ).

The appellant was the trustee of the estate which owned No 5 Oxley Rise (No 5), which was situated on the summit of a hillock. No 35 Oxley Road was situated on a lower level at the back of No 5. In 1992, an earthslip occurred on the slope located on the border of the two properties as a consequence of the collapse of a retaining wall which had been supporting the steep slope between the two properties. After investigations, the Building Control Division (BCD) took the view that the slope was dangerous and issued an order under s 23 of the Building Control Act (Cap 29, 1990 Ed) (the Act) to the appellant to take immediate action to protect it from further erosion, to engage a professional engineer to inspect the site and recommend remedial measures, to submit those recommendations for approval by the BCD and to execute the approved measures. The appellant complied with the foregoing orders except that she could not execute the measures recommended by her professional engineer because the recommended measures included the building of a drainage connection on No 35, which the owner of No 35 refused to allow on his property. Although requested by the appellant to intercede, the BCD did not perceive it within their power to order the construction of the connection. The appellant was subsequently willing to proceed without the drainage connection. However, on the advice of her professional engineer, she insisted that the rectification works had to proceed in co-ordination with the related works which would have to be done on No 35 because of safety considerations. Without the co-operation of No 35's owners, the appellant refused to continue. The BCD brought charges against the appellant for non-compliance with the order and she was convicted. She appealed.

Held, allowing the appeal: (1) the court agreed with the district judge that if the original measures proposed by the professional engineer and approved by the BCD could not have been implemented because of No 35's refusal to allow the construction of the drainage connection or because of non-cooperation in the execution of the proposed works, then it was incumbent on the appellant to come up with new alternative proposals. The onus was on the landowner subject to the order to ensure that the measures could be practically implemented. The proposition that the landowner could let the matter rest and not proceed with an alternative course of action was incorrect; (2) it was undisputed that the order had not been complied with and there had been a breach of the order. The inability to obtain the consent of No 35 or the lack of alternative measures were questions more properly considered in the context of whether the appellant had a `reasonable excuse' for non-compliance as provided under s 23(3) of the Act; (3) the appellant had reasonable excuse for non-compliance with the BCD order. The district judge misdirected himself in determining this issue by weighing the expert evidence on the question whether the works could have proceeded independently of those on No 35. What was at issue was the appellant's conduct and mental state, not her professional engineer's. Whether she had reasonable excuse had to be answered from the perspective of the reasonable landowner at the relevant time without the benefit of the detailed arguments presented in court. The order compelled the landowner to engage a professional engineer to inspect the site of the slope failure and propose remedial measures. This the appellant complied with. Having engaged the professional engineer and taken his advice, it would have been unfair then for the law to demand that the landowner undertake measures against the advice of that engineer especially since his recommendations were not challenged as unreasonable or without basis; (4) public safety was an important consideration but this did not require the adoption of measures which the appellant's engineer was unable to accept as safe. This was especially so since the appellant had already taken temporary measures to stabilise the slope and therefore there was no immediate danger of slope failure, a fact that was supported by the BCD's apparent lack of urgency in pursuing the matter. With no immediate danger, it was more arguable that the appellant had a reasonable excuse to hold out until the solution preferred by her engineer was feasible; (5) the much greater cost and inconvenience posed by the alternative remedial measures were important factors in determining the reasonableness of the appellant's non-compliance, especially in light of the lack of immediate danger of further slope failures occuring.

Lim Ghee v Public Prosecutor [1997] 2 SLR 404 High Court, Singapore (Yong Pung How CJ).

The plaintiff company ('the plaintiffs') was the registered proprietor of a piece of land known as Lot Nos 368Ð370, Mukim 15, Jalan Telaga Ayer, Pulau Pinang ('the land'). The plaintiffs had completed construction of a five-storey building on the land in late May 1991. They had already been issued with a certificate of practical completion from their architect on 31 May 1991. The plaintiffs went on to apply for the occupation certificate of fitness ('the OCF') on 9 July 1991. The defendants rejected the plaintiffs' application. The reasons given by the defendants were the non-compliance by the plaintiffs with certain prerequisite conditions, namely, (a) the completion of the remaining 20% of reconstruction and upgrading of the monsoon drain on state land notwithstanding the presence of unauthorized or illegal occupiers; and (b) the construction of a concrete perimeter drain along the eastern and southern boundary of the land under development, which did not appear in the amended layout plan ('CAB 3'). The plaintiffs contended that there was no justification for the defendants to require the plaintiffs to complete reconstruction and upgrading on the monsoon drain as that portion of land was occupied by squatters. It was the responsibility of the defendants to make that portion of land vacant and available to enable the plaintiffs to complete the balance of 20% construction works on the monsoon drain. Further, the concrete perimeter drain was not a condition stipulated in CAB 3 as the only drain required by CAB 3 was the building drain running along the building proper. Therefore, having approved CAB 3 without the previous condition stipulated in the earthworks plan ('CAB 2'), the defendants should not overlook the condition in CAB 3 and impose new requirements on the plaintiffs. Therefore, the plaintiffs brought an action to the High Court and prayed for (i) a declaration that the defendants were not justified in the exercise of discretion to require the plaintiffs to construct the perimeter drain along the boundary of the land before the issuance of the OCF; (ii) a declaration that the defendants were not justified in the exercise of discretion to require the plaintiffs to complete the construction of the monsoon drain notwithstanding the presence of the squatters; and (iii) damages in respect of the loss and damages suffered due to the refusal to issue the OCF.

Held, allowing the declarations prayed for by the plaintiffs and ordering damages to be paid by the defendants: (l) the defendants' insistence that the plaintiffs complete the reconstruction and upgrading of the monsoon drain in the presence of squatters was wholly unwarranted and without any basis in law. The requirement was unjustified as the defendants knew fully well that the plaintiffs had no standing in law to evict squatters from state land. Further, the requirement was so unfair, unreasonable and impossible to perform, as to go beyond anything intended by the provisions of the Act. Such unreasonableness fell within the ambit of the definition of 'so unreasonable' laid down under the Wednesbury principle. A local authority must act in a manner which does not offend against common sense. In fact, it was the bounden duty of the defendants to make the state land available for the completion of the construction of the monsoon drain; (2) it was also wholly impermissible in law and without any justification to hold that the requirement in CAB 2 pertaining to the construction of a perimeter drain should be read into or in conjunction with CAB 3. Considering that a local authority has ample and wide powers under s 22(3) of the Town and Country Planning Act 1976 ('the Act') to impose such 'conditions as it deems fit' when granting planning permission, it would be wholly unfair and unjust to allow them to impose fresh conditions especially at the stage of issuance of the OCF, and after the developer had already incurred considerable construction expense. Therefore, the defendant's requirement that the monsoon drain, which was not in CAB 3, be constructed, as a condition for the issuance of the OCF was not justified in law and was ultra vires the Act; (3) due to a lapse of such long period between the respective approvals of CAB 2 and CAB 3, it would not be unreasonable for the plaintiffs to presume that CAB 3 superseded CAB 2 and was the final and the sole reference planning permission under the Act. Also, the very approval of CAB 3 presupposed the acceptance by the defendants that the earthworks had been completed in accordance with CAB 2. Consequently, it's absence would indicate that such drain was not a requirement in the development of a five-storey building, though it may have been a requirement in respect of the originally intended 11-storey building. In law, it was CAB 3 and the conditions indorsed therein and not CAB 2 that constituted the planning permission. Further, the construction of the proposed concrete perimeter drain would create an absurdity, as such drain would run parallel along the center of the 40 ft proposed road to be constructed by the plaintiffs and the public works department; (4) it was trite law that challenges based on distinct principles of public law or general issues of law unconnected with the specific statutory code may be dealt with by judicial review. The courts will usually allow judicial review where an applicant raises an arguable case that a public body has acted for an improper purpose, or has acted unfairly, or raises the general question of the extent to which representation can bind public bodies. Public bodies, like private individuals, are capable of committing tortious acts with the same principles generally applicable. A public body which commits an ultra vires act, either maliciously or knowing that the act is ultra vires, may be liable in tort; (5) a claim for damages cannot be made in isolation. There were now clear indications that the courts will not award damages against public authorities merely because they have made some order which turns out to be ultra vires, unless there is bad faith or malice or conscious abuse. However, the courts have been prepared to find that there was bad faith and to award damages if an authority has manifestly and gravely disregarded the limits on the exercise of its powers with resultant loss, in which case damages is the logical remedy for loss caused by unlawful administrative action; (6) the defendants had by their conduct shown bad faith in refusing to issue the OCF as they knew or should have known that they did not possess the power to make the two requirements. The admitted facts would unfortunately leave an irresistible impression in the court's mind that rather than abiding by the layout plan that they themselves had approved, they had unseemingly attempted to rely on their administrative clout, through non-issuance of the OCF, to justify what may have been misapproved. Such reliance on their administrative clout was definitely tantamount to bad faith or malice on their part. Therefore, damages was ordered to be paid upon assessment by the senior assistant registrar; (7) a claim for damages may be included in an application for judicial review. Such a claim can only be made in addition to a claim for the prerogative remedies or a declaration or injunction;(per curiam) (a) to require that CAB 2 be read in conjunction with CAB 3, would run foul of ss 91 and 92 of the Evidence Act 1950 and established authorities. Also, as there was no ambiguity or defects in CAB 3, and even if there was such defect or ambiguity, s 93 of the Evidence Act 1950 would exclude extrinsic evidence to amend or explain such document. Indeed, only the intentions as expressed in CAB 3 may be construed.

Tropiland Sdn Bhd v Majlis Perbandaran Seberang Perai [1996] 4 MLJ 16 High Court, Penang (Vincent Ng J).

Lim Ghee v Public Prosecutor [1997] 2 SLR 404 High Court, Singapore (Yong Pung How CJ).

P gave D an option to buy his house. It transpired that P had made some alterations to the house. These included roofs over the patio and entrance, construction of a metal structure where the garage and servants' quarters used to be, additional toilet in the servant's room and new roofing to the exterior of the dining and kitchen areas. P sought the aid of a registered architect, who advised that the alterations mentioned required planning approval. D thereupon rescinded the sale and demanded the return of their 10% deposit. P commenced proceedings for a declaration that D were not entitled to rescind.

Held, dismissing the application: (1) the term 'building works' in the Building Control Act (Cap 29) covered the 'alteration, addition or repair of a building'. The renovation works carried out by P therefore required approval of the Building Authority; (2) the absence of such approval was a latent defect of title which justified rescission by D.

Huang Ching Hwee v Heng Kay Pah & Anor [1991] 1 MLJ 15 High Court, Singapore (Goh Joon Seng JC).

[Annotation: Reversed on appeal. See [1993] 1 SLR 100.]

This was an appeal against the allowance by the registrar of profit costs in a bill of costs brought in by the defendants. At the trial, a Federal counsel appeared for the defendants. It was argued by the plaintiff-appellant that the Federal counsel is entitled only to recover actual out-of-pocket expenses.

Held: the defendants in this case can only claim their actual out-of-pocket expenses.

Chellappah v Malayan Railway Administration [1949] MLJ xiii High Court, Selangor (Spenser-Wilkinson J).

Public moneys in the hands of the Paymaster, Malaya Command, cannot be garnished. Section 11 of the Courts Ordinance does not give the court the power to order the attachment of such moneys and Order XLI and Order XLIII cannot be construed as conferring any such power.

Poh Yee Choi & Anor v Shun Fah & Co; Paymaster, Malaya Command (Garnishee) [1948] MLJ 102 High Court, Straits Settlements (McElwaine CJ).

A garnishee summons notice and a garnishee summons were served on the Superintending Civil Engineer, HM Naval Base, Singapore, as garnishee and after hearing the summons, the district judge ordered the garnishee to pay a sum of money to the bailiff on account of the judgment debtors out of the money in his hands due to the judgment creditors. The money sought to be attached was due to the judgment debtors under contracts made between them and the Lords Commissioners of the Admiralty.

Held: there is no jurisdiction in any court in the Colony to compel the Lords Commissioners of the Admiralty to pay any money in the absence of a submission to the jurisdiction.

Extra Assistant Controller of Labour v Shah Singh & Anor [1946] MLJ 82 High Court, Straits Settlements (McElwaine CJ).

Section 50 of the Crown Suits Ordinance refers in the case of a writ of extent on mesne or final process, to an unexecuted writ. A writ of extent issued under the ordinance is executed, as in the case of a writ of seizure and sale of immovable property in ordinary civil suits, as soon as the order attaching the judgment debtor's interest is registered, pursuant to RSC Order XLI, r 1 in the Registry of Deeds.

Re Yap Geok Song, deceased [1938] MLJ 122 High Court, Straits Settlements (McElwaine CJ).

In this case, the plaintiffs had taken out a writ of summons against the Conservator of Forests to recover the sum of RM6,588 which they claimed to have paid as royalty under a mistake of law or fact. The defendant applied by motion to have the writ of summons and service of the writ set aside on the ground of irregularity.

Held: (1) as the proceedings were against the government of a state it should have been instituted against the government; (2) in an action against the government no writ of summons shall be served but only a notice thereof; (3) service should have been effected on the State Attorney General instead of the Conservator of Forest; (4) the defendant in this case, by writing two letters after the service of the writ, had not taken any 'fresh step' in the motion so as to preclude him from making the application to have the writ of summons and service thereof set aside.

Fook Lee Bros v Conservator of Forests [1970] 2 MLJ 60 High Court, Kota Kinabalu (Lee Hun Hoe J).

The plaintiff sued the driver of a government vehicle and the Penang State Government, his employer, for damages arising out of an accident. After the expiration of one year, Hepworth J allowed an application under RSC O 16 r 12 by the plaintiff to substitute the government of Malaysia in place of the Penang State Government as second defendant. The second defendant then applied to set aside the writ on the ground that the plaintiff's right of action was barred by s 2 of the Public Authorities Protection Ordinance 1948.

Held: the court cannot read into the section that no public authority can be sued for the acts of its officers unless action was also instituted simultaneously against the authority within 12 months next after the act (of its officer) complained of.

Ponnusami v Ratnam & The Government of Malaysia [1965] 2 MLJ 268 High Court, Penang (Ong Hock Sim J).

A claim for loss sustained by the Crown, by reason of the breach by the defendant of his contract although such loss may be calculated and found by the officers of the Crown to be a particular sum is not a claim for an 'ascertained sum', within s 2 of the Crown Suits Ordinance XV of 1876; but a claim for 'damages or account' within s 3. Where an information and writ of summons for such a sum, was filed and issued under s 2,

Held: the defendant was quite right to apply, by summons-in-chambers and before applying for leave to defend, for an order to set aside such proceedings as being irregular, and the summons was set aside with costs. The writ of summons, in Form C1 of the said ordinance is intended to be used in cases falling within both s 2 and 3: but at the time of issue ought to be so adapted as to meet the provisions of the particular section under which it is issued, by striking out the alternative sentences which apply to the other section.

Attorney General v Chew Sin Yong & Anor [1890] 4 Ky 680 High Court, Straits Settlements (Wood J).

The respondent had claimed payment of moneys due under a series of building contracts entered into between him and the appellants, the government of Malaysia for the building of primary schools. At the trial, the appellants had pleaded s 2 of the Public Authorities Protection Ordinance 1948. The trial judge held that the respondent's claim was barred but on appeal, the Federal Court ([1972] 2 MLJ 12) held that the contractual obligation in this case was not in pursuance of a public duty and therefore did not come within the provisions of s 2 of the Public Authorities Protection Ordinance 1948. The appellants appealed to the Privy Council.

Held: in this case, the right of the respondent was correlated not with a statutory right or duty which was the provision of education but with the obligations entered into by the appellants in their contract with the respondent and, accordingly, the respondent's claim was not barred by the Public Authorities Protection Ordinance 1948.

Government of Malaysia v Lee Hock Ning [1973] 2 MLJ 5 Privy Council Appeal from Malaysia (Lord Wilberforce, Lord Hodson, Lord Kilbrandon, Lord Salmon and Sir Seymour Karminski).

This appeal concerned the non-payment of moneys due and owing under a series of building contracts entered into between the appellant, a building contractor, and the government of Malaysia. In the court below, the respondent pleaded s 2 of the Public Authorities Protection Ordinance 1948. In the result, the learned trial judge merely referred to s 38 of the Government Proceedings Ordinance 1956 as importing the special period of limitation to the proceedings before him. He accordingly held that the appellant's claim was barred to the extent of RM10,749.25. The building contractor appealed. Counsel for the respondent contended that as the contract for the building of schools was entered into in the performance of a public duty or was incidental thereto, s 2 of the Public Authorities Protection Ordinance 1948 applied so that the action should have been brought within 12 months next after the act, neglect, or default complained of in relation to that contract.

Held, allowing the appeal: (1) the non-payment of moneys was not in pursuance of a public duty. Consequently, it could not have come within the provisions of s 2 of the Public Authorities Protection Ordinance 1948. It is immaterial that the contract may have been entered into for the purpose of performing a statutory duty. If the act complained of is the breach of a contract, the statutory protection of the ordinance cannot be invoked on the ground that the contract was entered into for the purpose of carrying out duties imposed by the statute; (2) therefore, judgment must be entered for the appellant in the total sum of RM14,589.75 with interest at 6% per annum.

Lee Hock Ning v Government of Malaysia [1972] 2 MLJ 12 Court of Appeal, Ipoh (Ong CJ (Malaya).

The appellants were a statutory body set up pursuant to the Penang Development Corporation Enactment 1971 ('the Enactment'). The respondents had obtained judgment against the appellants in the sessions court for damages for breach of contract by the appellants arising from the late delivery of possession of a dwelling house to the respondents who had agreed to purchase it from the appellants. The appellants appealed against the decision of the sessions court to the High Court. By cl 11 of the agreement between the parties, construction of the dwelling house had to be completed and vacant possession thereof was to be given to the respondents within 18 calendar months from the date of execution thereof. By cl 25(b) of the agreement, it was provided that in the event of non-compliance by the appellants with the requirements of cl 11, the appellants would indemnify the respondents by the payment of interest on the purchase price calculated from the due date until the date of delivery of vacant possession. At the trial, it was contended for the appellants that cl 11, and consequently, cl 25(b) were ultra vires the enactment and that they had been included in the agreement without the authority of the appellants and so were not binding on the appellants. The contractor employed by the appellants to construct the dwelling house was, by government policy, a bumiputra contractor, and by the same policy, could not have its services terminated summarily, and therefore it was contended that the contractor's delay in completing construction of the dwelling house constituted circumstances 'beyond the control' of the appellants within the meaning of the proviso to cl 11 so as to exempt the appellants from liability. It was contended alternatively that the inclusion of cl 25(b) was unauthorized and so was not binding upon the appellants. The agreement had been drafted by the appellants' director of administration, and the draft agreement had been approved by the appellants' housing committee. The agreement was signed by the director of administration on behalf of the appellants. There was evidence, inter alia, that there were available other bumiputra contractors who were able to undertake the task of constructing the dwelling house and that the appellants had not enforced their right to impose on the appointed contractor the agreed penalty for the delay.

Held, dismissing the appeal: (1) under the Enactment, the appellants had the power to enter into contracts such as the agreement in the instant case. Clauses 11 and 25(b), being usual terms encountered in building contracts of the kind under consideration were terms incidental to the obligation of the appellants under the agreement to construct and sell the dwelling house, an activity in which the appellants were not only empowered by but were under a duty imposed by the Enactment; (2) there was evidence to support the finding that the housing committee was a duly authorized delegate of the appellants in all matters relating to housing and so was empowered to bind the appellants in such matters. The director of administration having obtained the prior approval of the housing committee to the contents of the agreement, he had express authority to enter into the agreement on behalf of the appellants. In any event, upon the facts, he had ostensible authority to do so; (3) the fact that the appellants were unaware that the Housing Developers (Control and Licensing) Act 1966 (Act 118) did not apply to it did not make the agreement not binding upon it. In all respects, the agreement was precisely the contract the parties had intended to make and so it was binding upon the appellants in every respect; (4) even accepting the existence of public policy, the delay in the delivery of vacant possession of the dwelling house was not caused as a result of public policy but rather by a travesty of public policy and, as such, was caused by circumstances well within the control of the appellants.

Penang Development Corp v Teoh Eng Huat & Anor [1992] 1 MLJ 749 High Court, Penang (Edgar Joseph Jr J).

[Annotation: Affirmed on appeal. See [1993] 2 MLJ 97.]

The plaintiffs applied for a declaration that they were entitled to be paid salaries and allowances in accordance with the scale for certificated Vernacular School Teachers and for repayment of deductions made from their salaries. The defendants, the government of Malaysia, applied for an order that the proceedings be set aside on the ground that the action was not commenced within 12 months of the alleged act as required by s 2 of the Public Authorities Protection Ordinance 1948.

Held: the relationship of the plaintiffs with the government in this case was purely contractual and therefore the claim was not barred by the Public Authorities Protection Ordinance 1948.

Sayah bin Muhammad & Ors v Government of Malaysia [1974] 1 MLJ 26 High Court, Alor Star (Syed Agil Barakbah J).

A defence that a Crown contract purporting to be made under the Excise Ordinance 1870, s 3, is not in the form prescribed by that section, and that therefore the defendants had not become entitled under that section to the exclusive rights of a farmer under that section, is a 'substantial ground of defence', and 'on the merits' within the meaning of the Crown Suits Ordinance 1879, s 2, cl 7. Quaere: is the form of contract prescribed by s 3 of the Excise Ordinance 1870 (as amended by Ordinance XV of 1881) obligatory on the Crown, and what is the effect of a departure from such a form.

Attorney General v Chew Sin Yong & Anor [1890] 4 Ky 680 High Court, Straits Settlements (Wood J).

In 1892, His Highness, the Sultan of Johore, granted to the plaintiff for a period of 99 years a concession of rights exercisable within a certain area in Johore Bahru which later came to be known as 'Kampong Ah Fook'. Such rights included gaming rights and privileges. Since 1879, it was the practice of the Johore Government to farm out rights of maintaining gaming houses within the area over which the farm extended. At the time, the concession was granted, there had already been in existence the General Farm in which the plaintiff was also interested. As a result of the rivalry between the farms, the government, on 21 July 1908 and latterly on 28 December 1914, ordered that none but the residents in Kampong Ah Fook should be allowed to game in the gaming house established there. To enforce compliance with these orders, police posted in and about the gaming house at Kampong Ah Fook were commanded to prevent non-residents from gaming there. During the period 1908-1914, two agreements of short duration were entered into between the government and the plaintiff whereby the plaintiff was allowed to receive non-residents to game at his gaming house in Kampong Ah Fook on payment of specified rents. In consequence of the government interference, the plaintiff alleged that his business had come to a standstill involving heavy losses. In an action, the plaintiff claimed a declaration that the concession in 1892 conferred upon him the absolute right to permit all persons irrespective of whether or not they were residents to game in Kampong Ah Fook, for the return of all moneys paid under the agreements aforementioned which it was said were entered into under duress, and for damages. On behalf of the defence, it was urged, inter alia, that the order of 21 July 1908 was made in pursuance of a judicial decision of His Highness the Sultan and was therefore res judicata, that the court was incompetent to adjudicate upon an order issued by His Highness holding the supreme executive power of the state and that by entering into the agreements, the plaintiff was estopped from claiming the declaration prayed for.

Held: (1) the conditions which govern the exclusion of jurisdiction on the ground of res judicata did not exist in the present case; (2) the Sultan was not above the law and that under the Constitution and by virtue of a declaration dated 22 April 1908 later amplified by s 392 of the Civil Procedure Code, the courts of the state were competent to pronounce upon the legality of the Sultan's executive acts; (3) upon the true construction of the document granting the concession, the restriction imposed therein was confined to the locality within which the plaintiff was to carry on business and not to the classes of persons who might do business with the plaintiff; (4) there was nothing from the evidence to justify a finding that the plaintiff entered into the agreements under duress and that, even if he did act under duress, he adopted the agreements after the duress had been removed; (5) the first agreement dated 27 January 1969 being in its nature a compromise of a disputed claim under bona fide for good consideration, the moneys paid under it were irrevocable; (6) the action being founded on the deed of concession and not upon the agreements or any of them, the plaintiff was not by entering into the agreements estopped from asserting his rights under the concession.

Wong Ah Fook v State of Johore [1937] MLJ 128 High Court, Johore (Whitley J).

The appellants, who were the executors and trustees of the estate of Tan Cheng Kee (deceased) held a lease of the land in question in this case which expired in September 1943. On this land had been erected theatres for the exhibition of cinematograph films. By the terms of the lease, the appellants were entitled to remove the buildings before the expiration of the lease but the Japanese authorities did not permit it. After the expiration of the lease, the Japanese authorities issued a temporary occupation licence, and this practice continued after the re-occupation until it was determined on 30 January 1947, subject to seven days' notice. Later, a warrant for dispossession was issued by a police court against the appellant and against this order they appealed. It was argued for the appellants that the Crown was bound by the Increase of Rent (Restriction) Ordinances, and that therefore the appellants did not lose the protection given by these ordinances to them as tenants in possession, even though an agreement is entered into which purports to convert the tenancy into a licence.

Held: the Crown is not bound by the Increase of Rent (Restriction) Ordinance and, therefore, the warrant for dispossession was rightly issued.

Estate & Trust Agencies (1927) Ltd v Sim Teng Chew [1948] MLJ 20 High Court, Singapore (Murray-Aynsley CJ).

This appeal concerned an aggrieved person's right to be heard before a mandatory order can be made against him under s 91 of the Street Drainage and Building Act 1974 ('the Act'). The appellant is the owner of No 7 Jalan 12/16A Petaling Jaya. The owners of the adjoining houses Nos 7, 9 and 11 share a common sewer, which is located in the grounds of No 11. The arrangement worked satisfactorily for a number of years before the owner of No 11 wanted out and complained to the Majlis Perbandaran Petaling Jaya ('MPPJ'). On 22 April 1994, the MPPJ gave notice by AR Registered post to the appellant that he was 'advised' to construct a private individual septic tank on his own land to obviate the problems which would arise from the prospective closure of the communal tank by the owner of No 11. This letter did not state in so many words that it was being issued pursuant to the powers in s 58(14) of the Act, nor did it contain any warning that if it was not complied with, steps would be taken to enforce it by way of a mandatory order. The appellant responded giving his reasons why he should not be required to comply with the notice. On 15 July 1994, the enforcement officers of the MPPJ appeared before the learned magistrate and made a complaint that the appellant had committed an offence under s 58(14) of the Act by failing to comply with the notice of 22 April. Consequently, the MPPJ filed and obtained an ex parte mandatory order against the appellant, purportedly under s 91(1) of the Act that the appellant do build the said septic tank. Held, allowing the appeal: (1) s 58(14) of the Act is directed at the owner of the land on which an existing septic tank is situated. It does not impose liability on the owner of an adjoining land where there is no septic tank to build one. Further, the section by itself does not create any offence; (2) it is a fundamental concept of all laws that no person shall be condemned without first giving that person an opportunity to be heard; (3) s 91(1) contemplates a hearing of both sides. That result can only obtain if the local authority makes its complaint in writing, and reasonable notice is given to the person against whom the order is sought to attend the hearing. The words 'summary order' in s 91(1) are not intended to mean that the respondent to the complaint has no right to be heard at all before the order is made; (4) the ex parte order was set aside and the learned magistrate was directed to fix a date for the hearing of the complaint inter partes before any order was made thereon.

Subramaniam v Yang Di Pertua Majlis Perbandaran Petaling Jaya Criminal Appeal No 41-161-93 High Court, Shah Alam (Shankar J).

The word 'action' in s 2(2) (a) of the ordinance does not include a criminal prosecution and accordingly it is not necessary to give one previous month's notice in writing of an intended criminal prosecution in a case falling within that ordinance.

R v Kappaya [1935] MLJ 237 High Court, Straits Settlements (Burton Ag CJ).